Judgment:
ORDER
K.M. Mehta, J.
1. Shri Ramubhai Dahyabhai Rathod-Original plaintiff and petitioner in Civil Revision Application has filed this Revision Application under Section 115 of the Code of Civil Procedure. Petitioner has challenged the judgment and order dated 1-12-99 passed by the learned Second Jt. District Judge, Surat in Misc. Civil Appeal No. 210/ 99. The learned Judge by this judgment has allowed the said appeal and set aside the order of injunction did. 5-10-1999 passed by the learned Civil Judge, Junior Division below Ex. 5 in Regular Civil Suit No. 310/96 filed by the original plaintiff-petitioner herein.
1. It may be noted that this matter was placed for admission before me. However, looking to the importance of the matter and urgency of the matter, I have heard the matter at the admission stage for final disposal of the matter and therefore I have allowed the learned counsel to address me on all questions of law and facts at length and I have heard the learned counsel, for the appellant as well as the learned counsel for the respondent at length and therefore I am disposing of this civil revision application at admission stage finally with detailed reasons.
2. The facts giving rise to this Revision Application are as under :--
3. In this case the petitioner had filed Regular Civil Suit No. 310/96 in the Court of Civil Judge through his power-of-attorney Ramubhai Dahyabhai Rathod on 19th April, 1996 against Surat Municipal Corporation and others for a declaration and permanent injunction and had prayed that the land in dispute which is situated in Survey No. 35 in Umarwada of Choryasi taluka in possession and occupation of the plaintiff. The plaintiff had alleged in the suit that he has been tilling the land as a tenant for years, however, the defendant is trying to take away possession of the plaintiff forcibly without following any process of law, so to restrain the defendants from doing so, and to declare that the plaintiff has tenancy rights over the land in dispute and is in possession and he has prayed for a declaration and permanent injunction as aforesaid.
4. In support of that contention the plaintiff stated that the plaintiff had filed an application on 16-10-95 before Additional Mamlatdar of Umarvada, Choriyasi taluka for entering his name as a tenant in Tenancy Case No. 83/95. The plaintiff has also filed an application on 4-1 -1996 before the Talati, Umarvada Mamlatdar, Taluka Choryasi for entering his name in 7 x 12 record and panchnama dtd. 8-1-1996 made in his favour. The said report was produced by the plaintiff at Ex. 3/8. It was also alleged by the plaintiff in the suit that the plaintiff has also filed an application dtd. 19-4-1996 for appointment of a Court Commissioner and Commissioner has also made a report dated 9-4-1996 that there was a hut on the land in question.
5. Defendant No. 1 Surat Municipal Corporation filed its written statement at Ex. 13 and stated that as regards suit land on 10-5-68 the State Government had prepared a Draft Town Planning Scheme and the same was notified and sanctioned. The State Government sanctioned a preliminary Town Planning Scheme which came into force on 4-8-68. After the preliminary scheme was sanctioned and published in official gazette on 12-1-1987, the State Government has sanctioned the Final Town Planning Scheme No. 8 and published in the Official Gazette and said scheme came into effect on 17-2-87. It was also stated in the written statement that scheme was published in the Newspapers as well as in the Gazette and objection were invited from the owner of the land and after considering the said objections the Town Planning Scheme was sanctioned by the State Government and it was also published. The Town Planning Officer appointed by the State Government also carried out his duties and after considering his report the State Government has prepared the final scheme. During all this period the plaintiff has never objected to the same. It was denied that the plaintiff was in possession of the land since 50 years and as regards evidence produced by the plaintiff the defendant did not admit any of the evidence produced by the plaintiff. It appears that the defendant had also produced certain documents on record by lists Ex. 3 and Ex. 12.
6. It appears that some other defendants were also added and they also filed reply in the suit and denied the contention of the plaintiff in this behalf. They have also stated that the tenancy case, which was stated by the petitioner being Tenancy Case No. 83/ 95, was wrongly filed by the plaintiff and the said tenancy case was dismissed by the Hon'ble Court by this judgment and order dtd. 27-1-1997.
7. The plaintiff also filed an application being Ex. 5 for temporary Injunction. The learned trial Judge after hearing the learned Advocates for the parties granted Ex. 5 by his judgment and order dtd. 15-10-99 and further held that the status-quo order granted under order below Ex. 13 was vacated and defendant No. 1-Surat Municipal Corporation, its agents, servants, representatives are restrained by way of interim injunction till the disposal of the suit from dispossessing the plaintiff forcibly from the suit land except by due process of law and are restrained from entering the suit land.
8. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the learned trial Judge, original defendant No. 1 -Surat Municipal Corporation filed Misc. Civil Appeal No. 210/99 before District Court at Surat on 7-10-99.
