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PETITIONER: THE MUNICIPAL CORPORATION

       Vs.

RESPONDENT: M/S CHELARAM 8. SONS & ANR.

DATE OF JUDGMENT:       27/09/1996

BENCH: N.P. SINGH, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar. J.      The Municipal  Corporation of  the  City  of  Ahmedabad having obtained special leave to appeal under Article 136 of the Constitution  of India  from this  Court has  brought in challenge the  judgment and  order rendered  by  a  Division Bench of  the Gujarat High Court in Letters Patent Appeal No 258 of 1993 decided on 2nd September 1993 whereby the decree of the  City  Civil  Court  in  favour  of  the  respondent- plaintiffs  came   to  be  restored  by  setting  aside  the judgement and  order of  the learned  Single Judge  who  had dismissed the said suit      The background  facts leading  to this  appeal  may  be noted at  the outset. Respondent-plaintiffs filed Civil Suit No.l809 of 1972 in the City Civil Court at Ahmedabad against the appellant-Corporation.  They had  brought  in  challenge notice  dated  14th  June  1972  issued  by  the  appellant- Corporation against  the respondent plaintiffs under Section 54 of  the  Bombay  Town  Planning  Act,  1955  (hereinafter referred to  as ’the  Act’) read  with Rule 27 of the Bombay Town Planning  Rules, 1955  (hereinafter referred to as ’the Rules’). By  the said  notice the respondent-plaintiffs were called upon  to vacate  the  suit  land  within  seven  days failing which  they were  threatened to  be removed from the land and  the superstructure  thereon by  use of  force. The respondent-plaintiffs contended  that the  said  notice  was illegal and  contrary to  principles of natural justice. The said challenge  was  mounted  by  the  respondent-plaintiffs mainly on  two grounds,  one that plaintiff no.2, respondent no.2  herein,   was  in  possession  of  the  land  and  the superstructure on  the date  on  which  the  concerned  Town Planning Scheme  was gazetted  by the  appellant-Corporation under the  Act on  2nd August  1951 and no individual notice was served  on plaintiff  no.2 who  was in possession of the suit property, hence subsequent proceedings culminating into the Town  Planing Scheme and the impugned notice were bad in law. The second ground of challenge was that in any case the notice under  Section 54 of the Act read with Rule 27 of the Rules was  contrary  to  the  basic  principles  of  natural justice as  no opportunity  to show  cause was  given to the

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respondents before  ordering  their  eviction.  The  learned Trial Judge  having heard the parties came to the conclusion that the  impugned notice  was liable  to be quashed on both the aforesaid  grounds. Consequently the following order and decree were passed by the learned Trial Judge :           "The notice  dated l4th  June,      1972 impugned  in this  suit  being      violative of  principles of natural      justice   are   illegal   and   the      Defendant   is    restrained   from      implementing or otherwise executing      the said notices.           Looking to  the  circumstances      of the case, there will be no order      as to costs."      The appellant-Corporation  carried the matter in appeal to the  High Court of Gujarat at Ahmedabad. A learned Single Judge by  his order  dated 9th  April 1991  allowed the said appeal. Learned  Single Judge of the High Court held that in view of  the latter Full Bench judgment of the High Court in the case  of Dungarlal   v. State of Gujarat & Ors. reported in XVII  GLR 1152  no individual notices were required to be served on  the sitting  tenants as per Rule 21 sub-rules (3) and (4)  of the  Rules. That  negatived the  first ground of attack  levelled   against  the   impugned  notice   by  the plaintiff. On  the second ground which appealed to the Trial Court for voiding the notice, namely non-compliance with the principles of  natural justice  while issuing  notice  under Section 54  of the Act read with Rule 27, it was held by the learned Single  Judge that  the earlier view of the Division Bench  of  the  High  Court  in  the  case  of  Mangaljibhai Roopajibhai &  Ors. v.  State of Gujarat & Ors. XIII GLR 649 no longer  held the  field in  view  of  latter  Full  Bench judgment of  the High  Court in  the case of Saiyed Mohammed Abdullamiya  Urai-Zee   &  Ors.   v.   Ahmedabad   Municipal Corporation & Ors. XVIII GLR 549. Consequently the appeal of the appellant  Corporation was allowed and respondents’ suit was dismissed. The respondents thereafter carried the matter in Letters  Patent Appeal  before the  Division Bench of the High Court.  The Division Bench of the High Court consisting of S.  Nainar Sundaram,  CJ. and  S.D.  Dave,  J.  by  their impugned judgment and order held that this Court in the case of  Jaswant  Singh  Mathura  Singh  and  Anr.  v.  Ahmedabad Municipal Corporation  & Ors.  AIR 1991  SC 2130 had taken a contrary view and had held that individual notice under Rule 21 sub-rules  (3) and  (4) of the Bombay Town Planning Rules was required  to be  issued to  those in  possession of  the properties  and   as  no  such  notice  was  issued  to  the respondents only  on that ground the suit was required to be decreed and  the judgment  of the  learned Single  Judge was required to  be set  aside. Accordingly  the Division  Bench vacated the  order of  the learned  Single  Judge  in  First Appeal and  restored the  decree of  the City Civil Court in Civil Suit  No.1809 of  1972. Thereafter  the Division Bench further directed  that it  is for  the defendant (appellant- Corporation) to follow the due procedure before enforcing to reconstitute the plot as final Plot No.115 under the Scheme.      Learned   counsel    for   the    appellant-Corporation vehemently submitted  that the  Division Bench  of the  High Court had totally misunderstood the ratio of the decision of this Court  in Jaswant  Singh’s case  (supra). He  submitted that on  the facts  of the present case there was no dispute that plaintiff  no.2, respondent  no.2 herein,  who  was  in possession of  the suit  superstructure on  2nd August  1951 when  declaration   of  the  Scheme  was  published  in  the

