MOHANBHAI TAPUBHAI Vs. JAMNAGAR MUNICIPAL CORPORATION

JUDGEMENT

(1.) By way of present petition under Article 227 of the Constitution, the petitioners have challenged the order dated 15.04.2017 passed by the learned 6th (Ad-hoc) Additional District Judge, Jamnagar in Civil Misc. Appeal No.46 of 2013, as also the order dated 21.06.2013 passed by the learned Additional Civil Judge and Judicial Magistrate, First Class, Jamnagar below application exhibit 5 in Regular Civil Suit No.83 of 2012. The petitioners have also sought direction to quash and set aside the notices dated 22.02.2012 and 14.03.2012 issued by the respondent - authorities.

(2.) It appears that the petitioners have been occupying the Government waste land which is vested with the Jamnagar Municipal Corporation whereon they have put up some constructions which are referred as small room with roof and they do bricks making business. It appears that the Corporation has initiated action under the Gujarat Public Premises (Eviction of Unauthorized Occupations) Act, 1972 (the Act) against the petitioners and the eviction order is made by the competent authority against which the petitioners have preferred appeal before the appellate authority under the Act. It is pointed out that in appeal there is no interim stay granted to the petitioners. The Corporation through its Controlling Officer, Estate Department, Jamnagar Nagarpalika issued notices under Section 478(2) of the Bombay Provincial Municipal Corporation Act, 1949 (the BPMC Act) asking the petitioners to remove illegal and unauthorized construction made by them on the land in question. Against such notices issued to the petitioners, the petitioners have filed Regular Civil Suit No. 83 of 2012. In such suit, the petitioners preferred an application at exhibit 5 for interim injunction under Order 39, Rule 1 and 2 of the Civil Procedure Code (the Code). The learned Additional Civil Judge and Judicial Magistrate, First Class, Jamnagar rejected such application by order dated 20/21.06.2013. Being aggrieved by the order passed below exhibit 5, the petitioners preferred Civil Misc. Appeal No.46 of 2013 before the Court of learned Principal District Judge, Jamnagar. The learned 6th (Ad-hoc) Additional District Judge, Jamnagar dismissed the appeal by order dated 15.04.2017 and confirmed the order made by the learned trial Judge below application exhibit 5.

(3.) Learned advocate Mr. Mahesh A. Takhtani appearing for the petitioners submitted that when the Corporation has taken proceedings under the Act for eviction, of the petitioners, since, the appeal preferred by the petitioners under the Act is pending, it was not open to the respondents to take action under Section 478(2) of the BPMC Act. He submitted that the petitioners have their residential houses on the land for last many years i.e. at least for last 40 years and as to the rights of the petitioners to hold on the properties, when the appellate authority is to finally decide under the Act, if the action being taken under Section 478(2) of the BPMC Act is not stayed or prevented, their appeal will be rendered infructuous and there will be injustice to the petitioners. He submitted that the provisions under Section 478 of the BPMC Act are not meant to demolish long standing construction especially the residential houses especially when the proceedings taken for eviction are yet to be finally decided in appeal. He submitted that the construction of the houses made by the petitioners are since prior to the BPMC Act came into force and, therefore, there is no question of taking any permission from the concerned authority of the Corporation, the constructions of the petitioners on the land in question cannot be said to be unauthorized and, therefore, no action under Section 478 of the BPMC Act could be taken against the petitioners for demolition of their houses.