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Firm of Habibbhai Gulam Mohmad Vs. the Municipal Corporation - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1962)3GLR924
AppellantFirm of Habibbhai Gulam Mohmad
RespondentThe Municipal Corporation
Cases ReferredAhmedabad Municipality v. Jayantilal
Excerpt:
- - 7 and 8 thereafter continued until 22nd january 1954 when the municipal commissioner on behalf of the respondent issued a notice calling upon the appellants to remove the temporary structures within a period of seven days in accordance with the conditions contained in the na dava kabulat and intimating to the appellants that if the appellants failed to do so the respondent would remove the temporary structures departmentally and recover the cost of such removal from the appellants under the conditions contained in the na dava kabulat. not only did the body of the notice make it clear that the requisition of the municipal commissioner to remove the temporary structures was in pursuance of the conditions contained in the na dava kabulat but the subject matter set out at the top of.....p.n. bhagwati, j.1. this second appeal arises out of a suit filed by the appellants for an injunction against the municipal corporation of ahmedabad which is the respondent before me seeking to restrain the respondent from demolishing the temporary structures standing on survey no. 2 plot nos. 7 and 8 situate in kalupur ward ahmedabad. prior to 1st july 1950 the bombay municipal boroughs act 1925 applied to the city of ahmedabad and for the municipal borough of ahmedabad there was the ahmedabad borough municipality governed by the provisions of the bombay municipal boroughs act 1925 the appellants applied to the chief officer of the ahmedabad borough municipality sometime in 1945 for permission to erect temporary structures on land bearing survey no. 2 plot nos. 7 and 8 in kalupur ward.....
Judgment:

P.N. Bhagwati, J.

1. This Second Appeal arises out of a suit filed by the appellants for an injunction against the Municipal Corporation of Ahmedabad which is the respondent before me seeking to restrain the respondent from demolishing the temporary structures standing on Survey No. 2 Plot Nos. 7 and 8 situate In Kalupur Ward Ahmedabad. Prior to 1st July 1950 the Bombay Municipal boroughs Act 1925 applied to the City of Ahmedabad and for the Municipal Borough of Ahmedabad there was the Ahmedabad Borough Municipality governed by the provisions of the Bombay Municipal Boroughs Act 1925 The appellants applied to the Chief Officer of the Ahmedabad Borough Municipality sometime in 1945 for permission to erect temporary structures on land bearing Survey No. 2 Plot Nos. 7 and 8 in Kalupur Ward Ahmedabad. It appears that the Committee of Management of the Ahmedabad Borough Municipality had passed a resolution dated 16th March 1945 authorizing the Chief Officer to grant permission to persons intending to construct temporary structures on their executing a document called Na Dava Kabulat. I am told that normally permission to erect temporary structures was not being granted by the Ahmedabad Borough Municipality but owing to scarcity of building materials it was found necessary to grant permission to erect temporary structures and that is the reason why this resolution was passed by the Committee of Management so that the Chief Officer could in proper cases grant such permission to persons intending to put up temporary structurers on lands belonging to them. Since the permission contemplated by this resolution of the Committee of Management related to construction of temporary structures and the provision for granting of such permission by the Chief Officer was made merely because of shortage of building materials which by its very nature could not be a permanent feature it was provided as a term of the Na Dava Kabulat to be executed by the persons to whom such permission was granted that they would remove the temporary structures put up by them pursuant to such permission whenever the Ahmedabad Borough Municipality or the Government required them to do so and that they would not claim any compensation for such removal from the Ahmedabad Borough Municipality and that if they did not remove the temporary structures and consequently the Ahmedabad Borough Municipality had to get them removed they would reimburse the Ahmedabad Borough Municipality in respect of all such costs as might be incurred by the Ahmedabad Borough Municiparity in getting the temporary structures removed. The application made by the appellants for permission to construct temporary structures on land bearing Survey No. 2 Plot Nos. 7 and 8 was granted by the Chief Officer and by an Order dated 3rd September 1945 the Chief Officer granted permission to the appellants on condition that the appellants executed a Na Dava Kabulat in favour of the Ahmedabad Brough Municipality. The appellants accordingly executed a Na Dava Kabulat in favour of the Ahmedabad Borough Municipality on 22nd January 1946 and the formal permission to construct temporary structures on land bearing Survey No. 2 Plot Nos. 7 and 8 was granted by the Chief Officer to the appellants on 28th January 1946 The appellants thereafter constructed ternporary shops on land bearing Survey No. 2 Plot Nos. 7 and 8 in accordance with the permission granted by the Chief Officer and these temporary shops continued right upto 1st July 1950 when the Bombay Provincial Municipal Corporation Act 1949 came into operation in the City of Ahmedabad. As a result of the application of the Bombay Provincial Municipal Corporations Act 1949 to the City of Ahmedabad the Ahmedabad Borough Municipality became the Municipal Corporation of the City of Ahmedabad and the Municipal Commissioner became entitled to exercise perform and discharge all powers duties and functions conferred or imposed upon or vested in the Municipal Corporation of the City of Ahmedabad. The temporary structures erected by the appellants on land bearing Survey No. 2 Plot Nos. 7 and 8 thereafter continued until 22nd January 1954 when the Municipal Commissioner on behalf of the respondent issued a notice calling upon the appellants to remove the temporary structures within a period of seven days in accordance with the conditions contained in the Na Dava Kabulat and intimating to the appellants that if the appellants failed to do so the respondent would remove the temporary structures departmentally and recover the cost of such removal from the appellants under the conditions contained in the Na Dava Kabulat. Not only did the body of the notice make it clear that the requisition of the Municipal Commissioner to remove the temporary structures was in pursuance of the conditions contained in the Na Dava Kabulat but the subject matter set out at the top of the notice also clearly indicated that it was by virtue of the conditions contained in the Na Dava Kabulat that the appellants were required to remove the temporary structures. Since the respondent threatened by the notice to remove the temporary structures by use of force if the appellants failed to remove the same within a period of seven days the appellants immediately filed the suit against the respondent claiming an injunction to restrain the respondent from demolishing the temporary structures. The respondent contended in the written statement that the suit was not maintainable since it was instituted without giving the requisite notice under Section 487 of the Bombay Provincial Municipal Corporations Act 1949 hereinafter referred to as the Act. The respondent contended in the alternative that even if the suit was maintainable it was liable to fail for the respondent was by virtue of the conditions contained in the Na Dava Kabulat entitled to demolish the temporary structures departmentally by use of force and the appellants were not entitled to restrain the respondent from doing so.