9. The learned appellate judge after considering the submissions held that appellant Municipal Corporation/defendant No. 1 could prove its case on point No. 1 and has proved that there is an error in the order in appreciation of evidence on the part of the lower Court and the said order is perverse and the original plaintiff has failed to prove his prima facie case in the lower Court and, therefore, the appellate Court interfered with the order of the lower Court in view of the facts and circumstances of the present case and held that there was a grave error of law and facts and the order passed below Exh. 5 by the lower Court is held to be null and void and the said order is perverse to that extent thereby allowed the Misc. Civil Appeal and set aside the order passed below Exh. 5 by the trial Court.
10. Being aggrieved and dissatisfied with the order of the lower appellate Court Mrs. Ketty A. Mehta, learned counsel for the petitioner-plaintiff strenuously urged before me that the petitioner is the occupant of land bearing Survey No. 35 of village Umarvada, Taluka Choryasi, District Surat admeasuring 6 acres and 38 gunthas. The said land is an agricultural land and the petitioner was an agriculturist tilling the said land which was occupied by his forefathers. The said land was taken on lease by the father of the petitioner and he was in the possession and occupation of the said land. She has also stated that in this case the Corporation has issued notice seeking to evict petitioner. It was pointed out that on 12-4-1985 two officers of the South Zone of Surat Municipal Corporation had come on the land and had threatened the petitioner with forceful eviction and therefore the petitioner was constrained to file Civil Suit on the contention raised by the original plaintiff in this behalf. The learned counsel has also tried to support the order of the learned trial-Judge. She has contended that the learned trial Judge had taken into consideration the documents produced by the petitioner to show that the petitioner was in possession of the said land and agricultural activity was being carried on by the petitioner on the suit land.
11. As regards the appellate order learned counsel submitted that it is also well settled legal position and under the provisions of Gujarat Town Planning & Urban Development Act 1976, if any person is found in unauthorized possession of the acquired land he cannot be thrown out without issuing a notice and following the procedure as prescribed by the law including the rules of natural justice. The learned appellate Judge failed to appreciate that as per the settled provision of law, even a trespasser cannot be removed without giving an opportunity of hearing. In support of the same she has cited several decisions which will be taken into consideration at the relevant stage.
12. Mr. Kamal. B. Trivedi and Mr. Prashant G. Desai, learned counsels have appeared for the Corporation. The learned counsel stated that in this case on 10-5-1968 the State Government has notified and sanctioned the Draft Town Planning Scheme No. 8 in connection with the land in question. On 4-8-68 the State Government sanctioned the Preliminary Town Planning Scheme No. 8 (Umarvada), Surat. On 12-1-87 Final Town Planning Scheme No. 8 (Umarvada) was sanctioned and published in the Official Gazette. On 10-11-87 individual notice under Section 68 of the Gujarat Town Planning Act, 1976 with Rule 33 was given to an owner/possessor Jenabbibi Abdulkarim for taking possession of the land bearing O. S. No. 35 and Original Plot Nos. 44, (this plot was ultimately reconstituted in Final Plot No. 80). Copy of the said notice was also produced along with the chronology of events, it was submitted by learned counsel at the time of hearing of this revision application. It was also stated that in Special Civil Application No. 331 of 1988 filed by Hiralal against the above named Jenabbibi Abdulkarim pending in the Court of Civil Judge (S.D.) at Surat, that there was an open land having no construction in the land of O.S. No. 35 originally owned by the Jenabbibi. Pursuant to Town Planning Scheme, on behalf of the original owner Jenabbibi a consent letter dated 20-4-1988 was issued declaring to have taken possession of the new plot i.e. Final Plot No. 75 in lieu of her O.P. No. 44, of O.S. No. 35, the possession whereof was given to the Municipal Corporation. It was also submitted that as regards the record of the case, redistribution and valuation statement in the prescribed Form B was showing the name of the original owner i.e. Jenabbibi Abdulkarim and not the present plaintiff in respect of O.P. No. 44 of O.S. No. 35. It was thereafter contended that all these facts showed that the State Government along with the Corporation have complied with the provisions of the Gujarat Town Planning Act, 1976 (hereinafter referred to as the 'Act') and during all these proceedings the plaintiff was not in possession of the said land particularly when the T.P. Scheme was finally sanctioned. The plaintiff was not in possession or occupation when notice under Section 68 read with Rule 33 was issued. After that Corporation has taken possession of the suit premises. The plaintiff had no legal possession and therefore the plaintiff had no right to occupy and possess the said land.
13. It was also stated by the learned counsel for the respondent corporation that as regards the tenancy proceeding the competent authority has passed the speaking order dated 27-1-97 under the provisions of Bombay Tenancy and Agricultural Land Act, 1948 and dismissed the application of the petitioner herein filed under Section 70(b) of the said Act holding that the petitioner-plaintiff was not he tenant-agriculturist tilling the land in question. It was also contended that in Village Form No. 6 dated 11-5-1998 also it was recorded that the claim of the petitioner as tenant-agriculturist in respect of the land in question was rejected and on 6-7-98 Village Form No. 7/ 12 in respect of the land in question did not show the name of the plaintiff at any point of time right from the beginning.
