Gujarat High Court
The Municipal Corporation For The City ... vs Chelaram And Sons And Anr. on 9 April, 1991
Equivalent citations: AIR1992GUJ107, (1992)1GLR51, AIR 1992 GUJARAT 107
JUDGMENT
1. This appeal is directed against the judgment and decree dated January 211, 1976, passed by the learned City Civil Judge, 8th Court, Ahmedabad, in Civil Suit No. 1809 of 1972. By the judgment and decree the learned Judge has held the notice dated June 14, 1972, issued by the appellant to the respondents under Section 54 of the Bombay Town Planning Act, 1955 (for short "the Act"), read with Rule 27 of the Bombay Town Planning Rules, 1955 (for short "the Rules"), as violative of principles of naturaI justice and therefore, illegal and has restrained the appellant from implementing or otherwise executing the said notice.
2. The facts of the case may briefly be stated as follows:
3. The respondents filed the suit against the appellant-Ahmedabad Municipal Corporation, alleging that the suit land belonged to one Ranchhodlal Mohanlal Panchal from whom respondent No. 2 had taken the same on lease, and respondent No. 2 had put on that land a wooden structure, and he was running a factory therein from the year 1948, and thereafter respondent No. 2 sold his interest in the property along with the running business in the suit land to respondent No. 1 and since 1971, respondent No. 1 has become the direct tenant of the suit property. It is the case of the respondents that the appellant has served to both of them, a notice bearing No. 14/256, dated June 14, 1972, under the provisions of the Act, and has demanded the vacant possession of the land from them. The plaintiffs in the plaint, challenged that notice firstly on the ground that the appellant-Corporation had not served any notice under the Act , when the Town Planning Scheme was proposed to be approved and sanctioned though at that time respondent No. I was very much in the occupation of the suit land. Further according to the plaintiffs, the T. P. Scheme for the enforcement of which the suit notice dated June 14, 1972 came to be served to the respondents could not be framed because such schemes are required to be framed only for public purpose, and the T. P. Scheme in question did not involve any element of public purpose. Thirdly, according to the respondents, no show cause notice had ever been given by the appellant to them, and straightway the eviction notice has been issued by the appellant. On these averments in the main, the respondents challenged the suit notice and prayed for a declaration of illegality and untenability of the suit notice and about the said notice being without jurisdiction, and at least in excess of the jurisdiction of the appellant. They also prayed for an injunction restraining the appellant from executing and operating the said notice and further restraining the appellant from taking the possession of the suit land from them.
4. The appellant resisted the suit and contended in its written statement that the suit land is comprised in T. P. Scheme No. 14, Ahmedabad, and according to the Scheme, the portion in occupation of the respondents formed part of the Revenue Survey Nos. 307 and 308, and that land was given Original Plot No. 253/A, and the original plot was reconstituted in the said Scheme and the whole of the portion in possession of the respondents has been amalgamated in the newly formed final plot No. 115. According to the appellant, the declaration of intention to prepare the T. P. Scheme was made on July 19, 195 1, the scheme was published in the Government Gazette on August 2, 195 1; the intention to prepare the Scheme came to be sanctioned by the Government on May 22, 1952; the draft Scheme was approved by the appellant on August 3, 1953; the same was published in the Government Gazette on August 13, 1953; the Government sanctioned the draft Scheme on November 26, 1954, and the same was published in the Government Gazette on December 9, 1954. According to the appellant thereafter, the appointment of the Town Planning Officer was made for the purpose of processing the scheme under the provisions of the Act, and the Town Planning Officer gave his award on January 1, 1970, and the Government sanctioned the Scheme finally on June 21 , 1971, and fixed August 1, 1971 as the date of its enforcement. It is the case of the appellant that on the finalisation of the Schemes, all the rights of the persons in the Original Plot came to be extinguished and all: such owners as well as the occupiers were since thereafter not entitled to the portion of the land which in the final Scheme became a part of the reconstituted Plot No. 115. In view of the provisions of the Act, according to the appellant, the respondents are not entitled to occupy the suit land and therefore, they were served with a notice under S. 54 of the Act read with Rule 27 of the Rules.
5. The appellant has not admitted the respondents' case that respondent No. I is in possession of the suit land since September, 1971. According to the appellant, none of the respondents was entitled to get any notice prior to the suit notice under S. 54 of the Act read with Rule 27 of the Rules.
6. The learned trial Judge, on the pleadings of the parties, framed the following two issues for determination:
(1) Is it proved that the plaintiffs are entitled to any notice under the provisions of the Bombay Town Planning Act, or rules framed thereunder, other than the one served upon them and mentioned at para 4 of the plaint?
(2) Is it proved that the Town Planning Scheme No. 14, Ahmedabad does not involve any element of public purpose and because of the said reason could not be lawfully framed?
7. On the appreciation of the evidence and the contentions of the parties, the learned trial Judge held against the respondents on Issue No. 2 for, on that issue there was no evidence on the record and even the learned Advocate for the respondents made no submissions before the learned trial Judge so far as that issue was concerned. However, the learned trial Judge found in favour of the respondents on Issue No. 1. It is an admitted position that prior to issuance of the suit notice dated June 14, 1972 by the appellant to the respondents, no other notice had ever been given by the appellant to the respondents. According to the learned trial Judge, as held by him on the evidence on record, Respondent No. 2 was on the premises since 1948. That finding of the learned trial Judge has not been challenged before me by the learned advocate Mr. Sen who argued the matter for the appellant. Further according to the learned trial Judge, as respondent No. 2 was on the premises since 1948, and the preliminary stages of the framing of the Scheme commenced in 1951, at least respondent No. 2 was entitled to get from the Town Planning Officer, a notice contemplated by S. 32 of the Act read with Rule 21 of the Rules. That notice having not been given by the Town Planning Officer to the Respondents, in the opinion of the learned trial Judge, the suit notice would be bad. The learned trial Judge has said that it was obligatory on the part of the appellant, and for that matter, the Town Planning Officer to have given to the Respondents, a notice which is popularly known as special notice under sub-rule (3) of Rule 21 of the Rules. Admittedly such a notice has not been given by the appellant to the Respondents.
8. Further according to the learned trial Judge, the procedure under S. 34 of the Act read with Rule 27 of the Rules is a quasi judicial procedure and before adopting that procedure, it was incumbent upon the authorities to have issued to the Respondents, a notice to show cause why they should not be evicted from the suit land. That notice having not been given, in the opinion of the learned trial Judge, the suit notice is violative of the principles of natural justice and therefore, illegal. For taking this view with regard to the requirements to follow the principles of natural justice in relation to the notice under Rule 27 of the Rules, the learned trial Judge has heavily relied upon the decision in the case of Mangaljibhai Rooprajibhai v. State of Gujarat, (1972) XIII GLR 649. Though as said above, the learned trial Judge has also invalidated the suit notice on the ground that the notice under sub-rule (3) of Rule 21 of the Rules read with S. 32 of the Act has not been given, the main thrust of the judgment is on the requirements of the show cause notice being given to the Respondents before the notice under Rule 27 of the Rules read with Section 54 of the Act could be given.
9. Mr. Sen, the I.A. for the appellant Municipal Corporation submitted that the view of the learned trial Judge cannot be accepted in view of the two Full Bench judgments of this Court, rendered subsequent to the decision in the case of Mangaljibhai Roopajibhai (supra).
10. Mr. Sen submitted that issuance of a special notice under sub-rule (3) of Rule 21 of the Rules was only an additional safeguard for the individual concerned, and the omission of issuance of such a notice would not invalidate the ultimate action taken by the appellant under S. 54 of the Act, r. / w. Rule 27 of the Rules. For this proposition, Mr. Sen relied upon a Full Bench judgment of this Court in the case of Dungarlal Harichand v. State of Gujarat, (1976) XVII GAR 1152:
(AIR 1977 Guj 23).
