GORDHAN BECHARBHAI Vs. AMRELI MUNICIPALITY

JUDGEMENT

(1.) The petitioners challenge in this petition the resolution passed by Amreli Municipality on 18th June 1917. The petitioners are businessmen. They were occupying cabins at Amreli on municipal land. The municipality had issued to them licences to occupy those cabins. The municipality earlier resolved on 30th April 1972 to construct shops and to give them to the petitioners on payment of cost of construction and the rent as determined by the Consulting Engineer. It provided for giving shops for 10 years with an option to the lessees to have the lease renewed for 10 more years. Some of the petitioners and others challenged that resolution in Special Civil Application No. 1189 of 1912. They contended that the resolution was ultra vires the statutory power of the municipality. On 15th December 1972 this Court upheld the contention raised in that petition and recorded the finding that the resolution dated 30th April 1972 was ultra vires the statutory powers of the municipality. On 7th September 1976 the occupiers of the cabins met the municipal and governmental authorities and they entered into an agreement in regard to the cabins to be constructed. Pursuant thereto on 18th July 1977 the municipality passed the impugned resolution.

(2.) The impugned resolution provides that the municipality shall construct shops as early as possible which will be given to the occupiers of the cabins. Next the shops will be constructed on a priority basis. The occupiers of the cabins who are given the shops shall pay premium cost of construction and other charges as determined in the resolution. Laying down the details of this plan the resolution provides that every applicant shall pay Rs. 1 0 along with his application shall pay 33% of the estimated cost towards the first instalment as soon as the construction reaches the plinth level The second instalment of 33% shall be payable when the construction is completed The third instalment shall be payable when possession of the shop is handed over to the applicant. The resolution further provides that if any one fails to pay in the terms stated above his right to have a shop allotted to him shall be forfeited to the municipality. It next provides that in case an applicants right is forfeited to the municipality the municipality shall have the right to allot the shop to any other shop-keeper or cabinman. The resolution further provides that no rent of any type shall be chargeable during the period of 10 years.

(3.) It has been contended by Mr. Vakil that what the municipality does by implementing the scheme incorporated in the impugned resolution is to charge the cost of construction and 60% of the development charges as a condition precedent to allotment of the shops and that under the statutory power concerned upon the Municipality the municipality cannot do so. In this context it is necessary to refer to sub-sec. (1) of sec. 208 on the Gujarat Municipalities Act 1963 It provides as follows: