Gujarat High Court
Ahmedabad vs Legal on 11 August, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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AO/153/2009 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 153 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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AHMEDABAD
MUNICIPAL CORPORATION - Appellant(s)
Versus
LEGAL
HEIRS OF DECEASED DHANJIBHAI DUNGARBHAI & - Respondent(s)
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Appearance :
MR
RITESH K SONI for
Appellant(s) : 1,
MR DHARMESH V SHAH for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 13/05/2009
ORAL
JUDGMENT
ADMIT.
Shri Dharmesh V. Shah, learned advocate waives service of notice of admission on behalf of the respondent-original plaintiff.
With the consent of the learned advocates appearing on behalf of the respective parties and in the facts and circumstances of case, the present Appeal from Order is taken up for final hearing today.
The present Appeal from Order under Order 43 Rule 1(r) of the Code of Civil Procedure has been preferred by the appellant-original defendant to quash and set aside the impugned order dated 25/06/2007 passed below Notice of Motion Exh. 6/7 by the learned Chamber Judge of the City Civil Court, Ahmedabad in Civil Suit No. 760/2007 by which the learned Chamber Judge, Ahmedabad has been pleased to allow the said interim injunction application and directed the appellant-original defendant to maintain status-quo with respect to the suit property.
On finalisation of Town Planning Scheme No. 28 (Nava Wadaj), the appellant-original defendant issued notice upon the respondent-original plaintiff dated 07/10/1997 under Section 68 read with Rule 37 of the Gujarat Town Planning & Urban Development Act and Rules for implementation of the said Town Planning Scheme. It is to be noted that earlier notices dated 28/09/1989 and 16/07/1984 were issued, however, the same was challenged and statement was made that the occupants shall be removed after following due procedure. Thereafter, the aforesaid notice came to be issued and the same was replied by the respondent-original plaintiff. However, it is the case on behalf of the respondent-original plaintiff that subsequently the said notice of 1997 came to be withdrawn and the respondent-original plaintiff was informed that fresh notice under Section 68 read with Rule 33 of the Gujarat Town Planning & Urban Development Act and Rules shall be issued. Thereafter, respondent-original plaintiff instituted Civil Suit No. 760/2007 before the City Civil Court at Ahmedabad for permanent injunction. In the said suit, the respondent-original plaintiff took out Notice of Motion by submitting an application under Exh. 6/7 and prayed for interim injunction restraining the appellant-original defendant from demolishing the 'galla' and the hutment of the respondent-original plaintiff without following the due process of law. The only case on behalf of the respondent-original plaintiff was that after the notice dated 07/10/1997 and the reply by the respondent-original plaintiff, the same was withdrawn and it was stated that fresh notice shall be issued, however, no further notice has been issued and straight away the appellant-original defendant threatened that they will demolish the constructed property. The Notice of Motion was opposed by the appellant-original defendant by submitting that the notice dated 07/10/1997 has been issued under Section 68 and Rule 33 of the Gujarat Town Planning & Urban Development Act and Rules for implementing the Town Planning Scheme, which has been become final in the year 1981 and the same was never withdrawn and what was withdrawn was the earlier notice of 1989. It is submitted that in the so called communication relied upon by the respondent-original plaintiff, there is no reference that the notice dated 07/10/1997 has been withdrawn, and, therefore, it was requested to dismiss the Notice of Motion and not to grant the interim injunction as prayed for as the notice was issued and the action was taken to implement the Town Planning Scheme, which has become final. The learned Chamber Judge of the City Civil Court, Ahmedabad vide impugned order dated 25/06/2007 allowed the said Notice of Motion and has granted the injunction as prayed for directing the appellant-original defendant to maintain status-quo. Hence, the appellant-original defendant has preferred the present Appeal from order under Order 43 Rule 1(r) of the Code of Civil Procedure.
Shri Maulin Raval, learned advocate appearing on behalf of the appellant-original defendant has vehemently submitted that the learned Judge has materially erred in allowing the Notice of Motion and granting the injunction as prayed for and directing the appellant-original defendant to maintain status-quo. It is submitted that the notice was issued by the appellant-original defendant under Section 68 read with Rule 33 of the Gujarat Town Planning & Urban Development Act and Rules for implementation of the Town Planning Scheme, which has become final in the year 1981 and the same has also been replied by the respondent-original plaintiff. The learned Judge ought not to have granted the injunction as prayed for as the action was taken after following the due procedure of law for implementing the Town Planning Scheme. It is submitted that by granting such an injunction as such the learned trial Court has restrained the appellant-original defendant from performing their statutory duty of implementation of the Town Planning Scheme, which has become final under the provisions of the Gujarat Town Planning & Urban Development Act and Rules. It is submitted that as such the learned trial Court has materially erred in relying upon the communication, which is undated. According to the appellant-original defendant the same is not in existence at all as it does not bear any signature of the Officer of the Corporation and even there is no outward number. It is further submitted that even in the said alleged undated communication there is no reference that the notice dated 07/10/1997 has been withdrawn. It is submitted that the learned trial Court has specifically observed that in the alleged undated communication there is no reference that the notice dated 07/10/1997 has been withdrawn. Therefore, it is submitted that the learned Judge has materially erred in granting the injunction and directing the appellant-original defendant to maintain the status-quo by observing that without considering the objections or deciding the objections filed by the respondent-original plaintiff, the appellant-original defendant cannot take any decision of implementing the notice dated 07/10/1997 and, therefore, it is requested to allow the present Appeal from Order.
