1. Challenge in this appeal is to the judgment and decree rendered by learned Judge, City Civil Court No.18, Ahmedabad on 25.7.1996 in Civil Suit No.13 of 1987 whereby the trial Court allowed and decreed the suit filed by the respondent herein, who was original plaintiff in said suit and directed the appellant herein and the defendant in said suit, its agents and servants to not to interfere with the use and occupation of the suit premises in any manner.
2. The respondent herein, who was original plaintiff filed the aforementioned suit for declaration and permanent injunction. It was his case that he was occupying one shop bearing City Survey No.2312/2 situated in Jamalpur, Ward No.2, Manekchowk, Ahmedabad. The plaintiff was carrying on the business of silver ornaments in said shop. That it was a small shop having approximate measurements of 7ft. X 6ft. It was the case of the plaintiff that in front of his shop, there was a small platform meant for the purpose of sitting and displaying certain articles. It was the case of the plaintiff that upon some complaint being made, the Officers of the appellant – Municipal Corporation visited the shop of the plaintiff on 19.3.1987 and threatened to demolished the platform and to remove the display counter put thereon. It was the case of the plaintiff that the proposed action of the Corporation was illegal and having no force of law.
3. The defendant Corporation filed written statement and resisted the case of the plaintiff and contended that the platform erected by the plaintiff was causing obstruction and it was encroachment on public street and, therefore, the proposed action of the defendant cannot be said to be illegal or without any force of law. Before the trial Court oral and documentary evidence was adduced. The trial Court took into consideration the relevant provision of Bombay Provincial Municipal Corporation Act ('the Act', for short) and more particularly, Section 226 r/w.Section 228 of the Act.
the suit came to be allowed and decreed.
4. Mr.Bhatt, learned advocate for the appellant – original defendant, at the outset, submitted that the impugned judgment and decree rendered by the trial Court is
error in not properly considering the relevant provisions of the Act. It is further submitted that considering the overall evidence on record, it can safely be said that the platform erected by the plaintiff in front of his shop was nothing but encroachment on the land of the Corporation and was causing obstruction to the passerby. It is further submitted that as per the trial Court the notice was required to be issued before implementing any proposed action and on such technical ground, the suit came to be allowed, but the trial Court should have considered that if at all there was any breach of technical provision, the liberty of the Corporation should have been kept open, to take future action after complying with certain provisions. Therefore, it is submitted that in every respect the impugned judgment and decree rendered by the trial Court requires interference.
5. Mr.Soni, learned advocate for the respondent – original plaintiff supported the impugned judgment and decree rendered by the trial Court and submitted that the trial Court rightly interpreted the relevant provisions of the Act and rightly came to the conclusion that without following due process of law, the appellant – Corporation was not entitled to take any action.
6. I have taken into consideration the submissions advanced on behalf of both the sides, so also the record and proceedings in context with the submissions. Considering the impugned judgment rendered by the trial Court, and more particularly, considering paragraph 5 in the judgment, it transpires that the trial Court took into consideration various provisions of the Act, namely, Sections 226, 228 and 227. The trial Court reproduced Section 226 of the Act in its judgment, and more particularly, Sub-section 2 of said Section whereby written notice was required. After considering the relevant provision of law, the trial Court observed that a platform or cupboard can be removed, but before that a statutory notice was required to be served. It was further observed that even if it is assumed that there is an obstruction, still the Corporation could not remove it without issuing any notice. In light of said statutory provision, the trial Court held that the contention raised on behalf of the Corporation that no notice was required, could not be accepted. Admittedly, no notice was served upon the plaintiff by the defendant. The action of the Corporation, therefore, was held to be unlawful and the issue No.2 was accordingly replied in the affirmative. In paragraph 6 in the impugned judgment, though the trial Court observed that considering the smallness of the platform, it cannot be said that the plaintiff has made any encroachment, but this Court is of the opinion that once the trial Court came to the conclusion that there was breach of relevant provision of law, it was not necessary for the Court to deal with the issue as to whether considering the smallness of the projection whether it amounted to nuisance or annoyance to the passerby or not. Suffice it to say that the trial Court rightly interpreted the relevant provisions of law and rightly replied issue No.2 in the affirmative.
7. In above view of the matter, though the instant appeal deserves to be dismissed, but it is hereby specifically observed that in future, if at all the appellant – Ahmedabad Municipal Corporation feels that some action is required to be taken against the respondent – plaintiff, the liberty of the appellant – Corporation is hereby reserved and the appellant – Corporation may take any action in accordance with law after following due process of law. No order as to costs.
(binoy) (J.C.UPADHYAYA, J.)