Govindlal Shankarlal Prajapati vs Ahmedabad Municipal Corporatio

K.S. Jhaveri, J.—By way of this appeal, the Appellant-original Plaintiff No. 8, has challenged the judgment and decree dated 6.9.1989, passed by the City Civil Court, Court No. 5, Ahmedabad, in Civil Suit No. 2644 of 1982, whereby the learned Judge has dismissed the Suit filed by the original Plaintiff No. 8-present Appellant.

The facts of the case are that the original Plaintiffs had filed Civil Suit No. 2644 of 1982, in the City Civil Court, Ahmedabad, against the Defendant-corporation for a declaration that the impugned notices issued to them bearing No. C. Shed/120/102 T.P. Scheme No. 20, Final Plot No. 385, issued by the Deputy Town Development Officer of the Defendant-Corporation are illegal, arbitrary, and for permanent injunction restraining the Defendant-Corporation from enforcing the same in any manner against the Plaintiffs'' structure, or in the alternative, for a direction to the Defendant to regularize the same in accordance with Resolution passed by the T.P. Committee of the Defendant Corporation. The learned Judge, after hearing the parties dismissed the said suit. Hence, this appeal.

Learned Advocate for the Appellant submitted that the trial Court has committed error in rejecting the suit inasmuch as the Deputy Town Development Officer, has been delegated the power vide order No. 2265,dated 22.9.1975. In view of Section 69 of the Bombay Provincial Municipal Corporation Act,1949, the order of the Trial Court deserves to be set aside and dismissal of suit only on one issue is also deserves to be set aside.

Mr. Patel, learned Advocate for the Respondent, supported the order of the trial Court and submitted that the notice was issued pursuant to the delegation of power, and the original record and other documents have been exhibited at 42, 43, 44, 45 and 46.

He relied upon the decision of this Court reported in The Municipal Corporation Vs. Bhagvandas Parumal, Paragraph No. 9 of the said decision is reproduced as under:

The second contention is also well founded. It should be stated at the outset that the learned Single Judge has not gone into this question as to whether the confernment of the authority on the Deputy Town Development Officer was not valid and legal. We have also examined the position since the judgment of the learned Single Judge can also be supported on this ground which has found favour with the Learned City Civil Judge. In the opinion of the learned City Civil Judge inasmuch as the confernment of the authority for exercise of the power u/s 260(1) of the Corporation Act was made by the office order No. 1079 of February 26, 1996 on an officer whose post has not come into existence, the authority was not validly and legally conferred. The learned City Civil Judge has found that the post of Deputy Town Development Officer was created for the first time by the Municipal corporation somewhere on July 5, 1966 when the Municipal Corporation sanctioned the post of Deputy Town Development Officer as per entry No. 179 shown in the statement annexed to the letter of the Municipal Commissioner addressed to the Secretary of the Corporation on 28.-6-1966 as required by Section 51(2) read with Section 45 of the Corporation Act. In our opinion, with respect to the learned City Civil Judge, his view that this post has been created for the first time somewhere in July, 1966 does not appear to be correct. It is no doubt true that in the statement annexed to the letter of the Municipal Commissioner dated June 28, 1966 addressed to the Secretary, the post of Deputy Town Development Officer has been shown at Sr. No. 179. Now the purpose of this statement is to furnish the particulars to the Standing Committee for purposes of determining the number, designations, grades salaries, fees and allowances of the other Officers and servants besides those specified in Sub-section (1) of Section 51 who should, in his opinion, be maintained, and the amount and the nature of the salaries, fees and allowances, which he proposes should be paid to each of them. It, therefore, cannot be said that by inclusion of the post of Deputy Town Development Officer at Sr. No. 179 in the statement annexed to the aforesaid letter, the post was sought to be created for the first time. As a matter of fact, in the first paragraph of the aforesaid letter, it has been stated that the names etc. of such officers, who exercise at present, the powers and perform the duties subject to and in accordance with the Corporation Act, and who have been treated till then as Municipal Officers, and who will be treated hereafter as such, are shown in the statement annexed to the letter. It therefore, cannot be said that the post of the Officers whose particulars are included in the statement annexed to the said letter were created for the first time. As a matter of fact, our attention has been invited by the learned Advocate Mr. Desai appearing for the Corporation that originally this post of Deputy Town Development Officer was described as Senior Assistant of the Town Development Officer, and by the relevant Municipal Corporation''s resolution No. 407 dated 23rd July, 1965, the designation of Senior Assistant to Town Development Officer is changed to Deputy Town Development Officer, and accordingly in the office order No. 895 delegating the power of the Municipal Commissioner to the Senior Assistant of the Town Development Officer was to be read subject to the correction as directed by the office order No. 1019 of the Municipal Commissioner dated August 12, 1965. The Office order No. 895 and the Office order No. 1019 are to be found in the Ahmedabad Municipal Corporation Manual, volume IV, Book No. 11 published in 1966. Office order No. 1019 which is relevant for our purposes reads as under:

The designation of Senior Assistant to Town Development Officer as mentioned in the delegation office order No. 395 dt. 22-10-1964 and 1010 dt. 10-7-65 should now be read as Deputy Town Development Officer in view of the Municipal Corporation Reso. No. 407 dt. 23-7-65.

The Office order No. 1079 which has been relied upon by the learned City Civil Judge in support of his view that since the authority has been conferred somewhere in February 1966 on an officer whose post was created subsequently, the conferment of the authority would be bad and ineffective. The said office order is to be found at page 171 of the said book which provides as under:

In suppression of all previous office orders regarding delegations of powers etc. u/s 69(1) of the B.P.M.C. Act 1949 to the Town Development Officer & Dy. T.D.O., the Municipal Commissioner, Municipal Corporation of the City of Ahmedabad, u/s 69(1) of the said Act, hereby empowers, subject to his revision and general control, the Town Development Officer and other subordinate Officers of the Town Development Department to exercise, perform or discharge the powers duties or functions conferred, imposed upon or vested in the Municipal Commissioner by or under the said Act, as shown against their respective designations as per the schedule appended hereto and signed by him. This order shall come into operation from the 1st day of March, 1966.

The very office order clearly indicates that it was issued in suppression of all the previous office orders regarding delegation of the powers of the Municipal Commissioner to the Town Development Officer. By necessary implication, it is clear that the post of Town Development Officer was in existence since it was so designated from 12-8-65 and there was no warrant to read as is sought to be done by the learned city Civil Judge that the post of Deputy Town Development Officer was constituted for the first time in July, 1966. In that view of the matter, therefore, the learned Advocate for the Appellant-Corpation was perfectly justified in urging that the reliefs granted in the suit were not justified inasmuch as both the findings of the learned City Civil Judge about the imprecise nature of the impugned notice as well as invalidity of the confernment of the power are not well founded. We entirely agree with the learned Advocate for the Appellant-Corporation and we are ofl the opinion that the second contention must prevail and the view of the learned City Civil Judge that the confernment of the authority was not validly and legally made is erroneous.

The Trial Court while considering the evidence on record produced by both the sides, has framed following issues:

(1)whether the Plaintiffs prove that the notices u/s 260(1) and Section 260(1)(a) of the BPMC Act, 1949, issued by the Defendant to Plaintiffs is illegal, arbitrary, against the principles of natural justice and hence not binding ?

(2 What order and decree.

I have heard Mr. Shah and also gone through the original record, exhibit-42, Tumar, which has been produced on record and the same was exhibited but at that time learned Advocate for the Plaintiffs has not raised objection against the same before the Trial Court. From the record it becomes clear that the original notice has established that the illegal construction was made by the Plaintiffs and the original Plaintiffs have failed to prove before the Trial Court that the construction is legal.

The Trial Court, while considering the case of the Appellant, in paragraph No. 6, has observed as under:

It may be noted here that pending the final hearing and disposal of the suit by application Ex.28 and 31 and as per the order passed below those applications, Plaintiff Nos. 5 to 8 came to be added as they came into possession of the disputed structures by way of transfer from Plaintiff Nos. 1 to 4. Thus, they are the real contesting parties. The case of the Plaintiff is that the notices u/s 260(1) of the Act served on them are not legal and valid as the same does not mention the erection of the building. According to them, the building is in existence prior to the Act coming into force in the area and they have only carried out repairs. Mr. K.H. Dikshit L.A. For the Plaintiff submitted that the representation given by the Plaintiffs is required to be considered by the Dy. T.D. Officer before taking the final decision in the matter which has not been done and that Plaintiffs have not been given proper opportunity to submit their say. However, going through the Tumar produced by the Defendant at Ex.42, it will reveal that the submission of Mr. Dikshit are totally out of place. The Plaintiff Nos. 1 and 4 had submitted their explanation before the Dy. T.D. Officer, and the Plaintiff Nos. 2 and 3 had not filed any explanation. The 7th Plaintiff is the transferee of the rights of the 1st Plaintiff, the 8th Plaintiff is the transferee of the rights of the 4th Plaintiff, the 6th Plaintiff is the transferee of the rights of the 2nd Plaintiff and the 5th Plaintiff is the transferee of the right of the 3rd Plaintiff in respect of the impugned constructions. Thus, the Plaintiff Nos. 1 and 4 have made representation and explanation before the Corporation and 2nd and 3rd Plaintiffs have not. The added parties to the suit have steeped into the shoes of the original Plaintiffs in the suit and they have waived their rights as they did not make any application or representation to the Defendant that they should be given opportunity afresh or that they are not bound by the representation previously made by the 1st and 4th Plaintiffs. I have discreetly gone through the Tumar(ex.42) produced by the Defendant and the representations made by the concerned Plaintiffs. They have stated therein that they are not only the transferees of the rights of the respective Plaintiffs over the impugned structures but have also stated that the structures are standing in the same condition as they were existing since long. It is, however, pertinent to note that they have not adduced any evidence before the Dy. T.D. Officer in nature of any writing showing the transfer of the structures from the original tenants in their favour, or from whom they have got the possession or any document indicating the area alloted to them and/or any rent-note depicting that they are since long holding the possession nor have they produced any evidence of the landlord that the construction is in the same condition in possession of the occupier as it was long ago, as claimed by them. In absence of these, it can not be said that the competent authority (Dy. T.D. Officer, who has been delegated with powers to issue such notices u/s 260 of the Act, vide Delegation order no 2265 dated 22.9.1975) was given sufficient evidence by the Plaintiffs or any of them to show that the construction was in existence prior to coming into force of the Act in the area in question. It is to be noted that as pleaded by the Defendant the constructions were previously removed and yet they were reconstructed where after the Plaintiffs have come in possession thereof. In this view of the matter, I am not inclined to hold that the competent authority has erred in coming to the conclusion that he has arrived at Viz. That the suit structures are unauthorized and illegal which deserve to be removed as they infringe the bye-laws framed under the Act by the Corporation. It is to be noted that it is not the original construction in form of shops and buildings which are constructed with permission of the Defendant which are sought to be removed by the Defendant, but the construction which are sought to be removed are the constructions on the marginal land which have been re-constructed again in the year 1981 or thereabout without obtaining prior permission of the Defendant and contrary to the bye-laws. The Tumar does show that proper opportunity has been given to concerned Plaintiffs but they have not availed of the same properly in the sense that even though they submitted their explanation, they did not produce adequate evidence to support their case that the construction is an exempted one which does not require sanction of the Defendant. Hence, the notices in question cannot be said to be violative of any principles of natural justice, illegal or invalid inasmuch as the authority which issued the same was properly delegated with the powers to do so and it is only after giving proper opportunity to Plaintiffs that he has arrived at the decision that he took. Therefore, I am of the opinion that the notices cannot be said to be bad in any way. As a last resort, Mr. Dikshit ultimately submitted that some resolution has been passed by the standing Committee of the Defendant-Corporation permitting constructions on the marginal land and hence if that Resolution in form of circular is adopted by the Defendant, the Plaintiffs'' structures would be covered and hence till the Resolution is implemented by the Defendant, the impugned notices u/s 260 issued against the Plaintiffs should be stayed. To this, L.A. For the Defendant has rightly submitted that the Resolution of the Committee is not legal effective now as it requires the sanction of the State Government and that one does not know when and whether it would be approved by the State Government. The submission of the L.A. Is quite right in that one does not know as to when and whether the said Resolution would reach the implementation stage after approval by the State Government and before that it does not become effective and hence the stayal of the impugned notices is out of question. Also, the L.A. For the Defendant rightly argued that the construction was made first in 1977 and thereafter again in 1981 and has been in existence till today, albeit an unauthorized and illegal one, and hence the protection of the same from being removed cannot be acceded. Thus, all in all the Plaintiffs have miserably failed to prove that the impugned construction in their occupation are authorized and legal and that the notices in question are illegal or arbitrary or against the principles of natural justice and hence not binding to them. It is for these reasons that I answer Issue No. 1 in the negative.

In view of above, I am in complete agreement with the findings recorded by the Trial Court. Therefore, the appeal deserves to be dismissed. Hence, the same is dismissed. Notice is discharged.