SCA/12813/2008 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12813 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 To be send to the concerned Judge and Principal District Judge, Ahmedabad (Rural) forthwith. Yes. ====================================== SHANAJI BHURAJI THAKOR & 5 - Petitioner(s) Versus SNEHANJALI COOPERATIVE HOUSINGSOCIETY LTD & 3 - Respondent(s) ====================================== Appearance : MR. M.C. BHATT, LEARNED SR. ADVOCATE FOR MR VIKRAM J THAKOR for Petitioner(s) : 1 - 6. MR DIPAK R DAVE for Respondent(s) : 1, None for Respondent(s) : 2 - 4. ====================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/10/2008 ORAL JUDGMENT 1. Rule. Shri D.R. Dave, learned advocate for the SCA/12813/2008 2/18 JUDGMENT respondent waives service of notice of rule on behalf of the respondent No.1. It is reported that respondent Nos. 3 and 4 have died and, therefore, Shri M.C. Bhatt, learned Senior Advocate for the petitioner seeks permission to delete respondent Nos. 3 and 4 so far as the present Special Civil Application is concerned. With the consent of the learned advocate for the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, petitioners original defendant Nos. 4 to 6 and 8 to 10 have prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned judgment and order dated 30.8.2008 passed by the learned 5th Fast Track Court, Ahmedabad (Rural) passed by Shri P.H. Buch, learned Presiding Officer, Fast Track Court No. 5, Ahmedabad (Rural) in Civil Miscellaneous Appeal No. 48 of 2005 in allowing the same by quashing and setting aside the order passed by the learned trial Court dated 5.8.2005 below Exh. 174, by which the learned trial Court had vacated the order passed below Exh. 5 in Civil Suit No. 139 of 1990. 3. The facts leading to the present Special Civil Application SCA/12813/2008 3/18 JUDGMENT in nutshell are as under: The petitioners are the original owners and occupiers of land bearing Survey No. 113/2 situated in Thaltej, Taluka, City and District Ahmedabad and the T.P. Scheme being finalized the petitioners are alloted F.P. No. 68 in lieu of original survey No. 113/2. The present respondent Nos. 3 and 4 are alloted final plot No. 65 in lieu of survey Nos. 110/1 and 110/2. The respondent No.1 Society has put up unauthorized and illegal construction on Final Plot No. 65 belonging to respondent Nos. 3 and 4. One Nidhi Cooperative Housing Society Ltd., successor in title of respondent Nos. 3 and 4 instituted Special Civil Application NO. 12749 of 2003 and inter alia prayed that the vacant possession of Final Plot No. 65 be given to all the petitioners of the said petition after removal of unauthorized construction put up by the respondent No.1 on the land bearing Final Plot No. 65. That the respondent No.1. herein original plaintiff also instituted Special Civil Application No. 1931 of 2005 challenging the Town Planning Scheme No.1 to the extent of reconstruction of original survey No. 113/2, 113/1, 110/1 and 110/2. Both the aforesaid Special Civil Applications came to be heard together by this Court and this Court by its judgment and order dated 20.10.2005 dismissed the Special Civil Application No. 1931 of 2005 filed by the SCA/12813/2008 4/18 JUDGMENT respondent No.1 herein and allowed the Special Civil Application NO. 12743 of 2003 filed by the Nidhi Co-operative Housing Society Ltd., and directed the Ahmedabad Urban Development Authority (AUDA) to implement the Town Planning Scheme Thaltej No.1 (Final) by handing over peaceful and vacant possession of the entire Final Plot No. 65 to Nidhi Co-operative Housing Society Ltd. 4. Before that AUDA served a notice dated 6.2.1990 upon respondent No. 1 for implementing Town Planning Scheme No.1, under the Gujarat Town Planning Act and the respondent No.1 instituted Civil Suit No. 139 of 1990 in the Court of learned Civil Judge, Ahmedabad (Rural) inter alia, praying that the notice dated 6.2.1990 issued by the AUDA be declared illegal and decree of permanent injunction be passed against the defendants of the suit restraining them permanently from disturbing the possession of the land bearing survey No. 113/2 and Final Plot No. 65. In the said suit, the petitioners were subsequently joined as party defendants. That the learned Civil Court granted order on 1.3.1990 against AUDA to maintain status quo and the said interim relief was ultimately confirmed