[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") has been preferred by the appellants herein - original plaintiffs to quash and set aside the impugned judgment and decree dated 12.01.1993 passed by the learned trial Court - learned 3rd Joint Civil Judge (Senior Division), Surat in Regular Civil Suit No.406 of 1981 by which the learned trial Court has dismissed the said suit preferred by the appellants herein - original plaintiffs as well as the impugned judgment and order dated 04.09.2010 passed by the learned Appellate Court - learned 3rd Additional District Judge, Surat in Regular Civil Appeal No.14 of 1993 by which the learned Appellate Court has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit.
[2.0] That the appellants herein - original plaintiffs were in occupation and possession of the shops, major portion of which came to be acquired by the Surat Municipal Corporation under the provisions of the Land Acquisition Act for widening of the road. That the appellants herein - original plaintiffs preferred Regular Civil Suit No.406 of 1981 against the respondents herein - original defendants in the Court of learned Civil Judge (Senior Division), Surat for permanent injunction restraining the Corporation from auctioning the shops in Shopping Centre, Chauta Bazar Bridge, Surat as per the auction notice dated 17.01.1981 and restraining the Corporation from giving the said shops on rent to anyone except the plaintiffs and for direction to the defendant Corporation to give the said shops on rent only to the plaintiffs. The plaintiffs also prayed for permanent injunction restraining the respondent Corporation from taking possession of the shops from the plaintiffs. It appears that in the meantime the Standing Committee of Corporation passed a resolution dated 03.08.1994 being Resolution No.885 under which the Standing Committee passed a resolution to allot alternative shops to the plaintiffs in the newly constructed shopping centre / vegetable market and therefore, by way of amendment, the plaintiffs prayed for an order directing the Corporation to implement and act upon the Resolution No.885 dated 03.08.1994 of the Standing Committee. The original plaintiffs also prayed for an appropriate order directing the Corporation to implement and act upon the agreement that the plaintiffs be provided alternative place. It was the case on behalf of the plaintiffs that at the time when the Surat Municipal Corporation decided to widened the road as per the agreement with the Commissioner and Mayor of the Corporation, the plaintiffs were promised to provide alternative accommodation in lieu of their shops and that the Corporation was to construct shopping centre at vegetable market and the plaintiffs were to be provided new shops in the new shopping centre. It was the case on behalf of the plaintiffs that the plaintiffs were ready and willing to abide by the conditions as per the agreement and even the willingness of the plaintiffs was also sought. However, instead the Corporation issued a public notice dated 21.12.1980 in the "Gujarat Samachar" for auctioning the shops instead of giving to the plaintiffs as promised and the plaintiffs were to be dispossessed by the Corporation and therefore, the plaintiffs instituted the aforesaid suit for the aforesaid reliefs.
[2.1] That the suit was resisted by the defendants by filing the written statement at Exh.15 denying the allegations and averments in the plaint/suit. It was submitted that the shops / land occupied by the plaintiffs has been acquired under the provisions of the Land Acquisition Act and even the award (compensation) was also declared and therefore, the Corporation was entitled to the possession of the suit shops which is needed for public purpose / widening of the road. It was specifically denied that there was any agreement by the Commissioner and Mayor of the Corporation to provide alternative shops to the plaintiffs. It was also further submitted that the resolution passed by the Standing Committee upon which the reliance has been placed has no legal force and unless and until the resolution of Standing Committee is approved by the Corporation, the same has no legal force. It was also further contended that as the land/shops in question have been acquired under the Land Acquisition Act and the award has been declared, as such the plaintiffs were not entitled to alternative shops as claimed and that too without any public auction. It was further contended that the shops in the new shopping centre can be disposed of by the Corporation only after following due procedure as required under the Bombay Provincial Municipal Corporation Act (hereinafter referred to as "BPMC Act") more particularly Section 79 of the BPMC Act and the plaintiffs cannot be allotted / handed over the possession of the shops in the new constructed shopping centre without holding any public auction. Therefore, it was requested to dismiss the suit.
[2.2] That the learned trial Court framed following issues at Exh.36.
Whether the plaintiffs prove that they are in the possession of their shops in the capacity as alleged in plaint para 2?
Whether the plaintiffs prove that while acquiring their shops there was an agreement between the Surat Municipal Corporation (its Mayor Commissioner) on one hand and the plaintiffs on the other hand that the Corporation will provide 7 shops to the plaintiffs at 6% construction cost of the each shops as a rent which are situated in vegetable market Chauta-pul as alleged?
Whether the plaintiffs further prove that while at the time of acquisition on behalf of the defendant - Corporation, the Mayor Shri Bhartiya and the Municipal Commissioner have suggested the plaintiffs to give their suggestion regarding given them a name of place to give them the shop after built up and the plaintiff gave the name of vegetable market as their choice of shops in writing by way of an application at the instance of defendants as alleged?
Whether the plaintiffs prove that inspite of the agreement between the parties, the defendant-Corporation intents to let their above shops at the highest bidder of the rent as alleged? And further proves that it is against the agreement as alleged?
