Gujarat High Court
Shri Kishan Bhatia vs Municipal Corporation Of The City Of ... on 13 July, 2022
C/AO/87/2018 ORDER DATED: 13/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 87 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/APPEAL FROM ORDER NO. 87 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2018
In R/APPEAL FROM ORDER NO. 87 of 2018
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SHRI KISHAN BHATIA & 15 other(s)
Versus
MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD THROUGH
MUNICIPAL COMMISSIONER & 1 other(s)
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Appearance:
DECEASED LITIGANT for the Appellant(s) No. 1
MR KV SHELAT(834) for the Appellant(s) No.
10,11,1.1,12,1.2,13,14,15,16,2,3,4,5,6,7,8,9
MR. SHYAM K SHELAT(6552) for the Appellant(s) No.
1,10,11,12,13,14,15,16,2,3,4,6,7,8,9
for the Respondent(s) No. 2
MR DEEP D VYAS(3869) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 13/07/2022
ORAL ORDER
1. This appeal from order under Order 43 rule 1 of the Code of Civil procedure, 1908, is filed by the original plaintiffs challening the order dated 17.04.2018, passed by the learned Chamber Judge, City Civil court, Ahmedabad rejecting the interim injunction application filed vide EXH. 6 and 7 in Civil Suit no. 206 of 2018.
2. This Court was moved urgently by the original plaintiffs on 17.04.2018 itself and upon hearing the learned advocate for the appellants and the learned panel advocate, appearing on caveat Page 1 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022 C/AO/87/2018 ORDER DATED: 13/07/2022 for the respondent corporation, had initially directed the respondent corporation to maintain status quo as regards the demolition of the shops in question till next dt. Viz. 18.04.2018.
Thereafter, on 23.04.2018, when the matter was taken up for hearing, this court after taking into consideration the submissions of respective parties and taking note of the photographs of the site of demolition, passed order vacating the order of status quo dt.
17.04.2018. The matter has thereafter been adjourned from time to time.
3. Today when the matter was taken up for hearing, Mr. K.V. Shelat, learned counsel for the appellants at the out set appraised this Court of the aforesaid orders and submitted that the matter at this stage of appeal from order which is against the rejection of notice of motion application, lies in narrow compass. He invited attention of this Court to the prayers sought for below Notice of Motion and has submitted that the cause of action arose for the appellants upon receipt of impugned order of alleged prescription of Roadline qua ETS/ERL/755 i.e. subject road under Section 210(1)(a) of the Bombay Provincial Municipal Corporation Act, 1949 (for short "BPMC Act") followed by the Notices dated 18.03.2017 and 14.09.2017 , issued under Section 212(1) and Page 2 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022 C/AO/87/2018 ORDER DATED: 13/07/2022 212(2) of the BPMC Act. He further submitted that the appellants are the owners and occupies superstructure and / or are claiming leasehold rights since many years. He further submitted that pursuant to the communication dated 24.01.2016, the appellants were informed about widening of the existing roadline from I.I.M. Bridge Vastrapur to Vastrapur Lake to extent of 30 Meters and the same was followed by the public notice published in the newspaper dated 07.09.2016, wherein the Corporation had proposed widening of the existing roadline to the extent of 36 Meters. He further submitted that though the objections along with necessary documents were placed before the Municipal Commissioner of the respondent Corporation, without considering such objections and without giving any opportunity of personal hearing, the Commissioner proceeded to the authorized AMC Commissioner under Section 210(1)(a) of the BPMC Act. Even the Standing Committee vide Resolution dated 01.06.2017 unilaterally directed the AMC Commissioner to proceed with the issuance of notice under Section 212(2) of the BPMC Act. The original plaintiffs were served with such notices in the month of October, 2017, which were replied by the appellants on 14.10.2017.
However, ignoring such reply, the Officers of the respondent Corporation visited the site on 05.02.2018 threatening for Page 3 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022 C/AO/87/2018 ORDER DATED: 13/07/2022 dispossession with the use of police force and their agents. In such circumstances, the appellants were constrained to approach the Civil Court for protection. He further submitted that the learned trial Court committed gross error in rejecting the Notice of Motion application seeking interim injunction without appreciating the factual matrix placed by the appellants. He further submitted that at the stage of hearing the Notice of Motion application, the learned trial Court proceeded in a manner non-suiting the appellants by assigning reasons as if the learned trial Court has finally concluded the suit. He, therefore, submitted that the impugned order suffers from perversity and arbitrariness and is in complete negation of the various judgments of the Supreme Court.
He further submitted that the learned trial Court ought to have appreciated that once the roadline is prescribed under Section 210(1)(a) then while implementing the same, the Corporation cannot deviate from the original prescribed roadline as provided under Section 212 of the BPMC Act.
2. Mr. Shelat, learned counsel has invited attention of this Court to the chronology of events to highlight the manner in which the Corporation highhandedly proceeded with the demolition of the property without any prior adjudication on the aspect of the Page 4 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022 C/AO/87/2018 ORDER DATED: 13/07/2022 compensation in terms of money as well as in terms of FSI. He invited attention of this Court to Sections 216, 389 and 390 of BPMC Act and submitted that the respondent Corporation is under obligation to make an assessment of compensation as prescribed under the Act. He further invited attention of this Court to para 14 of the impugned order and submitted that on appreciating the submissions made on behalf of the respondent Corporation that the appellants can be compensated in terms of compensation or by entitlement to get FSI as per the prescribed Rules, the learned trial Court arrived at conclusion that non-grant of interim relief below the Notice of Motion would not in any manner cause irreparable loss when the public interest at large is involved. He further ventilated his grievance that such exercise by respondent Corporation has been undertaken way back in the year 2018, as against that till date, the respondent Corporation has failed to extend the benefit accruing in terms of Sections 216, 389 and 390 of the BPMC Act.
3. Mr. Shelat, learned counsel submitted that the Notice of Motion application came to be rejected vide impugned order dated 17.04.2018 passed by the learned Chamber Judge, City Civil Court, Ahmedabad. The endorsement on certified copy of the Page 5 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022 C/AO/87/2018 ORDER DATED: 13/07/2022 impugned order reflects that such order was received by the advocate of the original plaintiffs at 1:15 Hrs. on the same day. He further submitted that the present Appeal From Order along with Civil Application seeking interim relief was moved on the same day i.e. 17.04.2018 and circulation was permitted before this Court.
The matter was taken up for hearing at the residence of learned Judge of this Court in-charge of sitting. He further submitted that hearing had proceeded till late evening at the residence of learned Judge upto 10:50 p.m. whereby the learned counsel appearing for the respondent Corporation was also heard and this Court had directed the respondent Corporation to maintain status-quo as regards the demolition of the shop in question till next date i.e. 18.04.2018. He further submitted that thereafter, the learned counsel appearing for the respondent was heard on 26.04.2018, whereby this Court prima facie noticed that the learned trial Court has not committed any error while rejecting the injunction application and was therefore pleased to vacate the status-quo order granted earlier by this Court. He further submitted that the debris of the demolition were removed and presently the structures maintaining road line are in existence.
4. On the other hand, Mr. Deep D. Vyas, learned counsel Page 6 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022 C/AO/87/2018 ORDER DATED: 13/07/2022 appearing for the respondent Corporation has drawn attention of this Court that the aforesaid order has not been challenged by the appellants. He further submitted that the respondent authorities have acted in accordance with law and the shops have been demolished after following due process of law. He further submitted that presently the roadline as prescribed, has come into existence. He therefore submitted that no error of law or fact is committed by the learned trial Court, while passing the impugned order. He urged to not to entertain present Appeal From Order.
5. Having heard the learned counsels appearing for the respective parties and having perused the documents on record, it is admitted fact that pursuant to the notice issued under Sections 212(1) and 212(2), by the respondent Corporation have been implemented. The counsel for the appellants has made valiant attempt disputing the demolition being illegal, by attributing serious allegations against the respondent Corporation. It is alleged that the corporation has not only acted highhandedly but has alleged to have deviated the roadline of the subject road otherwise prescribed. The Court is of the view that the aforesaid aspects would require close examination which can be undertaken upon appreciation of evidence. Looking to the nature of the interim relief Page 7 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022 C/AO/87/2018 ORDER DATED: 13/07/2022 as sought for in the Notice of Motion and considering the fact that the order granting status-quo being vacated by this Court pursuant to the order dated 26.04.2018 and not being challenged, this Court is of considerate opinion that any observation at this interim stage of rejection of Notice of motion application, would prejudice rights of the either parties. The grounds raised by the appellants in the present appeal are kept open to be raised by leading proper evidence before the learned trial Court.
