Rule returnable today. Learned advocate Shri Deepak P. Sanchela appears and waives service of notice of rule for respondent no.1. Learned AGP Ms. V.S Pathak appears and waives service of notice of rule for and on behalf of respondent nos. 2 to 4.
The petitioner is a public sector undertaking and is a Government company as defined under Section 617 of the Companies Act, 1956. It is engaged in the business of marketing and distribution of petroleum products.
The respondent no.1 is a Nagarpalika of Taluka Talaja of District-Bhavnagar. On 16th February 1957, 372 sq. meters of open land was taken on lease by Messrs. Burmah Shell Oil Storage & Distribution of India Limited - predecessor in title of the petitioner from the respondent no.1. This was for running a retail outlet [petrol pump] and the lease continued to be renewed every three years. Thus, the petitioner has been running the retail outlet for more than fifty years.
It is the say of the petitioner that the lease was lastly renewed from 15th February 2006 to 14th February 2009 and on 29th May 2009, the respondent no. 1 renewed the lease by a Resolution No. 245 till 14th February 2014. This was communicated to the present petitioner vide letter dated 15th June 2009.
It is allegation of the petitioner that on 1st October 2009, the respondent no.2-Collector of the district on suo motu basis, without affording an opportunity to the petitioner, passed an order under Section 258(1) of the Gujarat Municipalities Act, 1963 {"Act" for short} suspending the resolution no.
245. On account of the fact that there was absence of permission of the State Government, as otherwise required under Section 65 (2) of the Act, before renewing the lease. Consequent upon this order, the respondent no.1 issued notices to the petitioner dated 27th October 2009; 24th November 2009; 30th December 2009 and 31st July 2010 inter alia asking the petitioner to hand over the vacant possession of the said land, although there has been no breach in the payment of rent and taxes as demanded by the respondent no.1. It is the say of the petitioner that this is the only retail outlet of Bharat Petroleum in the entire town of Talaja.
Civil Suit No. 9 of 2010 was preferred before the learned Addl. Civil Judge, Bhavnagar on 4th January 2010 seeking declaration inter alia that the order passed on 1st October 2009 by the respondent no.2 is illegal, unenforceable and opposed to the principles of natural justice.
In an application for injunction, it was urged to direct the respondent not to take over possession of the suit land. After bipartite hearing, application for injunction was rejected essentially on the ground that the petitioner had alternative remedy before the Special Secretary, Government of Gujarat under Section 258 of the Act, as also on the ground that prior permission of the State Government would be necessary under Section 65 (2) of the Act. The Court was also of the view that the cumulative period of lease requires to be considered and not the renewal periods for the purpose of interpreting the provisions of Section 65 (2) of the Act.
This was challenged in Civil Misc. Appeal No. 54 of 2010 before the District Court, Bhavnagar and the same was also dismissed vide order dated 3rd May 2011.
Being aggrieved by this, the present petition is preferred under Article 227 of the Constitution of India.
It is to be noted that while rejecting the application for injunction, the Court stayed implementation of its order dated 30th June 2011 and in the present petition, this Court vide its order dated 29th June 2011 continued the same by granting the ad interim relief which has been extended till the date.
Heard learned sr. advocate Shri Mihir Thakore for M/s. Singhi & Co., appearing for the petitioner-Company who has fervently assailed the orders of both the Courts on the ground that every renewal of the lease is a fresh lease. The interpretation done by both the Courts of provision of Section 65 (2) of the Gujarat Municipalities Act has been severely objected to. It is the say of the learned counsel that the State Government does not come into picture when this is not the case of renewal of lease extending ten years, as also when there being no case of sale of property. He has further emphasized on the aspect that the principles of natural justice have not been followed when the Collector-respondent no.2 herein quashed the resolution passed by the respondent no.1 - being Resolution No. 245. Again, according to the learned counsel, alternative remedy is no bar to the writ jurisdiction. Reliance is placed on the following authorities :-
[a] Naynaben Shantilal Pandya v. State of Gujarat, reported in 2006 (3) GLR 2034;
[b] Puran Singh & Ors. vs. State of Punjab, reported in 1975 (4) SCC 518;
[c] Rame Gowda (Dead) by Lrs. vs. M. Varadappa Naidu (Dead) By Lrs. & Anr., reported in [(2004)1 SCC 769];
[d] State of U.P & Ors. vs. Maharaja Dharmander Prasad Singh & Ors., reported in 1989(2) SCC 505;
[f] Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors., reported in 1998 (8) SCC 1.
