BARODA MUNICIPAL CORPORATION v. GUJANAN TRADERS — 1992 DIGILAW 199 (GUJ)

J. N. BHATT, J. ( 1 ) BY this appeal the appellant-Baroda Municipal Corporation has assailed the judgment and decree passed by the learned Assistant Judge Baroda on 8 in Regular Civil Appeal No. 221 of 1976 by invoking the aids of Section 100 of the Civil Procedure Code 1908 (`code for short hereinafter ). A resume of the material facts giving rise to the present Second Appeal may be narrated at the outset so as to appreciate the rival versions propounded before this Court in this appeal. ( 2 ) THE present appellant is the original defendant and the present respondents are the original plaintiffs who are hereinafter referred to as the `plaintiffs and `defendant for the sake of convenience The plaintiffs initiated a legal battle by filing Regular Civil Suit No. 667 of 1969 in the Court of the learned Civil Judge (J. D.) at Baroda for a perpetual injunction against the decision of the defendant-Corporation to close the road in question for heavy vehicles. ( 3 ) THE plaintiffs are registered partnership firms and dealing with iron goods and hardware materials. They have their godowns in an area known as Lakkad-pitha. Plaintiff No. 1 has three open plots which are taken on lease. Plaintiff No. 2 has two plots adjacent to the main road of Lakkad-pitha on the southern side. Thus the plaintiffs are storing their hardware materials in the said open plots. According to the plaintiffs it is a commercial locality and meant for business. The plaintiffs are loading and unloading garders iron pipes and other hardware materials in the said godowns with the help of trucks. The plaintiffs challenged the action of the defendant Corporation of closing the road where their godowns are situated for the purpose of heavy vehicles. The defendant- Corporation exercising statutory powers has placed sign-boards on the Lakkad-pitha area indicating that heavy vehicles should not pass on that road. This was done on 24/12/1968. The road where the plaintiffs are doing their business is west to east and the said road meets with Madan Zampa road. Thus the road starting from Lakkad-pitha goes from west to east and ends at Madan Zampa road. This road is hereinafter referred to as `the disputed road. This was done on 24/12/1968. The road where the plaintiffs are doing their business is west to east and the said road meets with Madan Zampa road. Thus the road starting from Lakkad-pitha goes from west to east and ends at Madan Zampa road. This road is hereinafter referred to as `the disputed road. ( 4 ) THE plaintiffs further contended that the defendant intends to stop passing of heavy vehicles from both sides of the disputed road because of which their business would be affected. They also contended that the action of the defendant in closing the road for heavy vehicles was illegal arbitrary and without jurisdiction. After statutory notice was served to the defendant the aforesaid suit was filed. ( 5 ) THE defendant-Corporation appeared and resisted the suit by filing written statement Ex. 14. The material averments raised in the suit were changed. The defendant inter alia contended that the impugned action was taken by the Commissioner of the respondent Corporation under the provisions of Section 208 of the Bombay Provincial Municipal Corporations Act 1949 (BPMC Act for short hereinafter) as the defendant-Corporation had received many complaints and applications from inhabitants on the side of the disputed road. The loading and unloading of heavy articles like garders iron pipes and other hardware materials cause great nuisance and hardship to the residents. Pursuant to the complaints and application received from the residents of both sides of the disputed road the impugned action was taken which is legal and valid. It is further contended by the respondent-Corporation that open lands are being used as godowns by the plaintiffs during day time and also at night time and because of that the tranquillity and peace in the said area was jeopardised. The plaintiffs were transporting heavy iron materials in trucks and they use to throw their heavy garders iron plates iron rods etc. from the truck because of which there was actionable nuisance and serious annoyance and disturbance to the residents of that area. The Commissioner of the defendant Corporation had received several complaints and applications in this connection for taking necessary action. After detailed inquiry the defendant-Corporation had proposed to close this road for heavy vehicles. from the truck because of which there was actionable nuisance and serious annoyance and disturbance to the residents of that area. The Commissioner of the defendant Corporation had received several complaints and applications in this connection for taking