Whether the plaintiffs are entitled for the declaration and the mandatory injunction for non-letting and non-handing over the possession of the shops to the highest bidder of rent as alleged? And the said shops to be let to the plaintiffs as alleged?
Whether this suit is bad on the ground of mis-joinder of the parties and mis-joinder of causes of action as contended?
Whether the Court fees paid, is inadequate? If yes, what order?
[2.3] That on behalf of the plaintiffs, plaintiffs examined one Jagjivandas Jaganlal Gandhi at Exh.66, Jigarali Nimjibhai at Exh.101, Gandabhai Hiralal at Exh.116, Navinchandra Kalidas Bharatiya (Ex-Mayor) at Exh.160, one Pranlal Chhotalal at Exh.172. That the plaintiffs also led documentary evidence at Exhs.102 to 107, 114, 115 and 122 to 130, 173 to 177 and 190. On behalf of the defendants one Bhadresh Jayantilal Sheth came to be examined at Exh.199. The defendant Corporation also led documentary evidences. That on appreciation of evidence the learned trial Court held the issue No.1 in affirmative in favour of the plaintiffs however, held rest of the issues in negative against the plaintiffs and consequently the learned trial Court dismissed the suit.
[2.4] Feeling aggrieved and dissatisfied with the judgment and order passed by the learned trial Court in dismissing the suit, the appellants herein - original plaintiffs preferred Regular Civil Appeal No.14 of 1993 before the District Court, Surat and the learned Appellate Court by impugned judgment and order dated 04.09.2010 has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit.
[2.5] Being aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below, the appellants herein - original plaintiffs have preferred the present Second Appeal under Section 100 of the CPC.
[3.0] Shri Jay Thakkar, learned advocate appearing on behalf of the appellant has vehemently submitted that both the Courts below have materially erred in holding that the resolution No.885 passed by the Standing Committee of the Corporation has no legal force. It is submitted that as such even prior thereto there was an agreement with the Commissioner and Mayor of the Corporation to provide alternative shops / accommodation to the plaintiffs as the land was required by the Corporation for widening of the road. It is submitted that even as per the agreement with the Commissioner and the Mayor of Corporation, it was agreed to allot alternative shops to the plaintiffs at the newly constructed shopping centre / vegetable market and therefore, the respondents are bound to provide alternative shops to the plaintiffs and they are estopped from denying the same. It is submitted that instead the Corporation gave notice of public auction of the shops constructed in the newly built shopping centre which was contrary to the promise given by the Commissioner and Mayor of the Corporation and even contrary to the resolution passed by the Standing Committe. It is submitted that even the willingness of the plaintiffs was also sought and as the plaintiffs were ready and willing to abide by all the conditions, the learned trial Court ought to have decreed the suit and ought to have directed the defendant Corporation to provide/allot the alternative shops to the plaintiffs in the newly constructed shopping centre rather than public auctioning the same.
[3.1] Shri Jay Thakkar, learned advocate appearing on behalf of the appellant has submitted that the impugned judgment and order passed by the learned Appellate Court is required to be quashed and set aside on the ground that the learned Appellate Court has dismissed the Appeal without framing points for determination as required by Order 41 Rule 31 of the CPC.
Making above submissions, it is requested to allow the present Second Appeal.
[4.0] Present Second Appeal is opposed by Shri K.D. Pandya, learned advocate appearing on behalf of the respondent Corporation. Relying upon the provisions of the BPMC Act, it is submitted that the resolution of the Standing Committee of the Corporation has no legal force unless it is approved by the General Board of Corporation. It is, therefore, submitted that both the Courts below have rightly refused to grant any relief to the plaintiffs, which was claimed on the basis of the resolution of the Standing Committee, which has never been approved by the Corporation.
[4.1] It is further submitted by Shri Pandya, learned advocate appearing on behalf of the Corporation that as such the shops of the plaintiffs came to be acquired by the Corporation under the provisions of the Land Acquisition Act for widening of the road and even the award for compensation was declared and therefore, as such the plaintiffs were not entitled to anything much less the alternative shops except the compensation under the Land Acquisition Act. Relying upon the decision of this Court in the case of Navinchandra M. Randeria vs. State of Gujarat and Ors. reported in 1989(1) GLR 330, it is submitted that as rightly held by both the Courts below the plaintiffs are not entitled to the alternative shops for the shops acquired by the Corporation under the Land Acquisition Act. It is further submitted that considering Section 79 of the BPMC Act, the Corporation can dispose of the properties only by public auction and therefore, the action of the Corporation in public auctioning the shops constructed in the newly constructed shopping centre is just and proper and absolutely in consonance with the provisions of the BPMC Act. Therefore, it is requested to dismiss the present Second Appeal.