Learned advocate Shri Deepak Sanchela appearing for the respondent no.1 has urged that the Municipality though had passed resolution, but such a resolution has not been approved by the respondent no.2, and therefore, the notices issued demanding possession of the land back have a legal force. He further urged the Court that continuing on the said land after resolution has been quashed, amounts to illegal possession and both the Courts have rightly not protected the petitioner. He, however, agreed that from the year 1957 till 2009, there was a periodical renewal of the lease and at no point of time any objection was raised in respect of Section 65 (2) of the Act.
Learned AGP Ms. Pathak has relied on the contentions of the affidavit in reply where it has been contended that the petitioner has no locus to file the present petition as no fundamental or legal right is violated. He stated that both the Courts have properly and justly decided the application for injunction which calls for no interference. He further urged that the renewal of lease by Talaja Municipality lastly on 29th May 2009 was for the period of five years but in fact, it was a continuous lease from the year 2000 and if such a lease exceeds 10 years, Government's prior permission is necessary.
It is also further contended that as per the provision of Section 65 (2) of the Act, as the market value of the land belonging to Municipality is running into lacs of rupees, 15% yearly interest should be taken into consideration.
On thus having heard learned advocates for the parties, the scenario that emerges before the Court is that there is a need for this Court to interfere in supervisory jurisdiction as the interpretation made by both the Courts is not in consonance with the provisions of the Municipalities Act.
Before further adverting to the contentions of the parties, it would be profitable to reproduce at this stage Section 65 (2) of the Gujarat Municipalities Act, which reads thus -
65. Powers of municipality to sell, lease and contract -
{1} A municipality shall be competent, subject to the restriction contained in sub-section (2), to lease, sell or otherwise transfer any movable or immovable property which may, for the purposes of this Act, have become vested in or been acquired by it; and so far as is not inconsistent with the provisions and purposes of this Act, to enter into and perform all such contracts as it may consider necessary or expedient in order to carry into effect the said provisions and purposes.
{2} In the case of every lease or sale of land under sub-section (1) of section 146 and of a lease of immovable property for a term exceeding ten years and of every sale or other transfer of such immovable property, the market value of which excess one lakh of rupees, the previous permission of the State Government is required :
[Provided that in the case of a lease or sale of land under sub-section (1) of Section 146 no such permission shall be granted if such land forms a street or part of a street which has been declared to be a public street under section 148].
As is very apparent from the language of this provision, in the event of any lease exceeding 10 years, or in the case of any sale, question of prior permission of the State Government shall come into focus. For any renewal of the lease which is not exceeding 10 years, this provision cannot get attracted.
Admittedly, the predecessor-in-title of the present petitioner was Burmah Shell Oil & Storage & Distribution of India Limited and the suit land continues to be in possession of the petitioner from the year 1957. It is also not in dispute that the rent and taxes as are required being paid on regular basis and the lease of the said land granted for the purpose of retail outlet has been renewed time and again. It is by virtue of the resolution of Talaja Municipality only that such renewals have come into effect and at no point of time, Section 65 (2) of the Act was employed.
In the instant case also, as can be noted from the record vide Resolution no. 54, lease was renewed by Talaja Municipality from 15th February 2000 to 14th February 2003 for a period of three years. Likewise, Resolution no. 94 renewed the lease again for three years from 15th February 2003 to 14th February 2006 and once again, vide its Resolution no. 21, such lease was renewed from 15th February 2006 to 14th February 2009.
The lease in question was renewed by Resolution No. 245 dated 29th May 2009 with effect from 15th February 2009 to 14th February 2014. Thus, this renewal is for a period of 5 years and at no point of time, the powers of the Municipality in earlier renewals has been challenged.
Section 65 (2) will come into picture only when renewal of lease exceeds 10 years. It would be appropriate to refer to the decision of Apex Court rendered in case of Delhi Development Authority v. Durga Chand Kaushish, reported in 1973 (2) SCC 825.
7. If the plaintiff was not entitled initially to a lease of 90 years for the rent agreed upon but the rent was liable to be increased within that period, as appeared to be the real case of the defendants in the High Court, there was no question of grant of a fresh lease. A renewal of a lease is really the grant of a fresh lease. It is called a "renewal" simply because it postulates the existence of a prior lease which generally provides for renewals as of right. In all other respects, it is really a fresh lease. Thus, the initial term of a lease of ninety years could not co-exist with the renewals of that very lease within ninety years. Hence, the appellant's learned counsel suggested that the initial period of the lease must be deemed to be 20 years. If the argument advanced by the appellant is correct, the plaintiff-respondent would be merely a tenant "holding over" after expiry of twenty years. But, that is not the defendants' case in their written statement. If, as the words used in covenant No. 9 clearly signify, enhancement of rent is made conditional upon grant of a fresh lease, it could only take place on the expiry of the initial lease and not before that time. That could be either ninety years or twenty years but not both simultaneously.
8. If the initial lease was for a period of 20 years only subject to rights of renewal and liability to enhancement of rent on a renewal, there was nothing to prevent the grantor from saying so in the lease deed. Again if the period of lease of 90 years on payment of an annual rent of Rupees 365/- was subject to a periodic increase of rent within this initial period of 90 years the grantor could have easily said so and would have done it. We all know that, in such cases, a grantee has little choice if he wants to obtain a lease. The terms and conditions are really laid down by the grantor, which is the Sovereign or the State in such cases, and these terms are generally of a uniform type. It the language adopted in granting the lease is defective, so as to fail to bring out the real intention of the grantor, whatever that intention may have been, the grantee cannot be made to suffer for the defect.
9. Before actually dealing with the principles of construction involved, we will set out the relevant terms of the lease deed so as to indicate what the grantor did here. The operative part of the deed containing the words of demise reads as follows:
"Now this indenture witnesseth that in consideration of the rent hereinafter reserved and of the covenants on the part of the said Lessee hereinafter contained the said Lessor does hereby demise unto the said lessee all that plot of land containing by measurement 5444 square yards situated at Ara Kashan, Paharganj, in the Municipality of Delhi which said plot of land is more particularly described in the schedule hereunder written and with the boundaries thereof has, for greater clearness, been delineated on the plan annexed to these presents and thereon coloured blue, together with all rights, easements and appurtenances whatsoever to the said Lessee for the term of 90 years commencing from the 1st day of April, 1931 rendering therefore during the said term the yearly rent of Rs. 365/- only clear of all deductions, by equal half yearly payments on the first day of January and first day of July at Rs. 182/-8/- each at the Nazul Office of the Deputy Commissioner of Delhi or of such officer as may from time to time be appointed by the Local Government in this behalf. The first of such payments to be made on the first day of July next."
10. Thereafter, begins a fresh paragraph with the words "Subject always to the exceptions, reservations and conditions and covenants hereinafter contained". These covenants contain the obligation of the lessee to pay Rs. 18,154/- in 4 instalments on or before 30-9-32, a provision for forfeiture of the lease on a breach of the condition relating to payment of premium, the right of the lessor to recover the outstanding amount as arrears of land revenue, the reservation of mineral rights by the lessor, an undertaking by the lessee to pay "during the said term" all rates, taxes, charges and assessments of every description "which are now or may at any time hereafter during the said term be assessed.... in respect thereof", the other duties of the lessee during the subsistence of the lease, the obligations of the lessee to deliver the land on "the determination of the said term" and, if the land is required for a public purpose "during the period of the lease", to accept compensation only for the buildings on the value of which the decision of the Deputy Commissioner of Delhi was to be final and conclusive."
Thus, as can be seen from the judgment above, renewal of the lease is really the grant of fresh lease and as laid down by the Supreme Court, the word "renewal" is indicative of existence of prior lease which generally speaks of renewal as of right. Otherwise, in essence, it is in fact a fresh lease. It further says that if there is any ambiguity created by the words used in the lease covenant, it can be resolved resorting to interpretation which is reasonably possible and the principle to apply would be that the interpretations favouring the grantee as against the grantor should be accepted. In such circumstances, it becomes very clear from the discussion that grant of lease by way of resolution no. 245 in respect of the present petitioner for the period from 15th February 2009 to 14th February 2014 was a fresh lease and right from the year 1957, periodical renewal of lease had continued and in such chain of events, interpretation sought to be made by the respondent no.-3 Government that the period of lease exceeds 10 years is not palatable.
In light of this discussion, the order passed by the respondent no.2-Collector on 1st October 2009 if is perused, the reply filed by the representative of the Municipality was taken into account by him. Reply is categorical that the renewal of lease was made periodically where the reference is given from the year 2000 till 2014. A request therefore is made that since this is not exceeding period of ten years, there is no requirement for seeking permission under Section 65 (2) of the Act and therefore, such resolution was requested to be accepted.
While passing the order, what has been mentioned in the said order is the breach of Section 65 (2) of the Act. It is further mentioned that in the event of permanent sale, if the value of the property exceeds one lakh rupees, or if there is a renewal of lease exceeding ten years, prior permission of the Government is must. There is also provision of determining the value of property and get 15% on such value by way of rent yearly. As there is a renewal from the year 2009 and earlier also such renewals were made by the Municipality, according to the Collector, this was in clear violation of the provision. Further more, the Collector in exercise of his powers under Section 258 (1) of the Act had suspended Resolution No. 245 on an earlier date dated 13th July 2009 and that had been made permanent vide its order dated 30th September 2009.
Pursuant to such orders, the petitioner had been communicated by Talaja Nagarpalika to hand over possession of the land. Different communications are placed on record but the last one categorically makes a mention that if the petitioner fails to hand over the possession of the suit land, the Nagarpalika will be compelled to take back the possession. That made the petitioner approach on urgent basis to this Court seeking reliefs, as mentioned in paragraph 16 of the memo.
It is fervently urged by the learned sr. advocate that the petitioner being in a settled possession for all these years, it could not have been threatened of dispossession. Moreover, both the Courts ought not to have denied injunction against the forcible possession as his possession was not of a trespasser, more particularly when no opportunity of hearing was given by the Collector. It is a glaring case, according to the learned advocate, of denial of hearing in violation of principles of natural justice.
In case of Puran Singh & Ors. [Supra], it has been held that where a trespasser was in settled possession of the land, he is not entitled to be evicted except in due course of law and he is further entitled to resist or defend his possession even given against the rightful owner who tries to dispossess him. The only condition laid down by the Court was that the possession of the trespasser must be a settled possession. The Court explained that the settled possession must be the possession extended over a sufficiently long period and acquiesced in by the true owner. Following attributes are mentioned, which would entitle the trespasser to exercise the right of private defence of property and person. These are :
i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
ii) that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case;
the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the, true owner will have no right of private defence. These principles logically flow from a long catena of cases decided by this Court as well as other High Courts some of which have been referred to in the judgment of this Court in Munshi Ram's case, AIR 1968 SC 702 = (1968 Cri LJ 806) (supra).
In case of Ram Gowda (dead) by Lrs. [Supra], Supreme has held as under :-
"6.
The law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond. In Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy and Ors., AIR 1924 PC 144, Sir John Edge summed up the Indian law by stating that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.
7. The thought has prevailed incessantly till date, the last and latest one in the chain of decisions being Ramesh Chand Ardawariya v. Anil Panjwani, (2003) 7 SCC 350 . In between, to quote a few out of several, in Lallu Yeshwant Singh (dead) by his legal representative v. Rao Jagdish Singh and others, (1968) 2 SCR 203, this Court has held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to Court and obtain an order for possession before he could eject the lessee. The Court quoted with approval the law as stated by a Full Bench of Allahabad High Court in Yar Mohammad v. Lakshmi Das, (AIR 1959 All 1, 4), "Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a Court. No person can be allowed to become a Judge in his own cause." In the oft-quoted case of Nair Service Society Ltd. v. K. C. Alexander and Ors., (1968) 3 SCR 163, this Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. The Court quoted Left's maxim 'Possessio contra omnes valet praeter eur cut ius sit possessionis (He that hath possession hath right against all but him that hath the very right)" and said. "A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff's and thus be able to raise a presumption prior in time". In M. C. Chockalingam and Ors. v. V. Manickavasagam and Ors., (1974) 1 SCC 48, this Court held that the law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale (dead) by his LRs. v. Mrs. Shobha Venkat Rao, (1989) 4 SCC 131, it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika Jind v. Jagat Singh, Advocate, (1995) 3 SCC 426, this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant.
8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a filmsy character, or recurring, intermittent, stray or casual in nature or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. v. Delhi Administration, (1968) 2 SCR 455, Puran Singh and Ors. v. The State of Punjab, (1975) 4 SCC 518 and Ram Rattan and Ors. v. State of Uttar Pradesh, (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram and Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the right owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re-instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force."
Possession of petitioner can be termed as settled possession undoubtedly and therefore issue of affording an opportunity of hearing before order of eviction is rightly contested by the petitioner. It is not in dispute that no hearing is made available to the petitioner while quashing resolution of Municipality. It has been contended by the otherside that there is an alternative efficacious remedy available, and therefore, the writ jurisdiction must not be exercised in such circumstnaces.