necessary action. After detailed inquiry the defendant-Corporation had proposed to close this road for heavy vehicles. The proposal of the Commissioner of the defendant-Municipal Corporation was accepted and approved by the Standing Committee by its Resolution No. 431 on 13/09/1968 which was further approved by the General Body of the Municipal Corporation. Thus the Municipal Commissioner who is authorised under Section 208 of the BPMC Act with the sanction of the Standing Committee and General Body took decision in the larger interest of the public to close the disputed road for heavy vehicles. In short the defendant-Corporation challenged the entire suit and contended that the impugned action was perfectly legal and justified. ( 6 ) ON appreciation of the evidence and after hearing the parties the trial court was pleased to dismiss the suit of the plaintiffs. Being aggrieved by the said judgment and decree the original plaintiffs filed Regular Civil Appeal No. 121 of 1976 in the District Court at Baroda under the provisions of Section 96 of the Code. The learned Assistant Judge Baroda was pleased to allow the appeal on 8/09/1978. The judgment and decree of the trial court came to be set aside. It was held by the First Appellate Court that the plaintiffs were entitled to decree in terms of para 7 of the plaint. But the same shall not come into the way of the defendant-Corporation in its future exercise of powers. Being dissatisfied by the judgment and decree passed by the First Appellate Court the original defendant-Municipal Corporation has now come up before this Court challenging its legality and validity under the provisions of Section 100 of the Code. ( 7 ) THE learned Counsel for the appellant/original defendant-Municipal Corporation has vehemently contended that the judgment and decree of the First Appellate Court are totally perverse. The learned Counsel for the original plaintiffs has supported the judgment and decree of the First Appellate Court. ( 7 ) THE learned Counsel for the appellant/original defendant-Municipal Corporation has vehemently contended that the judgment and decree of the First Appellate Court are totally perverse. The learned Counsel for the original plaintiffs has supported the judgment and decree of the First Appellate Court. ( 8 ) HAVING examined the facts and circumstances of the present case and the relevant provisions of law this Court is of the clear opinion that the judgment and decree passed by the First Appellate Court reversing the judgment and decree of the trial court are totally perverse and illegal. The learned Appellate Judge has found that the impugned action and the order of the Commissioner of the Municipal Corporation in closing the disputed road for heavy vehicles is ultra vires of the BPMC Act illegal and arbitrary as mentioned in para 16 of the judgment. In the facts of the present case it cannot be said for a moment that impugned action is ultra vires of the BPMC Act. Therefore the learned Counsel for the plaintiffs/respondents has rightly conceded that the impugned action of the Commissioner cannot be said to be ultra vires of the BPMC Act. However he has contended that the finding that the impugned action of closing the disputed road for heavy vehicles is arbitrary and therefore illegal. It is also further submitted that the said finding is a finding of fact and cannot be challenged in Second Appeal. ( 9 ) IT is true that the jurisdictional sweep of this court in Second Appeal is very much circumscribed. Ordinarily the finding of facts could not be interfered with while exercising powers under Section 100 of the Code. However it may be mentioned that if the finding of fact is totally and manifestly erroneous perverse and indicating non-application of mind then in that case this Court can interfere with it under Section 100 of the Code and set it right. The finding of fact that the impungned order is not bona fide and therefore illegal is with due respect to the learned Appellate Judge is totally perverse and radiates an imprint of non-application of mind in so far as the provisions of Section 208 of the BPMC Act are concerned. The observations of the learned Appellate Judge in para 14 of the judgment are unsustainable. The observations of the learned Appellate Judge in para 14 of the judgment are unsustainable. The Appellate Judge found that on account of the closure of the disputed road for heavy vehicles the trucks of the plaintiffs would not reach upto the godowns for loading and unloading of the goods. Therefore the goods could be brought by cart when the trucks are parked at the corner of the street. This would cause hardship to the plaintiffs. Upon these observations and circumstances the learned Appellate Judge reached to the conclusion that the Municipal Commissioner has not