[1.0] Since this Court has considerably heard the learned advocates for the respective parties on the Civil Application for vacating the interim relief, the main matter is taken up for final disposal.
misused the process of law. The present writ petition is filed seeking prolix prayers.
[3.0] The sum and substance of the prayers as indicated in the writ petition is that the petitioners are challenging the the order dated 21.05.2018 passed by the Collector, Surendranagar in Misc. Application No. 0120162017. A further prayer is sought for issuance of a direction to quash and set aside the action of the Collector, Surendranagar for opening three internal roads situated in the soceity where the petitioners are residing.
[4.0] Learned advocate advocate Mr. Satyan Rawal appearing for the petitioners has submitted that the impugned order is required to be quashed and set aside on the following grounds.
[4.1] Firstly on the ground ofdefective decision making process by invoking powers of judicial review under Article 226 of the Constitution of India; secondly the direction of removal of compound wall, which is a protection wall and/or security wall being exfacie, without powers, authority and jurisdiction, even as per his own decision of the Collectorand thirdly on the ground of political influence and interference exerted upon the respondent No. 2, Collector at the behest of the private respondent, which has rendered the whole exercise or omission to exercise futile in the eyes of law.
[4.2] It is submitted that the respondent No. 2has not at all adjudicated upon the merits and so the issue regarding the nature of three roads is left undecided and parties are relegated to Regular Civil Suit no. 61 of 2012, which was instituted inview of emergent situation prevailing at that time, which was only against the Chief Officer, Dhrangandhra Municipality and Page 2 of 12 Downloaded on : Sun Feb 16 10:26:57 IST 2020 C/SCA/12567/2018 JUDGMENT which has, in fact, become futile and infructuous but since the Collector has cursorilyand abruptlyrelegatedthe partiesto the suit, it could notbe pointed out that such a recourse is futile. Such an abrupt course of action by the It is relevant to state that authorities caused great injustice to the petitioners. the direction for opening three internal roads of Survey NO. 905, wherein the petitioners are residing,clearly endanger the life, liberty, safety and security of forty persons without due process of law and, therefore, it is violative of Article of 21 of the Constitution of India.
[4.3] Learned advocate Mr. Raval has further submitted that the litigation between the residents of the two localities, namely Umiya Park and L.I.C. Societies regarding the aforesaid security wall and so called approach roads is going on since the year 1992, which is almost a duration of 26 years for which the security wall is in existence but by virtue of the Collector's order, the settled position of compound wall is sought to be disturbed without any decision on merits by him. It is submitted that the Collector appears to be totally unaware of the fact that issuance of such an interim direction amounts to granting mandatory injunction at the interim Stage withoutat all applying or calling for special circumstances and, therefore, only on the ground of total nonapplication of mind and ignorance of law as to grant of mandatory injunction, the order is absolutely unsustainablein the eyes of law. Learned advocate Mr. Raval has submitted that such a removal of security wall, which is put up in due compliance to the condition stipulated in the NA use order and if it is pulled down as ordered then such an action by whosoever may amount to breach of condition, for which the petitioner's shall have to face the legal consequences as per the law, for no fault of them and the Collector being totally unaware of such a potent situation of the double jeopardy that may be caused to the petitioners and other residents of Umiya Park, who are all bound by the conditions in their Page 3 of 12 Downloaded on : Sun Feb 16 10:26:57 IST 2020 C/SCA/12567/2018 JUDGMENT NA order qua Survey No. 905. It is submitted that ever since the aforesaid suit as pending since the year 2012, there is neither crosssuit or counter claim, by the private respondent seeking any relief that too of mandatory nature at the interim stage and, therefore, it is really shocking to the petitioners to pass the impugned order and the petitioners have strong reason to believe that there is only political influence and interference, which has weighed with the Collector to pass such a peculiar order. It is is contented by the learned advocate that the dispute between the two societies was to be decided by the Collector as to whether the three roads situated from North to South are internal roads of Umiya Park or approach road of L.I.C. Society and instead of doing so, very abruptly, the Collector has relegated the parties to the jurisdiction of the Civil Court, though the dispute is clearly within his domain as a revenue authority granting the NA use permission and at the same time ordered for removal of the compound wall, which is not only arbitrary but shocking to any man of ordinary prudence and such a direction isex facie without powers and authority of law. It is asserted by the learned advocate Mr. Raval that considering the tone and tenor of the impugned order as well as abrupt disposal of the matter, the petitioners have reason to believe that the impugned order is passed on account of political influence and interference exerted upon the Collector, Surendranagar at the behest of the residents of LIC society and, therefore only, very abruptly the matter was fixed for hearing on 21.05.2018 immediately after the new Collector resumed his office and it was heard and disposed of on the same date i.e. 21.05.2018. Since the arrival of new Collector, the private respondent and other residents of LIC society have been boasting an dragging that now they have got the recommendation from Gandhinagar and on the very first date of hearing the Collector is going to pass the order of removal of the petitioner's security wall.
C/SCA/12567/2018 JUDGMENT [5.0] Thus, the learned advocate Mr. Rawal has submitted that the impugned order is required to be quashed and set aside on the following grounds and in the alternative he has submitted that the matter may be remanded to theCollectorso that he can decide the controversyafter hearing the petitionersafresh as well as after taking into various aspects as narrated hereinabove.
[6.0] Per contra, learned advocate Mr. Jay M. Thakker appearing for the respondent No. 5 has submitted that the petition is required to be rejected with cost as the petitioners have tried to misuse the process of law. It is submitted by him that the respondents had earlier approached this Court by filing Special Civil Application No. 10107 of 2014 seeking the prayer against removal of the encroachment made by the present petitioners, which was disposed of as withdrawn vide order dated 22.07.2014 by observing that the competent authority may decide the representation in accordance with law. He has submitted that for the very cause of action/prayer, the writ petition was filed, thereafter, the respondents made representations to the authorities dated 05.11.2014 and 10.11.2014 and further, a detailed representation was made by the residents of the Society and thereafter, Chief Officer, Dhrangandhra Nagar Palika issued a notice dated 29.10.2014 to the encroachers directing to remove the encroachment from public road.
inter se between the There were also certain internal communications authority which asked for taking action against encroachment. Thereafter, it came to the knowledge of respondent no. 5 that residents of society, who has made the encroachment in question came before this Court by filing Special Civil Application No. 1755 of 2015, wherein the Court observed that prima facie, disputed questions of fact arise in the petition and, therefore, it would not be appropriate for this Court to got into these questions, in proceedings under Article 226 of the Constitution of India and the said petition is disposed of with certain directions to the authority. In pursuant Page 5 of 12 Downloaded on : Sun Feb 16 10:26:57 IST 2020 C/SCA/12567/2018 JUDGMENT thereto, the Chief Officer, Dhrangandhra Nagar Palika issued notices to concerned parties, including respondent No. 5 wherein, the respondent No. 5 along with other residents of the society appeared and also filed certain submissions and documents, after which the Chief Officer, Dhrangandhra inter alia stating that the Nagar Palika passed an order dated 20.03.2015, said authority has no jurisdiction in the matter by stating that the said approach roads are not taken over by the Nagar Palika and though the encroachment is proved to have been made, it is Collector, who has to take necessary action. In pursuance of the above, the respondent No. 5 again made a detailed representation dated 06.04.2015 to the Collector, who has to take action in the matter. Vide order dated 22.04.2015, the said authority stated that the said roads cannot be said to be approach roads and that no encroachment can be said to have been taken place and thereby failed to exercise the jurisdiction vested in the said authority and therefore, the respondent No. 5 filed Special Civil Application No. 10325 of 2015 before this Court, wherein this Court vide order dated 29.09.2016 disposed of the said petition by quashing and setting aside the order dated 22.04.2015 and remanded the matter back to the Collector, Surendranagar to decide the same after hearing the parties without in any manner influenced by the earlier order as well as observations made in the said order as expeditiously as possible, preferably within a period of six months.
[7.0] Learned advocate Mr. Thakkar has further pointed out that the residents of Umiya Park Society instituted Civil Suit No. 62 of 2012 before inter alia, raising a the Court of Principal Senior Civil Judge, Dhrangandhra, similar issue with regard to the compound wall and for similar reliefs along with an application praying for interim relief, wherein on 13.04.2016, the learned advocate for the plaintiffs made an endorsement that the plaintiffs do not intend to proceed with the prayer of the interim relief at the said stage and do not press the said application and, therefore, the Court passed Page 6 of 12 Downloaded on : Sun Feb 16 10:26:57 IST 2020 C/SCA/12567/2018 JUDGMENT order accordingly, in view of the said endorsement. The competent authority filed written statement in the said suit objecting to the contents of the said suit and further confirming the fact of encroachment being made on the approach roads. On 13.05.2016, Civil Court framed issues, which also including the issue, which are raised in the captioned petition. It is submitted by the learned advocate Mr. Thakkar that to the reasons best known to them, vide pursis dated 06.08.2018 i.e. after the impugned order inter alia, is passed by the Collector, Surendranagar dated 21.05.2018, stating that the plaintiffs therein intend to approach SSRD, and sought permission to withdraw the said suit and therefore, vide order dated 06.08.2018, Civil Court disposed of the suit, in view of the pursis filed by the plaintiffs.