11. Mr. Sen submitted that the trial Court has gone wrong in relying upon the decision in the case of Mangaljibhai (supra) for, according to Mr. Sen, in view of the later Full Bench judgment in the case of Saiyed Mohammed Abdullamiya Uraizee v. Ahmedabad Municipal Corporation, (1977) XVIII GLR 549 : (AIR 1978 Guj 82), the decision in the case of Mangaljibhai has been properly explained and there, a distinction has been drawn between the cases where the lands required by the local authority, by virtue of S. 53 of the Act vacated absolutely in the local authority, free from all encumbrances, and the lands in respect of which the final scheme had not extinguished the right, but had made some reservations which would require the process of statutory interpretation. In the submission of Mr. Sen, as in the present case, the suit land under the finally sanctioned T. P. Scheme was required by the local authority for public purpose, that land vested absolutely in the appellant free from all encumbrances, and all rights in the original plot which came to be reconstituted, came to be determined and therefore, the respondents were not entitled to occupy that land, and the appellant had every right to issue the notice of eviction under S. 34 of the Act r./w. R. 27 of the Rules.
12. Mr. Vin L. for the Respondents submitted that the decision in (1977) XVIII GLR 549: (AIR 1978 Guj 82) was in relation to a building, which attracted S. 55 of the Act and therefore, that judgment cannot be invoked by the appellant in the present case.
13. After having considered the arguments of the learned advocates for the parties at the bar, and having gone through the three judgments, viz.:-
(1) (1972) XIII GLR 649; (2) (1976) XVII GLR 1152: (AIR 1977 Guj 23); and (3) (1977) XVIII GLR 549: (AIR 1978 Guj 82).
I think, there is a lot of force in the submission of Mr. Sen.
14. The first argument which weighed with the learned trial Judge is that the Respondents being on the suit land, prior to 195 1, when the Scheme came to be framed, it was obligatory on the authorities to have issued to the Respondents, a special notice under sub-rule (3) of Rule 21 of the Rules r. / w. S. 32 of the Act. As said by me above it is not disputed before me that Respondent No. 2 was on the property since about 1947. The Respondents have produced documentary evidence to show that fact. That documentary evidence has been properly evaluated land accepted by the learned Judge, and the finding that respondent No. 2 was' on the property at least prior to 1951 could not be faulted. The question then is whether it was obligatory on the Town Planning Officer to have issued to the Respondents a special notice contemplated by sub-rule (3) of Rule 21 of the Rules, r. / w. S. 32 of the Act? The learned trial Judge has said that as it was ad undisputed position that the draft scheme was declared and published in the year 195 1, that is to say, the date on which respondent No. 2 was already, in occupation of the suit land, respondent No. 2 must be held to be a person interested in the land and likely to be injuriously affected by the provisions of the scheme, and he was therefore, entitled to a notice under S. 32 r./w. Rule 21, and other relevant provisions. This is what the learned Judge has said in paragraph 10 of his judgment, In paragraph 11 of the judgment, he has stated that the Respondents are in occupation of the suit land since 1947, and are entitled to a notice under Rule 21 of the Rules, and as admittedly no such notice was served to them, to that extent, Issue No. I must be held in favour of the plaintiffs and against the defendant. Thus, according to the learned trial Judge, as the Respondents were on the suit property prior to the declaration of intention of the T. P. Scheme, they were entitled to have a notice under Rule 21 of the Rules r. / w. S. 32 of the Act. This reasoning of the learned trial Judge cannot be accepted for, the Full Bench of this Court in (1976) XVII GLR 1152: (AIR 1977 Guj 23) has, clearly and categorically held that the notice specified in sub-rule (3) of Rule 21 of the Rules, is only an additional safeguard for the individual concerned, and such a notice could not constitute a minimum essential of the scheme, or such a basic requirement that its noncompliance would have any nullifying consequences. In paragraph 19 of the report, the Full Bench has said as follows at page 35 (of AIR):
"The mere facts of failure on the part of the Town Planning Officer to comply with such other comparatively non-essential requirements cannot render his decision as one rendered without jurisdiction lacking in jurisdiction."
The Full Bench said that the provisions o Rule 21(l) lay down the minimum essentials for protecting public interest after the Town Planning Officer commences his work. That sub-rule is introduced in accordance with the principles of audi alteram partem. Having said this, the Full Bench proceeded to say that the special individual notices under the old sub-rule (3) cannot, therefore be regarded as an essential minimum safeguard as in the case of sub-rule (1) so as to have to consequence of nullifying the final scheme.
In paragraph 22 of the report, the Full Bench said that "the tenant had only limited rights specified in clauses (i), (ii) and (xiii) of S. 32(l). Therefore, looking at the limited nature of the tenant's rights in the process of reconstitution of plots, it cannot be said that failure to serve a special notice under old sub-rule (3) of Rule 21 would nullify the final scheme, for grievance, if any, the tenant should have moved the authorities at the stage of the finalisation of the draft scheme and not thereafter."
In the concluding portion of the paragraph 23 of the judgment also, the Full Bench has said as follows at page 35 (of AIR):
"Therefore, in the light of the entire scheme of the Act and the Rules prescribing procedure, the right to individual notice under old sub-rule (3) cannot be held to be a minimum essential requirement touching the jurisdiction of the Town Planning Officer so as to nullify the final scheme in spite of the protective legislative device in S. 51(3)."
The matter in the case of Dungarlal (supra) was referred to the Full Bench for, when it was before the Division Bench, it was felt that perhaps the earlier two decisions on the point did not correctly decide the point involved. After having analysed all the relevant provisions of the Act and the Rules, and after referring to the various cases, the Full Bench, as shown here in above, held that the notice under sub-rule (3) of Rule 21 of the Rules, is only an additional safeguard, and the nonissuance of such notice cannot invalidate the scheme. Concluding the discussion, the Full Bench in paragraph 27 of the report, observed as follows at page 36 (of AIR):
"We must, therefore, hold that the two decisions referred to in 11 GLR 993 and 1035 were wrongly decided only to the extent that a right to individual notice under Rule 21(3) and (4) is held to be so mandatory as to have a nullifying consequence. We hold that old subrule (3) and sub-rule (4) are merely additional procedural safeguards and not the essential minimum requirements. Violation of essential minimum procedural requirements would result in the authority exceeding or transgressing its jurisdictional limits which will render the scheme null and void. But a breach of additional procedural safeguards which are not in the nature of essential minimum requirements will not render the scheme null and void so as to entitle a party to challenge it under Article 226 or in any Court after it becomes a part of the Act under S. 51(3).
15. Thus in Dungarlal's case (1976) XVII GLR 1152 : (AIR 1977 Guj 23) it has been clearly laid down that the notice contemplated by sub-rule (3) of Rule 21 of the Rules is merely an additional safeguard, and if such a notice is not given, the Scheme which ultimately comes to be framed, would not be rendered null and void.
16. In view of this decision, and the nature of the notice contemplated by sub-rule (3) of Rule 21 of the Rules, I think the learned trial Judge's view that as no special notice under Rule 21 of the Rules had been given to the Respondents, the suit notice suffers from the violation of principles of natural justice, cannot be sustained. It is not in dispute that while processing the scheme, the other provisions of the Act and the Rules were properly followed. Notice under sub-rule (1) of Rule 21 of the Rules, was given, and that complied with the requirements of essential minimum. If the Respondents who were on the property at the time, the scheme was being framed, h ad any objection they should have approached the Town Planning Officer, in response to the notice under sub-rule (1) of Rule 21 of the Rules, and should have put forward their say. That having not been done, they cannot now take any objection to the finally approved scheme. The view of the learned trial Judge that the suit notice is bad as no notice under Rule 21 of the Rules, was given to the respondents, is therefore, required to be set aside.
17. Then comes the concept -A notice under Rule 27 of the Rules r. / w. S 54 of I he Act. In that connection, the learned trial Judge has heavily relied upon the decision in the case of Mangaljibhai (1972) X111 GLR 649 and on the basis of that decision, the learned trial Judge has said that the procedure for summary eviction contemplated by S. 54 of the Act read with Rule 27 of the Rules is a quasi-judicial procedure, and no summary eviction can be made unless the person to be evicted is given notice to show cause as to why he should not be evicted from the premises.