13.1 Before I consider the rival submission and authorities in question I would like to consider the statutory provisions of the Town Planning Act 1954 (hereinafter referred to as the Old Act) as well as Gujarat Town Planning & Urban Development Act 1976 (hereinafter referred to as the New Act) in this behalf. I am referring to the old Act because there are certain decisions of this Court which have considered the provisions of the said old Act similar to the provisions of the New Act which are relevant for the controversy.
13.2 Preamble to the Old Act provided that the object of the said Act to ensure that town planning schemes are made in a proper manner and their execution is made effective. It is necessary to provide that a local authority shall prepare a development plan for the entire area within its jurisdiction. Section 2(5) derived 'owner', Section 2(6) defined 'plot', Section 2(2) defined 'development plan'. Section 2(7) defined 'preliminary scheme', Section 2(9) defined 'reconstituted plot', Section 2(10) provide 'Scheme' Section 3 provide definition of development plan. Section 51 of the Act provided when the Town Planning Scheme became final. There are various provisions of declaration of development plant and also Section 4 and other relevant sections. However, the material provision which we have to consider is Section 54 of the Act which read as follows :
Section 54, 'On and after the day on which the final scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure, be summarily evicted by the local authority.'
Along with that Section 80 empowered the State Government to frame rules consistent with the provisions of the Act. The relevant Rule is Rule 21 and the Rule to the extent material for purpose of our discussion, is as under :--
'21. Procedure to be followed by Town Planning Officer : (1) The Town Planning Officer shall give notice of the date on which he will commence his duties and shall state therein the time as provided in Rule 30, within which the owner of any property or right which is injuriously affected by the making of the town planning scheme shall be entitled under Section 69 to make a claim before him. Such notice shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in prominent places at or near the area comprised in the scheme and at the office of the Town Planning Officer.
'(2) The Town Planning Officer shall, after the date fixed in the notice given under Sub-rule (1), continue to carry on his duties as far as possible on working days and during working hours.' The old Sub-rule (3) and the amended Sub-rule (3) as substituted on May 13, 1974 may be read in juxtaposition
Old Sub-rule (3)
Special notice of at least three clear days shall be served upon the persons interested in any plot or in any particular comprised in the scheme, before the Town Planning Officer proceeds to deal in detail with the portion of the scheme relating thereto. Such special notice shall be given in the cases mentioned in Clauses (i), (ii) and (xii) of Sub-section (1) of Section 32 and in any other cases where any persons have not been sufficiently informed that any matter affecting them is to be considered.
New Sub-rule (3)
The Town Planning Officer shall before proceeding to deal with the matters specified in Clauses (i), (ii) and (xiii) of Sub-section (1) of Section 32 publish a notice in the Official Gazette and in one or more newspapers circulating within the jurisdiction of the local authority. Such notice shall specify the matters which are proposed to be dealt with by the Town Planning Officer and State that all persons who are affected by any of the matters specified in the notice shall communicate in writing their objections to the Town Planning Officer within a period of fifteen days from the publication of the notice in the Official Gazette. Such notice shall also be posted at the office of the Town Planning Officer and of the local authority and the substance of such notice shall be posted at convenient places in the said locality.'
6. Sub-rule (4) reads as under :--
'(4) The Town Planning Officer shall give all persons affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations, if any.'
Sub-rule (9) of Rule 21 read as under :--
'(9) The Town Planning Officer shall publish the final scheme drawn up by him by a notification in the Official Gazette and also by means of an advertisement in the local newspapers announcing that the final scheme shall be open for the inspection of the public during office hours at his office and communicate forthwith the decisions taken by him in respect of each plot to the owner or person interested, by the issue of the requisite extract from the final scheme. The Town Planning Officer shall also inform the President of the Board of Appeal about the publication of the final scheme.'
Rule 27 read as follows :--
'27. Procedure for eviction under Section 54 :-- (1) For eviction under Section 54, the local authority shall follow the following procedure, namely :--
(a) The local authority shall in the first instance serve a notice upon the person to be evicted requiring him, within such reasonable time as may be specified in the notice, to vacate the land.
(b) If the person to be evicted fails to comply with the requirement of the notice the local authority shall depute any Officer or servant to remove him.
(c) If the person to be evicted resists or obstructs the officer or servant, deputed under Clause (b) or if he re-occupies the land after eviction, the local authority shall prosecute him under Section 188 of the Indian Penal Code.'
Under the said provision two rules are necessary which is material one is Rule 21 (prior to its amendment) and another Rule 21 (after its amendment) and also Rule 27 of the Town Planning Old Rules also provide for eviction.
13.3 The Gujarat Town Planning Urban Development Act 1976, (hereinafter referred to as New Act).
'2(viii) 'development' with all its grammatical variations and cognate expressions, means the carrying out of any building, engineering, mining, or other operations, in, or over, or under land or the making of any material change in any building or land or in the use of any building or land, and includes layout and subdivision of any land;'
Section 2(9) definition of development area and Section 2(10) definition of development plan.
'2(ix) 'development area' means an area declared to be a development area under Section 3 or, as the case may be, an urban development area under Section 22;'
'2(x) 'development plan' means a plan for the development or redevelopment or improvement of a development area;
and Section 2(11) provides definition of Final Plot and Section 2(13) provides 'land' includes lands, Section 2(14) provides definition of 'local authority', Section 2(16) provides definition of 'occupier'
'2(xvi) 'occupier' includes--
(a) any person who for the time being is paying or is liable to pay to the owner the rent of the land or building in respect of which such rent is paid or is payable;
(b) an owner living in or otherwise using his land or building;
(c) a rent free tenant;
(d) a licencee in occupation of any land or building;
(e) any person who is liable to pay to the owner damages or compensation for the use and occupation of any land or building;'
Section 2(18) provides definition of 'owner' as under :
'2(xviii) 'owner' in relation to any property, includes any person who is, for the time being receiving or entitled to receive, whether on his own account or on account of or on behalf of, or for the benefit or, any other person or as an agent, trustee, guardian manager or receiver for any other person or for any religious or charitable institution the rents or profits of the property; and also includes a mortgagee in possession thereof;'
2(xx) 'preliminary scheme' means a preliminary scheme relating to a town planning scheme prepared by the Town Planning Officer under Section 51;'
Section 40 provides for making and contents of a town planning scheme, Section 41 provides for power of appropriate authority to resolve on declaration intention to make scheme. Section 42 provides for making and publication of draft scheme, Section 43 pro-vides for power of State Government to require appropriate authority to make scheme. Section 44 provides for contents of draft scheme, Section 45 provides for reconstitution of plots, Section 46 provides for disputed ownership. Section 47 provides for objections to draft scheme to be considered, Section 48 provides for power of State Government to sanction draft scheme, Section 49 provides for restrictions on use and development of land after declaration of a scheme. Section 50 provides for appointment of Town Planning Officer, Section 51 provides for duties of Town Planning Officer, Section 52 provides for contents of preliminary and final scheme. Section 53 provides for certain decisions of Town Planning Officer to be final. Section 54 provides for appeal, Section 55 provide for constitution of board of appeal. Section 59 provides for powers of board to decide matters finally, Section 62 provides for decision of Town planning officer to be final in certain matters and variation of scheme in view of decision in appeal, Section 63 provides for power of Town planning officer to split up draft scheme into separate sections. Section 64 provides for submission of preliminary scheme and final scheme to Government, Section 65 (sic) power of Government to sanction or refuse to sanction to scheme and effect of sanction. Section 65(1) provides that State Government has power to sanction the preliminary scheme or the final scheme or refuse to give sanction and grant some modification as may, in its opinion, be necessary for the purpose of correcting an error, irregularity or informality. Section 65(2) provides that where the State Government sanctions the preliminary scheme or the final scheme. Section 65(3) provides that on and after the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in this Act. Section 67 provides for effect of preliminary scheme. Section 68 provides for power of appropriate authority to evict summarily,
'Section 68 -- On and after the date on which a preliminary scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme shall, in accordance with the prescribed procedure, be summarily evicted by the appropriate authority.'
Section 69 provides for power to enforce the scheme, Section 118 provides for power to make rules. Under the said provisions the Government of Gujarat has framed Gujarat Town Planning And Urban Development Rules 1979.
Rule 33 provides as under :
Rule 33 Procedure for eviction under Section 68, (1) For eviction under Section 68, the appropriate authority shall follow the following procedure, viz :--
(a) The appropriate authority shall in the first instance serve a notice upon a person to be evicted requiring him within such reasonable time as may be specified in the notice, to vacate the land.
(b) If the person to be evicted fails to comply with the requirement of the notice, the appropriate authority shall depute an Officer or Servant to remove him.
(c) If the person to be evicted resists or obstructs the officer or servant deputed under Clause (b) or if he re occupies the land after eviction, the appropriate authority shall prosecute him under Section 188 of the Indian Penal Code.
14. At the time of hearing of the revision application Mrs. Mehta contended that even though the petitioner could not establish his legal possession on the land on 12-1-1987 when Final Town Planning Scheme was sanctioned and Published in the Official Gazette, however, subsequently he has acquired possession of the suit property and therefore the respondent No. 1 Municipal Corporation ought to have given notice of eviction before removing him from the possession of the said land. For the purpose she has relied upon the judgments of Hon'ble Supreme Court in the case of Jaswant Sing Mathurasingh v. Ahmedabad Municipal Corporation reported in AIR 1991 SC 2130 and in the case of Municipal Corporation v. Chelaram & Sons, AIR 1997 SC 31. According to her petitioner has obtained the legal possession of the said premises in view of the Talati report and also other report of the commissioner and his application which petitioner filed under Section 17(11) of the Tenancy Act. As per decision of this Hon'ble Court reported in 1985 GLH (UJ) 56, the possession cannot be disturbed without following due process of law. For that purpose she has also relied upon several judgments particularly judgment referred to by the learned trial Judge in his judgment and also on the judgment of the Supreme Court in the Case of Lucknow Dev. Authority v. Maharani Rajlaxmi Kumari Devi, AIR 1987 SC 997 (sic). After relying upon these authorities the learned counsel further submitted that the appellate Court has not properly appreciated the facts as well as position of law in this behalf and therefore revision petition ought to have been allowed and judgment and order of the appellate Court be quashed and set aside.
15. The learned counsel for the respondent No. 1 Surat Municipal Corporation contended that in view of the various judgments of this Hon'ble Court as well as of the Supreme Court once Final Town Planning Scheme is sanctioned and after serving Individual notice on 10-11-1987 by the Corporation under Section 68 of the Act read with Rule 33 and thereafter the Corporation has taken possession of the said land in question and therefore the plaintiff had no legal right in this behalf and there is no obligation on the Corporation to serve any notice under the Town Planning Act to plaintiff-petitioner herein who had no legal and valid possession in this behalf. The learned counsel also referred to the provisions of the Old Town Planning Act i.e. Town Planning Act 1955, particularly Section 54 and Rule 21 of the Rules, particularly prior to its amendment and after its amendment & Rule 27 and also relied upon the corresponding provisions of the New Act. Consent letter was already obtained from the original owner and possession was already taken by the Corporation and the plaintiff was not at all occupier or in possession of the land in question and, therefore, there was no question of now serving further notice to the plaintiff in this behalf.
16. The learned counsel for the Corporation has also raised an additional ground that in this case the large pieces of land have been acquired by the Corporation under the provisions of the Act and the Corporation has to prepare, construct and adopt further public projects on the lands in question and, therefore, trial Court ought not to have granted interim injunction in favour of the plaintiff and for that purpose he has relied upon the judgment of the Apex Court in the case of Mahadeo Savlaram Shelke v. Pune Municipal Corporation reported in 1995 (3) SCC 33 : (1995 AIR SCW 1439) and also relied upon the judgment of this Court in the case of Daulatsinghji Savanathsinhji Solanki v. Executive Engineer (Rural Road Project Division No. 2) Himatnagar reported in 1996 (2) G.L.H. 253: (AIR 1997 Guj 64). He further submitted that in any case the trial Court ought not to have granted interim injunction in light of these two decisions and therefore on this additional ground also he has tried to support the reasoning of the lower appellate Court.
17. Mrs. K.A. Mehta, also relied upon the judgment of the Supreme Court in the case of Municipal Corporation v. Chelaram & Sons in AIR 1997 SC 31, wherein the Division Bench of Hon'ble Supreme Court speaking through Hon'ble Mr. Justice S. B. Majmudar, J. has considered all the decisions including Babubhai v. State of Gujarat AIR 1985 SC 613 and Jaswantsingh v. AMC AIR 1991 SC 2130 and in para 5 the Hon'ble Court has observed as under :--
'However, that is not the end of the matter. The Division Bench has restored the decree passed by the learned trial Judge. As we have noted the order and decree passed by the trial Court quashed the impugned notice 14th June 1972 on the ground of violation of principles of natural justice. So far as this part of the order of the Division Bench is concerned no fault can be found in the said decision of the High Court. The reason is obvious. Under Section 54 of the Act read with Rule 27 of the Rules which any occupant is sought to be evicted in the light of the sanctioned Scheme principles of natural justice have to be observed and after hearing the concerned occupant a speaking order has to be passed. As laid down by this Court in the case of M/s. Babubhai & Co. v. State of Gujarat, AIR 1985 SC 613, while upholding the vires of Section 54 and Rule 27 of this very Act Tulzapurkar, J. speaking for the two member Bench has made the following pertinent observations in para 8 of the Report: The power conferred upon the Local Authority is a quasi judicial power which implies that the same has to be exercised after observing the principles of natural justice, that is to say, the decision that the occupants are not entitled to occupy the plots in their occupation has to be arrived at after hearing such occupants and that too by passing a speaking order which implies giving of reasons and that ensures the application of mind to only germane or relevant material on the record eschewing matter extraneous and irrelevant. Moreover any order of summary eviction based on any extraneous, non-germane, irrelevant or mala fide considerations would be subject to the writ jurisdiction of Court.'
On the facts of the present case there is no dispute that the impugned notice dated 14th June 1972 did not follow the aforesaid procedure laid down by this Court for issuing such notices under Section 54 read with Rule 27. The learned trial Judge in this connection has noted in paragraph 18 of his judgment as under :
'Now, in the case before me, the notice issued under Rule 27 and impugned in the suit does not comply with the principles of natural justice, in any manner, whatsoever. In the impugned notice, the occupant is being called upon to vacate the land within seven days, failing which, it has been stated that the occupant would be removed from the land super structure by the use of force and if he protested or obstructed or re-entered the land after removal he would be liable to prosecution under the provisions of Section 180 of the Indian Penal Code. In the notice impugned in the suit, the occupant is not asked to state if he has any defence as to his liability to be evicted under Section 54 read with Rule 27 or explain his position otherwise about any such non-liability and prove such defence or support such explanation. Absolutely no opportunity is being given to the occupant in the impugned notice to enable him to law any material before the local authority to represent his case and to convince the local authority that the occupant is not liable to be removed in pursuance of the notice. In absence of such an opportunity, the notice does not call for any scope for the local authority to make any enquiry about the case of the occupant and the determination of the local authority thereupon.'
The learned single Judge of the High Court did not disagree with the said finding of the trial Judge. However in his view the legal position as laid down by Saiyed Mohammad (AIR 1978 Guj 82 (supra)) did not require any such procedure to be followed before issuing the direction for an eviction under Section 54 read with Rule 27. It must be held that the said decision of the Court in M.S. Babubhai & Co. (AIR 1985 SC 613) (supra). Consequently the decision rendered by the Division Bench restoring the decree passed by the trial Court will have to be confirmed on this ground alone. The appeal is accordingly liable to be dismissed subject to the rider that the observation made by the Division Bench in the impugned judgment in the effect that it is for the defendant to follow the due procedure before enforcing to reconstitute the plot as final Plot No. 115 under the Scheme, will stand expunged from the impugned judgment as no special notice under Rule 21 Sub-rule (3) was required to be issued to the plaintiff-respondents by the Corporation as laid down by this Court in the case of Jaswant Singh (AIR 1991 SC 2130 (supra)) Subject to the aforesaid deletion of the observation in paragraph 3 of the impugned judgment, the said decision of the Division Bench will stand confirmed and accordingly final order and decree passed by the learned trial Judge in favour of the respondent will also stand confirmed. The appeal is disposed of accordingly with no order as to costs.'
18. Shri K.B. Trivedi, learned counsel for the respondent corporation has relied upon the judgment of the Supreme Court in the case of Memon Bachubhai Dawoodbhai and Co. etc., v. State of Gujarat reported in AIR 1994 Supreme Court, p. 480. In that case the controversy at that time centered round the question whether the appellants were entitled to notice before finalising the Town Planning Scheme published on 1 July, 1951. Reliance was placed on the decision of the this Hon'ble High Court reported in AIR 1977 Guj 23 (Full Bench) titled Dungarlal Harichand v. State of Gujarat. The Hon'ble Apex Court observed that this Court in Jaswant Singh Mathura Singh v. Ahmedabad Municipal Corporation reported in AIR 1991 SC 2130 has partly overruled the judgment of the Full Bench and held that all those tenants, sub-tenants continuing in possession as on July 1, 1951, are entitled to a notice before finalising the scheme. It is now admitted by the appellants that the tenants were continuing in possession from 1960. Under these circumstances, so far as the tenants are concerned, they are not entitled to any notice.
19. In view of these aforesaid decisions, I uphold the finding given by the lower appellate Court that the petitioner is not entitled to any notice as petitioner was neither occupier nor he was in possession of the land in question when the scheme was finalised on 12-1-1987.
20. Mrs. Mehta however, submitted in the alternative that even if the plaintiff was not in possession of the land in question on 12-1-87 when the scheme was finalized, in any case, he was on the land as a trespasser then also the Corporation cannot remove him from the land in question by resorting to force. She relied upon the judgment of the Hon'ble Supreme Court in the case of State of U.P. v. Maharaja Dharmander Prasad Singh, AIR 1989 p. 997 wherein in para 15 it is observed as under at page 1004 :
'Therefore, there is no question in the present case of the Government thinking of appropriating to itself an extra judicial right of re-entry. Possession can be resumed by Government only in a manner known to or recognized by law. It cannot resume possession otherwise than in accordance with law. Government is, accordingly, prohibited from taking possession otherwise than in due course of law.'
20.1 She has further relied upon the judgment of this Court reported in the case of Ramshree Mahavir v. Girdharilal Bholanath Agarwal, reported in 1970 (11) GLR 971 on page no. 973 has observed as under ;--
'Once it is established by the plaintiff that he is in exclusive possession and it is admitted by the defendant that he is in such possession, an injunction restraining the defendant from dispossessing the plaintiff by force must issue as a matter of course. More readily, if the defendant persists in asserting the claim that he has a right to take the law in his own hands and forcibly dispossesses the plaintiff as has been done in the present case.'