On these pleadings the following issues were framed by the learned trial Judge:

(1) Whether the suit is barred under Section 487 of the Bombay Provincial Municipal Corporations Act as filed without giving a statutory notice?

(2) Whether the plaintiff proves that the defendant has no right to proceed to demolish the suit structure departmentally in pursuance of the agreement dated 4th December 1945 (page 7 of the Tumar) passed by the plaintiff?

(3) Whether the plaintiff proves that the said agreement was given under duress by him? If so what is its effect?

(4) Whether the plaintiff is entitled to the injunction sought?

(5) What order?

It may be mentioned here that the agreement dated 4th December 1945 referred to in these issues was the same as the Na Dava Kabulat mentioned above the date 4th December 1945 being the date of the stamp paper on which the Na Dava Kabulat was executed and having been wrongly taken by the learned trial Judge as the date of the Na Dava Kabulat in place and stead of 22nd January 1946. The learned trial Judge held that the Na Dava Kabulat was not given under duress as alleged by the appellants and was binding on the appellants and that the respondent was entitled under the Na Dava Kabulat to demolish the temporary structures departmentally by use of force. The learned trial Judge also held that notice was required to be given to the respondent under Section 487 before instituting the suit and since the suit was instituted without such notice it was not maintainable and was liable to fail. The learned trial Judge accordingly dismissed the suit with costs.

The appellants carried the matter in appeal to the District Court at Ahmedabad. The learned Assistant Judge who heard the appeal negatived the contentions of the appellants and confirmed the judgment and decree passed by the learned trial Judge. Being aggrieved by the dismissal of their appeal the appellants filed the present Second Appeal before this Court.

2. Mr. G.N. Shah learned advocate on behalf of the appellants relied very strongly on the terms of the notice dated 22nd January 1954 and contended that it was clear from the body as well as the subject matter of the notice that the requisition of the respondent to remove the temporary structures was in pursuance of the conditions contained in the Na Dava Kabulat and that what the respondent was seeking to do by the notice was to enforce the conditions contained in the Na Dava Kabulat. Mr. G.N. Shah contended that since the action of the respondent in respect of which relief was sought by the appellants was an action which the respondent threatened to take in enforcement of a right claimed under the Na Dava Kabulat which was of a contractual nature and was not an action threatened to be taken in pursuance or execution or intended execution of the Act Section 487 did not apply to the suit filed by the appellants against the respondent and it was therefore not necessary to give any notice under that section before instituting the suit against the respondent. On the merits of the case Mr. G.N. Shah argued that on a true construction the Na Dava Kabulat did not confer any right on the respondent to demolish the temporary structures departmentally by use of force. According to Mr. G.N. Shah all that the Na Dava Kabulat provided was that the appellants should remove the temporary structures whenever required to do so by the respondent or the Government without claiming any compensation for such removal from the respondent and that if the appellants did not remove the temporary structures and the respondent had to get the same removed in any lawful manner-which would mean by resort to a Court of law and not by use of force-the appellants would reimburse the respondent in respect of all such costs as might be incurred by the respondent in getting the same removed. The argument of Mr. G.N. Shah was that the respondent was no doubt entitled under the Na Dava Kabulat to get the temporary structures removed if the appellants failed to remove the same but such removal could be effected by the respondent only by lawful means i.e. by resort to a Court of law and not by use of force. Mr. G.N. Shah therefore contended that the notice dated 22nd January 1954 was bad and the respondent was liable to be restrained by an injunction from demolishing the temporary structures departmentally by use of force. Mr. R.M. Shah learned advocate on behalf of the respondent on the other hand supported the judgment of the learned Assistant Judge and contended that on a true construction of the Na Dava Kabulat the respondent was entitled to demolish the temporary structures departmentally by use of force. The Na Dava Kabulat argued Mr. R.M. Shah conferred a right on the respondent to get the temporary structures removed if the appellants failed to remove the same in accordance with the requisition of the respondent and since the mode by which such removal could be effected was not specified in the Na Dava Kabulat the respondent was entitled to effect such removal by any lawful mode which included removal departmentally by use of force. According to Mr. R.M. Shah the mode of enforcement of the terms in the Na Dava Kabulat regarding removal of the temporary structures was left to the choice of the respondent and the respondent was entitled to have the temporary structures removed in any manner it liked including use of force. The action proposed to be taken by the respondent was therefore within the powers of the respondent and the respondent was entitled to act in the manner it proposed to do. This was the first limb of the argument of Mr. R.M. Shah. The second limb of the argument was that apart from the Na Dava Kabulat the respondent was entitled to demolish the temporary structures departmentally by use of force by virtue of Sections 478 and 479 and that the action threatened in the notice dated 22nd January 1954 was therefore in any event not beyond the powers of the respondent. On the question of notice Mr. R.M. Shah contended that the threatened action of the demolition of the temporary structures departmentally by use of force was an act in pursuance or execution or intended execution of the Act within the meaning of Section 487 and that it was therefore necessary to give notice under that section before instituting the suit and that since no such notice was given before the institution of the suit the suit was liable to fail. Mr. R.M. Shah accordingly pressed for dismissal of the appeal.

Before dealing with the merits of the case it would be convenient to dispose of the objection to the suit based on want of notice under Section 487 This objection has been upheld by the learned Assistant Judge and the learned Assistant Judge has taken the view that notice under Section 487 was required to be given before instituting the suit. Now Section 487 in so far as it is material for the purpose of the present appeal prescribes that no suit shall be instituted against the Corporation in respect of any act done or purported to be done in pursuance or execution or intended execution of the Act until the expiration of one month next after notice in writing has been left at the Chief Municipal Office stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney advocate pleader or agent if any for the purpose of such suit. The crucial words in the section are in pursuance or execution or intended execution of the Act. In every case therefore where the defence of want of statutory notice is raised it must be ascertained whether the act in respect of which the suit is filed is an act done or purported to be done in pursuance or execution or intended execution of the Act. Now the test for the purpose of determining whether a particular act is an act done or purported to be done in pursuance or execution or intended execution of the Act is to ascertain whether the act is the direct result of some duty cast upon the Corporation or some authority conferred upon it by the Act. If the act in respect of which the suit is filed satisfies this test Section 487 would apply and the suit would be liable to fail for want of statutory notice. This test has been approved by a Full Bench decision of the Bombay High Court in Ahmedabad Municipality v. Jayantilal reported in A.I.R. (1948) Bombay 98 in the following words:.Only those suits fall within the ambit of the section which are in respect of any thing done or purporting to have been done by the Municipality in pursuance of the Act. The key words are in pursuance of the Act.... Therefore the act done must be the direct result of some duty cast upon the local body or some authority conferred upon it. If it is the direct result of a contract which although the local body is empowered to enter into but is under no obligation to do so then that act is not the act contemplated by the section.

