SCA/6639/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6639 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= AMARSHIBHAI MULJIBHAI PARMAR (IN CAPACITY AS PRESIDENT OF & 1 - Petitioner(s) Versus JETHABHAI CHANABHAI RATHOD & 2 - Respondent(s) ========================================================= Appearance : MR HARSHIT S TOLIA for Petitioner(s) : 1 - 2.MR PARTH S TOLIA for Petitioner(s) : 1 - 2. MR PRAVIN GONDALIYA for Respondent(s) : 1 – 2. MR VIPUL MISTRY, AGP for Respondent No.3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 06/08/2008 ORAL JUDGMENT 1. Rule. Shri Pravin Gondaliya, learned advocate waives service of notice of Rule on behalf of the SCA/6639/2008 2/7 JUDGMENT respondents No.1 and 2 and Shri Vipul Mistry, learned AGP waives service of notice of Rule on behalf of respondent No.3 newly added respondent Collector, Rajkot. With the consent of learned advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioners – original plaintiffs of Regular Civil Suit No.366 of 2006 have prayed for an appropriate writ, order or direction, quashing and setting aside the impugned order dated 7.1.2008 passed by the learned Additional District Judge & Presiding Officer, 11th Fast Track Court, Rajkot in Regular Civil Appeal No.15 of 2007 as well as the order dated 10.1.2007 passed by the learned 8th Principal Senior Civil Judge, Rajkot passed below Exh.5 in Regular Civil Suit No.366 of 2006. 3. Petitioners claim to be the President and Secretary of one Shree Balakdas Harijan Co-operative Housing Society Ltd., Rajkot in whose favour the land in question has been allotted for residential purpose by the Government and the respondent No.3 Collector SCA/6639/2008 3/7 JUDGMENT by order dated 16.5.1985. The dispute is with respect to land bearing Survey No.194 of Village Mavadi, Taluka and District Rajkot. The petitioners had filed Regular Civil Suit No.366 of 2006 in the Court of learned Principal Senior Civil Judge, Rajkot against the respondents No.1 and 2 herein – original defendants for declaration and permanent injunction. In the said suit, the petitioners submitted application Exh.5 restraining the defendants from entering into the said land allotted to the society and restraining them from using the said land for preparing the bricks. The learned trial court by order dated 10.1.2007 dismissed the said application Exh.5 by observing that in the suit the plaintiffs have not prayed for any relief for decree for possession and that it is the contention on behalf of the defendants that they are in occupation and possession of the land in question since many years and therefore from which date the defendants are in possession of the land in question can be considered only at the time of trial. 3.1 Being aggrieved and dissatisfied with the order passed below Ex.5 by the trial court dismissing the same, the petitioners preferred Civil Misc.Appeal SCA/6639/2008 4/7 JUDGMENT No.15 of 2007 before the learned Principal District Judge, Rajkot which came to be heard and decided and disposed of by the learned Additional District Judge & Presiding Officer, 11th Fast Track Court, Rajkot who by his judgment and order dated 7.1.2008 dismissed the said appeal and confirmed the order passed by the trial court below Exh.5. 3.2 Being aggrieved and dissatisfied with the aforesaid both the orders the plaintiffs preferred the present Special Civil Application under Article 227 of the Constitution of India. 4. Looking to the controversy, this Court directed to join the Collector, Rajkot as respondent No.3, and in response to the notice issued upon the Collector, Rajkot, one Shri Chetan Ganatra, Mamlatdar, Rajkot Taluka is present in the Court and has produced the revenue record and the original order dated 16.5.1985 with respect to the allotment of the land in question, and considering the same, it appears that vide order dated 16.5.1985 the land in question has been alloted in favour of Shree Balakdas Harijan Co-operative Housing Society Ltd., Rajkot for construction of residential houses. It is the SCA/6639/2008 5/7 JUDGMENT specific case on behalf of the Collector, Rajkot that the respondents No.1 and 2 – original defendants have no right, title or interest in the land in question. It is also the case on behalf of the Collector, Rajkot that though the land in question has been alloted in favour of aforesaid society in 1985 for the construction of residential houses for the members of the said society, still the residential houses are not constructed and the land is not used for the purpose for which it is allotted and therefore the Collector may initiate appropriate proceedings. Be that it may, the fact remains that the land has been allotted in favour of aforesaid society for construction of the residential houses and the land does not belong to respondents No.1 and 2 herein – original defendants and therefore they cannot retain the possession and run the kiln for production of bricks. Even the plaintiffs also cannot use the land in question for production of bricks and kiln. 5. Shri Pravin Gondaliya, learned advocate appearing on behalf of the respondents No.1 and 2 is not in a position to satisfy the court with respect to the tile of the land and under which authority SCA/6639/2008 6/7 JUDGMENT they claim to be in the possession of the land in question. Under the circumstances, it appears that both the Courts below have committed an error in dismissing the application Exh.5 as well as the appeal arising out of the order passed below Exh.5. In view of the allotment order of 1985, the said land is required to be used by the society only for the purpose of construction of residential houses for its members and cannot be used for any other purpose. 6. Under the circumstances and for the reasons stated above, the petition succeeds. The impugned order dated 7.1.2008 passed by the learned Additional District Judge & Presiding Officer, 11th Fast Track Court, Rajkot in Regular Civil Appeal No.15 of 2007 as well as the order dated 10.1.2007 passed by the learned 8th Principal Senior Civil Judge, Rajkot passed below Exh.5 in Regular Civil Suit No.366 of 2006 are hereby quashed and set aside and all concerned inclusive of original plaintiffs and defendants are hereby restrained from using the land in question for the purpose other than the residential use and the defendants are restrained from entering the land in question during the pendency and final disposal of the suit. SCA/6639/2008 7/7 JUDGMENT 7. Rule is made absolute accordingly. There shall be no order as to costs. ( M.R. SHAH, J. ) syed/