MAHOMED KASAM ABUBAKAR BHAVNAGARI Vs. MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD
HIGH COURT OF GUJARAT
MAHOMED KASAM ABUBAKAR BHAVNAGARI
MUNICIPAL CORPORATION AHMEDABAD
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(1.)The question which is involved in this First Appeal is whether sec. 212 of the Bombay Provincial Municipal Corporations Act 1949 (Bombay Act 59 of 1949) (hereinafter referred to as the Act) applies to those buildings the structure of which belongs to a citizen but the land over which the said structure stands belongs to the Municipal Corporation itself.
(2.)Short facts of the case are that the appellants-plaintiffs are acting . as trustees of the Charitable trust known as Karoda Pole Masjid trust In Dariapur ward No. 1 of Ahmedabad a property bearing survey No. 3537 which consists of only a meda constructed on pillars of the gate is situated. The land over which this meda is constructed admittedly belongs to the Municipality but the meda belongs to the trust. The income which the trust receives from this meda is being spent by it for meeting the expenses of Karoda Pole Masjid. Adjoining to this meda are two other properties bearing survey Nos. 4463 and 4465.
(3.)It is an admitted fact that a road line as contemplated by sec. 210 of the Act is prescribed by the Commissioner on both sides of the street on which this property is situated. As a result of this road line the whole of the neighbouring property bearing S. No. 4463 and a part of the neighbouring survey No. 4465 are acquired by the Commissioner as they fall within the limits of the road line. It is an admitted fact that even the disputed meda which is of the ownership of the plaintiff-trust is within the road line. As the entrance to the pole in which the meda is situated is found to be very narrow on account of the existence of this meda and as the properties adjoining to this meda on both the sides have been acquired for the purpose of laying down a regular road line the Municipality now proposes that this meda should be removed. For this purpose the Municipality has issued a notice contemplated by clause (b) of sec. 212(1) on 2-4-58. By this notice the Commissioner has called upon the plaintiff-trust to show cause why the meda which is situated within the regular line of the said street should not be pulled down. The plaintiff trust objected to this notice and after considering these objections the Commissioner with the approval of the standing committee has served the plaintiff with another notice dt. 14-4-59 under sub-sec. (2) of sec. 212 of the Act requiring that the structure of the meda should be pulled down. Being aggrieved by this notice the plaintiff trust has filed the present suit with a view to obtain a declaration that the Municipality is not entitled to require the trust to pull down the suit meda under sec. 212 of the Act because the said section applies to cases where both the land as well as the structure of the building in question belonged to a citizen. The contention of the plaintiff-trust is that the whole purpose of sec. 212 is to acquire the land on which the structure of a building is constructed and since in this case the land admittedly belongs to the Municipality sec. 212 has no application.
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