[8.0] Learned advocate Mr. Thakkar has contended that the petitioners had instituted Civil Suit No. 65 of 2018 before the Court of the Court of Senior Civil Judge, Dhrangandhra, against the respondent No. 5 and other inter alia, raising a authorities, which are joined in captioned petition, similar issue and prayer in connection to the compound wall and according reliefs as prayed for in the captioned petition along with an application praying for interim relief, wherein vide order dated 03.08.2018, the Civil Court rejected the application praying for interim relief and the said order is not challenged before higher forum. The competent authority filed the written statement in the said suit objecting to the contents of the said suit and further confirming the fact of encroachment being made on the approach roads. It is submitted that vide pursis dated 06.08.2018 i.e. after the order impugned is passed by the Collector, Surendranagar dated 21.05.2018, the plaintiffs therein filed pursis below Exh:30 praying to withdraw the suit with a liberty to file again and in pursuant thereto, vide order dated 06.08.2018, the Civil Court disposed of the suit, in view of the pursis vide Exh: 30.
C/SCA/12567/2018 JUDGMENT [9.0] Thus, he has submitted that the writ petition deserves to be rejected with cost as the petitioners have not come with clean hands and have tried to abuse the process of law by withdrawing the aforesaid suit, which was instituted for the same cause of action. He has invited the attention of this Court to the observations made in the order dated 03.08.2018 passed below Exh: 7 by the Additional Senior Civil Judge, Dhrangandhra in Civil Suit No. 65 of 2018.
[10.0] Learned advocate Mr. Y.J.Patel appearing for the respondent No. 4, while placing reliance on the affidavit filed by the respondent no. 4 i.e. Dhrangandhra Nagar Palika has submitted that, in fact, the compound wall situated in the petitioners' society is illegal. He has submitted that so far as land bearing revenue survey no. 905 is concerned the original owner of the agricultural land applied before the Collector, Surendranagar for the converting the agricultural land into nonagricultural and vide order dated 14.03.1991 the Collector, Surendranaga, land bearing revenue survey no. 905 is converted into nonagricultural land with certain conditions. He has submitted that at the relevant point of time the plan was submitted and the same was approved by the Collector, Surendranagar. As per the maps of the actual situation of the land bearing Survey No. 905, wherein Umiya Park is existence and as per the maps, the right of internal road of the society is mentioned i.e. Northside, Umiya Park situated in land bearing revenue survey No. 905, wherein the main gate is situated from Halvad Dhrangandhra State Highway (ii) Southside, land bearing Survey No. 904, LIC society situated and between the land bearing revenue survey no. 905 Umiya Park Society and revenue Survey No. 904 LIC society, no road is available as per the maps.
C/SCA/12567/2018 JUDGMENT [11.0] He has further submitted that so far as land bearing revenue
survey No. 904 LIC society is situated. When the plotting was done so far as land bearing survey No. 905 is concerned at the relevant point of time internal road width 7.5 meters was situated and the members of the Umiya Park used the right of way to approach the HalvadDhrangandhra State Highway and thesaid internal road touched with other survey No. 904 in that survey no. 904 LIC society is situated and therefore, it wouild be possible that both the societies members used their right of way. Since on the land bearing revenue survey no. 905, the members of Umiya Park i.e. South side constructed the Compound wall, the members of the LIC Society cannot use the internal road of the Umiya society to approach Halvad Dhrangandhra State Highway and, therefore, dispute has arisen between the parties.
[12.0] He has also submitted that Civil Court while deciding the Exh. 7 application filed in Civil Suit No. 65 of 2018 has considered all the aspects and had rejected the said application and thereafter, the suit was withdrawn by the petitioners unconditionally and hence the present writ petition is not maintainable.