6. Present Appeal From Order stands disposed of with a direction to the learned trial Court to expedite hearing of the Civil Suit No.206 of 2018. The learned trial Court decide such application seeking expedite hearing preferably within one month from filing of such application. It is further observed that the disposal of the present Appeal From Order and observations made by the learned Court while adjudicating the Notice of Motion application in any manner shall not be construed adverse to the original plaintiffs. It is needless to clarify that such observation made by the learned trial Court at the stage of adjudication of Notice of Motion application are to be treated tentative and the learned trial Court shall decide the Suit on its own merits and on appreciation of the evidence which may be placed on record, in accordance with law.
CIVIL APPLICATION NO.1 of 2018:
Page 8 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022C/AO/87/2018 ORDER DATED: 13/07/2022 In view of the disposal of the main Appeal From Order, this Civil Application for stay does not survive. Hence, the same is disposed of.
CIVIL APPLICATION NO.2 of 2018:
1. Heard learned counsels appearing for the parties.
2. Present application is filed by the applicants- original appellants seeking directions against respondent corporation to decide the compensation payable under Section 216 read with Sections 389 of the BPMC Act as well as has further prayed for direction to apportion the payment of compensation as may be payable to the tenants vis-a-vis owner of such property.
who claimed to be owners and occupiers of the superstructure. The applicants also claimed to have leasehold rights therein since last many years. The suit property includes residential cum commercial superstructure.
3. Mr. Shelat, learned counsel appearing for the applicants has drawn attention of this Court to the application dated 01.09.2018 addressed by some of the applicants, mostly tenants, addressed to the Municipal Commissioner, AMC. He submitted that the necessary documents in support of their claim have already been placed for consideration before the competent authority of the respondent Corporation. He further invited attention of this Court to the assessment being made by the tenants as regards the damage of the property and other consequential loss suffered by the Page 9 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022 C/AO/87/2018 ORDER DATED: 13/07/2022 tenants in the process of forceful eviction from the suit property. He further submitted that though the legality and propriety of the action of the respondent Corporation under Section 210(1)(a) and Section 212 of the BPMC Act will be examined by the trial Court in the pending Civil Suit No. 206 of 2018, however, in view of the statutory provisions i.e. Section 216 read with Section 389 and 390 of the BPMC Act, the respondent Corporation is under obligation to compensate the affected parties with such amount or by way of allotting FSI, on the basis of market value. He further submitted that every loss suffered on account of implementation of the roadline by the Corporation is required to be taken into consideration while competent Authority undertakes exercise of assessment of such compensation. He further submitted that on one hand, the respondent Corporation has highhandedly and forcefully evicted the applicants and on the other hand, is not paying heed to their pending applications seeking compensation. In this peculiar facts and circumstances, the applicants are constrained to approach this Court by way of present application.
4. On the other hand, Mr. Deep Vyas, learned counsel appearing for the respondent Corporation has vehemently objected to aforesaid submissions and the averments made in the present application. He invited attention of this Court to the prayers sought in the original plaint of the Civil Suit No.206 of 2018 and submitted that such application seeking relief beyond the reliefs prayed for in original suit , may not be entertained. He further submitted that the Corporation is even otherwise bound to follow the procedure as prescribed under the statute. He therefore urged this Court to not to entertain such relief at this stage when Page 10 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022 C/AO/87/2018 ORDER DATED: 13/07/2022 applications are pending consideration. He by referring to Section 216 read with Section 389 and 390 of the BPMC Act, submitted that originally the application dated 01.09.2018 addressed to the Municipal Commissioner is preferred by the tenants, whereas the owners of the land or the superstructure are entitled to such compensation. He further submitted that such application is moved by only 8 out of total 16 applicants before this Court. In such circumstances, in absence of any application being moved by the rest of the applicants, present application may not be entertained and the applicants may be relegated to avail the recourse as provided under the statute. Mr. Vyas, learned counsel further submitted that present application is filed in Appeal From Order arising out of rejection of Notice of Motion application seeking interim injunction pending the Civil Suit No.206 of 2018. He, therefore, submitted that the scope of Appeal From order may not be expanded beyond the relief which has been sought for in the Notice of Motion application Exhibit 6/7. He, therefore prayed to reject the application.
