RAJKOT MUNICIPAL CORPORATION Vs. VIRAMBHAI DANABHAI

JUDGEMENT

(1.) The present respondent Virambhai Danabhai, resident of Rajkot, filed Regular Civil Suit No. 867 of 1982, in the Court of the Second Joint Civil Judge (JD), Rajkot, stating that the present respondentoriginal plaintiff has got his house property situated at Plot No.5 of Survey No. 461-5 situated on Raiya Road within the city of Rajkot and there is a cement shed in front of his house. The plaintiff further contended that the above said cement shed was there since last so many years and that he utilises the above said shed as shop for selling milk and milk products. It was further his case that firstly he received the Notice from defendant No.2 i.e. Town Development Officer dated 20/21.8.1982 u/s 267 (1) of the Bombay Provincial Municipal Corporations Act and was informed that the construction of the shed was illegal and without necessary permission. Later on also one more Notice was given to the plaintiff u/s 267 of the Bombay Provincial Municipal Corporations Act dated 20.8.1982 that the plaintiff was required to file his explanation within four days or else the disputed portion of the land would be handed over to the police. It was further contended by the plaintiffpresent respondent that Town Development Officer had no power to issue such notices, and that such notices if issued by defendant No.2 were null and void because no necessary powers were delegated to defend No.2 by defendant No.1 Rajkot Municipal Corporation. On this basis, the present respondent plaintiff asked for the declaration to the effect that the above said two notices were illegal, unconstitutional and without jurisdiction, null and void. He also prayed for a permanent injunction restraining the defendants from taking over possession of the said shed from him and handing over the same to the Police. The suit came to be contested by the present appellants original defendants by filing written statement at Exh. 13. After denying the allegation made in the plaint, it was contended that the plaintiff had constructed a shed outside the compound wall for which he had not obtained necessary permission. It was contended that the plaintiff addressed a letter to the Corporation stating that he was ready and willing to remove the shed and the matter was posted for hearing but on the day of hearing the plaintiff did not turn up. It was contended that the contention of the plaintiff that the powers to the In-charge Town Development Officer were not delegated cannot be accepted.

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(3.) Learned Trial Judge framed issues at Exh. 30 but on request of the parties, Issue No.3 regarding legality of the notices was treated as a preliminary issue and the learned Trial Judge was pleased to come to the conclusion that the notice and the injunction orders dated 20/21st August, 1982 issued by the In-charge Town Development Officer were illegal and void. The learned Trial Judge therefore decreed the suit of the plaintiff against the present appellants by judgment and decree dated 30th April, 1983.