Ahmedabad Municipal Corp. v. Badarsing Ajitsinh — 1996 DIGILAW 621 (GUJ)

JUDGMENT : C.K. Thakker, J. Admitted. Mr. G.M.Joshi, learned advocate for the respondents appears and waives service of notice of admission. With the consent of the parties and in the facts and circumstances of the case the matter is taken up for final hearing. 2. This appeal is filed by Ahmedabad Municipal Corporation against the judgment and order passed by the learned Single Judge on March 12, 1996 in First Appeal No.7371 of 1995. By the impugned judgment, the learned Single Judge allowed the appeal filed by the respondents plaintiffs, set aside the decree passed by the trial court and remanded the matter for fresh disposal in accordance with law. 3. The respondent-plaintiff filed a Civil Suit No.4486 of 1983 in City Civil Court, at Ahmedabad for declaration that re-constitution of final plot no.240 from original plot no.222-C in Town Planning Scheme No.5 City Wall Improvement at Dudheswar Road, Ahmedabad, was illegal, null and void and the notices issued to them under Section 68 of the Gujarat Town Planning & Urban Development Act, 1976 (hereinafter referred to as "1976 Act") were arbitrary, illegal, without authority of law and against the principles of natural justice and for permanent injunction restraining the defendant Corporation, its servants and agents from removing the construction of shops occupied by the plaintiffs. 4. It is the case of the plaintiff that Town Planning Scheme No.5 came into force from 21st July 1965 under the Bombay Town Planning Act, 1954, then in force. (hereinafter referred to as "194 Act") The plaintiffs were occupants of suit shops as tenants since many years and they were carrying on business. Their shops were sought to be demolished for road widening. The plaintiffs were, therefore, served with notices under 1954 Act. Notices were, however, withdrawn on technical ground. Again, notices were issued on May 30, 1981 under 1976 Act inviting objections from the plaintiffs. The plaintiffs submitted their objections but without considering them in their proper perspective, Jr. Assistant to the Estate and City Improvement Office of the Corporation rejected those objections on September 8, 1981 and called upon the plaintiffs to remove the construction within seven days of the receipt of the order. The plaintiffs asserted that Jr. The plaintiffs submitted their objections but without considering them in their proper perspective, Jr. Assistant to the Estate and City Improvement Office of the Corporation rejected those objections on September 8, 1981 and called upon the plaintiffs to remove the construction within seven days of the receipt of the order. The plaintiffs asserted that Jr. Assistant and Estate and City Improvement Officer had no power, authority or jurisdiction to issue notices under Section 68 of the Act as the power is only with Urban Development Authority, which could not be delegated. It was also stated that the Corporation had to resort to the provisions of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972. Further, the defendant were duty bound to provide alternative accommodation to the plaintiffs as the corporation had accommodated other persons. Since the defendant was threatening the plaintiffs to remove construction, they were constrained to file a suit. 5. The defendants appeared and filed written statement at Exh.13. It was, inter alia, contended by the Corporation that the suit was not maintainable at law, inasmuch as the Town Planning Scheme had already come into force. Municipal Commissioner was competent authority. He had delegated his powers to Jr. Assistant and hence, notices issued by Jr. Assistant were in accordance with law. The plaintiffs were served with notices, calling upon them to remove construction. Objections filed by them were considered and they were rejected. Since the plaintiffs had no right to occupy shops, the action was taken by the Corporation which was legal and the suit deserved to be dismissed. 6. On the basis of the pleadings of the parties the trial court framed following issues at Exh.15. "(1) Whether the plaintiffs prove that the notices issued by the defendant Corporation under Section 68 of the Act, r/w rule 33 are arbitrary, illegal and without any authority of law ? (2) Whether the suit is barred by misjoinder of cause of action and misjoinder of parties ? (3) Whether the suit in the present form is maintainable under the provisions contained in the Gujarat Town Planning and Urban Development Act, 1976 ? (4) Whether the plaintiffs are entitled to the injunction as prayed for ? (5) What order and decree ?" 7. (3) Whether the suit in the present form is maintainable under the provisions contained in the Gujarat Town Planning and Urban Development Act, 1976 ? (4) Whether the plaintiffs are entitled to the injunction as prayed for ? (5) What order and decree ?" 7. The trial proceeded and on the basis of evidence, the trial court held that notices issued by the Corporation were legal, valid and in accordance with law. The Town Planning Scheme was framed according to law and it was legal and valid. The court also observed considering the provisions of Section 51(3) of 1954 Act corresponding to Section 65(3) of 1976 Act, that when a scheme was final, it had the effect "as it enacted in the Act" and such action could be challenged only for the breach of a fundamental nature. Referring to various decisions of this court, the trial court held that the plaintiffs had failed to establish that notices could not have been issued and they could not be called upon to remove construction. Sufficient opportunity was given to the plaintiffs to represent their case before the authorised officer of the Corporation and after following the procedure laid down in Rule 33 of the Rules, the defendant had passed the order which was lawful. Regarding alternative accommodation, the trial court observed that plaintiffs have no right to remain on land until alternative accommodation is provided. The trial court was, therefore, pleased to dismiss the suit. 8. Being aggrieved by the decree passed by the trial court, the plaintiffs preferred First Appeal which, as stated above, came to be allowed by the learned Single Judge. According to the learned Single Judge, various contentions have been raised by the plaintiffs in the plaint. Nonetheless the learned Trial Judge was pleased to frame a single issue which centered round the question as to whether notices issued by the Corporation were arbitrary, illegal or without authority of law. The second issue was regarding to mis-joinder of parties and causes of action. In the opinion of the learned Single Judge, all aspects of the case had not been covered by the above two issues. 9. The second issue was regarding to mis-joinder of parties and causes of action. In the opinion of the learned Single Judge, all aspects of the case had not been covered by the above two issues. 9. The learned Single Judge then observed " I am primarily concerned with the question as to whether, there has been proper framing of the issues which would embarace within them the contentions taken by the plaintiffs and sought to be controverted by the other side. The answer to this question appears to be in negative. The only course open to me is to set aside the judgment and the decree in question and to remand the matter to the court below, with appropriate directions and a time frame." 10. Mr. P.G. Desai, learned counsel for the appellant Corporation vehemently contended that the learned Single Judge has committed an error of law in allowing the appeal and remanding the case to the trial court. He submitted that the suit filed by the plaintiff was not maintainable at law. According to him, the defendant Corporation as local authority made a declaration to make Town Planning Scheme No.5 known as City Wall Scheme as early as on April 18, 1927 under the Bombay Town Planning Act, 1915. The Corporation followed the procedure laid down under the Old Act while framing the said scheme. According to him, in the meanwhile 1915 Act came to be repealed by 1954 Act and pending proceedings were saved under Section 90 of 1954 Act. The proceedings were, therefore, continued. The Scheme came into force from September 1, 1965. The Government granted its approval to the scheme and it became part of the Act. This is all stated in the written statement. It was also stated that various owners and occupiers filed suits, which were dismissed. Some of them have filed appeals and they were also dismissed by this court. Even the Hon'ble Supreme Court was approached and the Apex Court had also dismissed the appeal. It was contended that the plaintiffs had no right to file a suit. It was denied that the plaintiffs were in occupation of shops or of land since several years. They were not in possession of the land at the time when declaration to make the scheme was made. They could not be said to be "interested persons". The defendant had, therefore, power to remove the plaintiffs. It was denied that the plaintiffs were in occupation of shops or of land since several years. They were not in possession of the land at the time when declaration to make the scheme was made. They could not be said to be "interested persons". The defendant had, therefore, power to remove the plaintiffs. In spite of that, objections submitted by plaintiffs were considered and on merits they were rejected by the Corporation. The plaintiffs had, therefore, no right to file suit and the suit was liable to be dismissed. Mr. Desai further submitted that the trial court considered the evidence as also the contention raised by the Corporation and rightly dismissed the suit and the learned Single Judge ought not to have set aside the decree passed by the trial court. 11. Mr. Desai also submitted that the learned Single Judge was also not right in observing that necessary issues were not framed and that the matter was required to be remanded. He submitted that there was no necessity of framing more issues than those framed by the trial court. He also submitted that the suit is of 1983. Issues were framed since long. No grievance was made by the plaintiffs against framing of issues at that stage and the parties went to trial. It is now not open to the plaintiffs to raise such contention. Even on merits, according to the counsel, the learned Single Judge was not right in setting aside the decree and in remanding the matter as the point is finally concluded by various decisions of the Hon'ble Supreme Court. 12. Mr. Joshi for Mr. Y.N.Oza, learned counsel for the respondents, on other hand, supported the order passed by the learned Single Judge. He submitted that the learned Single Judge has set aside the decree passed by the trial court and the matter is only remanded. The Corporation ought not to have filed appeal against such order and this court may not interfere with an order of remand. 13. Having considered the rival contentions of the parties, we are of the view that the appeal requires to be allowed and the order passed by the learned Single Judge requires to be set aside by restoring the decree passed by the trial court. 14. 13. Having considered the rival contentions of the parties, we are of the view that the appeal requires to be allowed and the order passed by the learned Single Judge requires to be set aside by restoring the decree passed by the trial court. 14. From the record it is clear that the case of the Corporation is that a declaration was made regarding Town Planning Scheme No.5 as early as on April 18, 1927. It was under the Bombay Town Planning Act, 1915 then in force. Since the Town Planning Scheme was not finalised and meanwhile new Act of 1954 came into force, the proceedings were continued under that Act. Various suits and petitions were filed either in Civil Court or in this court and the scheme could not be implemented even under 1954 Act. Thereafter, notices were issued to the plaintiffs under the present Act of 1976. 