MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD Vs. BHAGWANDAS PARUMAL
HIGH COURT OF GUJARAT
MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD
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A.S.QURESHI, B.K.MEHTA -
(1.) The respondent claims himself to be a tenant in the open plot being Final Plot No. 461 of Ellisbridge Town Planning 6 No. 3 within the city of Ahmedabad. It appears that the appellant Corporation original defendant had issued a notice dated 6/08/1969 in exercise of its powers under sec. 260(1) of the Bombay Provincial Municipal Corporations Act 1949 (hereinafter referred to as the Corporation Act) calling upon the plaintiff to show cause why the structure which he had put up should not be removed since it was put up without the necessary permission under the Corporation Act. The plaintiff by his reply of 14/08/1969 submitted the cause which did not impress the Corporation with the result that by the notice of 30/08/1969 which was served upon the plaintiff on or about 1/09/1969 the plaintiff was called upon to remove the structure within three days of the receipt of the notice failing which the Corporation would take appropriate action to remove the same. The plaintiff therefore filed the suit being Civil Suit No. 716 of 1970 in the City Civil Court at Ahmedabad praying for a declaration that the impugned notice of 6/08/1969 was ultra vires bad in law and therefore null and void and for consequential relief of permanent injunction restraining the Corporation its servants agents and officers from enforcing the impugned notice. The impugned notice was challenged in the plaint on diverse grounds. Shortly stated they were as under:
(1) No action could have been initiated under the Corporation Act for the breach or contravention of any Town Planning Scheme.
(2) Since the discretion is with the Corporation as to under which Act namely the Town Planning Act 1954 or the Corporation Act the action should be initiated it is arbitrary uncanalized and there fore violative of Article 14 of the Constitution inasmuch as there is no guideline provided under the Corporation Act as to under what circumstances the discretion should be exercised.
(3) The relevant Bye laws providing for building regulations were not validly applied to the area in which the alleged offending structure is situated.
(4) The impugned notice was clearly in excess of the power and authority of the Deputy Town Development Officer since the power of the Commissioner under sec. 260(1) of the Corporation Act could be delegated to Municipal Officers alone and the Deputy Town Develop ment Officer was not a Municipal Officer.
(5) The alleged offending structure is an old structure and is not one as specified under sec. 254 of the Corporation Act and therefore would not be within the mischief of sec. 260 of the Corporation Act
(6) The impugned notice is imprecise and vague.
(7) Non-application of mind to the cause submitted by the plaintiff.
(8) The impugned notice is contrary to the resolution of the Corporation which has resolved not to demolish such works.
(2.) The plaintiff therefore prayed for the declaration and the consequential reliefs as above.
(3.) The suit was resisted by the Corporation by justifying the validity and legality of the impugned notice.;
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