GANPAT ATMARAN Vs. MUNICIPAL CORPORATION AHMEDABAD

JUDGEMENT

(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. 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.