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Government Gazette  had already transferred his right, title and interest  in the  suit premises  in favour  of plaintiff no.1 -  respondent no.1  when he sold the same to respondent no.1 on  1st September  1971 and  thereafter respondent no.1 became the  direct tenant of the original owner Ranchhodbhai M. Panchal.  He submitted  that Ranchhodbhai  M Panchal  had never challenged  the impugned  notice nor was such a notice issued to  him. That  respondent no.2  - plaintiff  no.2 had nothing to  do with  the suit  property after  1st September 1971 and  he was a total stranger to the said property. Thus even if  he had  formally joined as plaintiff no.2 no relief could be  given to  him on  any ground.  So far as plaintiff no.1 -  respondent no.1  is concerned  he came  on the scene only on  1st  September  1971.  He  was  admittedly  not  in possession of  the suit  property on  19 July  1951 when the declaration of  intention for  framing Town  Planning Scheme No.14 was  made by  the appellant-Corporation. Nor was he in possession when  the  Scheme  was  published  in  Government Gazette after  the State  Government sanctioned the approved Scheme  on   26th  December  1954.  Thus  plaintiff  no.l  - respondent no.1  had nothing to do with the suit property on the aforesaid  dates.  Therefore,  to  such  a  person  like plaintiff no.1  no special  notice was required to be served under Rule  21 sub-rules  (3) and  (4) of  the Rules as laid down by  this Court  in the  very same  judgement which  was relied upon by the High Court against the appellant. In this connection he  invited our  attention to  the said  decision rendered by a Bench of three learned Judges of this Court in the case of Jaswant Singh (supra), K. Ramaswamy, J. speaking for the  three member  Bench in  that case  has clearly laid down as under :      "A  tenant   or  a   sub-tenant  in      possession of  a  tenement  in  the      Town Planning  Scheme is  a  person      interested within  the  meaning  of      Rule 21(3)  and (4)  of the  Rules.      But he must be in possession of the      property on  the crucial  date i.e.      when    the  town  plan  scheme  is      notified in  the official  gazette.      Every owner  or  tenant  or  a  sub      tenant, in  possession on that date      alone  shall    be  entitled  to  a      notice  and   opportunity.  It   is      settled that  before  depriving,  a      person of  his property or imposing      any    further    liability,    the      principles   of   natural   justice      require prior notice and reasonable      opportunity to him to put forth his      claim  or   objection.  Rule  21(3)      speaks  of  special  notice  of  at      least three days duration. It is in      consonance with  and in  compliance      of  the   principles   of   natural      justice. The  legislature thus made      a distinction  between the  general      notice envisaged in sub-rule (1) of      Rule 21  and special  notice  under      sub-rule(l) of  the Rule  21, which      was in addition to the former."      A mere  look at  the aforesaid  decision shows  that  a special notice  under Rule  21(3) of  the Rules framed under the Act  will be required to be served only on those persons either  owners   or  tenants  to  sub-tenants  who  were  in

