State vs M/S

Heard Ms. Jhaveri, learned AGP for the appellants, and Mr. D.C.Dave, learned advocate for the respondent.

Ms.

Jhaveri has requested for time to place certain material on record and to add certain grounds in the appeal. She has requested for time until 13th May, 2010 for the aforesaid purpose.

After the order dated 22nd April, 2010, the respondent has filed affidavit opposing the application seeking interim relief.

The subject matter of the appeal and the suit (which was filed by present opponent) No.249 of 2006 is a parcel of land situate in Vadodara city admeasuring about 13616 sq. fts. at City Survey Nos.1270 to 1274 and Survey No. 65. The appellants-original defendants contested the suit on the ground that the ownership rights of the property in question vests in the Government and not Mrs. Moud Joseph Santan Menenzes with whom present respondent had, allegedly entered into an agreement to develop the property in question. Differently put, the title and ownership of the property in question and the rights associated with the title and ownership of the property in question are in dispute. By the impugned judgment and decree, the suit has been decreed in favour of the plaintiff-present respondent. Aggrieved by the decree, the appellants are before this Court.

The impugned judgment has been delivered on 31st March, 2009. There was some delay in preferring the appeal, which came to be condoned by order dated 30th March, 2010. In light of the date of the impugned judgment and decree and in light of the delay caused in filing the appeal, the opponent has claimed that it has resumed the construction activity over the suit property since 31st March, 2009. It is also averred that earlier also the opponents had put up certain constructions and the said work had continued until 17th April, 1995. Though it is conveniently not expressly spelt out in the affidavit but on conjoint reading of para 4(A), (B) & (C) of the affidavit, it emerges that atleast between 17th April, 1995 and 31st March, 2009 any construction activity was not carried out and the said activity remained stayed / suspended. The reason for such stoppage of activity is not disclosed in the affidavit. Be that as it may, Mr. Dave, learned advocate for the respondent has at this stage submitted that in the interregnum i.e. during the aforesaid period, there was stay order issued by the Collector against the construction activity. Mr. Dave has, during the hearing, submitted that after the judgment came to be delivered, there is no such order in operation. Ms. Jhaveri, learned AGP, is not in position to either confirm or deny or clarify the said aspect.

It is a matter of record that the judgment and decree came to be delivered on 31st March, 2009 and in response to the application dated 2nd April, 2009 for certified copy, the appellants were provided a certified copy on 23rd June, 2009 and the appeal came to be filed on or around 7th December, 2009. In view of the time-lag the opponent has claimed that it has already resumed construction activity and substantial work on ground floor is over.

In view of the request by Ms. Jhaveri for time and in view of the fact that at present, the Civil Application for stay is also being adjourned along with the appeal, any order of interim nature cannot be passed at this stage and the same will be considered on the next date of hearing. It is, however, clarified that if any activities including construction activities are carried out, it will be subject to the orders that may be passed hereafter on the next date in the Civil Application and/or in the Appeal.

The First Appeal and the Civil Application are adjourned to 15th June, 2010.

[K.M.Thaker, J.] kdc Top