5. In rejoinder, Mr. Shelat, learned counsel for the applicants has invited attention of this Court to the relief sought for in the Notice of Motion application. He has drawn attention of this Court to the observations made in para 14 of the order dated 17.04.2018 passed by the learned City Civil Court, Ahmedabad, below Exhibit 6/7 Notice of Motion application. By referring and relying upon the same, he submitted that considering the fact that the Corporation is likely to compensate the applicants but the learned trial Court has jumped at conclusion that no irreparable loss will be cause to Page 11 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022 C/AO/87/2018 ORDER DATED: 13/07/2022 the applicants and on wrong notion has rejected the Notice of Motion. Ultimately, the Corporation has proceeded to demolition of the shops and the superstructure / the suit property, and are not paying heed to decide application seeking compensation/ allotment of FSI. He, therefore, submitted that the learned counsel may not be permitted to blow hot and cold. Even otherwise as per the provisions of the Gujarat Municipality Act, the respondent Corporation is under obligation to award the compensation. He further submitted that inspite the application being made before this Court, till date the respondent Corporation has failed to take necessary steps to make the assessment of the damages suffered by the present applicants. Lastly, he submitted that the respondent Corporation cannot deprived citizens of their value of rights under the garb of road widening without following due process of law and without paying adequate compensation based on the market value. He further submitted that though the issues as regards challenge to the action of the respondent Corporation in terms of Section 210(1)(a) read with Section 212 of the BPMC Act, is at large before the learned trial Court, however, at the same time, having demolished the shops and having implemented the widening of the road, the respondent Corporation cannot shy- away from their duty to at least make the assessment of the damages in the form of compensation as prescribed under Sections 216, 389 and 390 of the Act. He further submitted that under the amended provisions, the affected parties are also entitled to get FSI. He, therefore, prayed to issue necessary directions upon the respondent Corporation to decide such application within stipulated time period.
Page 12 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022C/AO/87/2018 ORDER DATED: 13/07/2022
7. Having heard learned counsels appearing for the respective parties and on perusal of the record, the Court finds that indisputably, the respondent Corporation has implemented the notices inasmuch as the shops and superstructure existing on the road had been demolished and roadline has already been utilized by the public at large. From the photographs placed on record, it transpires that the debris of the demolished structure have been removed and the new structure has been put on by the affected parties maintaining the roadline as implemented by the respondent Corporation. The said fact has not been disputed by the respondent Corporation by filing any affidavit-in-reply. This Court notices that some of the applicants have submitted application dated 01.09.2018 seeking compensation and the same has been acknowledged by the respondent Corporation, however, till date, no steps have been taken by the competent Authority on such application. Mr. Vyas referred to various tax bills and has submitted that most of the occupants are tenants. This Court notices that out of the affected parties, some traders were operating in their own premise or had taken premise on rent. Since this Court has, for the reasons recorded in the main appeal from order, choose not to adjudicate at this stage as regards the allegations about the manner in which the premises were demolished, the competent Authority of the respondent Corporation is directed to decide the application dated 01.09.2018 without any further delay. It is directed that any such pending application or which may be filed by the applicants seeking compensation, the respondent corporation shall decide the same within a period of three months from the receipt of the copy of this order. The respondent Corporation is directed to decide such Page 13 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022 C/AO/87/2018 ORDER DATED: 13/07/2022 application in accordance with law and to make payment of compensation as may be payable to the tenants / owners as the case may be.
8. It is clarified that this Court has not gone into merits of the case as regards entitlement / determination of compensation. At the same time, it is expected of the respondent Corporation to adjudicate such applications in accordance with law and provide an opportunity of personal hearing to each of the applicants and take into consideration the material while determining such compensation.
With this observation, present application stands disposed of accordingly.
(NISHA M. THAKORE,J) Y.N. VYAS Page 14 of 14 Downloaded on : Sat Dec 24 21:01:02 IST 2022