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possession of  the concerned  property on  the date on which Town Planning  Scheme was  notified in  Official Gazette and not to  others who might have come on the scene later on. As noted earlier  the declaration for framing the Town Planning Scheme was published in the Government Gazette on 2nd August 1951 and  the Scheme  itself was  published on 29th December 1954. On  neither  of  these  two  dates  plaintiff  no.1  - respondent no.1  was in  possession. He  came on  the  scene later on,  i.e., on 1st September 1971. Therefore, to such a person no  special notice  under Rule  21 sub-rule  (3)  was required to  be issued as ruled by this Court. Unfortunately this factual  position does  not seem  to have been noted by the Division  Bench of  the  High  Court  which  voided  the impugned notice on that ground. The Division Bench also with respect ignored  the salient fact that though plaintiff no.2 was  in   possession  on   the  aforesaid   dates  when  the declaration of  intention  for  framing  the  Town  Planning Scheme was  published as  well as when the sanctioned Scheme was published,  by the  time the  suit was  filed after  the impugned notice was issued the plaintiff no.2 had nothing to do with the property as his right, title and interest in the said property  had ceased  to exist  from 1st September 1971 when be  parted with  the same in favour of plaintiff no.1 - respondent no.1.  To that  extent learned  counsel  for  the appellant  is  justified  in  his  submission.  He  is  also justified in  contending that  if the impugned notice is not held bad  on account  of non-compliance  of Rule 21 sub-rule (3) so far as plaintiff no.2 - respondent no.2 is concerned, it  could   not  be   voided  also  against  plaintiff  no.1 respondent no.1.  The final  direction issued  by  the  High Court to  the effect  that it is for the defendant to follow the due  procedure before enforcing to reconstitute the plot as final  Plot No.115 under the Scheme, also therefore would not survive.      However, that  is  not  the  end  of  the  matter.  The Division Bench has restored the decree passed by the learned Trial Judge. As we have noted the order and decree passed by the Trial  Court quashed the impugned notice dated 14th June 1972 on  the ground  of violation  of principles  of natural justice. So  far as  this part  of the order of the Division Bench is  concerned no  fault  can  be  found  in  the  said decision of  the High  Court. The  reason is  obvious. Under Section 54  of the  Act read  with Rule 27 of the Rules when any occupant  is sought  to be  evicted in  the light of the sanctioned Scheme  principles of  natural justice have to be observed and after hearing the concerned occupant a speaking order has  to be  passed. As  laid down by this Court in the case of  M/s Babubhai  & Ors. v. State of Gujarat & Ors  AIR 1985 SC 613 while upholding the vires of Section 54 and Rule 27 of  this very  Act Tulzapurkar,  J., speaking for the two member Bench  has made  the following pertinent observations in para 8 of the Report :      "The power conferred upon the local      Authority is a quasi-judicial power      which  implies that the same has to      be exercised  after  observing  the      Principles  of  natural    justice,      that is  to say. the decision  that      the occupants  are not  entitled to      occupy   the    plots   in    their      occupation has  to  be  arrived  et      after hearing  such   occupants and      that  too  by  passing  a  speaking      order  which   implies  giving   of      reasons  and   that   ensures   the

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    application of mind to only germane      or relevant  material on the record      eschewing  matter   extraneous  and      irrelevant. Moreover  any order  of      summary  eviction   based  on   any      extraneous non-germane,  irrelevant      of mala  fide considerations  would      he subject to the Writ jurisdiction      of Court."      On the  facts of  the present  case there is no dispute that the impugned notice dated 14th June 1972 did not follow the aforesaid procedure laid down by this Court  for issuing such notices  under Section  54 read  with    Rule  27.  The learned  Trial   Judge  in  this  connection  has  noted  in Paragraph 18 of his judgment is under:      "Now, in  the case  before me,  the      notice  issued   under   R.27   and      impugned  in   the  suit  does  not      comply  with   the  principles   of      natural in  any manner, whatsoever,      In   the   impugned   notice,   the      occupant is  being called  upon  to      vacate the  land within seven days,      failing which  it has  been  stated      that the  occupant would be removed      from the  land super  structure  by      use of force and if he protested or      obstructed or  re-entered the  land      after removal he would be liable to      prosecution under the provisions of      section 180  of  the  Indian  Penal      Code. In the notice impugned in the      suit, the  occupant is not asked to      state if  he has  any defence as to      his liability  to be  evicted under      Section  54   read  with   R.27  or      explain  his   position   otherwise      about any  such  non-liability  and      prove such  defence or support such      explanation,     Absolutely      no      opportunity is  being given  to the      occupant in  the impugned notice to      enable him  to  lay  any  material]      before  the    local  authority  to      represent his case and  to convince      the  local   authority   that   the      occupant  is   not  liable   to  be      removed in pursuance of the notice.      In absence  of such an opportunity,      the notice  does not  call for  any      scope for  the local   authority to      make any  enquiry about the case of      the occupant  and the determination      of the local authority thereupon."      The learned  Single Judge  of the  High Court  did  not disagree with  the said  finding of the Trial Judge. However in his  view the  legal position  as  laid  down  by  Saiyed Mohammed (supra)  did not  require any  such Procedure to be followed before  issuing the  direction for  eviction  under Section 54  read with rule 27. lt must be held that the said decision of  the High  Court Saiyed  Mohammed(supra)  cannot survive in  view of  the  decision  of  this  Court  in  M/s Babubhai &  (supra). Consequently  the decision  rendered by the Division  Bench restoring the decree passed by the Trial Court will  have to  be confirmed  or this ground alone. The

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appeal is  accordingly liable to be dismissed subject to the rider that  the observations  made by  the Division Bench in the impugned  judgement to  the effect  that it  is for  the defendant to  follow the  due procedure  before enforcing to reconstitute the plot as final Plot No.115 under the Scheme, will stand expunged from the impugned judgment as no special notice under  Rule 21 sub-rule (3) was required to be issued to the plaintiff-respondents by the Corporation as laid down by this  Court in the case of Jaswant Singh (supra). Subject to the aforesaid deletion of the observations in paragraph 3 of the  impugned judgment  the said decision of the Division Bench will  stand confirmed  and accordingly final order and decree passed  by the  learned Trial  Judge in favour of the respondents  will   also  stand  confirmed.  The  appeal  is disposed of accordingly with no order as to costs.