MUNICIPAL CORPORATION AHMEDABAD Vs. HARILAL SHANKARBHAI MODI
LAWS(GJH)-1960-12-15
HIGH COURT OF GUJARAT
Decided on December 21,1960

MUNICIPAL CORPORATION OF AHMEDABAD Appellant
VERSUS
HARILAL SHANKARBHAI MODI Respondents


Referred Judgements :-

RAMRAO BHAGWANTRAO INAMDAR V. BABU APPANA SAMAGE [REFERRED]
KAJARIA TRADERS (INDIA) LTD. V. M/S. FOREIGN IMPORT AND EXPORT ASSOCIATION [REFERRED]


JUDGEMENT

R.B.MEHTA - (1.)This is a second appeal from the decision of the learned Third Extra Assistant Judge Ahmedabad who allowed an appeal against the order and decree which dismissed the plaintiffs suit passed by the learned Joint Civil Judge Junior Division Ahmedabad.
(2.)This suit is filed by the plaintiff against the Ahmedabad Municipal Corporation for a permanent injunction restraining the defendant corporation from demolishing a structure built by the plaintiff on a plot of land of which the plaintiff was a lessee in pursuance of a notice dated the 11/02/1954 given by the Corporation under the provisions of sec. 308 of the Bombay Provincial Municipal Corporations Act 1949 The plaintiff was a lessee of a plot of land on which he had built the suit structure which was a shed since four years prior to the suit and which according to the plaintiff was being used as a godown for storing animal fodder. The Corporation was recovering the municipal taxes from him during all this period. It is alleged by the plaintiff that the Corporation had no valid reason for giving him a notice under the provisions of sec. 308 of the Act for demolishing the shed within seven days of the notice failing which the Corporation would take action to demolish the same under secs. 479 and 438 of the said Act. Sec. 479 confers powers on the Corporation to enforce its notice in case it is not carried out. Sec. 438 provides for recovering expenses of the work carried out by the Corporation in such and also other circumstances with which we are not concerned in this case. The plaintiffs case was that the defendant Corporation gave a notice to the effect that the plaintiff had constructed a Kachha shed and the use of the shed was mentioned as for residence factory and cattle: *** It was further mentioned in the said notice that the shed was built in a crowded manner; that the walls were of planks mattresses and corrugated iron-sheets; that there was no plinth there was no drainage there were no windows or ventilation and that therefore the construction was unsanitary and that for this reason the defendant Corporation asked the plaintiff under the provisions of sec 308 to demolish his shed within seven days of the receipt of the notice failing which as stated above the Corporation would proceed to demolish the same under the powers given to the Corporation under the said Act.
(3.)The plaintiffs case was that the said notice was given by the Junior Assistant to the Estate and City Improvement Officer of the Municipal Corporation and as such the said notice was illegal and ultra vires; that the Junior Assistant to the Estate & City Improvement Officer was not competent to send such a notice; that it was the duty of the Municipal Commissioner to have verified the contents of the notice and that not being done the notice was invalid. It was further alleged by the plaintiff that the notice itself is based on incorrect facts and that therefore it was not a valid notice. It was further the plaintiffs case that as a matter of fact looking to the user to which it was put there was no possibility of anybody's health to deteriorate; and that under the circumstances the notice was bad and illegal.
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