3. I must therefore first ascertain what is the act in respect of which the suit is instituted by the appellants against the respondent and then see whether applying this test the act can be said to be one done or purported to be done in pursuance or execution or intended execution of the Act? The short question which I must ask myself is whether the act in respect of which the suit is instituted by the appellants against the respondent is the direct result of some duty cast upon the respondent or some authority conferred upon it by the Act or is it the direct result of a contract which although the respondent was empowered to enter into he was under no obligation to do so? If it is the former the suit would fall within the ambit of Section 487 but if it is the latter the result would be otherwise.

Turning to the facts it is clear that the appellants filed the suit because the respondent threatened to demolish the temporary structures departmentally by use of force. The act of the respondent which furnished the cause of action to the appellants and necessitated the filing of the suit by the appellants was the threat of the respondent to demolish the temporary structures. It was in respect of this act of the respondent that the appellants filed the suit against the respondent. The question is: was this act of the respondent an act in pursuance or execution or intended execution of the Act? Applying the test formulated above the question may be put in another form: was this act of the respondent the direct result of some duty cast upon the respondent or some authority conferred upon it by some Act? Now the answer to this question is obvious if regard be had to the terms of the notice dated 22nd January 1954. It was by this notice that the respondent threatened to demolish the temporary structures and it was by reason of the threat contained in this notice that the appellants were constrained to file the suit against the respondent. The threat contained in this notice furnished the cause of action to the appellants and necessitated the filing of the suit by the appellants and the terms of this notice must therefore be examined in order to ascertain whether the act threatened by the respondent was by virtue of some duty cast upon the respondent or some right conferred upon it by the Act. This notice clearly shows that the respondent did not claim to be entitled to pull down the temporary structures by virtue of any right or power conferred upon it by the Act nor was the threatened demolition of the temporary structures the direct result of any duty cast upon the respondent. The respondent claimed to be entitled to pull down the temporary structures by virtue of the right arising under the Na Dava Kabulat. It was in exercise of its right under the Na Dava Kabulat that the respondent threatened to remove the temporary structures departmentally by use of force. The body of this notice as well as the subject matter at the top clearly shows that the respondent claimed to be entitled to demolish the temporary structures by virtue of the conditions of the Na Dava Kabulat. In clear and unambiguous language it is stated in this notice that the appellants should remove the temporary structures within a period of seven days and if the appellants fail to do so the respondent would remove the same departmentally in accordance with the conditions of the Na Dava Kabulat. What the respondent was therefore obviously trying to do was to enforce the terms of the Na Dava Kabulat. The Na Dava Kabulat constituted a contract between the appellants and the respondent for it was on the basis of the Na Dava Kabulat that the respondent granted permission to the appellants to erect the temporary structures. The right which the respondent sought to enforce by issuing this notice was thus a contractual right arising out of the Na Dava Kabulat which although the respondent was empowered to take as a condition of granting permission to erect temporary structures it was under no obligation to do so. It clearly follows from this discussion that the respondent was not acting or purporting to act in pursuance or execution or intended execution of any provisions of the Act.

Now realising that this was a complete answer to the objection founded on want of notice Mr. R.M. Shah learned advocate on behalf of the respondent made a valiant but futile attempt to bring the suit within the ambit of Section 487 by putting forward the contention that the conditions in the Na Dava Kabulat which entitled the respondent to remove the temporary structures departmentally by use of force were statutory conditions by reason of by-law 36 of the by-laws framed by the respondent under the Act. I am afraid there is no merit in this contention. By-law 36 merely empowers the respondent to attach special conditions to individual cases in regard to construction of buildings provided that they are not inconsistent with the provisions of the Act. It may be that it was under this by-law that Na Dava Kabulat were taken from persons intending to erect temporary structures for the conditions contained in the Na Dava Kabulat might be said to be special conditions imposed on persons who were granted permission to erect temporary structures; but that would not make the conditions statutory conditions. The conditions might have been attached by the respondent by virtue of the authority derived from this by-law but the fact that the power to impose such conditions was derived from this by-law which is undoubtedly a statutory by-law cannot invest such conditions with statutory character and such conditions cannot be said to be statutory conditions. The respondent being a creature of statute the statute would have to confer authority on the respondent to do various acts and things which it cannot do without such authority and merely because the authority for doing such acts and things is derived from the statute it does not mean that whatever is done by the respondent pursuant to such authority is invested with statutory character. By-law 36 merely confers authority on the respondent to attach special conditions to individual cases since without such authority the respondent would not be entitled to attach such special conditions. The special conditions attached by the respondent pursuant to such authority however do not become statutory conditions. This contention of Mr. R.M. Shah must therefore be rejected, j

4. There was yet another contention put forward by Mr. R.M. Shah in support of his plea that the suit fell within the ambit of Section 487. Mr. R.M. Shah contended that the act of the respondent in issuing the notice dated 22nd January 1954 was within the authority conferred by Sections 478 and 479 and could therefore be said to be an act in pursuance or execution or intended execution of the Act so as to attract the application of Section 487. This contention of Mr. R.M. Shah is also in my opinion without any substance. The terms of the notice dated 22nd January 1954 clearly show that the respondent threatened to demolish the temporary structures not by virtue of any right or power conferred upon it by any provision of the Act but by virtue of the contractual right arising under the Na Dava kabulat. The respondent did not claim to be entitled to pull down the temporary structures by virtue of any authority derived from any provision of the Act but claimed to be entitled to do so in exercise of its contractual right under the Na Dava Kabulat. The act of the respondent in respect of which the suit was filed by the appellants against the respondent could not therefore possibly be said to be the direct result of some duty cast upon the respondent or some authority conferred upon it by the Act so as to bring the suit within the ambit of Section 487. The reliance sought to be placed by Mr. R.M. Shah on Sections 478 and 479 is clearly an after-thought for it is obvious that the respondent did not issue the notice dated 22nd January 1954 under either of those sections. The respondent issued the notice dated 22nd January 1954 only in exercise of its contractual right under the Na Dava kabulat and it is idle to contend that the respondent relied at all on Sections 478 and 479 for the purpose of issuing that notice. It may be that the threat to demolish the temporary structures by use of force contained in the notice dated 22nd January 1954 could be justified by reference to the provisions of Section 478 or Section 479 but it is clear that in issuing the notice dated 22nd January 1954 the respondent did not act in pursuance or execution or intended execution of the provisions of Section 478 or Section 479 but acted in exercise of its contractual right under the Na Dava Kabulat. I do not therefore see how the suit can possibly come within the ambit of Section 487 even if it be ultimately held that the threatened demolition of the temporary structures by use of force though not within the authority of the respondent under the Na Dava Kabulat was within its authority under the provisions of Section 478 or Section 479. This contention of Mr. R.M. Shah must also therefore fail.

That takes me to the merits of the dispute between the parties. The question that arises for consideration is whether the respondent was entitled to demolish the temporary structures departmentally by use of force. The right of the respondent to pull down the temporary structures departmentally by use of force was sought to be supported by Mr. R.M. Shah by a two-fold argument. Mr. R.M. Shah firstly relied on the Na Dava kabulat and contended that on a true construction of the Na Dava Kabulat the respondent was entitled to require the appellants to remove the temporary structures and that if the appellants failed to do so the respondent was entitled to get the temporary structures removed by any lawful means which included removal departmentally by use of force. Mr. R.M. Shah contended in the alternative that even if the Na Dava Kabulat did not authorize the respondent to pull down the temporary structures departmentally by use of force the respondent was entitled to do so by virtue of the provisions of Sections 478 and 419. Both these grounds are however in my opinion not well-founded and the contention of Mr. R.M. Shah based on these grounds must fail.