21. In this case learned counsel for the Corporation have stated that in this case when the scheme has become final and when individual notices were already given the possession has been taken and therefore the Corporation has complied with all the substantive as well as procedural provisions of the Act and the rules. The petitioner was not in possession of the land in question and he was also not in possession of land when individual notices under Section 68 read with Rule 33 was issued. The learned counsel for the respondents have submitted that in the facts and circumstances of the case the Corporation has to obtain possession of the suit land from occupants who were in possession of the land. The Corporation has issued notices to them. However, in this case only piece of evidence which is relied upon by the plaintiff is panchnama dtd. 8-1-1996 and he has not produced any documentary evidence prior to that date to show that he had occupied the suit land in question and therefore the respondent Corporation was not under obligation to give any notice to the plaintiff. The learned counsel further submitted that plaintiff has no legal title or possession over the suit land and he was merely a trespasser on the suit land.
22. Learned counsel for the respondent has relied upon the judgment in the case of Premji Ratansey Shah v. Union of India reported in 1994 (5) SCC p. 547: (1995 AIR SCW 2425). On page No. 550 of the said judgment in paras 4 and 5 the Supreme Court has observed as under at page 2426 of AIR SCW :--
Para 4 :--
'The question, therefore, is whether an injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence, cannot be protected by injunction.' Para 5 :-- 'It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property.'
23. The learned Counsel for the respondent-Corporation has also cited following decision in the case of Rukhiben W/o. Amarsingh Chaturbhai Parmar v. Kiritkumar Kantilal Patel reported in 1997 (3) GLR 2383 wherein para 3 this Court has observed as follows :
'The persons who are simply trespassers on the land and the person who have already executed a registered sale deed in favour of the respondent-plaintiff wherein specific averment is contained that the respondent-plaintiff is put into possession of the land in question and that they have no right, title or interest over the land in question thereafter cannot be permitted to state that they were in possession of the hut when the Court Commissioner made the panchnama. In fact, they had no vestige of title over the land in question to entitle them to a relief of injunction. The Apex Court has in the case of Premji Ratansey Shah v. Union of India, reported in 1994 (5) SCC 547 : (1995 AIR SCW 2425) clearly taken the view that grant of injunction is a discretionary and equitable relief. Ordinarily, no injunction can be issued in favour of a trespasser or a person who gained unlawful possession as against the true owner. The person must show his personal interest in the property and when the Court found that in the case before it the person has no title whatsoever over the land as against the true owner, the Court held that no injunction could be granted. In Para 5 of the reported judgment, the Court made following pertinent observations which in clear terms laid down the law on the subject: It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interestin the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of trespasser or a person who gain unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against the owner.'
It is thus clear that the persons whose possession is wholly unlawful possession are simply trespasser on the land and injunction cannot be issued in their favour or in favour of a person who has unlawfully gained possession as against the lawful owner.
23.1 In the aforesaid decision this Court also considered the earlier decision of this Court in Ramshree Mashavir v. Girdharilal Bholanath Agarwal, reported in 1970 (11) GLR P. 971, Court has observed as under:--
'Once it is established by the plaintiff that he is in exclusive possession and it is admitted by the defendant that he is in such possession, and injunction restraining the defendant from dispossessing the plaintiff by force must issue as a matter of course. More readily, if the defendant persist in asserting the claim that he has a right to take the law in his own hands and forcibly dispossesses the plaintiff as has been done in the present case.'
24. The learned advocate for the respondent Mr. Prashant Desai has further stated that in this case the large piece of land have been acquired by the Corporation under the provisions of the Town Planning Scheme and as the Corporation has constructed and adopted public projects on the land In question and therefore trial Court ought not to have granted interim injunction in favour of the plaintiff who had no interest in the land and who was merely a trespasser as he was also not an occupier or in possession of the land in possession when the Town Planning Scheme was finalized. Neither he was in occupation nor was in possession and therefore trial Court ought not to have granted injunction in favour of the plaintiff and therefore he has supported the reasoning of the appellate Court in that behalf.
25. In support of his contention he has relied upon the case of Mahadeo Savlaram Shelke and ors. v. Pune Municipal Corporation and another, reported in 1995 (3) SCC. 33 : (1995 AIR SCW 1439) in para 14, whereof the Supreme Court has observed as under at page 1145 of AIR SCW :--
'It would thus be clear that in a suit for perpetual (sic) injunction, the Court should enquire on affidavit evidence and other material placed before the Court to find strong prima facie case and balance of convenience in favour of granting injunction otherwise irreparable damage or damage would ensue to the plaintiff. The Court should also find whether the plaintiff could adequately be compensated by damages if Injunction is not granted. It is common experience that injunction normally is asked for and granted to prevent the public authorities or the respondents to proceed with execution of or implementing scheme of public utility or granted contracts for execution thereof. Public interest is, therefore, one of the material and relevant considerations in either exercising or refusing to grant ad interim injunction.'
and further
'It is common knowledge that Injunction is invariably sought for in laying the suit in a Court of lowest pecuniary jurisdiction even when the claims are much larger than the pecuniary jurisdiction of the Court of first instance, may be, for diverse reasons. Therefore, the pecuniary jurisdiction is not and should not stand an impediment for the Court of first instance in determining damages as part of the adjudication and pass a decree in that behalf without relegating the parties to a further suit for damages. This procedure would act as a check on abuse of the process of the Court and adequately compensate the damages or injury suffered by the defendant by act of Court at the behest of the plaintiff.'
and further observed in Para 15 as under :--
'Public purpose of removing traffic congestion was sought to be served by acquisitioning the building for widening the road. By orders of injunction, for 24 years the public purpose was delayed. As a consequence execution of the project has been delayed and the costs now stand mounted. The Courts in the cases where injunctions are to be granted should necessarily consider the effect on public purpose thereof and also suitably mould the relief.'
