FAZALBHAI AMIRBHAI Vs. BARODA BOROUGH MUNICIPALITY

JUDGEMENT

(1.) This is a petition for a writ of mandamus or any other appropriate writ for setting aside the ruling given by respondent No. 2 as the President of the Baroda Borough Municipality disallowing a motion moved by the petitioners in a special general meeting convened on July 6 1962 from being put to vote to that meeting to direct the respondents to hold a meeting once again and to direct the second respondent to put the aforesaid motion to the vote of councillors. The facts leading to the petition may shortly be stated.

(2.) The Baroda Borough Municipality is constituted under the Bombay Municipal Boroughs Act XVIII of 1925. In the year 1962 the second respondent was its duly elected president. On or about May 12 1959 the Municipality published a scheme for disposal of certain lands belong- ing to it being survey numbers 740 733 738 and 739 to certain classes of persons namely those belonging to the lower income group for the purpose of constructing residential houses or for those who were residing in congested areas or those who had no house of their own in the city. The scheme inter alia provided that the lands should be divided into plots and allotted to applicants coming from the aforesaid classes and each plot should measure 75 feet x 40 feet. Under the scheme the applicants were to lodge their applications within seven days from the date of the publi- cation thereof. In pursuance of the scheme a number of persons applied for allotment of plots and the Municipality in accordance with the scheme allotted plots of some of the applicants who satisfied the conditions under the scheme. Amongst the applicants were one Lalitchandra Chhotabhai Diwanji Surendranath C. Patel Hasmukhlal Parikh and Ramanlal Jamna- das Shah to whom the Municipality allotted plots Nos. 43 to 46 and 47. According to the petitioners after the allotment was made one Chimanlal Haribhai Amin the Secretary of Sardar Chhatralaya of Baroda and a sitting member of the Legislative Assembly of Gujarat encroached upon the aforesaid plots 44 45 and 46 and some portions of plots 47 and 48 took hold of possession thereof and started to construct a hedge around the trespassed portions and even started cultivation thereon. On the said encroachment having taken place the aforesaid allottees applied to the Municipality requesting it to remove the encroachment and to hand over possession of the plots allotted to them. In consequence of this complaint the Municipality issued three notices the last one being dated December 16 1961 in which after reciting the encroachment and the fact of illegal construction of the compound by the said Chhatralaya the Municipality called upon the said Amin to remove the said hedge and intimated that in default further action would be taken by the Municipality. Notwith- standing the notices the said Amin did not vacate the encroachment and therefore the matter was mooted in a meeting of the Municipality held on April 23 1962 when the second respondent as the President of the Muni- cipality assured the councillors that he would take all necessary steps to get the encroachment removed by the said Amin. This fact has not been denied by the President in his affidavit in reply. Since nothing further happened and the compound hedge was not removed by the said Amin a complaint was filed by an inspector of the Municipality on June 18 1962 in the Court of the learned Judicial Magistrate First Class Baroda alleging that the accused therein i. e. the said Chimanlal H. Amin had committed trespass upon municipal lands on September 25 1962 and that the complainant was in a position to lead-evidence of four of the emplo- yees of the Municipality whose names were set out in the said complaint. It appears that the said complaint was subsequently withdrawn on August 9 1962 and the proceedings in the Court show that the reason for the withdrawal was that the Chief Officer of the Municipality had ordered that the complaint should be withdrawn. Accordingly on August 9 1962 an application for withdrawal of the complaint was made by the said inspector and the learned Magistrate passed an order allowing withdrawal and acquitting the accused under section 248 of the Code of Criminal Procedure.

(3.) Before the withdrawal of the complaint took place thirteen councillors signed a requisition on June 6 1962 and sent it to the Presi- dent for calling a special general meeting under sec. 35(2) of the Bombay Municipal Boroughs Act setting out therein a motion which they proposed to move at the meeting. The motion which the requisitionists wanted to move recited the fact of the Municipality having acquired the aforesaid lands the allotment thereof amongst other plots of plots Nos. 43 to 46 and 47 their allotment to the aforesaid persons and the fact of the secre- tary of the Chhatralaya having illegally encroached upon the aforesaid plots and lastly the inaction on the part of the Municipality in taking any steps for having the said encroachment vacated. The motion inter alia proposed that the Establishment Committee of the Municipality should make an enquiry to ascertain who amongst the municipal employees was responsible for the inaction and to submit a report in that regard at the next meeting. The motion also suggested that the Municipality should take immediate action against the said Amin and for recovery of mesne profits which might be fixed by a Court of law and for recovery of possession of the trespassed lands. The motion also recited that the said Amin had acquired for the said Chhatralaya certain lands in the first instance from the Government and thereafter from the Government Servants Co-operative Housing Society and had also acquired plots Nos. 49 50 and 51 from the Municipality when the Municipality made allotment of the said lands and stated that notwithstanding the acquisition of so much land the said Chhatralaya was still intent upon making encroachments upon the aforesaid plots and had failed to vacate the encroachment and called upon the Municipality to pass a resolution cancelling the allotment of plots Nos. 49 50 and 51 in favour of the said Chhatralaya. The Vice President of the Municipality in the absence of the second respondent convened a special general meeting at 5-30 P.M. on July 6 1962