AO/48/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 48 of 2007 With CIVIL APPLICATION No. 1718 of 2007 In APPEAL FROM ORDER No. 48 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 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 ========================================================= LAXMAN PUNAMJI & 14 - Appellant(s) Versus AHMEDABAD MUNICIPAL CORP. & 1 - Respondent(s) ========================================================= Appearance : MR HARSH M SURTI for Appellant(s) : 1 - 15. NOTICE SERVED BY DS for Respondent(s) : 1 - 2,2.2.2 MR PRASHANT G DESAI for Respondent(s) : 1, None for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 11/07/2008 ORAL JUDGMENT 1. Present appeal from order is filed by the AO/48/2007 2/7 JUDGMENT appellants herein-original plaintiffs of Civil Suit No.3340 of 2000 pending in the Court of City Civil Court at Ahmedabad challenging the order passed below notice of motion dated 12.12.2006 in dismissing the said notice of motion. 2. Appellants herein-original plaintiffs had preferred aforesaid Civil Suit No.3340 of 2000 in the Court of City Civil Court at Ahmedabad for permanent injunction and for a declaration that the defendant Corporation has no right or authority to evict the plaintiffs from the suit property and for a declaration that the action on the part of the Corporation in attempting to damage the super structure on 6.6.2000 is bad and illegal. In the alternative, it was prayed that the Corporation be directed to accommodate the plaintiffs in Final Plot No.19/1 of T.P.Scheme No.6, Mouje Paldi. In the said suit, the original plaintiffs also prayed for a permanent injunction restraining the Corporation from evicting them from the suit property. The suit came to be filed in the year 2000 and the plaintiffs obtained the order of status-quo with regard to the possession as far as back on 23.6.2000 and the same was an ex-parte order. That thereafter after obtaining the ex-parte order of status-quo, the plaintiffs did not co-operate the trial court in deciding and disposing of notice of motion on merits, and thereafter lastly when the aforesaid suit/notice of motion came up for hearing on 12.12.2006 nobody remained present on behalf of the plaintiffs. The learned advocate appearing on behalf of the defendant Corporation remained present and submitted a purshis AO/48/2007 3/7 JUDGMENT that he is ready and willing to conduct the case, and it was submitted that after filing of notice of motion, the plaintiff is not conducting the case and due to the said application the work of Corporation is lingering. 3. At this stage it is required to be noted that as such by the time the notice of motion was filed, most of the super structure/encroachment was removed which was required for the purpose of widening of the road and the plaintiffs were in the plot reserved for health centre reserved for the Corporation under the Town Planning Scheme. Relying upon the decision of this Court in the case of Mukeshbhai R.Shah vs. Additional Development Commissioner reported in 1999(2) GLH 969 holding that the Court is not bound to wait till the party or his advocate is, as per his convenience, pleasure and leisure ready to proceed with the matter. Considering the fact that nobody remains present on behalf of the plaintiffs, the learned City Civil Court, Court No.11, Ahmedabad by the impugned order dated 12.12.2006 dismissed the said notice of motion. 4. Being aggrieved and dissatisfied with the same, the appellants herein-original plaintiffs have preferred the present appeal from order. 5. Shri H.M.Surti, learned advocate appearing on behalf of the appellants-original plaintiffs has vehemently submitted that the trial court has committed an error in dismissing the notice of motion and vacating the order of status-quo which was AO/48/2007 4/7 JUDGMENT continued since 2000. It is submitted that the appellants are ready and willing to appear before the trial court and submit the case on merits if the matter is remanded to the trial court as the trial court has not decided the notice of motion on merits. It is further submitted by Shri Surti, learned advocate appearing on behalf of the appellants- original plaintiffs on merits that the appellants are in occupation and possession of the land in question since many years and they are residing with their family members and they cannot be evicted without due procedure and at least without giving any alternative accommodation. He has submitted that in fact the plaintiffs were residing in the huts which was on the road and earlier the same was required for widening of the road and therefore they were shifted/removed and they shifted on the land in question, and in fact in 1979 a resolution also came to be passed by the Standing Committee that they may be continued as a licencee, and in that view of the matter they being a licencee, they cannot be evicted and/or removed. 6. Appeal from order is opposed by Shri Prashant G.Desai, learned advocate appearing on behalf of the Corporation. It is submitted that the plaintiffs obtained the ex-parte order of status-quo in the year 2000, and even in 2006 also, they were not ready proceed further with the notice of motion after once obtaining the ex-parte order of status-quo and therefore the learned trial court is justified in dismissing the notice of motion and vacating the order of status-quo. It is submitted that, as such, AO/48/2007 5/7 JUDGMENT even at the time when the suit was filed and the notice of motion was submitted, most of the super structure was already removed. It is submitted that the thing is on record that the plaintiffs are the licencees. It is submitted that as such the plaintiffs are encroachers on a municipal land/plot which is reserved for health centre reserved under the finalised town planning scheme, therefore, they have no right to continue on the land in question. It is also further submitted that, as such the very petitioners had already filed one Writ Petition before this Court for alternative accommodation and the same is pending before the Division Bench and therefore it is requested to dismiss the present appeal from order. 7. Heard the learned advocates appearing for the respective parties. 8. It is not in dispute that at the time when the suit and the notice of motion came to be filed by the appellants-plaintiffs, major portion of the super structure was already removed and the plaintiffs obtained ex-parte order of status-quo in the year 2000. It is very unfortunate that, even after six years also, the notice of motion could not be disposed of by the trial court on merits. Even in the year 2006 i.e. after period of six years when the notice of motion was placed for hearing, the learned advocate appearing on behalf of the plaintiffs remained absent, the Court waited for the learned advocate appearing on behalf of the plaintiffs and considering the purshis submitted by the Corporation AO/48/2007 6/7 JUDGMENT and considering the fact that after obtaining the ex- parte order of status-quo, the plaintiffs are not co- operating in deciding the notice of motion on merits even after six years, the trial court dismissed the notice of motion and vacated the order of status-quo which in the facts and circumstances of the case cannot be faulted. Even otherwise this Court has heard the learned advocates appearing on behalf of the respective parties on merits to see that meritorious case is not defeated and no injustice is caused to the plaintiffs and the parties. It is to be noted that the plot in question upon which the plaintiffs were having their huts is reserved for health centre for Corporation under the finalised town planning scheme. It cannot be disputed that the plot/land in question is required to be used only for the purpose for which it is reserved under the finalised town planning scheme. Learned advocate appearing on behalf of the plaintiffs is not in a position to satisfy the Court that they are licencees as alleged. He is also not in a position to satisfy the Court that they have got a valid title and/or they have got any right on the plot in question. In view of the above, when the plaintiffs have no right to continue with the possession on the land in question, and when the land in question is reserved for health centre under the finalised town planning scheme, the plaintiffs can be termed as trespassers and they have no right to continue the land in question. Under the circumstances, even on AO/48/2007 7/7 JUDGMENT merits also the appellants have no case. It is required to be noted at this stage that even the appellants herein-original plaintiffs have preferred one Writ Petition before this Court for alternative accommodation and the same is pending. In view of the above also the present appeal from order requires to be dismissed. 9. For the reasons stated above, the appeal from order deserves dismissal and is accordingly dismissed. 10. In view of the disposal of appeal from order, civil application is also accordingly dismissed. Ad- interim relief granted in civil application is hereby vacated. Rule is discharged in civil application. In the facts and circumstances of the case, there shall be no order as to costs. ( M.R. SHAH, J.) syed/