AHMEDABAD MUNICIPAL CORPORATION Vs. BADARSING AJITSINH

JUDGEMENT

(1.) xxx xxx xxx.

(2.) 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 Anr. v. Ahmedabad Municipal Corporation & Ors, 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, 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 Jashwantsing by Hon'ble Supreme Court. According to Mr. Joshi, in Jashwantsing, Supreme Court laid down that issuance of hotice 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. A bald andvague 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 hereinabove, 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 Ors. v. State of Gujarat and Anr. AIR 1994 SC 480. That case had also gone from this Court. The Apex Court considered the decision of the Full Bench pf 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, 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 Bachu 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.

(3.) 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 effect 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.