SUMITKUMAR SURESHBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This intra-court appeal is directed against the judgment and order dtd. 10/4/2022 passed in Special Civil Application No. 13096 of 2022 by the learned Single Judge whereby while allowing the writ petition, quashing the show cause notice as well as order dtd. 23/5/2022 issued by the Nagarpalika, Dhanera, District: Banaskantha, it was observed in paragraph 11 of the judgment impugned that the disputed street is not a public street because it is being used by the residents of the society named as Pragatinagar Society, as the said road is only for the purpose of reaching the respective residents of Pragatinagar Society. The observation in the judgment impugned is that the Nagarpalika, Dhanera viz. respondent No.3 therein cannot insist or allege that there is an encroachment on the public street. While returning the said findings, the learned Single Judge has taken note of the orders passed in the earlier round of litigation initiated by respondent No.4 viz. appellant herein. It was noted that in the previous round of litigation, respondent No.4 relegated to approach the Civil Court for redressal of his grievance and as such, in the subsequent or second round of dispute, it is not open for the Nagarpalika to allege that it is a public street.

(2.) To assail this finding, it is argued by the counsel for the appellant that any observation made by this Court in the previous round of litigation will have no bearing on the dispute before us, inasmuch as the notice dtd. 8/7/2022 was issued by the Nagarpalika concerned asking the writ petitioners to remove encroachment made on the public land. The show cause notice dtd. 23/5/2022 issued by the Collector also states the said fact. The writ petitioners, instead of replying to the said notice by approaching the competent authority, had straightaway come to this Court to challenge the notice by taking a plea that the said notice was issued at the instance of respondent No.4 viz. appellant herein, who had lost in the earlier round of litigation. The submission is, thus, that even from the findings returned by the learned Single Judge, it is evident that the road in question is being used by the residents of the society and hence, it cannot be said to be a private land. Any encroachment of the said land would be required to be removed as the street in question is being maintained by the Nagarpalika and it is vested in the Nagarpalika by virtue of Sec. 147 read with Sec. 2(22)(b) of the Municipalities Act.

(3.) Learned counsel appearing for the writ petitioners - respondents herein would vehemently submit that the entire proceeding initiated against the writ petitioners at the behest of the appellant herein viz. respondent No.4 before the writ court was an abuse of process of law. The appellant having lost in the first round of litigation cannot stand before this Court to assail the order passed by the learned Single Judge. The submission is that the Nagarpalika itself has not come forward to challenge the order passed by the learned Single Judge and in view of the findings returned by the learned Single Judge in the writ petition and the Letters Patent Appeal filed by respondent No.4 herein, the present appeal cannot survive.