[13.0] The facts which are not in dispute are that the members of the Umiya Park, in which, the present petitioners are residing had filed two civil suits, first being Civil Suit No. 61 of 2012 instituted against the respondent Nagar Palika praying for permanent injunction against the use of road situated in the society and not to demolish the compound wall. The aforesaid suit was withdrawn by the members of the Umiya Park, who are similarly situated to the present petitioners. The said suit was withdrawn on 06.08.2018. A perusal of the withdrawal pursis reveals that the plaintiffs had desired to approach the SSRD with regard to the dispute. The order of withdrawal passed by the Trial Court reveals that the petitioners were made Page 9 of 12 Downloaded on : Sun Feb 16 10:26:57 IST 2020 C/SCA/12567/2018 JUDGMENT to understand the consequences of the withdrawal of the suit and thereafter, on the insistence of the plaintiff, the civil suit was ordered to be withdrawn. The petitioners, who are also residents of the Umiya Park and are identically situated to the earlier plaintiffs, who had instituted aforesaid suit being Civil Suit No. 61 of 2012 have subsequently instituted the Civil Suit No. 65 of 2018 with similar prayers. A perusal of the pleadings made in the plaint as well as the prayers reveal that the petitioners were aggrieved by the order dated 21.05.2018 passed by the District Collector, which is impugned in the present writ petition. In paragraph No. 16 of the plaint as well as the paragraph No. 18, the petitioners have sought the similar prayers, which were made in the earlier suit. The petitioners had filed an Exh. 7 application for stay before the Trial Court. The trial Court, after hearing all the concerned parties and considering all the relevant documentary evidences as well as the submissions advanced by the concerned authorities, by a comprehensive order dated 03.08.2018 rejected the Exh: 7 application filed by the present petitioners. A threadbare examination of the order dated 03.08.2018 passed by the Additional Senior Civil Judge, Dhrangandhra reveals that the learned judge has considered all the aspects, including the dispute between both the parties, as well as the private respondent, which has been going on since the year 1992 and the petitioners were supposed to abide with the conditions No. 3, 7 and 10 incorporated in the order dated 14.03.1991, when NA permission was granted. The petitioners did not challenge the order dated 03.08.2018 passed below Exh: 7 and instead have withdrawn the civil suit on 06.08.2018. The order dated 06.08.2018 passed by the Trial Court below reveals that the petitioner had given a pursis for withdrawing the same on technical ground and the suit was withdrawn with a view to file a fresh suit. Thus, the observations made in the order dated 03.08.2018 below Exh. 7 have become final and realizing that the trial Court is against them, it appears that the petitioners have withdrawn the suit for filing a fresh suit. After all these litigations, the present petitioners have filed Page 10 of 12 Downloaded on : Sun Feb 16 10:26:57 IST 2020 C/SCA/12567/2018 JUDGMENT the captioned writ petition challenging the order dated 21.05.2018 passed by the Collector, Surendranagar, which was the subject matter of dispute before the Civil Court in the aforementioned civil suit. The filing of the Civil Suit was the efficacious remedy available to the petitioners in wake of the dispute which relates to usage of the passage. This Court while exercising powers under Article 226 of Constitution of India cannot devolve upon the disputed question with regard to easementary rights [14.0] It is also noticed by this Court that the petitioners have made vague and wild allegations against the Collector in various paragraphs of the writ petition alleging that the Collector on political influence and interference, had passed the order abruptly. The petitioners have also cast aspersions on the functioning of the Collector, by stating that the members of the LIC Society, for which the respondent No. 5 belongs, have been boasting and dragging that since they have made recommendation from Gandhinagar, they would force the Collector to pass the order of removal of the petitioners' society security wall. The writ petition is full of such allegations against the functioning of the Collector. Such bald and vague allegations made against the Collector without there being any foundation or premise, require to be highly deprecated.
[15.0] From the aforesaid facts, it emerges that the petitioners have absolutely abused the process of law by first filing the civil suit through the other members of the residence of Umiya Park and thereafter by them, for the same cause of action and the present writ petition has been filed challenging the order dated 21.05.2018 of the Collector, Surendranagar, which was the subject matter of challenge before the Civil Court and after a wellcomprehensive and reasoned order was passed by the trial Court below Exh. 7 against them, they have subsequently withdrawn the civil suit and have filed the present writ petition though the suit was not withdrawn with Page 11 of 12 Downloaded on : Sun Feb 16 10:26:57 IST 2020 C/SCA/12567/2018 JUDGMENT a liberty to approach this Court, but was withdrawn to file a fresh suit. The petitioners have deliberately done so as they had realized the fate of the civil suit since the civil Court had considered all their submissions and the documents, and if they had proceeded with the suit, their suit would have been rejected.
[16.0] In this view of the facts and looking to the conduct of the present petitioner, the writ petition is dismissed with cost of Rs.5000/. Notice is discharged. Civil Application also stands disposed of accordingly.
[17.0] In view of the aforesaid observations, the interim relief, granted earlier is not required to be continued further, on the request made by the learned advocate Mr. Raval appearing for the petitioner.
(A.S.SUPEHIA, J) VISHAL MISHRA Page 12 of 12 Downloaded on : Sun Feb 16 10:26:57 IST 2020