The present Appeal from Order is opposed by Shri Dharmesh V. Shah, learned advocate appearing on behalf of the respondent-original plaintiff. It is submitted that on considering the facts and circumstances of the case and having found that the objections submitted by the respondent-originalplaintiff in response to the notice dated 07/10/1987 has not been decided/considered by the Corporation, the learned trial court has rightly granted the injunction and has directed the appellant-original defendant to maintain status-quo, which is not required to be interfered with by this Court in exercise of the appellate jurisdiction. It is submitted that when the learned trial Court has exercised the jurisdiction, the same is not required to be interfered with by this court and, therefore, it is requested to dismiss the present Appeal from Order.
Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the disputed suit property in question is within the Town Planning Scheme No. 28 (Nava Wadaj), Ahmedabad. It is also not in dispute that the said Town Planning Scheme No. 28 has become final under the provisions of the Gujarat Town Planning & Urban Development Act and Rules, more particularly, Section 65 of the Act vide notification dated 12/12/1980 and the said final Town Planning Scheme No. 28 has come into effect with effect from 27/01/1981. As per the provisions of the Gujarat Town Planning Act, more particularly, Sections 65, 67 and 68 of the Act after the final Town Planning Scheme all land vests with the appropriate authority. The land in question comes under the Town Planning Road and is required by the appropriate authority and, therefore, for implementation of the Town Planing Shceme, which has become final, a person can be evicted by issuing notice under Section 68 and Rule 33 of the Gujarat Town Planning & Urban Deveopment Act and Rules, for which earlier notices were issued in 1984 and 1989, however, for some technical reason the same were withdrawn. Thereafter, again the respondent-original plaintiff was served with the notice dated 07/10/1997 issued by the appellant-original defendant-appropriate implementing authority under Section 68 read with Rule 33 of the Gujarat Town Planning & Urban development Act and Rules. It appears that the respondent-original plaintiff thereafter submitted his reply and thereafter when further steps was to be taken by the Corporation to evict the respondent-original plaintiff for implementing the said Town Planning Scheme, whch has become final at that stage the respondent-original plaintiff instituted the aforesaid suit and relied upon one undated alleged communication submitting that the notice dated 07/10/1997 has been withdrawn and it was assured that fresh notice shall be issued. It is to be noted that as such there is a specific finding given by the learned trial Court that from the alleged so called communication of 1997, which has been relied upon by the respondent-oriignal plaintiff, it cannot be said that the notice dated 07/10/1997 has been withdrawn. Therefore the story followed by the respondent-original plaintiff that the notice dated 07/10/1997 has been withdrawn has not been accepted by the learned trial Court. However, surprisingly the learned trial Court has granted the injunction by observing that nothing is on record whether the objections submitted by the respondent-original plaintiff, pursuant to the notice dated 07/10/1997, has been considered or not. It is to be noted that once the Town Planning Scheme has become final, which has not been challenged, nothing further is required to be done except evicting the person in occupation and possession of the disputed land/property in question by serving notice under Section 68 with Rule 38 of the Gujarat Town Planning & Urban Development Act and Rules _______and, therefore when notice dated 07/10/1997 was issued, which has been issued under Section 68 with Rule 33 of the ___________, it can be said that due procedure has been followed by the Corporation-implementing authority. In view of the aforesaid facts and circumstances of the case, it appears that the learned trial Court has committed an error in granting the injunction and directing the appellant-original defendant to maintain status-quo. By granting such an injunction as such the learned trial Court has restrained the Corporation/implementing authority from performing its statutory duty under the Gujarat Town Planning Act. It is to be noted that the scheme has become final as far as back in the year 1981 and still for whatever reason the Corporation-the implementing authority is not in a position to implement the same and by virtue of the injunction granted by the learned trial Court, the appellant-original defendant is restrained from implementing the Town Planning Scheme, which has become final in the year 1981. Under the circumstances, the impugned order passed by the learned trial Court cannot be sustained.
In view of the above and for the reasons stated, the Appeal from Order succeeds. The impugned order passed by the learned Chamber Judge of the City Civil Court, Ahmedabad dated ______ below Exh. 6/7 Notice of Motion in __________is hereby quashed and set aside. No cost.
(M.R. SHAH, J.) siji Top