26. The learned counsel thereafter relied upon the another judgment, in the case of Daulatsinhji Savanathsinhji Solanki v. Executive Engineer, reported in 1996 (2) GLH p. 253 : (AIR 1997 Guj 64) and in the case of Mahadeo Savlaram Shelke (supra) in Para 12 extensively in Para 13 the Court has observed as under at page 70 of AIR :--
'In the aforesaid settled legal position, in my opinion, two Courts below were justified in refusing injunction in favour of the petitioners-plaintiffs. The respondents-defendants are therefore permitted to lay road or construct road up to the catchment area of Hatmati River through Survey Nos. 105 and 109 up to 104, 105 and 106.'
27. In my view after finalization of this Town Planning Scheme number of disputes can be raised by plot holder whose land are reserved for the public purpose and (who are not allotted alternative land or who are allotted plot of smaller size or by the tenants or sub-tenants to whom plots are not allotted or whose tenancy rights are not protected or that compensation awarded to them is less. In my view these objections were required to be raised before finalization of Town Planning Scheme, therefore to obviate this difficulty Section 53 of the Old Act, inter alia, provided that on the day on which final Town Planning Scheme comes into force all the rights in the original plot, which has been reconstituted are determined and the reconstituted plot has become subject to the right stated by the Town Planning Officer. Under Section 54 (Old Act) any person who is continuing to occupy any land which he is not entitled to occupy under the Final Scheme is required to be evicted by the local authority. Not only this but in Sub-section 3 of Section 51 and after the date fixed in such notification fixation of the Town Planning Scheme shall have effect as if it were enacted in the Act. In view of Section 51 (3) (Old Act) the Final Town Planning Scheme is considered to be enactment and therefore Court cannot change it or modify it. Similarly as per Section 65 of the New Act which provides power of Government to sanction or refuse the scheme and effect of sanction the scheme and particularly Section 65(3) (New Act) which provides that on and after the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in this Act. In view of the same once I come to the conclusion that the final scheme has been sanctioned and published by the Government it was not necessary for the Town Planning Officer to issue further any notice as per the provision of the Act or rule in this behalf. In my view this Court would have no jurisdiction to give any direction that petitioner is entitled to injunction as the scheme has become final and Court cannot change it or modify the said final scheme.
28. In my view the Corporation has complied with all provisions of the Town Planning Act and Rules and Corporation was not obliged to give any notice to the plaintiff-petitioner in this behalf. Particularly after considering the judgment of the Hon'ble Supreme Court reported in AIR 1994 SC p. 480 (supra).
29. After going through all these decisions and facts of the case, it appears that in this case Town Planning Scheme has been published and sanctioned on 12-1-1987 and Corporation has taken possession of the land in question on 10-11-87 and after issuance of notice under Section 68 read with Rule 33 of the Rules. The present petitioner-plaintiff was not in possession or occupier of the land in question on 12-1-1987 and he was also neither occupier nor possessor of the land in question on 10-11-1987. It may be further pointed out that the petitioner's name did not appear in any public record on those dates and therefore in such circumstances it was not possible for Town Planning Officer to issue any notice therefore contention of Mrs. Mehta that the petitioner is entitled to any notice under the provision of Town Planning Act, is not right.
30. In my view the plaintiff did not derive any possession either from original owner of the land or from the Corporation and therefore the plaintiff was not in permissive possession of the suit land. In my view therefore the plaintiff is not entitled to any interim injunction as against the regular owner/ possessor of the suit land against whom notices were already issued by the Corporation. In my view therefore second argument of Mrs. Mehta that even if the plaintiff is trespasser the Corporation has to issue notice before plaintiff can be evicted from the land in question has no merit.
31. In my view as the Corporation is entitled to adopt, enact and construct public project and therefore also plaintiff is not entitled to any interim injunction on the suit land. If any interim injunction is granted the corporation will suffer irreparable injury, loss and hardship, which cannot be compensated in terms of money. Therefore on the second ground also I am not inclined to entertain the present civil revision application of the petitioner and I am not inclined to grant any interim injunction in favour of the plaintiff in this behalf.
32. In view of the same, since the findings given are in consonance with the evidence and the settled legal position. I dismiss this revision application and ad interim relief forthwith granted earlier is vacated.