FA/535/1988 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 535 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment? No 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? No 5 Whether it is to be circulated to the civil judge? No ========================================================= AHMEDABAD MUNICIPAL CORPORATION - Appellant(s) Versus PRAVINBHAI H PATEL - Defendant(s) ========================================================= Appearance : MR KD PANDYA FOR MR PRASHANT G DESAI for Appellant NOTICE NOT RECD BACK for Defendant MR RC DELIWALA for Defendant ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 20/06/2008 ORAL JUDGMENT 1. Present appeal is by the appellant – original defendant Ahmedabad Municipal Corporation challenging the judgment and decree dated 30.11.1987 FA/535/1988 2/11 JUDGMENT passed by the learned Judge, Court No.14, City Civil Court at Ahmedabad in Civil Suit No.3080 of 1982 in passing decree of permanent injunction restraining the appellant – defendant from demolishing the suit structure under Section 231 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as 'B.P.M.C.Act') on the ground that the suit structure is an encroachment on public street. 2. The respondent herein – original plaintiff filed Civil Suit No.3080 of 1982 before the City Civil Court, Ahmedabad for permanent injunction restraining the defendant – Corporation from taking any steps of demolishing the property situated on Survey No.453 of Maninagar Town Planning Scheme No.24 without giving him notice under Section 260 of the B.P.M.C.Act and without giving him opportunity of hearing. According to plaintiff property in question was in existence since many years prior to the area in which the property is situated was brought within the Municipal limits. That minor repair were carried out from time to time as the structure was old. On 15.03.1982 the defendant gave plaintiff a show cause FA/535/1988 3/11 JUDGMENT notice why the property should not be demolished. The plaintiff gave reply to the said notice and that thereafter notice was withdrawn on technical grounds. As per the plaintiff, since the property is of private ownership, the defendant Corporation was not authorized to act without giving the plaintiff an opportunity of hearing and according to the plaintiff, the defendant, however threatened to demolish the property without giving any notice and without following any procedure and therefore, the plaintiff filed aforesaid suit for the aforesaid reliefs. Thus suit was based on apprehended action of the appellant – Corporation. The defendant – Corporation filed written statement at Exh.7. According to the defendant suit site is a part of street land, which is known as Vatva road having a width of 80 feet. The area is covered by Town Planning Scheme No.24 and a part of the width of the road is asphalted and the other half is not asphalted. Suit structure were situated on unasphalted portion of the said road and they were removed by the defendant on 16.07.1982. The removal operation continued from 11.00 a.m. to 6.00 p.m. On FA/535/1988 4/11 JUDGMENT 16.11.1982. After the receipt of ad-interim injunction order of the Court, the removal work was stopped and few structures remained untouched on the site. It was specifically mentioned in para 4 of the written statement that suit site has already gone in the street land. With regard to withdrawal of the notice, the defendant stated that on examination of the relevant records and site inspection, it came to the defendant's notice that the structure was erected on street land and mistake took place because of the unasphalated width of the street land. Therefore, it was requested to dismiss the suit. The learned trial Court raised the following issues : 1. Whether the plaintiff proves in R.S.No.453 Final Plot No. part of T.P.Scheme No.24 the plaintiff is tenant occupier of superstructures carrying business from last many years ? 2. Whether the plaintiff proves that he was carrying out repairs and plastering off and on? 3. Whether the plaintiff proves that it is in private land? 4. Whether the defendant proves that it is encroachment of part of public street? FA/535/1988 5/11 JUDGMENT 5. Whether the plaintiff proves that the suit notice to demolish it is illegal, against rules of natural justice? 6. Whether the plaintiff is entitled to any mandatory injunction as prayed? 7. Whether the plaintiff is entitled to permanent injunction as prayed? 8. What order and decree? 3. The plaintiff examined himself at Exh.27 and Officer of the defendant – Corporation was examined at Exh.42. Documentary evidences also came to be produced at Exh.28,30,33,45 and 46. After considering submissions made on behalf of the respective parties and considering evidences on record, the learned trial Court held issue No.1,3 and 7 in affirmative and held issue No.2 and 4 in the negative. The learned trial Court held that the defendant has failed to prove that there is encroachment on the public street and further held that the plaintiff has proved that property in question is in private land and consequently passed the impugned judgment and decree issuing permanent injunction restraining the Corporation from demolishing the suit structure under Section 231 of the B.P.M.C.Act on the ground that FA/535/1988 6/11 JUDGMENT suit structure is encroachment on public street. However, the learned trial court has further observed that said order shall not affect the right of the defendant, if any, to proceed against the plaintiff under the provisions of the Gujarat Town Planning & Urban Development Act, 1976. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court, original defendant – appellant herein has preferred the present First Appeal. 4. Mr.K.D.Pandya, learned Advocate appearing for Mr.P.G.Desai, learned Advocate appearing on behalf of the appellant has vehemently submitted that the learned trial Court has materially erred in issuing permanent injunction restraining Corporation from demolishing suit structure under Section 231 of the B.P.M.C.Act in absence of any specific issue raised by the learned trial Court to that effect. It is further submitted that even the relief which has been granted by the learned trial Court was not even prayed by the plaintiff in the suit. It is submitted that in the suit the plaintiff prayed for permanent FA/535/1988 7/11 JUDGMENT injunction retraining Corporation from demolishing the suit structure without giving him notice under Section 260 of the B.P.M.C.Act and without giving him opportunity of hearing. Therefore, it is submitted that the relief which has been granted by the learned trial Court is beyond relief sought by the plaintiff and therefore, same requires to be quashed and set aside by this Court. It is submitted that even otherwise on merits also, the learned trial Court has committed an error restraining the Corporation from demolishing the suit structure under Section 231 of the B.P.M.C.Act on the ground that the suit structure is encroachment on public street. It is submitted that so far as Section 231 of the B.P.M.C.Act is concerned, it confers powers on Commissioner to remove any structure which is contravention of the Act whether any public street or private land. Therefore, it is submitted that when it is found that suit structure was unauthorized, same can be removed by the Commissioner in exercise of powers under Section 231 of the B.P.M.C.Act. It is requested to allow the present appeal. FA/535/1988 8/11 JUDGMENT 5. Mr.R.C.Deliwala, learned Advocate appearing on behalf of the respondent – original plaintiff has chosen to remain absent when the appeal is called out for final hearing. This appeal was notified on Board on 19.06.2008 and learned Advocate appearing on behalf of the plaintiff remained absent, however, this Court adjourned the appeal to today and today also, the learned Advocate appearing on behalf of the respondent – original plaintiff has remained absent. This appeal is of 1988 and therefore, this appeal is proceeded ex-parte. 6. I have gone through the impugned judgment and decree passed by the learned trial Court as well as Record and Proceedings. I have also considered the submissions made by the learned Advocate appearing on behalf of the appellant. On going through the plaint and reliefs sought in the suit, the plaintiff had prayed for injunction seeking to restrain defendant – Corporation from taking any steps from demolishing the property situated at Survey No.453 of Maninagar Town Planning Scheme No.24 without giving him any notice under Section 260 of the B.P.M.C.Act and FA/535/1988 9/11 JUDGMENT without giving him any opportunity of hearing. No other reliefs are sought by the plaintiff. However, while decreeing the suit by the impugned judgment and decree, the learned trial Court has restrained the defendant – Corporation from demolishing the suit structure under Section 231 of the B.P.M.C.Act on the ground that suit structure is encroachment on public street. As stated herein above, that was not the relief sought by the plaintiff in the suit. Thus, learned Advocate appearing on behalf of the appellant is justified in making grievance that the reliefs granted by the learned trial Court is beyond the reliefs sought by the plaintiff. The learned trial Court could not have granted reliefs which is not sought in the suit. 7. It is required to be noted that even no issue has been framed by the learned trial Court with respect to exercise of powers by the Corporation under Section 231 of the B.P.M.C.Act, which are referred to hereinabove. Thus without raising issue with respect to exercise of powers by the Corporation under Section 231 of the B.P.M.C.Act, the learned FA/535/1988 10/11 JUDGMENT trial Court could not have pronounced the judgment on the point for which no issue has been raised. Under the circumstances also impugned judgment and decree passed by the learned restraining the Corporation from demolishing the suit structure under Section 231 of the B.P.M.C.Act is not sustainable and requires to be quashed and set aside. Under the circumstances, impugned judgment and decree passed by the learned trial Court requires to be quashed and set aside, firstly, on the ground that relief which is granted by the learned trial Court is beyond the relief prayed by the plaintiff and secondly on the ground that impugned judgment and decree has been passed and the judgment has been pronounced by the learned trial Court on the point on which no issue has been raised. 8. For the reasons stated above, the appeal succeeds. Impugned judgment and decree dated 30.11.1987 passed by the learned Judge, Court No.14, City Civil Court at Ahmedabad in Civil Suit No.3080 of 1982 is hereby quashed and set aside. In the facts and circumstances of the case, there shall be no order as to costs. FA/535/1988 11/11 JUDGMENT [M.R.Shah,J.] satish