Gujarat High Court
Sheetalben Mukeshbhai Marwadi vs Ahmedabad Municipal Corporation on 25 June, 2025
NEUTRAL CITATION
C/FA/3725/2024 ORDER DATED: 25/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3725 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 3725 of 2024
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SHEETALBEN MUKESHBHAI MARWADI
Versus
AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MR HARSH SHARMA(12901) for the Appellant(s) No. 1
MR JEET J BHATT(6154) for the Appellant(s) No. 1
MR KUSHAL A DESAI(9435) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 25/06/2025
ORAL ORDER
1. This Appeal is filed by the appellant under Section 96 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as `the Code') challenging the judgment and decree dated 10.5.2024 passed by the City Civil Court, Ahmedabad in Civil Suit No.2860 of 2015 whereby the suit of the original plaintiff was rejected.
2. Heard learned advocate Mr. Jeet J. Bhatt for the appellant and learned advocate Mr. Kushal A. Desai for the respondent - Ahmedabad Municipal Corporation. Perused the record.
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3. With the consent of learned advocates appearing for respective parties, First Appeal is taken up for final hearing today.
4. The short facts arising from the record as under :-
5. The case of the plaintiff is that she along with her family members were residing in the slums, namely; Sabarmati Riverfront Slum Area. In the year 2011, the Corporation constructed residential blocks under the Scheme of Re- settlement & Rehabilitation Policy. The plaintiff was allotted a block under reference No.4EK/CL/528. The plaintiff was allotted block No.21, flat No.659, under Reference No.SRFD/OL/R&R/DRAW/07952 dated 29.8.2011.
6. The plaintiff was asked to pay the amount in three installments of Rs.6,900/- each. The possession of the suit property was given by officers of the Corporation on 20.10.2014 and since then plaintiffs were residing in the Page 2 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025 NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined same block No.21, flat No.659. On 12.10.2015, a statutory notice was affixed on the door of the suit property stating possession to be handed over to the Corporation. Being aggrieved and dissatisfied by such notice, plaintiff filed Kaccha Civil Suit No.2240 of 2015. After issuance of statutory notice dated 12.10.2015, the said suit came to be withdrawn and a Pakka Civil Suit was filed. The plaintiff prayed for relief of declaration that the Corporation has no right to evict and the officers of the Corporation may be restrained from interfering the peaceful possession of the suit property. Corporation though served with the summons of the suit, did not file any written statement.
7. Following issues came to be framed at Exhibit 17.
"Whether plaintiff proves that, he/she is having possession of property described in paragraph No.2 of his plaint?
Whether plaintiff proves that, he/she has not breached any condition?
Whether plaintiff proves that, he/she is entitled or having right to dispossess the defendant? Page 3 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025
NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined Whether suit of plaintiff is maintainable or not? Whether plaintiff is entitled to get the relief as sought for?
What order and decree?"
8. The present appellant Marwadi examined herself at Exhibit 28 and produced notice of Rehabilitation Scheme dated 20- 08-2011 Exhibit 29, Allotment letter dated 28-09-2011 Exhibit 30, Receipt of Rs.3,260/- paid by the Plaintiff Exhibit 31, Receipt issued by Torrent Power Limited, Exhibit 32, the impugned notice Exhibit 34 and a copy of Statutory Notice Exhibit 33. Defendant - Corporation examined witness Mr.Vinaykumar Gupta at Exhibit 36 and Mr.Deepak Patel at Exhibit 39. Defendant-Corporation produced documentary evidence such as copy of Information Statement Exhibit 41, Correct Information of R & R Department's Record Exhibit 42, copy of Allotment Letter No.7952, copy of Allotment Letter issued to Arav Hussain Yusumia, Exhibit 43, copy of Notice issued to Pathan Page 4 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025 NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined Imrankhan, Nasirkhan regarding Rehabilitation Scheme at Exh.44, copy of notice No.7958 given to Shaikh Mohammad Salim Jainnuddin about the Scheme at Exh.45, copy of allotment letter No.8106 to Shaikh Mohammad Salik Jainnuddinn dated 13.11.2014, copy of notice No.7965 given to Siddi Jainbbibi Badshahbhai regarding the Scheme at Exh.47, copy of allotment letter No.3303 to Siddi Jainabbibi Badshahbhai at Exh.48, copy of allotment letter No.7920 to Shaikh Najmabau Ajgarbhai at Exh.49, copy of oral order dated 5.7.2011, 8.8.2011 and 9.9.2011 passed in SCA No.6280 of 2015 at Exhs.50, 51 and 52 respectively and copy of Resettlement and Rehabilitation Policy at Exh.53.
