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2021 Supreme(Guj) 98

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VINEET KOTHARI, GITA GOPI, JJ.
PANDYA MANISHANKER DHANJIBHAI & Ors. - Appellant
Versus
STATE OF GUJARAT - Respondent
LETTERS PATENT APPEAL NO. 1055 of 2016
In
SPECIAL CIVIL APPLICATION NO. 12594 of 2002
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
In
LETTERS PATENT APPEAL NO. 1055 of 2016
With
LETTERS PATENT APPEAL NO. 1516 of 2017
In
SPECIAL CIVIL APPLICATION NO. 12594 of 2002
Decided On : 08-03-2021

Advocates Appeared:
For the Appellant : MR MIHIR THAKORE, Senior Counsel with MR SANDIP SINGHI with MR SHANIK BHATT with MS ANVI MAJMUDAR for M/s SINGHI
For the Respondent: MR MEET THAKKAR, Assistant Government Pleader, MR M.T.M. HAKIM for MR SAQUIB S ANSARI, MR A.S. ASTHAVADI

Point of Law: - It is well, nay, settled position of law that the writ jurisdiction can be invoked only against the final orders of lower authorities, Courts or Tribunals and that too if an effective and alternative remedy is not available to writ petitioners.

Headnote:
Civil Procedure Code,1908 - Order 7,47 Rule 10,1 - Criminal Procedure Code,1973 - Section 482,68,115 - Waqf Act, 1995 – Section 83 - Bombay Land Revenue Code, 1879 – Section 133,66 - Land Revenue Code – Sections 37(1),37(2),37(3) - Land Revenue Code - Section 38 - Rule 17(1) - Gujarat Land Revenue Rules, 1972, - Rule 73(1) - Appellants – Petitioners are aggrieved by dismissal of their Special Civil Application by learned Single Judge of this Court, vide order mainly on the ground of their locus standi to maintain such writ petition, suppression of material facts from Court and pendency of Civil Suits filed by them which were pending trial in the Subordinate Courts – Whether Tenants of Trust should be allowed at all to invoke writ jurisdiction of this Court under Article 226 of Constitution of India or not - whether the extraordinary jurisdiction invoked by the Petitioners is appropriate or not and whether they can be relegated to an alternative remedy at the lower appropriate Forums, Courts or Tribunals or not
Finding of the court: Provisions of the Gujarat Land Revenue Code, 1879 which was earlier known as Bombay Land Revenue Code, 1879 and after birth of State of Gujarat and creation of separate High Court for the State of Gujarat in the year 1960, same Code was made applicable to State of Gujarat and interpretation of Sections 37, 38, 66 and 133 as canvassed before us could be given, but such an academic exercise would remain a hollow and academic exercise only unless the factual foundations are first established by the parties. Civil Suit and series of connected Civil Suits enumerated above being pending before Civil Courts, we are of the opinion that till the lower courts are seized of matter in hand, we should desist from expressing any opinion either on the issues of facts or even questions of law, which are intertwined with the questions of facts - It is well, nay, settled position of law that writ jurisdiction can be invoked only against the final orders of the lower authorities, Courts or Tribunals and that too if an effective and alternative remedy is not available to the writ petitioners Terminology of alternative remedy being efficacious or adequate is the area where the Courts have to take a pragmatic and conservative view instead of being too liberal with 'open door' policy
Result: Appeal is disposed of

JUDGMENT :

VINEET KOTHARI, J.

1. Present Intra Court Appeal has been filed by Pandya Manishanker Dhanjibhai and 41 others claiming to be the Tenants of Respondent No.4 Ghanchivad Memon Jamat (later on registered as a Public Trust under the Bombay Public Trusts Act), having its Registration No.B/15, Bhavnagar in the shops located at 'Old Kabristan' in Bhavnagar, situated at Survey Nos.7617 to 7622 and 7630 in the City Survey Ward No.3 at Navapura, Bhavnagar. The Appellants – Petitioners are aggrieved by the dismissal of their Special Civil Application No.12594 of 2002 by the learned Single Judge of this Court, vide order dated 23.9.2016 mainly on the ground of their locus standi to maintain such writ petition, suppression of material facts from the Court and pendency of Civil Suits filed by them which were pending trial in the Subordinate Courts.

2. It may be stated, at the outset, here that Respondent No.4, the Trust has already filed a Regular Civil Suit No.13 of 1998 in the Court of Civil Judge (Senior Division), Bhavnagar – Ghanchivad Memon Jamat vs. State of Gujarat and others for Declaration and Injunction for almost the same relief, for which the present litigation in writ jurisdiction of this Court has been initiated by the Tenants of the shops constructed presumably by the Trust itself and in the said suit, the Trust has claimed the right of declaration over the said property for the aforesaid Survey numbers and also injunction against the State Authorities not to dispossess the Plaintiff from the said land in question. It was brought to our notice that the said suit was returned under Order 7 Rule 10 of the Civil Procedure Code, 1908, vide order dated 18.12.2018 passed by the 5th Additional Senior Civil Judge, Bhavnagar for presenting the said suit before the Waqf Board / Tribunal, Gandhinagar, Gujarat in view of the amendment of Section 83 of the Waqf Act, 1995 in 2013, whereby Section 83 of the Waqf Act, 1995 providing for Constitution of Waqf Tribunal under the Waqf Act, 1995 was amended to include also the 'dispute with regard to eviction of a tenant or determination of rights and obligations of the lessor and the lessee of waqf property' besides the earlier general powers to determine any dispute, question or other matter relating to a waqf or waqf property under the said Act. It was further stated before us by learned Senior Counsel Mr.Mihir Thakore that a Review Petition has been filed before the said Trial Court of 5th Additional Senior Civil Judge, Bhavnagar, seeking a review / modification of the said order dated 18.12.2018 with a prayer to the said Court to itself transfer the pending trial of the said Suit No.13 of 1998 to the Waqf Tribunal.

3. Though, during the course of arguments on behalf of the Appellants – Tenants represented by Mr. Mihir Thakore, the learned Senior Counsel, we expressed a doubt and a question to the learned counsel for the Appellants that if the question of Ownership or Title of the Trust itself was the burden of this Writ Petitioners and Tenants were only a front used by the Trust to run this litigation in writ jurisdiction parallel to civil suit proceedings and only the Trust was sought to be divested of its such right by the order of the District Collector, Bhavnagar dated 4.2.1990, the Tenants may not have locus standi to challenge the same as they cannot claim to be the owners of the land in question which is said to have been allotted in favour of the Trust by the erstwhile State of Bhavnagar way back in 1895 as Kabristan (Graveyard) and since the said relief could be claimed and has been claimed by the Trust itself in the Civil Suit No.13 of 1998, as aforesaid, therefore, whether the Tenants of the Trust should be allowed at all to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India or not.

4. The said query of the Court on the preliminary ground

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2021 Supreme(Guj) 98

Point of Law: - It is well, nay, settled position of law that the writ jurisdiction can be invoked only against the final orders of lower authorities, Courts or Tribunals and that too if an effective and alternative remedy is not available to writ petitioners.

Cases Referred (2)