L.H. Of Bachu Kalicharan vs State of Gujarat

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Rajesh H Shukla, J.—Both these present Special Civil Applications are filed by the petitioners, who are the heirs of one Bachubhai Kalicharan under Article 14, 226 and 300A of the Constitution of India for the following prayers prayed therein, on the grounds stated in the memo of petitions:

Special Civil Application No. 15799 of 2012

Your Lordships may be pleased to issue a writ of prohibition and/or a writ in the certiorari and/or a writ in the nature of certiorari and/or appropriate writ, order or direction to quash and set aside order dated 05.09.2012 passed in Revision Application No. TEN/DA/41/2009 by Respondent No. 1 and order dated 19.12.2007 passed by the Gujarat Revenue Tribunal.

Special Civil Application No. 15798 of 2012

Your Lordships may be pleased to issue a writ of prohibition and/or a writ in the certiorari and/or a writ in the nature of certiorari and/or appropriate writ, order or direction to quash and set aside order dated 05.09.2012 in Revision Application No. TEN/BA/523/2009 by Respondent No. 1 and order dated 30.07.2007 passed by the Respondent No. 2 in Tenancy Appeal No. 19 of 2006 and order dated 08.02.2006 passed by the Respondent No. 3 in Tenancy Case No. 8 of 2005.

Heard learned Advocate Shri Prabhav Mehta for the petitioners, learned AGP Shri Udit Mehta for the Respondent Nos. 1 to 3 learned Advocate Shri Harnish Darji for the Respondent No. 4 and learned Advocate Shri Nirav Joshi for the Respondent No. 5.

Learned Advocate Shri Prabhav Mehta referred to the background of the facts as narrated in detail in the memo of petitions and submitted that the proceedings including the proceeding under Section 84C were initiated on the ground that there is breach of Section 43 and the land has been transferred on which the construction has been made unauthorizedly without any permission. However, learned Advocate Shri Mehta submitted that the authorities below have failed to consider the crucial aspect that it was an encroachment made on the land of the petitioners without their knowledge while making encroachment on the public street and part of the land of the petitioners. He also submitted that therefore Regular Civil Suit No. 1475/1998 was filed before the Court of Principal Senior Civil Judge, Vadodara, which has been decreed in favour of the petitioners. He also referred to the said order and submitted that pursuant to this decree, the Respondent Nos. 4 and 5 have vacated the place and the unauthorised construction was removed as stated in the affidavits filed in both these petitions. He pointedly referred to the affidavits filed in both these petitions by the Respondent No. 5 and submitted that the possession has been handed over after removal of the unauthorised construction/structure and there is no breach under any of the provisions, which has led to passing of the order. He, therefore, submitted that the present petitions may be allowed as the authorities below have failed to consider this relevant aspect. He also referred to the judgment of the Hon''ble Apex Court reported in Nawab Shaqafath Ali Khan and Others Vs. Nawab Imdad Jah Bahadur and Others, in the case of Nawab S. Alikhan Vs. Nawab I. Jahbahadur, and submitted that it would be a jurisdictional error in not appreciating the relevant facts and therefore, the present petitions may be allowed.

Learned AGP Shri Udit Mehta referred to the papers and made feeble attempt to resist the petitions. However, he could not also dispute about the Civil Suit filed by the petitioners and decreed in favour of the petitioners with regard to the same land and the encroachment thereon.

In view of these rival submission, as it transpires from the record and as stated hereinabove, the petitioners cannot be faulted for violation of any provisions as construction has been made unauthorizedly while making an encroachment over the adjoining street land and the part of land of the petitioners, which has been encroached upon, which has been removed as stated in the affidavits of the Respondents, who have encroached the same. Further, as the petitioners have been pursuing the remedy and have filed the suit, which has been decreed in their favour and therefore, it cannot be said that the petitioners were not vigilant or there was any kind of connivance. It is in this background, the reason given by the authorities on the ground of violation of statutory provisions cannot be sustained and the invocation of the powers under Section 84C cannot be sustained.

Therefore, present Special Civil Application No. 15799 of 2012 stands allowed in terms of Para No. 26(A). The order dated 05.09.2012 passed in Revision Application No. TEN/DA/41/2009 by Respondent No. 1 and order dated 19.12.2007 passed by the Gujarat Revenue Tribunal in Special Civil Application No. 15799 of 2012 are hereby quashed and set aside.

As well as Special Civil Application No. 15798 of 2012 stands allowed in terms of Para No. 25(A). The order dated 05.09.2012 passed in Revision Application No. TEN/BA/523/2009 by Respondent No. 1, order dated 30.07.2007 passed by the Respondent No. 2 in Tenancy Appeal No. 19 of 2006 and order dated 08.02.2006 passed by the Respondent No. 3 in Tenancy Case No. 8 of 2005 in Special Civil Application No. 15798 of 2012, are hereby quashed and set aside. Rule is made absolute in each matter. No order as to costs. Direct service is permitted.