[5.0] Heard learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted that there are concurrent findings of fact given by both the Courts below holding that the plaintiffs have no right to claim alternative shops in the newly constructed shopping centre as a matter of right for the shops occupied by the plaintiffs which have been acquired by the Corporation under the provisions of the Land Acquisition Act for widening of the road. On proper interpretation of the provisions of the BPMC Act, both the Courts below have rightly held that the resolution No.885 dated 03.08.1984 (Exh.106) passed by the Standing Committee of the Corporation has no legal force as the same has not been approved by the General Board of the Corporation. Both the Courts below have also rightly held that the action of the Corporation to public auction the shops constructed in the newly constructed shopping centre, is absolutely in consonance with the provisions of the BPMC Act. Both the Courts below have also concurrently found that the plaintiffs have miserably failed to prove any agreement with the Commissioner and the Mayor of the Corporation to provide the alternative accommodation / shop in lieu of their shops which are acquired under the provisions of the Land Acquisition Act. All the aforesaid findings by both the courts below are on appreciation of evidence and on proper interpretation of the provisions of the BPMC Act and they are not required to be interfered by this Court in exercise of powers under Section 100 of the CPC.
[5.1] Even this Court has also independently considered the provisions of the BPMC Act and this Court is also of the opinion that the resolution dated 03.08.1984 of the Standing Committee has no legal force. It is an admitted position that the resolution passed by the Standing Committee dated 03.08.1984 which has been relied upon by the plaintiffs has never been approved by the General Board of the Corporation. Therefore, unless and until resolution of the Standing Committee is approved by the General Board of the Corporation, the same has no legal force. Under the circumstances, both the Courts below have rightly refused to grant any relief in favour of the plaintiffs which was sought on the basis of the resolution No.885 dated 03.08.1984 of the Standing Committee.
[5.2] It is required to be noted that as such the shops occupied by the plaintiffs have been acquired by the Corporation under the provisions of the Land Acquisition Act and even the award for compensation has been declared. Learned advocate appearing on behalf of the plaintiffs has failed to satisfy the Court as to how the plaintiffs are entitled to alternative shops in the newly constructed shopping centre in lieu of their shops which have been acquired by the Corporation for widening of the road, under the provisions of the Land Acquisition Act. As such the learned advocate appearing on behalf of the plaintiffs has conceded that as such as a matter of right the plaintiffs cannot claim the alternative shops in lieu of their shops which have been acquired under the provisions of the Land Acquisition Act. However, has submitted that the plaintiffs are claiming the right on the basis of the agreement with Commissioner and Mayor of the Corporation to provide alternative accommodation / shops to the plaintiffs and the resolution No.885 dated 03.08.1984 of the Standing Committee. So far as the alleged agreement with Commissioner and the Mayor of the Corporation to provide alternative shops to the plaintiffs is concerned, the plaintiffs have failed to prove such an agreement. So far as the reliance placed upon the resolution No.885 dated 03.08.1984 of the Standing Committee is concerned, the same has no legal force. As stated herein above, the plaintiffs cannot as a matter of right claim alternative shops in lieu of their shops which have been acquired under the provisions of the Land Acquisition Act for which even the award for compensation was declared. As held by this Court in the case of Navindchandra M. Randeriya (Supra), when the shops / land is acquired under the provisions of the Land Acquisition Act for widening of the road, the owner whose property is acquired cannot pray for alternative accommodation. Under the circumstances, no illegality has been committed by both the Courts below in dismissing the suit and in not directing the Corporation to provide alternative shops to the plaintiffs in the newly constructed shopping centre. It is required to be noted that as such the Corporation gave the public notice in the local newspaper to auction the shops constructed in the newly constructed shopping centre and the plaintiffs claimed that instead of disposing of the said shops by public auction, the same should be given to the plaintiffs. The same is rightly not accepted by the Courts below. Considering the provisions of the BPMC Act, more particularly, Section 79, the shops are required to be disposed of only by public auction. Under the circumstances, the action of the Corporation in deciding to dispose of the shops of the newly constructed shopping centre by public auction cannot be said to be illegal and/or contrary to the provisions of the BPMC Act. On the contrary the said decision is absolutely in consonance with the provisions of the BPMC Act and is in public interest.
[5.3] Now, so far as the contention on behalf of the appellants that the learned Appellate Court has not followed the procedure as required under Order 41 Rule 31 of the CPC and not framed the points is concerned, it is required to be noted that as such the Appellate Court has framed the points for determination. Not only that the learned Appellate Court has considered all the issues in detail and has passed a reasoned order. Under the circumstances, on the ground that the proper points for determination are not framed by the Appellate Court, the judgment and order passed by the learned Appellate Court which is otherwise a well reasoned order, is not required to be quashed and set aside.
[6.0] In view of the above and for the reasons stated above, there is no substance in the present Second Appeal which deserves to be dismissed and is, accordingly, dismissed.
Civil Application No.14248 of 2010 In view of the dismissal of the main Second Appeal, Civil Application deserves to be dismissed and is, accordingly, dismissed. Ad-interim relief granted earlier stands vacated forthwith. No costs.
(M.R.
Shah, J.) menon Top