Municipal Corporation Of The City ... vs Amal Duttkumar Dhruv
2022 Latest Caselaw 7229 Guj

     C/CA/1971/2019                             ORDER DATED: 22/08/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/CIVIL APPLICATION NO. 1971 of 2019
                                    In
                 F/APPEAL FROM ORDER NO. 17702 of 2019
                                  With
                 F/APPEAL FROM ORDER NO. 17702 of 2019
                                  With
                   R/CIVIL APPLICATION NO. 2030 of 2019
                                  With
                 F/APPEAL FROM ORDER NO. 17708 of 2019
                                  With
                   R/CIVIL APPLICATION NO. 2031 of 2019
                                  With
                 F/APPEAL FROM ORDER NO. 17684 of 2019
                                  With
                   R/CIVIL APPLICATION NO. 2032 of 2019
                                  With
                 F/APPEAL FROM ORDER NO. 17697 of 2019
                                  With
                   R/CIVIL APPLICATION NO. 2033 of 2019
                                  With
                 F/APPEAL FROM ORDER NO. 17659 of 2019
                                  With
                   R/CIVIL APPLICATION NO. 2034 of 2019
                                  With
                 F/APPEAL FROM ORDER NO. 17690 of 2019
==========================================================
       MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD
                           Versus
                   AMAL DUTTKUMAR DHRUV
==========================================================
Appearance:
MR DEEP D VYAS(3869) for the Applicant(s) No. 1,2
MR PK JANI SENIOR COUNSEL WITH MR KV SHELAT(834) for the
Respondent(s) No. 1
MR. SHYAM K SHELAT(6552) for the Respondent(s) No. 1
MR AMAR N BHATT for the Respondent(s) No.1 in CA Nos. 2032, 2033 and
2034 of 2019
==========================================================

 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                            Date : 22/08/2022

                         COMMON ORAL ORDER

C/CA/1971/2019 ORDER DATED: 22/08/2022

1. All these Civil Applications are filed for condonation of

delay in preferring F/Appeal from Order Nos. 17702 of

2019, 17708 of 2019, 17684 of 2019, 17697 of 2019, 17659

of 2019 and 17690 of 2019.

2. In F/Appeal from Order Nos. 17702 of 2019, 17708 of

2019, 17684 of 2019, 17697 of 2019, 17659 of 2019 and

17690 of 2019 the appellant-Municipal Corporation of the

City of Ahmedabad has challenged the common judgment

and order dated 29.01.2018 by Auxiliary Chamber Judge,

Court No.19, City Civil and Sessions Court, Ahmedabad in

Notice of Motion passed in Civil Suit Nos. 1742 of 2011,

1747 of 2011, 1746 of 2011, 1468 of 2011, 1466 of 2011

and 1467 of 2011.

3. By the aforesaid order, permanent injunction has been

granted forbidding the Municipal Corporation from taking

any steps, concerning suit matter till final disposal of the

suit.

4. It also appears that since issues involved and the

C/CA/1971/2019 ORDER DATED: 22/08/2022

findings rendered would have larger consequences, which

would as such percolated into the exercise of powers of the

authority, more particularly with respect to the case of the

appellant, earlier proceedings were failed.

5. The facts giving rise to the F/Appeal From Orders are

as follows:-

5.1 The respondent of each of f/Appeal From Order has

owned and possessed the bungalow situated at different

subplots of the Shantinketan Society Limited, a Tenant

Ownership Society, registered under the Gujarat Co-

operative Societies Act, 1961.

5.2 The respondents' property is situated in residential

zone of Ellisbridge T.P. Scheme No.3/5, which was first

introduced in 1933 and the said T.P. Road was earmarked

under the said Town Planning Scheme.

5.3 The construction of the residential bungalows which

were made prior to the Town Planning Scheme were set

C/CA/1971/2019 ORDER DATED: 22/08/2022

back providing the required frontage.

5.4 As per T.P. Scheme, such regular line of public street

has been operative as the regular line of the street for the

time being in force on coming into operation of the Bombay

Provincial Municipal Corporation Act, 1949 and is regarded

as deemed street line under the provisions of Section 210(1)

(a) of the B.P.M.C. Act. In wake of such provision, if the

authority under the B.P.M.C. Act wants to substitute such

street line, the Municipal Commissioner can only exercise

his powers subject to previous approval of the Standing

Committee by prescribing a new street line, in substitution

for previous street line and that too after standing

committee follows the required procedure, as contemplated.

5.5 Consequently the notice under Section 213 of the Act

came to be issued and the same was challenged by way of

writ petition by the respondent. The said writ petition was

allowed and the same was carried out by the Corporation

before Hon'ble Supreme Court. The same was dismissed by

C/CA/1971/2019 ORDER DATED: 22/08/2022

Hon'ble Supreme Court. However, the respondent was

served with a communication dated 19.3.2011, purporting

to be an order which was served on 28 th March, 2011 to the

respondent. The said order is further followed by the notice

under Section 213 of B.P.M.C. Act served on the

respondent. Hence, the respondent has filed suit

proceedings which were pending before the Trial Court.

6. Heard Mr. Deep D. Vyas, learned Counsel appearing for

the applicant, Mr. P.K. Jani, learned Senior Counsel

appearing with Mr. K.V. Shelat, learned Counsel for the

respondent and Mr. Amar N. Bhatt, learned Counsel for the

respondent No.1 in Civil Application Nos. 2032, 2033 and

2034 of 2019.

7. Considering the fact that the Civil Suits being Civil

Suit No. 1766 of 2011, 1467 of 2011, 1468 of 2011, 1742 of

2011, 1746 of 2011 and 1747 of 2011 are pending before

the concerned Court since last 11 years the said suits are

not proceeded further and considering the fact that there is

C/CA/1971/2019 ORDER DATED: 22/08/2022

a delay in preferring the F/Appeal From Order, it is in the

interest of justice that all the suits pending before the

concerned Court shall be decided on its merits as

expeditiously as possible. Reliance is placed to the decision

of Hon'ble Apex Court in the case between Patnam

Shakuntala and another Vs. Giridhar Mulji Chavda

(dead) by LRs and others reported in (2005) 11 SCC

497.

8. It is expected that prima facie observations made while

passing the Exh.5 application is in tentative nature and

therefore, without influenced by that the learned Trial Court

will proceed with all the suits pending before it after leading

documentary and oral evidence as well as after considering

the submissions made by all the concerned parties on its

own merit.

9. The learned Trial Court will hear all the suits pending

before it as expeditiously as possible and preferably within

12 months from the date of receipt of the order after giving

C/CA/1971/2019 ORDER DATED: 22/08/2022

appropriate opportunity to both the sides.

10. It is expected from the all the concerned advocates that

without seeking any unnecessary adjournment they will

cooperate to the Trial Court for proceedings of the suits and

whatever the evidence is to be produced before the

concerned Trial Court by either sides, is to be produced

without their being any delay.

11. Hence all these applications for condonation of delay

occurred in filing the F/Appeal From Orders are hereby

disposed of.

12. The interim order which is granted earlier by the

learned Trial Court to continue till final disposal of the

suits.

13. Since Civil Applications for condonation of delay is not

granted and further the suits are pending from 2011, it is

desirable to expedite the hearing of the suit as expeditiously

as possible.

C/CA/1971/2019 ORDER DATED: 22/08/2022

14. In view of the fact that the Civil Application for

condonation of delay occurred in filing the F/Appeal from

Order is disposed of, the F/Appeal from Orders do not

survive and the same stand disposed of accordingly.

(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI