JAYENDRAKUMAR N BHATT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The short facts of the case are that the petitioner as well as respondent No.3, both, are holding plots in one Shanti Niketan Cooperative Housing Society Limited situated at Rajkot. The petitioner is having the plot admeasuring 207.46 sq. mtr., whereas Respondent No.3 is having plot No.3, which was originally measured as 243.78 sq. mtr. The grievance of Respondent No.3 is that there is a shortage of the area admeasuring 20.43 sq. mtrs. It appears that initially Respondent No.3 had approached the City Survey Inquiry Officer for measurement and the orders were passed, against which the matter was carried before the District Collector and the District Collector, on 6.12.1994 by partly allowing the appeal, had remanded the matter to the City Survey Superintendent. It appears that thereafter the City Survey Superintendent, vide order dated 29.8.1995, rejected the application of Respondent No.3, because Civil Suit No.1326 of 1987 was already preferred by Respondent No.3 and in the said Civil Suit, order was passed by the Civil Court for appointing Court Commissioner and the measurement was already undertaken by the City Survey Superintendent and the Commissioner Report was also submitted. The Respondent No.3 preferred the appeal against the order of the City Survey Superintendent before the Dy. Collector and the said appeal was allowed vide order dated 13.11.1995/18.12.1995 and it was ordered to make the measurement of Plot No.43. It appears that the matter was also carried before the District Collector and the District Collector vide order dated 12.6.1996 directed the City Survey Superintendent to measure the plot in presence of the Members of the Society and both the parties. It was also ordered that when the measurement takes place, the other concerned officer may also be intimated to remain present. Against the said order of the District Collector, the petitioner preferred revision before the State Government, which was initially not entertained, but subsequently in view of the order of this Court in Special Civil Application No.8490 of 1996 the revision was entertained and was directed to be decided within stipulated time. It appears that thereafter the State Government passed the order on 3-6/7/1997, whereby the revision of the petitioner was dismissed and the order of the District Collector was confirmed. It is under these circumstances, the petitioner has approached this Court by preferring the present petition. Heard Mr.Mehta, learned Counsel for Mr.Lakhani appearing for the petitioner, Ms.Vyas, learned Counsel for Respondent No.3 and Mr.Mengdey, learned AGP for the State Authorities.

(2.) The contention raised on behalf of the petitioner is that in the civil suit preferred by Respondent No.3 the order was already passed by the Civil Court appointing the Court Commissioner and the measurement is already undertaken and, therefore, the Collector ought not to have ordered for re-measurement of the plot. It has been submitted on behalf of the petitioner that earlier the District Collector had remanded the matter to the City Survey Superintendent for taking appropriate decision after taking into consideration the civil suit and the order passed by the Civil Court and subsequently, the very District Collector has taken a different view and, therefore, it has been submitted that the subsequent order passed by the District Collector is in contravention to the earlier order passed by him. It has also been submitted on behalf of the petitioner that it is not open to the party to undertake two parallel proceedings for the very subject matter and, that too, after unreasonable period. Mr.Mehta, learned Counsel for the petitioner also submitted that in the Civil Court in the application Ex.89 was submitted for remeasurement by Respondent No.3, who is the plaintiff in the suit, however, the learned Civil Judge found that since for the measurement of the disputed land against the order of the District Collector, the Defendant who is the petitioner herein has preferred the petition and the petition is pending and the stay is operating against the measurement, the application cannot be granted and, therefore, the application has been rejected on 13.9.2002. Mr.Mehta, learned Counsel appearing for the petitioner, during the course of hearing, has placed on record the xerox copy of the application Ex.89 and the orders passed by the Civil Court below the said application. He, therefore, submitted that the thing which cannot be done directly cannot be allowed indirectly in the present proceedings in as much as if this Court rejects the present petition, there may be the measurement of the land as ordered by the District Collector and subsequently the order of the Civil Court may be frustrated and, therefore, it has been submitted that this Court may not permit such an action on the part of Respondent No.3. It has been, therefore, submitted that the impugned orders passed by the Collector and its confirmation thereof by the State Government deserve to be quashed and set aside.

(3.) Ms.Vyas, learned Counsel as well as Mr.Mengdey, learned AGP have supported the orders passed by the lower authorities.