AO/2/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 2 of 2007 WITH CIVIL APPLICATION No. 323 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 ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 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 ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AHMEDABAD MUNICIPAL CORPN & 1 - Appellant(s) Versus SUMITRABEN BHARATBHAI PATEL & 12 - Respondent(s) ========================================================= Appearance : NANAVATI & NANAVATI for Appellant(s) : 1 - 2. None for Respondent(s) : 1, MR.J S.SADHWANI for Respondent(s) : 1.2.1, 1.2.2, 1.2.3,1.2.4 - 13. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 29/07/2008 ORAL JUDGMENT 1. ADMIT. Mr.J.S. Sadhwani, learned advocate waives the service of notice of admission on behalf of the AO/2/2007 2/8 JUDGMENT respondents – original plaintiffs. 2. With the consent of the learned advocate appearing on behalf of the respective parties, the matter is taken up for final hearing today. 3. Present Appeal From Order is filed by the appellants – original defendants - Ahmedabad Municipal Corporation and another, to quash and set aside the impugned order dtd.29/4/2005 passed by the learned City Civil Judge, Court No.19, Ahmedabad below Notice of Notion - application Ex.7 in Civil Suit No. 350 of 2005, by which the learned Judge has allowed the notice of motion by restraining the Ahmedabad Municipal Corporation from removing and demolishing the shops in question without providing alternative accommodation till final disposal of the suit. 4. The respondents - original plaintiffs have filed Civil Suit No. 350 of 2005 in the City Civil Court at Ahmedabad against the Ahmedabad Municipal Corporation and its officers, contending that they are original tenants and are in occupation of different shops constructed over the land in question and they were tenants of erstwhile Naroda Nagar Panchayat, which subsequently merged into Ahmedabad Municipal Corporation on and from AO/2/2007 3/8 JUDGMENT 23/2/1986 and thereafter rent of the shops came to be increased. The plaintiffs submitted that since the shops of the plaintiffs were required to be demolished for the purpose of road widening under the Town Planning Scheme No.1 (Naroda), which is finally approved and sanctioned by the State Government, they made representation to the Ahmedabad Municipal Corporation to allot alternate site on 21/2/2000. That similar request was also made vide letter 29/11/2003. However, as no reply was given by the Ahmedabad Municipal Corporation, the plaintiffs filed Civil Suit No. 130 of 2004 against the Ahmedabad Municipal Corporation and its officers with the apprehension that the Ahmedabad Municipal Corporation will demolish the shops of the plaintiffs. In the said suit, the plaintiffs submitted notice of motion and the learned City Civil Judge, Court No.19, Ahmedabad, by the impugned judgement and order dtd.29/4/2005, allowed the notice of motion by observing that there is no evidence on record to show that which Town Planning Scheme is framed by the Government and how the Ahmedabad Municipal Corporation wants to implement it and consequently, by allowing the notice of motion, the trial court restrained the Ahmedabad AO/2/2007 4/8 JUDGMENT Municipal Corporation from removing/demolishing the shops without providing alternate accommodation till final hearing of the suit. 5. Being aggrieved by and dissatisfied with the order dtd.29/4/2005 passed by the learned City Civil Court at Ahmedabad below notice of motion in Civil Suit No. 350 of 2005, the appellants – original defendants have preferred present Appeal From Order. 6. Mr. Sanjay Dave, learned advocate appearing on behalf of Nanavati and Nanavati for the appellants has vehemently submitted that the impugned order passed by the trial court below notice of motion is absolutely illegal and suffers from total non-application of mind. It is submitted that not only in the plaint but even in the written statement also, number of Town Planning Scheme was mentioned, still the learned trial court has observed that there is no evidence which the Town Planning Scheme is framed and how the Ahmedabad Municipal Corporation wants to implement the same. It is submitted that as such the shops in question were going under the road line under the finalised Town Planning Scheme and therefore, once Town Planning Scheme is finalised and when it was sought to be implemented by the AO/2/2007 5/8 JUDGMENT Ahmedabad Municipal Corporation, the Ahmedabad Municipal Corporation cannot be restrained from implementing the Town Planning Scheme. It is further submitted that the directions issued by the learned Judge restraining the Ahmedabad Municipal Corporation from demolishing the shops without giving alternate accommodation is absolutely illegal. It is submitted that under the Town Planning Act when the Ahmedabad Municipal Corporation is to implement the Town Planning Scheme, there is no provision to offer alternate accommodation. Submitting accordingly, it is requested to allow present Appeal From Order. 7. Mr.Sadhwani, learned advocate appearing on behalf of the respondents – original plaintiffs has tried to support the order passed by the learned City Civil Court below notice of motion and has submitted that as such the suit was filed on apprehension that their superstructures will be removed for road widening. It is submitted that the original plaintiffs were tenants of the Naroda Nagar Panchayat which subsequently merged into Ahmedabad Municipal Corporation and therefore, as they were tenants, they are required to be allotted alternate accommodation before removing them. Submitting AO/2/2007 6/8 JUDGMENT accordingly, it is requested to dismiss the present Appeal From Order. 8. Heard the learned advocate appearing on behalf of the respective parties. 9. It is not in dispute that the shops in question are going under Town Planning Road which is required for widening of the road under the finalised Town Planning Scheme No.1 (Naroda), Ahmedabad. Though in the plaint as well as in the written statement, Town Planning Scheme No.1 is specifically mentioned, still the learned trial court has stated in the impugned order that there is no evidence which Town Planning Scheme has been sanctioned by the Government and How the scheme is to be implemented. Even considering the averments in the plaint it appears that sanctioning of the Town Planning Scheme has not been disputed by the plaintiffs. However, the main contention on behalf of the respondents plaintiffs is that they should be provided alternate accommodation before removing them. It is to be noted that the suit came to be filed by the plaintiffs on apprehension that they will be dispossessed. Thus, there is no dispute that there is finalised Town Planning Scheme No.1 (Naroda) has been sanctioned under the Town Planning Act and the land in AO/2/2007 7/8 JUDGMENT question/shops in question are going under road line for widening of the road under the Town Planning Scheme. Once Town Planning Scheme has become final, all the lands vest in the Ahmedabad Municipal Corporation / appropriate authority free from all encumbrances and even the Town Planning Scheme cannot be challenged, as it has become part of the Act Once the Town Planning Scheme is sanctioned and it has become final, duty is cast upon the Ahmedabad Municipal Corporation to implement the same and the Ahmedabad Municipal Corporation cannot be restrained from implementing the finalised Town Planning Scheme. There is nothing like providing alternate accommodation before implementing the Town Planning Scheme and demolishing the superstructures for implementation of the Town Planning Scheme. Under the circumstances, the direction / injunction issued by the learned trial court restraining the Corporation from demolishing the superstructures / cabins / shops without offering alternate accommodation cannot be sustained. Even considering the impugned order which runs into only one page, it appears that the notice of motion has been decided by the learned trial court in most casual manner and therefore also the AO/2/2007 8/8 JUDGMENT impugned order cannot be sustained and the Ahmedabad Municipal Corporation cannot be restrained from implementing the Town Planning Scheme. 10.For the reasons stated above, the Appeal From Order succeeds. The impugned judgement and order dtd.29/4/2005 passed by the learned City Civil Judge, Court No.19, Ahmedabad below Notice of Notion - application Ex.7 in Civil Suit No. 350 of 2005 is hereby quashed and set aside. In view of allowing the Appeal From Order, no order in the Civil Application. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik