B.C.PATEL, P.B.MAJMUDAR - (1.) Against the order made by the Auxilliary Chamber Judge ( Court No. 24), Ahmedabad on 8.7.98, this appeal is preferred by Ahmedabad Municipal Corporation (hereinafter to be referred to as "the Corporation").
(2.) Respondent (hereinafter referred as "plaintiff") Vijay Owners' Association Non Trading Corporation filed a Civil Suit No. 4980/94 against the Corporation for urgent orders. Notice of Motion was filed by the plaintiff for temporary injunction restraining the Corporation from implementing decision dated 12.8.94 and also restraining the Corporation, its agents, servants and persons from demolishing the construction till the final disposal of the suit. The learned Auxilliary Chamber Judge made an order below exh. 6 on 8.7.98, directing the parties to maintain status quo. The original plaintiff was also directed to file an undertaking that it would not carry out any further construction work in the disputed property till disposal of the suit and subject to that, temporary injunction in terms of para 13 (A) was granted till the disposal of the suit. The facts leading to the present proceedings, in brief are as under.
(3.) The plaintiff submitted a plan to the Corporation for erecting a building consisting of 77 residential dwellings/flats and common amenities, on Final Plot No. 326/1 + 2 of Town Planning Scheme No. 19, situated in Navrangpura area of Ahmedabad. The plan was sanctioned on 17.5.91. In the plaint, it was stated that as per the plan approved, most of the work of all the floors has been carried out. It was contended that no illegal construction has been carried out and for minor changes after taking advice of the Architect, a revised plan shall be submitted. It was contended that a notice under section 260(1) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter to be referred to as "the Act"), dated 23.6.94, signed on 27.6.94, was served on the plaintiff on 30th June, 1994. Written submissions were made on 7.7.94, copies of which were given to the Deputy Municipal Commissioner and others with a request to arrange a meeting before them. In the plaint, it was specifically stated that for providing parking facility, after discussing the mater with the Architect, necessary lay out plan has been produced before the Corporation. The plaintiff has come out with a case that the projections appearing in the margin land cannot be said to be a new construction but it has merely covered the area under projections. The plaintiff has come out with a case that for cellar, parking and projections, explanation has been tendered and even if it is found that the construction is illegal, the same can be regularized. It was alleged against the officers of the Corporation that without application of mind, stereotype reply was given and though the explanation was satisfactory, it has not been accepted. The Corporation on 12.8.94 took a decision to remove unauthorised construction. On these facts, the suit was filed. It was further averred that the plaintiff was willing to give further explanation and he was willing to give security deposit in the sum of Rs. 2.00 lacs or was willing to offer bank guarantee of a nationalized bank; However, the Corporation has not accepted the same and has taken the decision illegally on 12.8.94.;