9. After considering the evidence on record, learned trial Court dismissed the suit of the plaintiff.
10. Being aggrieved and dissatisfied with the impugned judgment and decree, the appellants - original plaintiffs have filed the present appeal.
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11. Learned advocate for the appellant has submitted that the appellant and her family members were residing in slums namely; Sabarmati Riverfront Slum Area. The appellants were affected by Sabarmati Riverfront Development Project and under the Scheme of Rehabilitation policy, the plaintiff was initially allotted residence No.4EK/CL/528. The plaintiff was allotted block No.21, flat No.659, under reference No.SRFD/OL/R&R/DRAW/07952 dated 28.9.2011. The appellant, thereafter, paid an amount in three installments of Rs.6,900/- each and also gave an undertaking as asked for. The plaintiff also allotted electricity connection and service No.100271771 was allotted in the suit property. Thereafter, on 9.6.2015, some officers of the Corporation came and affixed a notice on the front door of the flat. The said notice states that suit property is not allotted to anybody and no-one should enter in the suit property and if the suit property is occupied by any one, he / she should vacate the same within seven days. A civil suit was filed without issuance of statutory notice which came to be Page 6 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025 NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined withdrawn with a liberty to file suit after issuance of statutory notice. A statutory notice at Exh. 33 dated 12.10.2015 came to be issued by the plaintiff to the Corporation.
12. It is contended that the respondent - Corporation has no right or authority to evict appellant without due process of law. It is further contended that the averments made in the plaint are not contradicted by respondent - Corporation by filing written statement. Plaintiff examined herself at Exh.28. It is also contended that Exh.29 is a communication issued by Deputy Municipal Commissioner of Corporation dated 20.8.2011, wherein, the name of the plaintiff is mentioned. Exh.30 is a communication of allotment dated 29.8.2011 issued in the name of plaintiff. By referring the receipt issued by Corporation, a submission is made that Corporation has accepted Rs.3,260/- from the plaintiff on 29.9.2013. It is contended that in the oral deposition, respondent came with a case that Exhs.29 and 30 are not genuine documents and they Page 7 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025 NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined are forged and concocted. Exh.42 produced on record is a list of persons who were allotted respective flats to different persons. However, the Corporation has not produced any iota of evidence showing record of original allottee.
13. The original record of allotment of flats to different persons (Exh.41), is a conclusive piece of evidence. The onus of proving documents forged / concocted rest on the Corporation and when Corporation has failed to prove that Exh.29 and 30 are forged and concocted documents, learned trial Court ought to have held that the documents Exhs.29 and 30 are genuine and plaintiff was allotted the suit flat. Plaintiff being in possession since 2014, has acquired a right to retain possession under Exhs.29 and 30 which are the allotment letters issued in the name of plaintiff.
14. It is further contended that Exhs.29 and 30 were received by the plaintiff from some persons, who represented Page 8 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025 NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined themselves as the officers of Corporation and pursuant to Exhs.29 and 30, plaintiff received possession of the suit property. In support of his contention, he has relied upon the following decisions:
(a) Padhiyar Prahladji Chenaji (Deceased) Through Legal Representatives v. Maniben Jagmalbhai (Deceased) Through Legal Representatives and others reported in 2022 (12) SCC 128 &
(b) Rame Gowda (Dead) BY Lrs v. M. Varadapaa Naidu (Dead) by Lrs and another reported in 2004(a) SCC, 769.
15. Per contra, learned advocate for the respondent -
Corporation has submitted that the documents Exhs.29 and 30 which have been heavily relied upon by the plaintiff to retain possession are false and concocted documents. He has relied upon Exh.41 which indicates that block No.21 under respective reference number was not allotted to the plaintiff by R & R department of Sabarmati Riverfront Development Corporation Limited. It is further submitted that alongwith the plaintiff, one Sarojben Shantilal Mali, Page 9 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025 NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined Ratanben Gautambhai Mali, Shantaben Pratapbhai Mali and Sargara Shakuben Rajupai have also filed separate Civil Suits bearing Civil Suit Nos.2861 to 2684 of 2015 claiming same and similar type of reliefs for block/flat No.21/672, 21/664, 21/657 and 21/671 respectively. Exhibit 42 is the information containing the list of original allottees under different reference numbers.
16. Exhibits 29 and 30, as per the contention of learned advocate for the respondent - Corporation are not the genuine documents as the same do not bear the seal of Ahmedabad Municipal Corporation and the record of Corporation does not find any such document exhibits 29 and 30. The oral deposition of Mr. Deepakbhai Patel recorded at exhibit 39 and the oral deposition of Mr. Vinaykumar C. Gupta recorded at exhibit 36 in clear terms stated that exhibits 29 and 31 cannot be said to be issued by the Corporation. The witness of Corporation stated that exhibit 29 does not bear the signature of Dilip Mahajan. The said witness has also denied the issuance of receipt Page 10 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025 NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined exhibit 31.
17. It is also contended that exhibit 33 which is claimed to be a statutory notice issued by the plaintiff to the Municipal Commissioner of the Ahmedabad Municipal Corporation dated 10.12.2015 is by no means be called as a statutory notice. The basic mandatory requirements to constitute a statutory notice are missing in exhibit 33 and, therefore, in absence of a statutory notice, the suit is not maintainable. Reliance is placed upon Section 487 of Bombay Provincial Municipal Corporation Act.
18. I have heard learned advocates for the respective parties and perused the Record and Proceedings.
19. It is the case pleaded by plaintiff - appellant that the slum of Appellant was identified under reference No.4EK/CL/528 and was granted a flat constructed under the Scheme of Resettlement and Rehabilitation Policy for the project of Sabarmati Riverfront Development Project. Flat No.659 of Page 11 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025 NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined block No.21 was allotted to the plaintiff vide letter No.SRFD/OL/R &R/DRAW/07952 dated 29.8.2011. In support of her contentions, heavy reliance is placed upon exhibit 29 and exhibit 30 which are dated 20 th August 2011 and 29th August 2011 respectively.
20. It appears from exhibits 29 and 30 that it is a computer generated print out which does not bear any seal of Corporation. The documents are not found in the record of Corporation as can be seen from the submissions canvassed by learned advocate for the respondent. Exhibit 41 is a statement showing details that block No.21 and the building constructed under the Scheme are not allotted to the plaintiff and other plaintiffs of separate suits. Exhibit 42 is a statement showing list of allottees of different blocks / flat numbers as per the record of R&R department of Sabarmati Riverfront Development Corporation Limited. If the cross-examination of the witnesses of the Corporation are considered, nothing fruitful could be extracted by the plaintiff which can weigh the Court that exhibit 29 and Page 12 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025 NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined exhibit 30 are genuine documents and plaintiff is having a legal possession qua property in question.
21. On the other hand, in the cross examination of the plaintiff, it is stated that some people came at a tea stall and exhibit 29 and exhibit 30 were given to her. The said persons, as per reply by plaintiff in the cross examination, claimed to be the persons of Corporation. Even receipt issued at exhibit 31 was also given to her by persons of Corporation at a tea stall. It is highly unacceptable explanation given by plaintiff in her cross-examination that some persons who claimed to be the officers of Corporation would come at a tea stall and handed over the documents pertaining to allotment of property. The stand of the Corporation that such documents are not part of the record is possible in the background of a story developed by the plaintiff in the cross-examination. It is not a case of plaintiff in the plaint that Exhs.29, 30 and 31 were given to her by some persons claiming to be officers of Ahmedabad Municipal Corporation at tea stall.
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22. Heavy onus would lie upon the plaintiff to establish that Exhibit 29, Exhibit 30 and Exhibit 31 are genuine documents. In civil matters, the party who asserts a positive statement has to discharge the burden of proving a fact or a document. It is a well known settled proposition of law that plaintiff has to succeed on her strength and not on the weakness of defendant.
23. Once the burden is discharged by the party who has asserted a fact / document, the onus would shift upon the other side to rebut a fact alleged by the party. Therefore, mere non-filing of written statement, is no a valid and genuine cause to decree a suit in a case like this.
24. Plaintiff has miserably failed to establish that she is in legal possession of the suit property pursuant to the alleged allotment letter Exh.30. Simply by canvassing a fact that electricity connection is obtained by plaintiff in suit property and Electricity Bill is generated and plaintiff is Page 14 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025 NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined paying consumption charges would not mean that the possession retained by plaintiff is legal possession. It appears from Exh.32 which is a payment receipt issued by Torrent Power, does not mention either suit property number nor name of plaintiff. Payment of electricity charges or payment of municipal tax and education cess cannot be helpful in establishing legal possession against the rightful owner. Payment of electricity charges, municipal taxes, education cess are in lieu of discharging pecuniary liabilities towards the electricity company / government / semi government authorities. Exh.31 is a receipt issued by Corporation in the name of plaintiff. But it appears that this receipt pertains to reference No.4EK/CL/652, whereas, plaintiff is referring reference No.4EK/CL/528 in plaint. Thus, Exh.31 is not a document pertaining to suit property.