In case of Naynaben Shantilal Pandya v. State of Gujarat & Ors., reported in XLVII (3) GLR 2034, this Court dealt with the issue raised in respect of the principles of natural justice in a case where Nagarpalika, by its resolution had given two advance increments to an employee and the Collector had suspended resolution without giving to the employee an opportunity of being heard. Such order was held bad in law in violation of the principles of natural justice.
It would be worthwhile to reproduce Section 258 of the Gujarat Municipalities Act, 1963 at this stage, which reads, thus -
258. Power of Collector to suspend execution of orders, etc. of municipalities :
[1] If, in the opinion of the Collector, the execution of any order or resolution of a municipality, or the doing of anything which is about to be done or is being done by or on behalf of a municipality, is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful, he may by order in writing under his signature suspend the execution or prohibit the doing thereof and where the execution of any work in pursuance of the order or resolution of the municipality is already commenced or completed direct the municipality to restore the position in which it was before the commencement of the work.
[2] When the Collector makes any order under this section he shall forthwith forward to the municipality affected thereby a copy of the order with a statement of the reasons for making it and also submit a report to the State Government alongwith copies of such order and statement.
[3] Against the order made by the Collector under sub-section (1) the municipality may prefer an appeal to the State Government within thirty days from the date on which it receives a copy of the order. The State Government may on such appeal be preferred rescind the order or may revise or modify or confirm the order or direct that the order shall continue to be in force, with or without modification, permanently or for such period as it may specify :
Provided that the order shall not be revised, modified or confirmed by the State Government without giving the municipality reasonable opportunity of showing cause against the order."
This provision envisage powers of the Collector to suspend execution of any order or resolution of a municipality, or the doing of anything which is about to be done or is being done by or on behalf of a municipality which causes or is likely to cause injury or annoyance to the public. Against such an order made by the Collector, under sub-section (1), the Municipality may prefer an appeal to the State Government within thirty days from the date on which it receives a copy of the order.
This provision contemplates appeal by the Municipality against the order of the Collector; if it is aggrieved by the said. There does not appear to have been any appeal preferred by the Municipality against the order dated 30th September 2009. Thus, explicitly the law provides for alternative remedy to the municipality. Had there been an opportunity of hearing granted to the present petitioner, this could have been still a debatable point, as expressly the statute provides for an appeal by the Municipality. However, as no opportunity is given to the party concerned, this issue is not being concluded at this stage.
The order under Section 258 of the Act passed by the Collector, admittedly was on the representation of the Municipality and at no point of time, the petitioner had come into picture. As the resolution had been suspended without affording opportunity to the petitioner, it naturally had only remedy to take recourse to the Court proceedings where both the Courts below denied to protect the possession of the petitioner by interpreting Section 258 of the Act as providing efficacious remedy to the petitioner, and therefore, non-availability of injunction under Section 41H of the Specific Relief Act. There is an apparent error on the face of the record. As mentioned hereinabove, the municipality is explicitly permitted to prefer an appeal to the State Government against such order of the Collector passed under Section 258 of the Act. Moreover, there had been an opportunity given to the party concerned, there would still arise a question of interpretation of Section 258 of the Act qua such petitioner-party; which admittedly is not the case here. Therefore, the petitioner who is in a settled possession as mentioned hereinbefore by virtue of the lease for all these years could not have been denied protection as possession has been done by both the Courts. The interpretation made by the Collector and also by both the authorities of renewal being more than 10 years, by virtue of periodical years at this stage cannot be accepted as this has been so done over the period of time. If, in fact, there was no such authority with the Municipality and it has done it to over-reach the process of law or to regel out the rigours of Section 65 (2) of the Act, those issues can be decided in the trial but that cannot in any manner deprive the petitioner of protection which it is entitled to at this stage of trial.
Resultantly, this petition succeeds. The Order dated 9th August 2010 passed by the learned Addl. Sr. Civil Judge, Bhavnagar in Civil Suit No. 9 of 2010 and the order dated 3rd May 2011 passed by the learned 2nd Addl. District Judge, Bhavnagar in Civil Misc. Appeal No. 54 of 2010 are quashed and set-aside.
As a parting note, it is mentioned that this order and pendency of suit may not preclude the respondent no.2 from availing opportunity of hearing to the petitioner by issuing correspondence afresh, if he so deems fit as petitioner has shown willingness to participate in such proceedings, if initiated so as to bring an end to the issue.
Rule is made absolute in the above terms with no order as to costs.
{Ms.
Sonia Gokani, J.} Prakash* Top