15. Mr. Joshi, learned counsel for the appellants, no doubt placed heavy reliance on the decision of the Hon'ble Supreme Court in Jashwantsing Mathurasing and another v. Ahmedabad Municipal Corporation & others, 1991 SC 2130. He submitted that in Jashwantsing, the Hon'ble Supreme Court overruled the decision of the Full Bench of this court in Dungarlal Harishchandra v. State of Gujarat, 1976 (17) GLR 1152(FB). He submitted that the trial court has committed an error of law in relying and following the ratio laid down in Dungarlal, though that decision was overruled in Jashawantsing by Hon'ble Supreme Court. According to Mr. Joshi, in Jashwantsing, Supreme Court laid down that issuance of notice was a sine qua non and absence of such notice would result into violation of the principles of natural justice and no action could be taken against a person who would be affected thereby. At the first blush, the submission appears to be attractive but on close scrutiny, it has no force. In our judgment the person concerned must be on land when a declaration was made for Town Planning Scheme. It is a pure question of fact. For the said purpose, evidence is required to be led by parties and a finding of fact has to be arrived at by the trial court. In the instant case, the plaintiffs have not stated in the plaint as to since when they were in possession of property. It is a pure question of fact. For the said purpose, evidence is required to be led by parties and a finding of fact has to be arrived at by the trial court. In the instant case, the plaintiffs have not stated in the plaint as to since when they were in possession of property. A bald and vague statement was made that they were in occupation of shops since many years. But neither the year was mentioned nor any evidence was led to show the year of occupation. As observed by us herein above, it was the case of the Corporation in written statement that the date of declaration of Town Planning Scheme was April 18, 1927. If on that day, plaintiffs were not in possession, they were not entitled to notice and the Town Planning Scheme cannot be held to be illegal, in absence of issuance of notice to them. Mr. Desai drew our attention in this connection to a decision of the Supreme Court in Meman Bachu Daud and others v. State of Gujarat and another, AIR 1994 SC 480 . That case had also gone from this court. The Apex Court considered the decision of the Full Bench of this court in Dungarlal, as also Jashwantsing decided by the Apex Court. The appellant of that case came in possession of property as tenant in 1960. The Supreme Court observed that the appellant was not in possession as tenant in 1960. The court, therefore, observed that they were not in possession on July 1, 1956 when the Town Planning Scheme was published. According to the Supreme Court, all those tenants and sub-tenants continuing in possession as on July 1, 1951 were entitled to notice before finalising the scheme. The court stated; "It is not clear from the pleadings whether the first appellant is owner or in possession as on July 1, 1955. Therefore, it is open to the first appellant to adduce evidence in this regard before the trial court to establish this fact. If he is continued in possession as on July 1, 1957, he is also entitled to the same benefit as was given in the earlier decision of this court referred to above." In our opinion, the observations in Meman Bacu clinches the issue against the plaintiffs. No doubt, Mr. If he is continued in possession as on July 1, 1957, he is also entitled to the same benefit as was given in the earlier decision of this court referred to above." In our opinion, the observations in Meman Bacu clinches the issue against the plaintiffs. No doubt, Mr. Joshi made valiant effort by submitting that in that case the Supreme Court also remanded the matter and permitted the parties to adduce evidence so that an appropriate order could be passed. According to him, the plaintiffs prayed nothing more than which was granted to the plaintiffs in Meman Bachu Daud. 16. We are afraid, we cannot accede to the prayer made by Mr. Joshi. In our opinion, the fundamental difference in Meman Bachu Daud and the present case is that in that case, the matter had gone to the Supreme Court at interlocutory stage. The case was not finalised. The Supreme Court, hence, directed the parties to adduce evidence so that a finding of fact could be reached. The instant case, on the other hand, is not an interlocutory one. A suit was filed by the plaintiffs in the year 1983. Written statement was filed and issues were framed. Parties went to trial. Evidence was led and the suit was dismissed. Therefore, the prayer of Mr. Joshi cannot be granted. According to the Supreme Court in Memon Bachu Daud, the relevant date was declaration of publication of Town Planning Scheme which was July 1, 1951 in that case. In the instant case, relevant date would be April 18, 1927. Since there is no evidence worth the name adduced by the plaintiffs too show that they were in possession or in occupation. On that day, they were not entitled to notice and in our opinion the trial court was right in dismissing the suit of the plaintiffs. 17. For the reasons aforesaid this Letters Patent Appeal is allowed. The judgment and order passed by the learned Single Judge is set aside and the decree passed by the trial court dismissing the suit is hereby restored. In the facts and circumstances of the case, there shall be no order as to costs all throughout. 18. The learned counsel for the respondent-plaintiff prays that the order passed by this court may be kept in abeyance so that the respondent-plaintiff can approach higher forum. In the facts and circumstances of the case, there shall be no order as to costs all throughout. 18. The learned counsel for the respondent-plaintiff prays that the order passed by this court may be kept in abeyance so that the respondent-plaintiff can approach higher forum. In the facts and circumstances of the case, 8 weeks time is granted. Appeal is allowed.