N.H. Bhatt, J.
1. This is an appeal by the original plaintiff of the Civil Suit No. 180 of 1970 of the City Civil Court, Abrnedabad where it had come to be dismissed with costs. The appellant-the original plaintiff is a Co-operative Housing Society that had purchased some open land in 1956. In the year 1961, as per the title acquired under the sale deed, when the plaintiffs society went to execute the decree for possession against the judgment-debtor introduced on the land by the society's vendor, found there that at the instance of that judgment-debtor many shanties had come to be established with the aid and assistance of the said judgment-debtor who was bound to be evicted from the land as per the decree. The respondent-municipality then purported to levy house tax on those huts and then issued public notices in the newspapers intimating that the property of the plaintiff-society would be put to public auction on 29-1-70 to realize those taxes. As a matter of fact, the notice was with respect to many properties of different persons and the property of the plaintiff was indicated at Sr. No. 15 in that public notice. The plaintiff thereafter filed the above-mentioned suit in the court with the allegation that the two notices respectively dated 24-6-69 and, 23-12-69 for the auction of the property of the plaintiff were illegal and beyond the authority of the defendant-corporation and, therefore, ineffective. The society also sought a permanent injunction restraining the defendant-corporation from going ahead with the auction sale of their property for realising the taxes imposed on those hutments unauthorisedly put by those people in the land against the will of the society.
2. The suit was resisted by the Corporation by filing the written statement, ex. 16. The learned Judge had raised various issues at Ex. 23. The issues Nos. 3 and 4 regarding the maintainability of the suit and the suit being time barred were not pressed and so the only material issue that survived for consideration was regarding the authority of the action of the Corporation in putting to auction sale the property of the society for realizing the dues of the taxes in respect of those unauthorised structures put up by trespassers on the land of the society. That was the only point which was fought before the learned Judge, who on interpretation of In the view that we have taken of the interpretation of Section 139 of the Bombay Provincial Municipal Corporations Act, 1949 came to hold that the owner of the land, namely, the plaintiff-society was bound to discharge that debt of the taxes irrespective of the fact whether the structures were put by the occupants in the teeth of opposition of the society or without their consent. The above view of the learned Judge is not correct according to law. The very provisions of the Act had come to be examined by the Division Bench of this Court on two different occasions. As back as on 15-3-1974, the Division Bench of this Court decided in Arvind Popatlai Shah v. State of Gujarat Sp.C.A. 282 of 1970. The Division Bench consisted of A.D. Desai and D.P. Desai, JJ. It was specifically ruled in that case that the Corporation had no authority at law to recover the municipal taxes imposed in respect of the structures put up by unauthorised persons. This judgment had come to be followed by another Division Bench of this Court in Maganlal Gulabchand Jain and Ors. Sp.CA. 249 of 1971. These two judgments lay down the law and that is binding on me and all other courts in the State. The Division Bench consisting of A.D. Desai and D.P. Desai, JJ. has observed as follows in the Special Civil Application No. 282 of 1970.
It is clear that the provisions of Section 139(1) are not applicable to the present case...Now if we read Sub-section (2) it provides for a case where the land has been let out to a tenant for a term exceeding one year and the tenant builds upon the land. In such case the property taxes as per Sub-section (2) assessed upon the land and the building erected thereon shall be primarily livable from the tenant. The proviso begins with the words 'provided that where the building so erected on the land...' These words clearly refer to the building erected by a tenant on the land to whom the land is let out for a term exceeding one year as contemplated by Sub-section (2) of Section 139. This will, therefore, show that the proviso is confined to the case contemplated by Sub-section (2) alone and will not be applicable to the facts of the present case. However, Mr. Vakil laid stress on the words 'is unauthorized' and contended these words mean raising of a structure by a trespasser upon the land. This contention cannot be accepted. The words 'is unauthorized' have reference to the raising of the building without the permission of the Corporation as contemplated under the Act. The proviso deals with two categories of buildings erected as mentioned in Sub-section (2). These categories are: (1) building of a temporary nature, or (2) building which is unauthorized in the sense that it is raised without the permission of the Corporation, The word 'unauthorized', in our opinion, does not indicate that the building contemplated by the proviso covers a structure raised by a trespasser upon the land.
(Emphasis supplied by me)
3. In above view of the matter, the plaintiff's suit deserved to be decreed. I, therefore, allow the appeal, decree the plaintiff's suit and order that the public notice dated 24-6-69 and other notice issued by the defendant corporation for the public auction of the property of the plaintiff situated on the final plot No. 8, survey No. 8 to 8-44-15 admeasuring about 3,388 yards of the Town Planning Scheme No. 3 of the City of Ahmedabad are illegal and beyond the authority of the defendant-corporation and the respondent-corporation is permanently restrained from enforcing the said notices to the detriment of the plaintiff-society. A decree in terms to follow. The defendant-corporation to pay the costs of the plaintiff in both the courts.