25. In the present case, learned trial Court has found upon appreciation of evidence that the documents Exhs.29 and 30 are not genuine documents and also found that the Page 15 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025 NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined plaintiff is not in legal possession of the suit property and, therefore, has rightly dismissed the suit.
26. So far as the contention of plaintiff that before the institution of suit, plaintive gave a statutory notice dated 12.10.2015 exhibit 33 to the defendant. If the notice exhibit 33 and the contents of notice are perused, it transpires that the mandatory requirements as contemplated under Section 487 of the Bombay Provincial Municipal Corporation Act and not complied with. Section 487 of the Bombay provincial Municipal Corporation Act deals with the requirement of a notice before filing suit against municipal corporation or its officers. It mandates that a notice must be given to the corporation or the concerned officers before instituting suit. This notice should clearly state the cause of action and details of the plaintiff. In the present case nothing is found in the notice exhibit 33 satisfying the mandatory requirements of section 487 of the Bombay Provincial Municipal Corporation Act. A suit is not maintainable without requisite statutory notice under Page 16 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025 NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined section 487 of the Bombay provincial Municipal Corporation Act. Even if, such contention of want of service of statutory notice is not raised by Corporation in the written statement, such question can be addressed by the Court of it's own motion and decide the suit accordingly.
27. The decision relied upon by learned advocate for the appellant are not helpful to the case of the appellants. So far as the case of Padhiyar Prahladji Chenaji (Supra), the suit of the plaintiff was for cancellation of registered sale deed and declaration and it is observed by the Hon'ble Apex Court that injunction may be granted even against the true owner of the property, but only when a person seeking relief is in lawful possession and enjoyment of property. What has been observed by the Hon'ble Apex Court is that the persons claiming injunction must have a legal possession of the property and having a right to retain possession legally. Such persons cannot be dispossessed except by due process of law. Page 17 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025
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28. In the case of Rame Gowda (Dead) BY Lrs (Supra), the suit property was piece of land and plaintiff and defendant both claimed to be owners of two adjacent piece of lands. The dispute was to the exact dimension and piece of land claimed to be owned and possessed respectively by both the parties. In the above facts and circumstances of the case, it has been observed by the Hon'ble Apex Court that settled possession cannot be dispossessed without recourse of law. Settled possession gives right to possession such as that even the rightful rightful owner may only recover it by taking recourse to law. The plaintiff in the aforesaid case was alleging title as also his possession over the disputed piece of land.
29. In the present case, the plaintiff has filed a suit for mere permanent injunction coupled with the declaration that Corporation has no right to dispossess plaintiff. In my view, plaintiff is not entitled to any of the reliefs considering the facts of the present case.
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30. In the case of Padhiyar Prahladji Chenaji (Supra) of Hon'ble Apex Court has referred the case of Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira in paragraph Nos.27 and 28 and has observed and held as under:
"27. While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira reported in (2012) 5 SCC 370 is required to be referred to. What is meant by due process of law has been explained by this court in paragraph 79, which reads as under:-
"79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court."
28. In the said decision, this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545 :-
"28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing--ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.Page 19 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025
NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the 'bare minimum' requirement of 'due process' or 'due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the 'recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."
31. In the backdrop of the above facts and circumstances of the case, the first appeal is meritless and the same is dismissed. No order as to costs. Record and Proceedings, if any, be sent back to the concerned Court forthwith.
32. In view of dismissal of the main matter, connected Civil Page 20 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Jul 02 2025 Downloaded on : Wed Jul 02 21:28:44 IST 2025 NEUTRAL CITATION C/FA/3725/2024 ORDER DATED: 25/06/2025 undefined Application will no longer survive and the same stands disposed of accordingly.
33. After passing the above order, learned advocate for the appellant has requested to stay this order for 4 weeks to which learned advocate for the respondent has objection. However, in the interest of justice, request for stay made by learned advocate for the appellant is accepted. Thereby, the order is stayed for a period of 4 weeks.
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