MUNICIPAL CORPORATION Vs. CHELARAM AND SONS

JUDGEMENT

(1.) The Municipal Corporation of the City of Ahmedabad having obtained special leave to appeal under Article 136 of the Constitution of India from this Court has brought in challenge the judgment and order rendered by a Division Bench of the Gujarat High Court in Letters Patent Appeal No. 258 decided on 2nd September 1993 whereby the decree of the City Civil Court in favour of the respondent/plaintiffs came to be restored by setting aside the judgment and order of the learned Single Judge who had dismissed the said suit.

(2.) The background facts leading to this appeal may be noted at the outset. Respondent-plaintiffs filed Civil Suit No. 1809 of 1972 in the City Civil Court at Ahmedabad against the appellant-Corporation. They had brought in challenge notice dated 14th June 1972 issued by the appellant- Corporation against the respondent-plaintiffs under Section 54 of the Bombay Town Planning Act, 1955 (hereinafter referred to as the Act) read with Rule 27 of the Bombay Town Planning Rules, 1955 (hereinafter referred to as the Rules). By the said notice the respondent-plaintiffs were called upon to vacate the suit land within seven days failing which they were threatened to be removed from the land and the superstructure thereon by use of force. The respondent-plaintiffs contended that the said notice was illegal and contrary to principles of natural justice. The said challenge was mounted by the respondent-plaintiffs mainly on two grounds, one that plaintiff No.2, respondent No.2 herein, was in possession of the land and the superstructure on the date on which the concerned Town Planning Scheme was gazetted by the appellant-Corporation under the Act on 2nd August 1951 and no individual notice was served on plaintiff No. 2 who was inpossession of the suit property, hence subsequent proceedings culminating into the Town Planning Scheme and the impugned notice were bad in law. The second ground of challenge was that in any case the notice under Section 54 of the Act read with Rule 27 of the Rules was contrary to the basic principles of natural justice as no opportunity to show cause was given to the respondents, before ordering their eviction. The learned Trial Judge having heard the parties came to the conclusion that the impugned notice was liable to be quashed on both the aforesaid grounds. Consequently the following order and decree were passed by the learned Trial Judge:

(3.) The appellant-Corporation carried the matter in appeal to the High Court of Gujarat at Ahmedabad. A learned Single Judge by his order dated 9th April 1991 allowed the said appeal. Learned Single Judge of the High Court held that in view of the latter Full Bench judgment of the High Court in the case of Dungarlal Harichand v. State of Grujarat reported in 17 Guj L.R. 1152 no individual notices were required to be served on the sitting tenants as per Rule 21 sub-rules (3) and (4) of the Rules. That negatived the first ground of attack levelled against the impugned notice by the plaintiff. On the second ground which appealed to the Trial Court for voiding the notice, namely, non-compliance with the principles of natural justice while issuing notice under Section 54 of the Act read with Rule 27, it was held by the learned Single Judge that the earlier view of the Division Bench of the High Court in the case of, Mangaljibhai Roopajibhai v. State of Gujarat, (1972) 13 Guj L. R. 649 no longer held the field in view of later Full Bench judgment of the High Court in the case of Saiyed Mohammed Abdullamiya Urai-Zee v. Ahmedabad Municipal Corporation, (1977) 18 Guj. L. R. 549. Consequently, the appeal of the appellant-Corporation was allowed and respondents suit was dismissed. The respondents thereafter carried the matter in Letters Patent Appeal before the Division Bench of the High Court. The Division Bench of the High Court consisting of S. Nainar Sundaram, CJ, and S. D. Dave. J. by their impugned judgment and order held that this Court in the case of Jaswant Singh Mathurasingh v. Ahmedabad Municipal Corporation, AIR 1991 SC 2130 had taken a contrary view and had held that individual notice under Rule 21 sub-rules (3) and (4) of the Bombay Town Planning Rules was required to be issued to those in possession of the properties and as no such notice was issued to the respondents only on that ground the suit was required to be decreed and the judgment of the learned Single Judge was required to be set aside. Accordingly the Division Bench vacated the order of the learned Single Judge in First Appeal and restored the decree of the City Civil Court in Civil Suit No. 1809 of 1972. Thereafter the Division Bench further directed that it is for the defendant (appellant- Corporation) to follow the due procedure before enforcing to reconstitute the plot as final Plot No. 115 under the Scheme.