MUNICIPAL COMMISSIONER Vs. NANDUMAL PAHELUMAL

JUDGEMENT

(1.) This L.P.A. is directed against an interim order passed by the learned Single Judge of this High Court in Special Civil Application No. 2462/89. By the interim order, the learned single Judge directed the respondents not to obstruct the petitioners in putting up cabins on the lands which they were occupying and from carrying on the business over the land in question. Hereinbelow the parties are referred to by their original position in the petition.

(2.) Few undisputed facts be noted. In the wake of partition of the country, many people residing in the entire sub-continent were uprooted from the land of their origin. Several persons were forced to come to this part of the country and some of them settled in the town of Bhavnagar in the year 1948-49. Initially they started their business in the area known as Percival market. Some time in the year 1956 they were asked to shift from this place and were accommodated to another place known as 'Kapad Galli". Since then they occupied a part of the public street over which they put up their own cabins. For the land occupied by them the Municipality charged fees. After the municipality was converted into Corporation, the same position continued. As per the affidavit filed by the City Engineer of the respondent Municipal Corporation, fees from the cabin holders were charged for the period covering upto 31st March, 1989. It appears that the aforesaid amount might have been recovered by the former office bearers of the Corporation. The averments in the affidavit-in-reply that amount of fees were recovered by the former Municipality is incorrect and erroneous. The Municipal Corporation is the same. The office bearers may come and go.

(3.) As stated in the petition, the appellants-petitioners apprehended some unlawful action on the part of respondent-Corporation. Therefore they had filed a civil suit No. 905/86 in the Court of Civil Judge (J.D.), Bhavnagar and had obtained interim relief on September 26,1986. By this interim relief the respondent Corporation has been restrained from disturbing the possession of the appellants petitioners and it is ordered that status quo be maintained. The day on which the action of demolition and removal of cabins took place the order of injunction was in operation. This is so stated in the petition. This averment is not denied by the City Engineer Mr. Lakhani, who has filed affidavit in reply on behalf of respondent Corporation, nor the same has been denied by Shri Upadhyay, Sub-Judicial Magistrate, who has also filed affidavit-in-reply. In para 5 of the petition necessary facts are stated. Reading the averments in the petition and the affidavit-in-reply the following facts emerge: