Decided on January 22,1979



A.M.AHMADI - (1.) This appeal by the Municipal Corporation - original defendant is directed against the judgment of the learned City Civil Judge 10 Court Ahmedabad dated 22nd December 1974 in Civil Suit No. 1966/70 whereby he declared that the notice No. C.R. 306/24 dated 14th November 1969 Ex. 25 issued by the defendant-Corporation under sec. 13(4) and 29(1)(c) of the Bombay Town Planning Act 1954 (hereinafter called the Act) is illegal and beyond the powers of the defendant-Corporation and consequently granted a permanent injunction against the defendant Corporation restraining it from enforcing the impugned notice against the plaintiff. The defendant Corporation was also directed to pay the costs of the plaintiff. Facts giving rise to this appeal briefly stated are as follows:
(2.) There is an estate known as Chisti Chambers situate in final plot No. 77-2-70 of town planning scheme No. 3 (Ellisbridge) outside Shahpur gate Ahmedabad. In the compound of the said estate the plaintiff runs a pan bidi shop in a wooden cabin. It is the case of the plaintiff that the said cabin is in existence since 11th April 1946 and he is paying rent in respect thereof to the landlord at the rate of Rs. 5 per month. According to the plaintiff one Sulemanbhai Usmanbhai was carrying on business in the said cabin as a grocer in the year 1946 and he transferred his tenancy rights with goodwill in favour of the plaintiff on payment of Rs. 251.00 under the receipt Ex. 26. His case is that since then he is in actual possession of the cabin and has been continuously carrying on business therein with effect from 11th April 1946 The learned trial Judge has come to the conclusion that the receipt Ex. 26 clearly establishes that the plaintiff entered into possession of the cabin as a tenant after purchasing the tenancy rights along with goodwill of Sulemanbhai Usmanbhai and has been carrying on business therein initially as a grocer and later as a pan bidi vendor with effect from 11th April 1946 The learned trial Judge therefore came to the conclusion that as the plaintiff was in occupation of the cabin since before the date of declaration of intention of making the scheme i.e. 17th November 1952 the cabin was not liable to be removed either under sec. 13(4) or sec. 29(1)(c) of the Act.
(3.) The second ground on which the impugned notice was struck down by the learned trial Judge was that mere placing of a wooden cabin prepared elsewhere on the land covered under the scheme of development plan did not amount to carrying on any development work in any building or in or over any land within the limits of the same area and hence no permission was required of the local authority either under sec. 12 or sec 29(1)(a) of the Act and hence the impugned notice issued under sec. 13(4) and 29(1)(c) of the Act was illegal and unenforceable in law.;

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