exercised his powers properly and therefore the impungned action cannot be said to be bona fide. Merely because a leading businessman will be put to some extra expenditure because of the exercise of statutory powers by the Municipal Commissioner in the larger interest of the public his action would not tentamount to a mala fide action. Could it be therefore said that such an action of the Municipal Commissioner is illegal ? No doubt the plaintiffs would not be able to take their trucks right upto their godowns for loading and unloading. They will have to park the truck at the corner of the disputed road from where they will have to use carts which would obviously entail additional expenditure. But that fact ipso facto would not be suggestive of a mala fide action on the part of the Municipal Commissioner who has exercised his statutory powers under Section 208 of the BPMC Act. ( 10 ) NEEDLESS to mention that there were lot of complaints and grievances and representations from various sections of people of the said locality against the high-handed handling of loading and unloading of garders iron bars iron rods iron pipes and other hardware materials during the day time and also at night time. Because of throwing of such materials in the open vacant land which are converted into godowns in the said locality caused lot of annoyance nuisance and hardship to the residents of that area. It is therefore clear from the record that many complaints were received by the Corporation. It is also very clear from the record that there is a school where children are studying. The school is situated on the side of the disputed road. It is therefore clear from the record that many complaints were received by the Corporation. It is also very clear from the record that there is a school where children are studying. The school is situated on the side of the disputed road. According to the evidence on record the residents of the said area started complaining against the misuse of open vacant land as godowns since May 1966. Ex. 38 is a representation signed by more than 30 persons who are residents of that area requesting the Municipal Commissioner to take immediate action as there was great nuisance annoyance and hardship on account of loading and unloading of hardwares in the godowns which are in the open plots. There is no dispute about the fact that the disputed road is situated in an area known as Lakkad-ptha. There was a great fire in 1962 in this area. Thereafter it was decided that that area should be converted into residential zone. Residential quarters were also constructed. However in the open plots some businessmen started storing iron Pipes iron rods and other hardware materials. It is also clearly stated in the said representation dated 30/05/1966 that such open plots are illegally without authority used as godowns which have become the fountain source of agony disturbance and hardship to the residents of that area. Therefore it was earnestly requested that the Municipal Commissioner should take immediate necessary action. Subsequently several such representations and complaints were made to the Municipal Commissioner. Such representations are produced at Exhs. 39 40 41 42 43 44 and 45. The Standing Committee had also passed resolution requesting the Municipal Commissioner to take necessary actions in view of the serious hardships and disturbances to the residents of that area where the disputed road is situated. ( 11 ) ULTIMATELY the Commissioner of the Municipal Corporation was pleased to exercise his powers under Section 208 of the BPMC Act. It would be pertinent to refer to the provisions of Section 208 of the BPMC Act which read as under :208 Power to prohibit use of public streets for certain kinds of traffic. ( 11 ) ULTIMATELY the Commissioner of the Municipal Corporation was pleased to exercise his powers under Section 208 of the BPMC Act. It would be pertinent to refer to the provisions of Section 208 of the BPMC Act which read as under :208 Power to prohibit use of public streets for certain kinds of traffic. (1) It shall be lawful for the Commissioner with the sanction of the Corporation to- (a) prohibit vehicular traffic in any particular public street vesting in the Corporation so as to prevent danger obstruction or inconvenience to the public by fixing up posts at both ends of such street or portion of such street; (b) prohibit in respect of all public streets or particular public streets the transit of any vehicle of such form construction weight or size or laden with such heavy or unwieldy objects as may be deemed likely to cause injury to the roadways or any construction thereon or risk or obstruction to other vehicles or to pedestrians along or over such street or streets except under such conditions as to time mode of traction or locomotion use of appliances for protection of the roadway number of lights and assistants and other general precautions and the payment of special charges as may be specified by the Commissioner generally or specially in each case. (2) Notices of such prohibitions as are imposed under sub-section (1) shall be posted up in conspicuous places at of near both the ends of the public streets or portions thereof to which they relate unless such prohibitions apply generally to all public streets. ( 12 ) IT is very clear from Section 208 of the BPMC Act that the Municipal Commissioner is authorised to prohibit vehicular traffic in any particular public street vesting in the Corporation with a view to prevent danger obstruction or inconvenience to the public. The Municipal Commissioner after considering all the facts and circumstances decided to close the disputed road for heavy vehicles and sent the proposal to the Municipal Corporation on 6/09/1968 as per Ex. 47 which was sent to the Standing Committee for approval. The Municipal Commissioner after considering all the facts and circumstances decided to close the disputed road for heavy vehicles and sent the proposal to the Municipal Corporation on 6/09/1968 as per Ex. 47 which was sent to the Standing Committee for approval. The Standing Committee approved the said proposal of the Municipal Commissioner by passing Resolution No. 431 on 13/09/1968 which was subsequently placed before the General Body of the Baroda Municipal Corporation which had passed it on 21/09/1968 Thus the proposal rendered by the Municipal Commissioner was approved by the Standing Committee and also by the General Body of Baroda Municipal Corporation. Thus the impugned action is taken by the Municipal Commissioner under Section 208 on the BPMC Act. It cannot be contended even for a moment that the action of the Municipal Commissioner which is under challenge is in any way ultra vires or illegal as held by the learned Appellate Judge. In fact with due respect to the learned Appellate Judge there was total non-application of mind in the facts and circumstances of the present case it cannot be said even for a moment that the impugned action and the order of the Municipal Commissioner was not bona fide. In reality for the larger interest of the residents of both sides of the disputed road it was necessary to close the disputed road for heavy vehicles so as to prevent danger disturbance and hardship. Could it be conceived even for a moment that such an action would be mala fide simply because some businessmen would find it difficult to load and unload their goods for reaching upto their godowns ? Obviously the answer would be in the negative. The learned Appellate Judge has failed to consider that in the alternative also equitable relief which is a discretionary one cannot be granted to the plaintiffs in the facts of the present case. He has also failed to appreciate that there is a serious allegation that open plots are used as godowns by the plaintiffs without any authority or without any permission. In such a situation even if the action of the Municipal Commissioner is found illegal then in that case also the provisions of Section 41 (j) of the Specific Relief Act 1963 would be attracted. In such a situation even if the action of the Municipal Commissioner is found illegal then in that case also the provisions of Section 41 (j) of the Specific Relief Act 1963 would be attracted. Section 41 (j) of the Specific Relief Act 1963 reads as under :41 Injunction when refused an injunction cannot be granted- xxx xxx xxx (1) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court. Section 41 of the Specific Reliefs Act prescribes as to when injunction cannot be granted. The clear mandate covered under Section 41 (1) of the Specific Relief Act 1963 has also not been considered by the learned Appellate Judge. The conduct of the plaintiffs as pointed out earlier hereinbefore is such that even alternatively discretionary relief of injunction could not be given in such a case. Be as it may the judgment and decree passed by the First Appellate Court are totally perverse and illegal which would warrant the interference of this court. Therefore this appeal is required to be allowed. ( 13 ) THE impugned judgment and decree of the First Appellate Court are set aside and judgment and decree of the Trial Court are restored. In the result the appeal is allowed with costs all throughout. Decree shall be drawn accordingly. ( 14 ) LEARNED Advocate for respondent No. 1-original plaintiff No. 1 prays that the operation of this order may be stayed for a period of three months from today. In the facts and circumstances of the case the impugned order of the Municipal Commissioner shall remain stayed upto 30/09/1991 only. (ISS) Appeal allowed. .