18. True, in the decision in the case of Mangaljibhai, the Division Bench of this Court has said that the procedure of summary eviction contemplated by S. 54 is a quasi judicial procedure. The Division Bench has further said that there being nothing in R. 27 of the Rules which excludes the principles of natural justice, that rule cannot be struck down as ultra vires S. 54 of the Act. At the same time, the Division Bench said that under R. 27 of the Rules, the local authority cannot depute any officer or servant to remove the occupant of the land without affording an opportunity to him to show cause why he should not be summarily evicted. The Division Bench pointed out that such a show cause notice could be separately given, or it could form part of the eviction notice under R. 27 itself. In either case, according to the Division Bench, giving of a notice to the occupant to show cause why he should not be evicted, was mandatory. This conclusion was reached by the Division Bench for, earlier it held that the procedure for summary eviction contemplated by S. 54 was a quasi judicial procedure. The learned trial Judge, relying upon this judgment, has held that as no notice was issued to the respondents to show cause why they should not be evicted from the suit land, the suit notice under R. 27 would be violative of the principles of natural justice and therefore, illegal. The judgment of the trial court was rendered on January 21, 1976. As on that date, the decision in the case of Mangaljibhai, (1972) XIII GLR p. 649, held the However, the Full Bench decision in (1977) XVIII GLR 549: (AIR 1978 Guj 82), came to be rendered in August, 1976 and that Full Bench decision has made all the difference to the implications of the proposition of law as enunciated by the Division Bench in the case of Mangaljibhai, in (1977) XVIII GLR 549 : (AIR 1978 Punj 82), one of the contentions which was raised on behalf of the petitioners field. in that case was that the eviction notice under R. 27 of the Rules, was ultra vires, as earlier to the issuance thereof, a show cause notice, in accordance with the principles of natural justice as contemplated in the decision of Mangaljibhai was not given and no judicial decision was reached as to whether the occupant was entitled to occupy the land under the final scheme. The matter in the case of Dungarlal, (1976) XVII GLR 1152: (AIR 1977 Guj 23, was referred to the Full Bench for, a doubt was expressed about the correctness of the earlier two judgments reported in (1970) XI GLR 993: (AIR 1977 Guj 23 (FB) and (1970) XI GLR 1035; while the matter in the case of Saiyed Mohammed, (1977) XVIII GLR 549: (AIR 1978 Guj 82), came to be referred to the Full Bench for, the full impact of the Full Bench decision in Dungarlal's case was required to be considered in the light of the decision in the case of MangaIjibhai. This is clear from the opening words of paragraph 6 of the report. In (1977) XVIII GLR 549: (AIR 1978 Guj 82), the Full Bench once again considered the scheme of the Act and the Rules; and the decision in the case of Mangaljibhai was considered by the Full Bench from paragraph 13 onwards of the report. After having considered that decision in Mangaljibhai's case in paragraphs 13 an& 14 of the report, in paragraph 15 of the report, this is what the Full Bench has said at pages 89 and 90 (of AIR 78):
"It is true that in this decision at the outset it has been mentioned that this eviction power in S. 54 was a quasijudicial power because the statutory scheme would have to be interpreted to find out whether the occupier's right to occupy it had come to an end so that he should be summarily evicted from the land. That contingency would arise only in those cases where the final scheme had not extinguished the rights but had made some reservation which would require a process of statutory interpretation. The final scheme may have not vested the plot in the local authority for a public purpose envisaged under the scheme and the question may have to be decided in the context of an individual who was allotted that plot after making certain reservation. In all such cases or when easement rights are reserved, the controversy even in the eviction context might be such as would involve a process of statutory interpretation and, therefore, the process would assimilate the nature of a quasi judicial power where the decision would have to be reached in accordance with the principles of natural justice. There would equally be other cases as in the case of all these petitioners where the rights have been finally settled and no reservation whatever has been admittedly made in favour of the petitioners in the final scheme allowing them to occupy these plots because all these plots have vested in the Corporation for the public purpose mentioned in the scheme. In such cases, the quasi judicial stage is already finished under Chapter V by the decision of the Town Planning Officer and of the Board of Appeal, if any. The scheme has become a legislative measure under which the petitioner's rights have totally ceased to occupy these premises and the power of eviction in such a context would be in the nature of an administrative power. In such a context under the developed administrative law after Kraipak's case, the minimum requirement of natural justice would be by way of fairplay and justice. Therefore, the said requirement of principle of only fairplay would be complied with when the eviction notice is given and the petitioners have failed to show any substantial ground by raising any substantial question. In such cases the notice would have to be implemented when no ground whatever has been made out by giving any explanation raising a substantial question or even suggesting the same at the hearing before us. Therefore, in such cases there is no question of any prejudicial decision and the impugned notices could not be attacked on a mere academic ground. The principles of natural justice would be violated if the petitioners are said to be substantially or prejudicially affected by the impugned notices. This principles of natural justice when they are read impliedly for making the administrative decision a fair one in such a context are not by way of mere technicalities. These objections are of substance and not of mere form and, therefore, when the petitioners admittedly have no right under the final scheme to continue their occupation, they could never invoke any prejudice or consideration of the principle of fairplay and justice so as to have these impugned notices invalidated."
