GANPAT ATMARAN v. MUNICIPAL CORPORATION AHMEDABAD — 1995 DIGILAW 191 (GUJ)

J. N. BHATT, J. ( 1 ) THIS appeal is directed against the judgment and order passed below Exh. 5 (Notice of Motion) in Civil Suit No. 303 of 1988 by City Civil Court Ahmedabad on 2nd February 1988. ( 2 ) THE appellant is original-plaintiff who instituted the aforesaid suit for a declaration and injunction against the respondent original-defendant Municipal Corporation restraining it from removing the plaintiffs pan-galla (Stall) situated on a public street. The plaintiff inter alia contended in the suit that he is a monthly tenant of Shree Talkies since last so many years and he is regularly paying rent to the landlord. The Corporation while acquiring the land on which the pan-galla is situated has not followed the prescribed procedure in Bombay Provincial Municipal Corporation Act 1949 (BPMC Act ). The pan-galla is situated on land bearing Survey No. 146-177/2 having Municipal Census No. 9801 It is also the case of the plaintiff that he has been paying municipal taxes alleging that the action of Corporation is unlawful and illegal and against the principles of natural justice. The suit came to be filed. The Notice of Motion was taken out requesting for interlocutary injunction during the pendency of the suit. ( 3 ) THE defendant Corporation appeared and resisted the suit and the Notice of Motion by filing written statement Exh. 12 inter alia contending that the disputed pan-galla is situated admittedly on a public street and as per the plan and sketch prepared by the Commissioner said pan-galla is shown as an encroachment on a public street and therefore plaintiff has no right and the suit is incompetent. It is also pleaded by the Corporation that the disputed pan-galla is of the ownership of the plaintiff-brother namely Jagdish Atmaram who had filed Writ Petition No. 989 of 1986 before the Honble Supreme Court of India. The said petition was filed for and on behalf of about 151 lorry-gallawalas and hawkers challenging the action of the defendant Municipal Corporation for the removal of their lorry-gallas. The plaintiffs brother was shown in that petition as petitioner No. 131. The said petition came to be dismissed by the Honble Supreme Court of India on 6 January 1988 and thereafter when the defendant Corporation tried to remove the pan-galla the plaintiff filed the suit seeking the injunction. The plaintiffs brother was shown in that petition as petitioner No. 131. The said petition came to be dismissed by the Honble Supreme Court of India on 6 January 1988 and thereafter when the defendant Corporation tried to remove the pan-galla the plaintiff filed the suit seeking the injunction. Thus the contention of the Corporation that despite of failure before the Supreme Court and clear order of the Supreme Court the plaintiff by filing the suit has sought relief against the lawful action of the Municipal Corporation. Thus in short the defendant Corporation has contended that the disputed pan-galla is situated on a public street making an encroachment and causing obstruction to traffic in breach of the provisions of Sections 231 and 232 of the BPMC Act. The allegation of plaintiff that he is a tenant is also denied. ( 4 ) HAVING regard to the facts and circumstances the Id. City Civil Court Judge reached to a conclusion that the plaintiff has no prima facie case and therefore the Notice of Motion came to be dismissed with costs on 2nd February 1988. Hence this appeal against that order. ( 5 ) THE learned Advocate for the appellant has reiterated the same grounds which were agitated before the Trial Court and which rightly came to be rejected. There is no dispute about the fact that the Writ Petition No. 989 of 1986 was filed before the Honble Supreme Court of India in which the plaintiffs brother was one of the appellants at Serial No. 131 which came to be dismissed. There is no evidence to show that the plaintiff has right title or interest in the disputed pan-galla. There is also no evidence to show that he is a tenant in respect of disputed pan galla. The tax bills produced in the Trial Court were considered by the Trial Judge and they are rightly not held to be sufficient to characterize the plaintiff as a owner or a tenant of pan-galla. The allegation of the plaintiff that he has become a tenant of disputed pan-galla is rightly disbelieved prima facie by the trial Court. The tax bills produced in the Trial Court were considered by the Trial Judge and they are rightly not held to be sufficient to characterize the plaintiff as a owner or a tenant of pan-galla. The allegation of the plaintiff that he has become a tenant of disputed pan-galla is rightly disbelieved prima facie by the trial Court. On the contrary from the map and the sketch prepared by the Commissioner it becomes crystal clear that the plaintiff has made an encroachment on a public street in violation of the provisions of BPMC Act In the light of the facts and circumstances this Court is satisfied that the impugned order passed by the Id. City Civil Court Judge Ahmedabad is fully justified and there is no substance at all in this appeal. In fact after having lost in the Apex Court of the land the brother of the plaintiff has again tried to play a fresh inning raising same contentions without showing any prima facie case. With the result the plaintiff is found not entitled to any equitable discretionary extraordinary relief. Having regard to the facts and circumstances the plaintiff has no merits in this appeal. Without disclosing the fact that his brother had filed a Writ Petition before the Honble Supreme Court and that he had lost and despite the order of the Honble Supreme Court the plaintiff brought a second round of litigation making an encroachment and causing an obstruction of traffic in violation of the provisions of the BPMC Act without disclosing true and correct facts and even though the plaintiff is not entitled to any relief he has remained in occupation and enjoyment of the pan-galla since 1988. Therefore this meritless appeal is required to be dismissed with exemplary cost In the facts and circumstances the appeal is dismissed with costs which is quantified at Rs. 3500/ -. Accordingly this appeal is dismissed. ( 6 ) LD. Advocate for the appellant original-plaintiff at this stage submits that the interim order of status-quo granted by this Court may be continued for a further period of one month as the appellant is desirous of filing appropriate petition before the Honble Supreme Court. 3500/ -. Accordingly this appeal is dismissed. ( 6 ) LD. Advocate for the appellant original-plaintiff at this stage submits that the interim order of status-quo granted by this Court may be continued for a further period of one month as the appellant is desirous of filing appropriate petition before the Honble Supreme Court. In the facts and circumstances narrated hereinbefore and particularly so when this Court has found that the plaintiffs case is totally meritless as he has made an encroachment on the public street and obstructing the traffic in violation of the provisions of the BPMC Act he is not entitled to any further relief nor continuance of the order of status-quo. Therefore the request is rejected. Petition Dismissed. .