SCA/3595/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3595 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 ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 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 ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT & 4 - Petitioner(s) Versus DHARAMSHIBHAI ARJANBHAI & 2 - Respondent(s) ========================================================= Appearance : VIPUL MISTRY AGP for Petitioner(s) : 1 - 5. MR HARSHIT S TOLIA for Respondent(s) : 1, MR HS MUNSHAW for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 27/08/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioners-State of SCA/3595/2008 2/8 JUDGMENT Gujarat original respondent Nos. 1,2,3,6 and 7 have prayed for an appropriate writ, direction and/ or order to quash and set aside the order dated 3.7.2007 passed by the learned Additional District Judge & Presiding Officers, Fast Track Court No.2, Bhavnagar passed in Miscellaneous Civil Application No. 19 of 2007 in allowing the same partly and directing the parties, more particularly, the petitioners to maintain status quo. 2. The respondent No.1 original plaintiff had instituted Regular Civil Suit No. 766 of 2006 before the learned trial Court for declaration and permanent injunction submitting that he is possessing land bearing Survey No. 29/3 paiki 7 acres 15 gunthas situated at Taluka Shihor, which was purchased by his father and that they are in possession since last more than 50 years. It was also submitted that even in the village form No. 7/12, the name of the father was mutated. It was submitted inspite of above the petitioners-original defendants threatened to dispossess him and, therefore, suit came to be filed and in the said suit the original-plaintiff submitted SCA/3595/2008 3/8 JUDGMENT application Exh. 5 for interim injunction. The said application was resisted by the petitioners submitting that respondent No.1 original plaintiff No.1 is not owner and there is no title in his favour. It was also further submitted that the suit land is a Government Padatar land .It is reserved for construction of Government offices and quarters and Mamlatdar offices. It was also further submitted that even part of the land was earlier allotted to some other persons. The learned trial Court dismissed the application Exh.5 vide order dated 2.2.2007. Being aggrieved and dissatisfied by the order dated 2.2.2007 below Exh. 5 passed by the learned trial Court, the respondent No.1 original plaintiff preferred Civil Miscellaneous Appeal No. 19 of 2007, which came to be allowed by the learned Additional District Judge & Presiding officer, Fast Track Court No. 2, Bhavnagar by judgment and order dated 3.7.2007 directing to maintain status quo. Being aggrieved and dissatisfied with order passed by the learned Appellate Court in partly allowing the said appeal and directing the parties to maintain status quo, the petitioners original defendant Nos. 1,2,3,6 and 7 SCA/3595/2008 4/8 JUDGMENT State of Gujarat and others have preferred the present Special Civil Application under Article 227 of the Constitution of India. 3. Shri Vipul Mistry, learned AGP has vehemently submitted that the Appellate Court has materially erred in partly allowing the appeal by directing the parties to maintain status quo, as since 1984 the land in the question is reserved by the Collector for construction of Government offices and quarters. It is submitted that at least since 1972 the land is in the name of Government and even prior thereto also the some of the land was allotted by the Government / Collector. It is submitted that the original plaintiff is claiming his right on the basis of an unregistered sale deed, it can be said that same has no evidentiary value. It is submitted that when the land in question is in the name of Government and it is reserved by the Collector for the purpose of construction of Government offices and quarters and even the said entry of reservation is since 1984 and the suit came to be filed in the year 2007 only, the learned Appellate Court has materially erred in SCA/3595/2008 5/8 JUDGMENT directing to maintain status quo. It is submitted that as such earlier the encroachment was removed and, therefore, when the plaintiff has no legal title and / or right over the land in question and it is Government land, therefore, it is requested to allow the present Special Civil Application by quashing and setting aside the order passed by the learned Appellate Court in Civil Miscellaneous Appeal No. 19 of 2007. 4. Petition is opposed by Shri Harshit Tolia, learned advocate appearing for the respondent No.1 original plaintiff. It is submitted that original plaintiff is in possession of land in question since more than 30 years and the land in question was purchased by his father for a sale consideration of Rs. 60,000/- and even the name of his father has mutated in the revenue record. It is submitted that revenue entry was made in the year 1984 entering the name of the Government illegally and, therefore, the proceedings were initiated. It is submitted that whether the plaintiff has title over the land in question or not is required to be considered and SCA/3595/2008 6/8 JUDGMENT decided in trial and, therefore, the learned Appellate Court has rightly passed an order to maintain status quo which is not required to be interfered by this Court in exercise of the powers under Article 227 of the Constitution of India. It is further submitted that even the plaintiff has also produced the some receipts of land revenue paid by him to the Revenue Authorities showing his possession in the year 1952 to 1968 and, therefore, it is requested to dismiss the present Special Civil Application. 5. Having heard the learned advocate for the respective parties and considering the village form No. 7/12 and village form No.6, it appears that the land in question is a Government waste land and even as per the entry of 30.9.1984 the land in question is reserved by the Collector for construction of Government offices and and quarters. At least since 1971 in the revenue record the name of the Government is mentioned. The original plaintiff claims right on the basis of the some unregistered sale deed executed by one Damja Desung, however the said document is SCA/3595/2008 7/8 JUDGMENT unregistered and, therefore, same has no evidentiary value. Even, considering the observation made by the learned trial Court it appears from the said deed that only occupancy right and possession was handed over by Damjibhai in favour of the plaintiff's father but no legal title has been passed in favour of the father of the plaintiff. As rightly observed by the learned trial Court it is not mentioned in the said deed under which capacity he was executing the same. Against which there are documentary evidences and the revenue records and the entries showing that the land in question is a Government waste land and pursuant to the order passed by the Collector the land in question is reserved for construction of Government offices and quarters in the year 1984.It is also born out from the record that earlier some encroachment on the land in question was removed by the authority. Thus, the plaintiff has miserably failed to substantiate his claim for possession as well as legal title over the land in question. When the land is reserved by the Collector for construction of Government offices and quarters since 1984, they cannot be restrained from using the land SCA/3595/2008 8/8 JUDGMENT for the purpose for which, it is reserved and, therefore, the learned Appellate Court has committed an error in directing to maintain status quo while allowing the appeal in part and quashing and setting aside the order passed by the learned trial Court passed below Exh.5. In the facts and circumstances of the case, the order passed by the learned trial Court passed below Exh. 5 was not required to be interfered by the Appellate Court. 8. For the reasons stated above, petition succeeds. The order dated 3.7.2007 passed by the learned Additional District Judge & Presiding Officer, Fast Track Court No.2, Bhavnagar passed in Miscellaneous Civil Application No. 19 of 2007 is hereby quashed and set aside and the order passed by the learned trial Court below Exh. 5 in Regular Civil Suit No. 766 of 2006 is hereby restored . Rule is made absolute, there shall be no order as to cost. (M.R. Shah,J.) Kaushik