Gujarat High Court

Sargara Shakuben Rajubhai vs Ahmedabad Municipal Corporation on 25 June, 2025

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                              C/FA/3732/2024                                    ORDER DATED: 25/06/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/FIRST APPEAL NO. 3732 of 2024

                                                            With
                                        CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
                                             In R/FIRST APPEAL NO. 3732 of 2024
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                                               SARGARA SHAKUBEN RAJUBHAI
                                                         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
                       KUSHAL A DESAI(9435) for the Defendant(s) No. 1
                       ==========================================================

                         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.2864 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

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respondent - Ahmedabad Municipal Corporation. Perused

the record.

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.671, under Reference

No.SRFD/OL/R&R/DRAW/07920 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

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property was given by officers of the Corporation on

20.10.2014 and since then plaintiffs were residing in the

same block No.21, flat No.671. 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?

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 Whether plaintiff proves that, he/she is entitled or having right to dispossess the defendant?

 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 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.7920, copy of Allotment

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Letter issued to Najababanu Ajgarbhai Shaikh, Exhibit 43,

copy of Notice issued to Pathan 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

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have filed the present appeal.

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.671, under reference

No.SRFD/OL/R&R/DRAW/07920 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

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without issuance of statutory notice which came to be

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

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that Exhs.29 and 30 are not genuine documents and they

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

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by the plaintiff from some persons, who represented

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

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that alongwith the plaintiff, one Sarojben Shantilal Mali,

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.

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The said witness has also denied the issuance of receipt

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

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Sabarmati Riverfront Development Project. Flat No.671 of

block No.21 was allotted to the plaintiff vide letter

No.SRFD/OL/R &R/DRAW/07920 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

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plaintiff which can weigh the Court that exhibit 29 and

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

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Corporation at tea stall.

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

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property and Electricity Bill is generated and plaintiff is

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

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30 are not genuine documents and also found that the

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

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not maintainable without requisite statutory notice under

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.

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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

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law having adjudicated upon his rights qua the true owner.

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.

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32. In view of dismissal of the main matter, connected Civil

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