IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8657 of 2011 For Approval and Signature:
HONOURABLE MS JUSTICE SONIA GOKANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= RANJITSINH NATVARSINH ZALA & 3 - Petitioner(s) Versus TOWER VISION INDIA (PRIVATE) LIMITED & 1 - Respondent(s) ========================================================= Appearance :
MR NITIN M AMIN for Petitioner(s) : 1 - 4. MR NIKHIL S KARIEL for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, MR ASHOK N PARMAR for Respondent(s) : 2, MR GIRISH D CHAVDA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MS JUSTICE SONIA GOKANI Date :29/06/2012 CAV JUDGMENT Petitioners are the co-owners and joint holders of the land bearing Survey No. 534, Khata No.14 admeasuring Hector-AreSquare Meter 0.43.50 of Village Bhojwa, Taluka Viramgam, District Ahmedabad as averred in the petition. Respondent No.2 is one of the joint co-owners permitted respondent No.1- Company to erect mobile tower by executing an agreement without the consent and authority of the petitioners and resultantly, petitioners filed suit for permanent injunction being Civil Suit No. 42 of 2011 in the Court of the Principal Civil Judge, Viramgam where the order of status quo was granted in favour of the petitioners initially.
However, after bi-partite hearing, Court vacated the order of status quo passed below Exh. 5 on 4th May, 2011.
An appeal was filed by the petitioners before 3rd Additional District Judge, Ahmedabad(Rural) dated 2nd July, 2011 which dismissed the appeal confirming the order of the learned Civil Judge vide its order dated 2nd July, 2011.
Being aggrieved by the present petition preferred under Article 227 of Constitution of India, seeking prayer of setting-aside the judgement-and-order passed by Court below. With further prayer of restraining the employees and officers of the respondent No. 1 -Company from entering upon land bearing Survey No. 534, Khata No.14 admeasuring Hector-AreSquare Meter 0.43.50 of Village Bhojwa, Taluka Viramgam, District Ahmedabad.
While admitting this petition, Court granted (Coram :Mr.R.H.Shukla, J) , ad-interim relief in terms of Para 9-b. Relying on the contentions of the learned advocate Mr.Nitin Amin that the suit property is joint property and the petitioner have shared as co-owners and therefore, one of the co-owners would have no right to enter into an agreement with the respondent No.1 but Company alone as petitioner would have equal right in undivided share in the property which both the Court fail to appreciate.
Learned advocate Mr.Amin made his submissions raising objection to the grant of permission by the respondent No. 1 . He urged that the suit land is joint property and plaintiff are co-owners in the suit property which have not been divided between the co-owners. Defendant No. 1 is started the construction work of tower paying no heed to the petitioners and therefore, the suit was filed .
According to the learned advocate Mr.Nikhil Kariel appearing for respondent No.1 . Petitioner have suppressed material facts contending that there is oral partition between co-owners and this was within the knowledge of the petitioner but the same has been suppressed. He further contended that both the Court below has correctly rejected the request of the petitioner and confirming the injunction in as much as not only there is suppression but there is delay in preferring the suit. Suit property was converted in non- agricultural land in 1976 and oral partition took place in the 16 years prior to the filing of the suit. Fencing also has been made . Respondent No.2 herein has filed his affidavit and contending thereunder after the death of late father of present defendant and understanding is reached between the family members i.e petitioners their father and present deponent. Land should be divided into two parts . There should be clear demarcation of the property of each of share holders. He further stated on oath that in the share of the property of the present respondent No.2 . There is a flour mill as well as mobile tower . He is also say that there was no any pre- permission given to the respondent No.2 because partition had already taken place longer. It is also say of the respondent No.2 that as per the panchnama drawn by the Court Commissioner, there is clear demarcation of the property and in the part which is in the share of respondent No.2 there exists a flour mill and telecom tower and they have only intention to give undue benefit to frivolous suit has been preferred.
The decision relied upon by the respondent No.2 laid down principle relating to inter se rights and liability of the co-sharers of a property . Where it is held that if co-owner is in possession of separate parcels of land under an arrangement consented by the other co- owners , it would be not open to anybody to disturb the arrangement without consent of the others except by filing the suit for partition.
As can be noted from the order of both the Courts, they have relied upon the Court Commissioner's report which mentioned that there is installation in the property being flour mill as well as mobile tower which Court found to be an evidence of an arrangement between the parties .
As can be noted from the order of trial Court initially while filing the suit respondent No.2 was not impleaded who is co-owners of the property . Thus, the suit is filed only against respondent No.1 -Company and though caveat was filed by respondent No.2 after objection was raised by respondent No.1, respondent No.2 was impleaded as party-defendant . As can be further noted from the order after detailed discussion, Court deemed it fit not to entertain the request of injunction and it also objected the contempt of party which had approached the Court for equitable relief. As well laid down by catena of judgement of this Court while exercising its power under Article 227 of Constitution of India should be very sole in quash and interfere with the order of Court below , particularly when there is no materially illegality coming to fore . It is basic principle that any party approaching the Court of equity is expected to approach the Court with clean hands. Conduct of the present petitioners is not found conducive for grant of equitable relief in their favour and order of status quo which was granted initially was also subsequently quashed, when it was realized by the Court that petitioner had approached the Court of equity suppressing vital aspects. Moreover, although challenge has been made to the oral partition, as can be noted from the record panchnama of the Court Commissioner it unequivocally speaks of existence of flour mill and mobile tower both. Since these structures exist for a long period , no explanation comes forth as to why there is no objection raised against these structures with the fencing which clearly demarcates the partitioned land.
Cumulatively both the Courts found ample grounds for not confirming the initial order of status quo . Petitioner fail to point out to this Court need for interference in the well reasoned and elaborately dealt with orders taking into account factual and legal aspects. Therefore, this petition preferred for invocation of supervisory jurisdiction does not succeed and resultantly, is dismissed.
(Ms.Sonia Gokani,J) bina .