MUNICIPAL CORPORATION OF AHMEDABAD Vs. KUMBHNATH CO OPERATIVE HOUSING SOCIETY LIMITED

JUDGEMENT

(1.) Both these appeals involve a common question about the interpretation of sec. 13(4) of the Bombay Town Planning Act 1954 (Act No. 22/55) hereinafter referred to as the Act and rule 9 of the Bombay Town Planning Rules 1955

(2.) Thse two appeals arise out of the judgment and decree passed by the learned Judge City Civil Court 5 Court Ahmedabad declaring that the notice dated 12-1-1967 issued by the town development officer of the defendant-Corporation and his order dated 27-1-1967 to demolish the structure raised in the respective survey numbers by the respondent-plaintiff are illegal and unauthorised and for consequential injunction to restrain the defendant-Corporation from executing the said order of demolition of the structures in question pursuant thereto.

(3.) In order to appreciate the question of law involved in these appeals it is not necessary to refer to the facts in details. Suffice it to say that the plaintiffs in the above two suits challenged the order issued by the town development officer for demolition of the structures raised on the respective survey numbers by them. It was alleged that as this order was issued by the town development officer without following the proper procedure as laid down under rule 9 of the Town Planning Rules 1955 the order passed by the town development officer was illegal and unauthorised. It was submitted on behalf of the plaintiffs that as required under rule 9 of the said Rules the town development officer would appoint a committee of not less than three members to hear such cases for making a proper inquiry as contemplated in rule 9. The say of the defendant-Corporation was that under the Town Planning Act and Rules the town development officer was invested with the powers of local authority and under sec. 13(4) of the Act the said local authority could pass appropriate orders for demolition of the unauthorised structures after holding an inquiry as prescribed under rule 9. The say of the Corporation is that under rule 9 the local authority has to issue a notice and after hearing the explanation of the party concerned the local authority may hold an inquiry either by itself or through a committee appointed by it consisting of not less than three persons. Thereafter the reasons given by the local authority or the committee as the case may have to be reduced to writing and duly signed. Thereafter the local authority can take a decision to demolish the unauthorised structure. According to the Corporation proper procedure was followed and merely because the local authority itself held an inquiry and did not appoint a committee it cannot be said that the provisions of rule 9 were not complied with as alleged by the plaintiffs. The learned trial Judge held that the notice dated 12-1-1967 given by the local authority was legal and valid but that the decision taken by the town development officer on 27 is illegal and invalid. The learned Judge therefore decreed the suits. The Corporation therefore has preferred the present appeals against the said decision.