till final disposal of the suit by order dated 24.6.1992. That,thereafter the aforesaid SCA/12813/2008 5/18 JUDGMENT two Special Civil Applications came to be filed by the respective parties stated herein above and both the Special Civil Applications came up for hearing before the learned Single Judge of this Court and this Court vide order dated 9.3.2005 (Coram: Hon'ble Mr. Justice Jayant Patel) directed the AUDA to take immediate steps for vacating and/ or modification of the interim order passed in Civil Suit No. 139 of 1990. Accordingly, respondent No.1 herein AUDA submitted the application Exh. 174 under Order 39 Rule 4 of the Code of Civil Procedure before the learned trial Court for vacating the interim order and the learned Principal Civil Judge, Ahmedabad (Rural) vide order dated 5.8.2005 allowed the said application Exh. 174 in Regular Civil Suit No. 139 of 1990 and vacated the interim order granted earlier below Exh. 5. Being aggrieved and dissatisfied with the order passed by the learned Principal Civil Judge, Ahmedabad (Rural) dated 5.8.2005 in Civil Suit No. 139 of 1990 below Exh. 174 in vacating the order passed below Exh. 5 confirmed on 24.6.1992, respondent No. 1 herein petitioner of Special Civil Application No. 1931 of 2005 and respondent No.2 of Special Civil Application No. 12749 of 2003 preferred the Civil Miscellaneous Appeal No. 48 of 2005 before the learned District Court, Ahmedabad (Rural). In the meantime, both the SCA/12813/2008 6/18 JUDGMENT aforesaid Special Civil Applications came to be finally heard, decided and disposed of by this Court vide judgment and order dated 20.10.2005 dismissing the Special Civil Application No. 1931 of 2005, which was filed by the respondent No.1 herein-appellant of Civil Miscellaneous Appeal No. 48 of 2005 and allowed the Special Civil Application No. 12749 of 2003 filed by the Nidhi Cooperative Housing Society Ltd., by directing the AUDA to implement the Town Planning Scheme Thaltej No.1 (Final) by handing over the peaceful and vacant possession of the Final Plot No. 65 (inclusive of original survey No. 113/2) to the Nidhi Cooperative Housing Society Ltd. Being aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge dated 20.10.2005 passed in Special Civil Application Nos. 1931 of 2005 and 12749 of 2003, the respondent No.1 Snehanjali Cooperative Housing Society Ltd., preferred Letters Patent Appeal Nos. 1220 of 2006 and 1221 of 2006 along with Civil Applications therein and both the Letters Patent Appeal are dismissed by the Division Bench of this Court (Coram: Hon'ble Miss. Justice R.M. Doshit and Hon'ble Mr. Justice S.D. Dave) vide judgment and order dated 13.8.2008. SCA/12813/2008 7/18 JUDGMENT 5. That the aforesaid Civil Miscellaneous Appeal No. 48 of 2005 filed by the respondent No. 1 herein against the order passed by the learned Principal Civil Judge, Ahmedabad (Rural) dated 5.8.2005 passed below Exh. 174 in Civil Suit No. 139 of 1990 in vacating the the order passed below Exh. 5 confirmed on 24.2.1992, which was submitted pursuant to the interim order passed by the learned Single Judge of this Court dated 9.3.2005 in aforesaid two Special Civil Applications, came to be heard by Shri P.H. Buch, learned Presiding Officer, Fast Track Court No. 5, Ahmedabad (Rural). It appears that at the time of hearing of the appeal, application Exh. 57 was submitted along with list of the documents at Exh. 58, whereby the order passed by this Court in aforesaid two Special Civil Applications No. 1931 of 2005 and 12749 of 2003 dated 20.10.2005 was produced as far as back on 12.9.2006 and inspite of that the learned Presiding Officer, Fast Track Court No.5, Ahmedabad(Rural) by its impugned judgment and order dated 30.8.2008, without even making a reference to the order passed by this Court in aforesaid two Special Civil Application, allowed the said Civil Miscellaneous Appeal No. 48 of 2005 by quashing and setting aside the order passed by the learned Civil Judge passed below Exh. 174 dated 5.8.2005 restoring the order passed by the learned trial Court passed SCA/12813/2008 8/18 JUDGMENT below Exh. 5 in Civil Suit No. 139 of 1990 by holding that the application 174 submitted by the AUDA for vacating the order passed below Exh. 5 under Order 39 Rule 1 was not maintainable and by observing that the proper remedy for the AUDA would have been to prefer appeal against the order passed below Exh. 5 under Order 43 Rule 1 of the Code of Civil Procedure. Being aggrieved and dissatisfied with the judgment and order passed by Shri P.H. Buch, learned Presiding Officer, Fast Track Court No. 5, Ahmedabad (Rural) dated 30.8.2008 passed in Civil Miscellaneous Appeal No. 48 of 2005 in allowing the same by quashing and setting aside the order dated 5.8.2005 passed below Exh. 174 by the learned Principal Civil Judge, Ahmedabad (Rural), the petitioners original defendants No. 4 to 6 and 8 to 10 have preferred the present Special Civil Application under Article 227 of the Constitution of India. 6. Shri M.C. Bhatt, learned Senior Advocate for the petitioners has vehemently submitted that the impugned order passed by the learned Appellate Court is ex-facie illegal and absolutely in conflict with the order passed by this Court in aforesaid Special Civil Applications Nos. 1931 of 2005 and 12749 of 2003, which came to be confirmed by the Division Bench in SCA/12813/2008 9/18 JUDGMENT Letters Patent Appeals No. 1220 and 1221 of 2006. It is submitted that learned Appellate Court has materially erred in holding that the application Exh. 174 submitted by the AUDA was not maintainable under Order 43 Rule 4 of the Code of Civil Procedure and the proper remedy for the AUDA would have been to prefer appeal against the order passed below Exh. 5 under Order 39 Rule 1 of the Code of Civil Procedure. It is submitted that learned Appellate Court ought to have appreciated that the said application was submitted by the AUDA pursuant to the interim direction issued by the learned Single Judge of this Court dated 9.3.2005 passed in Special Civil Applications No. 12749 of 2003 and 1931 of 2005 and, therefore, as such it was not open for the learned Appellate Court to hold that such an application for vacating the order below Exh. 5 was not maintainable. It is submitted that even judicial decorum and propriety also demands that when a direction has been issued by the learned Single Judge of this Court and consequently the application for vacating the order was submitted, it was not open for the subordinate Court to hold that such an application is not maintainable. It is also further submitted that inspite of the fact that the judgment and order passed by this Court dated 20.10.2005 passed in Special Civil Applications No. 12749 of 2003 and 1931 of 2005 SCA/12813/2008 10/18 JUDGMENT was produced before the learned Appellate Court, the learned Appellate Court has not even referred to it and has not considered the same. It is further submitted that as such by allowing the appeal a relief has been granted by the learned Appellate Court, which is refused by this Court in Special Civil Applications as well as Letters Patent Appeals. It is submitted as such any order contrary to the direction issued by this Court in aforesaid Special Civil Applications confirmed by the Division Bench would be disobedience of direction issued by this Court and would tantamount to contempt of this Court. It is submitted that by impugned judgment and order the learned Appellate Court has just ignored the decision of this Court between the same parties rendered in aforesaid two Special Civil Applications which is not permissible at all. Shri Bhatt, learned Senior Advocate for the petitioners has also submitted that even otherwise, on merits also looking to the change circumstances such an application for vacating the interim order granted Exh. 5 under Order 39 Rule 4 was maintainable and, therefore, also the learned Appellate Court has materially erred in holding that the application Exh. 174 for vacating the interim order passed below Exh. 5 under Order 39 Rule 4 is not maintainable, which deserves to be quashed and set aside. Shri M.C. Bhatt, learned Senior SCA/12813/2008 11/18 JUDGMENT Advocate for the petitioners has further submitted that even the members of the respondent No.1 society submitted the application before the learned Appellate Court for joining them as party to the said proceedings, which came to be dismissed, against which they approached the Hon'ble Supreme Court by way of SLP and the Hon'ble Supreme Court has also dismissed the said SLP. By making above submissions, it is requested to allow the present Special Civil Application. 7. Shri Deepak Dave, learned advocate for the respondent No.1 has tried to support the impugned order passed by the learned Appellate Court halfheartedly. He is not in a position to dispute the order passed by the learned Single Judge of this Court in aforesaid two Special Civil Applications and the direction issued therein. He is also not in a position to dispute that the Special Civil Application filed by the respondent No. 1 being Special Civil Application No. 1931 of 2005 has been dismissed and same is confirmed by the Division Bench of this Court. He is also not in a position to dispute that the members of the respondent No.1 Society had earlier approached the Court by way of application for joining them as party in the aforesaid appeal, which came to be dismissed and against the SCA/12813/2008 12/18 JUDGMENT said order they had also approached the Hon'ble Supreme Court by way of SLP and the Hon'ble Supreme Court has dismissed the said SLP. However, he has submitted that the present Special Civil Application filed by the petitioners who are the original land owners who have sold the land to Nidhi Cooperative Society may not be entertained. 8. Heard the learned advocates appearing for the respective parties. 9. At the outset, it is required to be noted that the impugned judgment and order passed by the learned Appellate Court is against the judicial discipline and the propriety. Not only that but same is absolutely in conflict with the judgment and order passed by this Court in Special Civil Applications No. 12749 of 2003 and 1931 of 2005 between the same parties. By the impugned judgment and order, learned Appellate Court has granted the relief which is not granted by this Court. Even, the learned Appellate Court has not even cared to consider the judgment of this Court between the same parties in aforesaid two Special Civil Applications, though the same was produced before it. If he would have cared to consider the same, then he would not have passed SCA/12813/2008 13/18 JUDGMENT the impugned judgment and order, which is just in conflict with the decision of this Court. The aforesaid observations are made giving the benefit of doubt to the learned Judge as it appears that he has not considered the decision of this Court. If, he had considered the same and still the impugned judgment and order is passed, it is still worst and if that be so then it is nothing but disobedience of judgment and order and the direction issued by this Court in aforesaid two Special Civil Applications. 10.It is required to be noted that the learned Single Judge of this Court by interim order dated 9.3.2005 in aforesaid Special Civil Applications No. 12749 of 2003 and 1931 of 2005 directed the AUDA to take immediate steps for vacating and / or modification of the interim order passed in Civil Suit No. 139 of 1990 and accordingly AUDA submitted application Exh. 174 for vacating or modification of the interim order passed in Civil Suit No. 139 of 1990 and the same was treated under Order 39 Rule 4 of the Code of Civil Procedure. Once the said application was submitted by the AUDA pursuant to the interim order /direction issued by this Court, it was not open for the learned Judge of the SCA/12813/2008 14/18 JUDGMENT Appellate Court to hold that such an application is not maintainable and remedy available to AUDA would have been to prefer the appeal under Order 43 Rule 1 of the Code of Civil Procedure. The aforesaid observations and findings of the learned Appellate Court is absolutely unwarranted and also against the judicial discipline. Even otherwise, the learned Appellate Court ought to have appreciated that if AUDA is now to prefer the appeal same would be time barred. Even otherwise, on merits also such a findings that the application for vacating and/ or modification of the order passed below Exh.5, the application Exh. 174 under Order 39 Rule 4 is not maintainable, is also not sustainable and deserves to be quashed and set aside. Considering the Order 39 Rule 4 of the Code of Civil Procedure, in view of the subsequent events the same was maintainable. In the present case, in fact, there was a direction issued by the learned Single Judge of this Court directing the AUDA to submit an application for modification and/ or vacating the interim order passed below Exh.5 in Civil Suit No. 139 of 1990 and accordingly the application Exh. 174 was submitted. Therefore, it was not open for the learned Appellate Court to take a contrary view that SCA/12813/2008 15/18 JUDGMENT such an application is maintainable. Any direction was issued by this Court / Higher Forum, the same is binding upon the subordinate Court and it is not open for the subordinate Court to take contrary view, unless the said direction is challenged and quashed and set aside. By the impugned order an impression can be gathered that when a direction has been issued by the learned Single Judge of this Court directing the AUDA to submit the application for vacating and / or modification of the interim order, application was submitted and learned Appellate Court takes the view that such an application is not maintainable, the learned Judge of the Appellate Court wants to convey that the direction issued by this Court is not proper and as if learned Single Judge of this Court was not aware of the provision of law. Even otherwise, the learned Judge of the Appellate Court being a subordinate Court, was bound by the direction issued by this Court and he cannot take any contrary view. Under the circumstances, the impugned judgment and order passed by the learned Appellate Court cannot be sustained and deserves to be quashed and set aside. 11.Even otherwise, on merits also in light of the judgment SCA/12813/2008 16/18 JUDGMENT and order passed in Special Civil Application Nos. 1931 of 2005 and 12743 of 2003 and confirmed by the Division Bench of this Court in LPA Nos. 1220 of 2006 & 1221 of 2006 , the impugned order passed by the learned Appellate Court cannot be sustained. While allowing the appeal learned Appellate Court has observed that before final hearing and disposal of the suit, right, title or interest of the parties or any of them to the suit cannot be decided without leading evidence by the parties to the suit and both the parties to the suit would be given sufficient and reasonable opportunity of proving their case by leading oral evidence, in support of the documentary evidence produced by them and by observing above learned Appellate Court has allowed the appeal by quashing and setting aside the order passed by the learned trial Court below Exh. 174 dated 5.8.2005. However, as stated above, Special Civil Application No. 1931 of 2005 filed by the Snehanjali Cooperative Housing Society Ltd., has been dismissed by this Court by specifically observing that the construction on the land bearing survey No. 65 made by the said society is absolutely illegal and unauthorized and on the land not belonging to them and this Court has specifically held SCA/12813/2008 17/18 JUDGMENT that final Plot No. 65 original land bearing Survey No. 113/2 has been allotted to Nidhi Cooperative Society under the finalized Town Planning Scheme and, therefore, AUDA was directed to implement the town planning scheme by handing over the peaceful and vacant possession of the final plot No. 65 to the said Nidhi Cooperative Society Ltd., even by removing the construction put up by the said Snehanjali Cooperative Housing Society Ltd. As stated above, the judgment of this Court in aforesaid two Special Civil Applications were placed before the learned Appellate Court, however it appears that learned Appellate Court has not even cared to consider and / or refer the said decision. If the learned Presiding Officer, Fast Track Court No. 5, Ahmedabad (Rural) would have taken some care and looked into and/or considered the aforesaid decision, probably the learned Judge might not have taken the aforesaid decision. Be that it may, impugned judgment and order passed by the learned Appellate Court is just contrary to the decision of this Court in aforesaid Special Civil Applications and confirmed by the Division Bench of this Court in aforesaid LPA, which cannot be sustained and requires to be quashed and set aside. SCA/12813/2008 18/18 JUDGMENT 12.For the reasons stated above, petition succeeds. The impugned judgment and order dated 30.8.2008 passed by the learned 5th Fast Track Court, Ahmedabad (Rural) passed by learned Presiding Officer, Fast Track Court No. 5, Ahmedabad (Rural) in Civil Miscellaneous Appeal No. 48 of 2005 is hereby quashed and set aside with cost which is quantified at Rs. 10,000/- to be deposited by the respondent No. 1 herein deposited with the Registry of this Court within a period of 3 months from today and on said deposit the Registry is directed to transmit the same to the High Court Legal Service Committee. Rule is made absolute accordingly. (M.R.SHAH,J.) kaushik