Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 164 (GUJ)

Nathabhai Jaymalbhai Rabari v. State of Gujarat

2019-02-26

A.J.DESAI

body2019
JUDGMENT : A.J.Desai, J. The present petition is filed under Articles 14, 19, 21 and 226 of the Constitution of India as well as under the Bombay Land Revenue Code, 1879, praying as under: "(A)This Hon'ble Court be pleased to issue a writ of mandamus or certiorari or in the nature of mandamus or certiorari or any other appropriate writ, order or direction, quashing and setting aside the order dated 1st December, 2018 at Annexure-A and declare the same to be null and void; (B) Pending the admission and final disposal of the petition this Hon'ble Court be pleased to stay the execution and implementation of the order at Annexure-A (C) This Hon'ble Court be pleased to grant ad-interim-relief in terms of para (C)" 2. Learned advocate Mr.Bharat Rao has filed Caveat on behalf of the private respondent Nos.3 and 4 and has also filed affidavit-in-reply. Rejoinder-affidavit has also been filed by the petitioner in this matter. 3. By way of this petition, the petitioner has challenged the order dated 01.12.2018 passed by the City Mamlatdar, Sabarmati in Case bearing number JAMIN/VASNA/ENCROACHMENT/ Registered Case number 10/2016 by which the City Mamlatdar, Sabarmati has directed to remove the encroachment made by the petitioner, regarding survey number 373 of village Vasana, Taluka: Sabarmati admeasuring 1965 sq.mtrs of land. 4. Learned advocate Mr.Harshadray A. Dave for the petitioner would submit that the order which is challenged, has been passed within two days from the date of hearing and without giving an opportunity of hearing to the petitioner. He would further submit that though the petitioner remained present on the date of hearing i.e. on 01.12.2018, his case was not considered and the order was passed on the same day. He would further submit that the Authority has passed the order as if the land belongs to the Government, however, in fact, the land was granted to his predecessors in title as Inamdar from one Mr.Saiyed Mukhtyarhusain Khilafathusain Bukhari. Therefore, the authority has no power to exercise the jurisdiction under Section 61 of the Bomabay Land Revenue Code. He therefore, would submit that therefore, the petition may be allowed and order passed by the authority be quashed and set aside. 5. On the other hand, learned Assistant Government Pleader Mr.Krutik Parikh for the State would submit that the petitioner has miserably failed to establish his right over the property. He therefore, would submit that therefore, the petition may be allowed and order passed by the authority be quashed and set aside. 5. On the other hand, learned Assistant Government Pleader Mr.Krutik Parikh for the State would submit that the petitioner has miserably failed to establish his right over the property. He would submit that the petitioner came to be served with a notice under Section 61 of the Code, the respondent No.2 has initiated action under Section 61 of the Code vide encroachment case No.10 of 2016. On 22.11.2018, notice was served upon the petitioner whereby, the petitioner was informed that the hearing will take place on 29.11.2018. However, on that day, the petitioner sought time to file reply and the matter was fixed on 01.12.2018 for hearing. On 01.12.2018, the matter was heard in presence of the petitioner and the order was passed. He would further submit that the petitioner has also availed alternative remedy by filing appeal before the Deputy Collector challenging the impugned order. He would submit that therefore, the petition be allowed. 6. Learned advocate Mr.Bharat Rao for the private respondent Nos.3 and 4 would submit that the petitioner has deliberately not disclosed the reason of delay in filing the Civil Suit. He would further submit that the petitioner has filed the Civil Suit No.1259 of 2014 before the learned City Civil Court, Ahmedabad for permanent injunction against the private respondents wherein, application was submitted and came to be dismissed way back in the year January, 2015. The said order has become finalized and even the interim-relief is refused. He would further submit that the petitioner is trying to challenge the orders and he wants to continue the illegal constructions as encroacher upon the said land. He would further submit that all the contentions have been dealt with by the respondent-Authority which establishes that the petitioner has encroached upon the land and therefore, the petition be dismissed. 7. Heard learned advocates appearing on behalf of the respective parties. 8. It appears from the order impugned that on 08.12.1969, entry no.1281 was mutated in the name of Government and even the possession was shown of Government. The case was put forward by the petitioner in the year 2014 when he filed suit against the private respondents who has purchased the property that the petitioner is owner of the property. 8. It appears from the order impugned that on 08.12.1969, entry no.1281 was mutated in the name of Government and even the possession was shown of Government. The case was put forward by the petitioner in the year 2014 when he filed suit against the private respondents who has purchased the property that the petitioner is owner of the property. However, no such documents are produced regarding the transfer of the land from one Mr.Saiyed Mukhtyarhusain Khilafathusain Bukhari to the present petitioner of land bearing survey no.233. The said land was in possession of the father of the petitioner. 9. The petitioner has miserably failed to establish legal and valid possession over the property and the petitioner is carrying out illegal construction as encroacher. It is pertinent to note that the petitioner has filed Civil Suit without giving any details or producing any supporting documents before the Civil Court. Even in the rejoinder, no such documents have been produced disclosing the right of the present petitioner over the property. 10. In view of the above, I do not find any illegality in the impugned order which calls for any interference. The present petition fails and accordingly dismissed. The Civil Application No.2 of 2019 stands disposed of.