19. The cases before the Full Bench in (1977) XVIII GLR 549: (AIR 1978 Guj 82), were cases where the properties were vested in the local authority and those properties were reserved for public purposes. In those cases, no rights of the occupants were reserved in the final scheme. In the case before me also, it is the case of the respondents themselves that under the scheme, the suit land is claimed to have been reserved for public purpose, though no such purpose ever existed. It is not the case of the respondents that any of their rights has been reserved under the scheme so far as the suit land is concerned. Their contention that there was no element of public purpose in the present scheme so far as the suit land is concerned, has not been held proved. It therefore, goes without saying that the suit land has-absolutely vested in the local authority free from all the encumbrances and therefore, the respondents were not entitled to be occupy the same, and were liable to be evicted under S. 54 of the Act. To such a type of case as the one on hand before me, which is on all fours with the cases which came to be decided in (1977) XVIII GLR 549: (AIR 1978 Guj 82), as stated by the Full Bench in para 16 of the report, the decision in the case of Mangaljibhai's case could not help for there was no question of any quasijudicial decision being now reached where any provision of the scheme has to be interpreted as no reservation whatever has been admittedly made of the respondents' right to occupy the suit plot. Before the Full Bench in (1977) XVIII GLR 549 : (AIR 1978 Guj 82), no substantial ground whatever had been made out by the petitioners by giving any explanation or by suggesting any explanation about any prejudice, even at the hearing. The Full Bench said that the contention was merely a technical contention, on the basis of which the notice under R. 27 could not be invalidated. In the case before me also, before the trial court, the respondents did not contend nor did they lead any evidence to show that by non-issuance of a notice asking them to show cause why they should not be evicted from the suit land, they had suffered any prejudice. In fact, it is not their case that in the finally sanctioned scheme, any right in the suit land. has been reserved in their favour.
20. In view of the Full Bench decision in (1977) XVIII GLR 549: (AIR 1978 Guj 82), it has got to be said on the facts of the present case that non-issuance by the appellant of a notice asking the respondents to show cause why they should not be evicted from the suit land, would not have the effect of violating the principles of natural justice, The decision in the case of MangaIjibhai therefore, cannot be made applicable to the facts of the present case in view of the clear pronouncement of the Full Bench in (1977) XVIII GLR 549: (AIR 1978 Guj 82). That being the position, the view of the learned trial Judge on the second point also cannot be accepted.
21. The submission of Mr. Vin, L.A. for the respondents that the decision in (1977) XVIII GLR 549 : (AIR 1978 Guj 82) deals with only the case of a building which would attract S. 55 of the Act and that decision therefore, cannot be invoked in relation to the facts of the present case, has no merit whatever. (1977) XVIII GLR 549: (AIR 1978 Guj 82) precisely was a case where the action under S. 54 of the Act r.w. R. 27 of the Rules was challenged, and it was only for the purpose of analysing the scheme of' the Act that the Full Bench referred to the provisions of S. 55 of the Act. The submission of Mr. Vin therefore, is rejected.
22. In the result, I hold that the judgment and decree of the trial court cannot be sustained. The suit notice issued by the appellant to the respondents on June 14, 1972 cannot be invalidated. The appeal is therefore, allowed. The judgment and decree of the trial court, are hereby set aside. The suit of the respondents is dismissed. However, on the facts and circumstances of the case, there shall be no orders as to costs throughout.
23. At this juncture, Mr. Vin, L.A. for the respondents submits that in, order that the respondents may take recourse to a higher forum, the appellant should be restrained from implementing the suit notice dated June 14, 1972 at least for three weeks from now. That request being reasonable is granted, and it is ordered that the appellant shall not implement the suit notice dated June 14, 1972 for three weeks from now.
24. Appeal allowed.