(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) In view of the urgency pleaded, we have entertained this Application. The petitioner has served copy of the Application upon the State-respondent only. The State is represented by Ms.Mehta.
Issue notice upon respondents other than State-respondent, returnable on 5th July 2012.
After hearing Mr.Saiyed appearing on behalf of the petitioner and Ms.Mehta appearing on behalf of the State-respondent and after going through the averments made in the Application, we find that the grievance of the writ-petitioner in this Application is that respondent no.4, the Collector, Amreli, has failed to discharge his statutory duties and obligation under Section 258 of the Gujarat Municipalities Act, 1963 by not taking any action in respect of the suo motu proceeding under the said section against the resolution dated 15th March 2007 passed by respondent no.6, Damnagar Municipality.
We find that in the past, a civil suit was filed by the respondent no.11 against the State-respondent claiming right over the graveyard in respect of the entire Survey No.248. The said suit was decreed in part, by which the civil court declared the right of respondent no.11 in respect of only Plot Nos.23 to 26 and 28 but rejected the prayer for declaration of title in respect of the remaining lands other than those five plots. The said decree has attained finality.
Subsequently, respondent no.11 has filed an application under Article 226 of the Constitution of India before this Court challenging the order passed by the Additional Secretary, Revenue Department (Appeals) dated 5th February 2007 affirming the order passed by the Collector dated 16th/17th May 2002 in VASHI/3177/2002, thereby allotting some amount of land in favour of respondent no.12 of the present writ-application. The said writ-application is pending but a prayer for interim order of injunction has been refused by a learned Single Judge of this Court and the same has been affirmed by a Division Bench and a Special Leave Application preferred by respondent no.11 has been dismissed.
In the present Public Interest Litigation, according to the petitioner, they are claiming through the respondent no.11 but the present one is in respect of a different property, namely, 36,000 sq.feet allotted by the Damnagar Municipality in favour of respondent no.12 vide subsequent order dated 15th March 2007 notwithstanding the fact the subject matter of land is very much within Plot Nos.23 to 26 and 28 of Survey No.248 over which title of respondent no.11 has been declared by a competent civil court and the same has attained finality.
According to the petitioner, respondent no.12 is proceeding with construction of a temple over the graveyard which is the subject matter of the present Application, as a result, communal tension has accrued in the locality.
After going through the aforesaid materials on record, we are prima facie convinced that the title of respondent no.11 in respect of Plot Nos.23 to 26 and 28 has been declared by a civil court and the same has attained finality, and at the same time, the claim of title of respondent no.11 in respect of other land of Survey No.248 has been rejected.
We further find that in the pending Special Civil Application No.4007 of 2007, the prayer of respondent no.11 for injunction restraining respondent no.12 from making any construction has been refused and the said order has attained finality as the Supreme Court has refused to interfere with the said interim order, which will abide by the final decision in Special Civil Application No.4007 of 2007, which is pending.
We, however, find that so far the subject matter of the present litigation, namely, 36,000 sq.feet of land allotted by Damnagar Municipality by virtue of subsequent allotment of 2007 is concerned, the same was not the subject matter of the earlier litigation being Special Civil Application No.4007 of 2007 and the petitioner has made out a strong prima facie case to have interim order atleast in respect of the lands in question which are not the subject matter of Special Civil Application No.4007 of 2007 and at the same time fall within the aforesaid Plot Nos.23 to 26 and 28 indicated above.
We, thus, pass an interim order directing all the parties to maintain status quo as regards the existing position and nature & character of the property in question for a period of 14 days with liberty to apply for extension of the same after notice to the respondents.
We make it clear that if any part of 36,000 sq.feet of land which is the subject matter of the present litigation does not fall within Plot Nos.23 to 26 and 28 indicated above, or if it falls within any part of 30,000 sq.feet which is the subject matter of Special Civil Application No.4007 of 2007, there will be no order of status quo in respect of that portion as already a coordinate Bench of this Court has refused to grant any order of status quo in respect of the subject matter of Special Civil Application No.4007 of 2007.
Let the matter appear on 5th July 2012, with a liberty to the respondents to pray for variation of the present order.
We further make it clear that this order will not stand in the way of the executing Court in executing the lawful decree which respondent no.11 has obtained against the State-respondent as mentioned in Regular Civil Suit No.240 of 1995.
Let a copy of the Special Civil Application No.4007 of 2007 and Civil Application No.2 of 2012 filed by Mr.Saiyed be kept with the record.
Direct service is permitted.
(Bhaskar Bhattacharya, Acting C.J.) (J.B.Pardiwala, J.) /moin Top