5. The condition of the Na Dava Kabulat on which Mr. R.M. Shah strongly relied as authorizing the respondent to demolish the temporary structures departmentally by use of force provided that the appellant should remove the temporary structures whenever required to do so by the respondent or the Government and that the appellant should not claim any compensation for such removal from the respondent and that if the appellants failed to remove the temporary structures in accordance with the requisition of the respondent or the Government and the respondent had to get the same removed the appellants should reimburse the respondent in respect of all such expenses as might be incurred by the respondent in getting the same removed. This condition was inserted in all Na Dava Kabulats because permission to erect temporary structures was granted by the respondent as a measure of distress owing to shortage of building materials and it was not intended that temporary structures erected pursuant to such permission should always remain as a permanent eye sore to a healthy and proper development of the city. The idea behind giving permission to erect temporary structures was that so long as the shortage of building materials lasted people should not be inconvenienced for want of premises for residence or business and it was for this purpose that such permission was granted by the respondent to various persons as a temporary measure. The intention obviously was that as soon as the shortage of building materials ceased the persons to whom permission to erect temporary structures was granted should remove such temporary structures and that permanent structures built in accordance with the rules and by-laws of the respondent should take the place of such temporary structures. The condition therefore provided that the appellants should remove the temporary structures whenever required to do so by the respondent or the Government and that the appellants should not claim any compensation for such removal from the respondent. But what would happen if the appellants failed to remove the temporary structures in accordance with the requisition of the respondent or the Government? The condition therefore further provided that if the appellants did not remove the temporary structures as required by the respondent or the Government and the respondent had to get the same removed the appellants should reimburse the respondent in respect of all such expenses as might be incurred by the respondent in getting the same removed. This provision was obviously made with a view to indemnifying the respondent in respect of expenses which might be incurred by the respondent in getting the temporary structures removed if the appellants committed a breach of their covenant to remove the same when required to do so by the respondent or the Government. No right was conferred by this provision on the respondent to get the temporary structures removed. In fact it was not necessary to confer any such right on the respondent for such right existed as a necessary correlative of the obligation imposed on the appellants to remove the temporary structures whenever called upon to do so by the respondent or the Government. If there was an obligation on the appellants to remove the temporary structures whenever required to do so by the respondent or the Government there was equally a corresponding right in the respondent to get the temporary structures removed in enforcement of the obligation against the appellants. All that the condition provided was that if the respondent had to get the temporary structures removed by reason of the failure of the appellants to remove the same the appellants should reimburse the respondent in respect of the expenses incurred by the respondent in getting the same removed. The condition did not provide that if the appellants failed to remove the temporary structures in accordance with the requisition of the respondent or the Government the respondent should be entitled to get the same removed departmentally by use of force. The condition merely provided for reimbursement of the expenses which might be incurred by the respondent in getting the temporary structures removed in exercise of a right which the respondent had by reason of the obligation imposed on the appellants. This right it is obvious the respondent could enforce only by resort to a Court of law. The respondent could not enforce this right by taking the law in its own hands and demolishing the temporary structures departmentally by use of force. If the appellants failed to remove the temporary structures as required by the respondent or the Government the respondent could enforce the obligation against the appellants by an appropriate legal remedy in a Court of law and was not entitled to secure the performance of the obligation by pulling down the temporary structures departmentally by use of force.

Even if the condition could be so read as to confer on the respondent the right to get the temporary structures removed such right could not include the right to demolish the temporary structures departmentally by use of force. The right to get the temporary structures removed could mean only the right to get them removed by due process of law and not by use of force. Whenever a right is conferred on a party to a contract such right can be enforced only though the machinery provided by law and the party on whom such right is conferred cannot enforce it against the other party by taking the law in his own hands. To permit a party to a contract to enforce his contractual right against the other party by use of force would be to encourage lawlessness and disorder. Law always frowns upon any attempt to enforce a disputed right otherwise than by due process of law and this is as it should be for otherwise the rule of law would be subverted and would lake the place of right in settlement of disputes between parties which would be destructive of the protection and security afforded by the supremacy of the principle of rule of law. Whenever a right is disputed and it becomes necessary to enforce the right the party seeking to enforce the right must have recourse to the ordinary machinery of law and cannot take the law in his own hands and enforce the right by use of force against the other party. It must therefore follow that even if the condition is so construed as to confer on the respondent the right to get the temporary structures removed such right could be enforced by the respondent against the appellants only by due process of law and not by use of force unless of course there were express words empowering the respondent to use force for the purpose of enforcing such right against the appellants or such power was conferred on the respondent by necessary intendment. Of course I must make it clear that when I say this I do not wish to be understood to suggest that if a condition were inserted in the Na Dava Kabulat which empowered the respondent to enforce the right to get the temporary structures removed otherwise than by due process of law for example by use of force such a condition would be a valid condition. I have grave doubts whether such a condition authorizing one party to the contract to enforce his contractual right against the other by use of force i.e. otherwise than by due process of law can be regarded as a valid condition. But that is not a question which I need decide for the purpose of this Second Appeal for I do not find anything in the condition contained in the Na Dava Kabulat which could be said to confer on the respondent either expressly or by necessary implication the power to get the temporary structures removed departmentally by use of force. If the intention of the parties were that the respondent should have the right to demolish the temporary structures departmentally by use of force if the appellants failed to carry out the requisition of the respondent or the Government in that behalf I should have expected much clearer language than that actually employed by the parties. All that the condition provided at the highest was that the respondent should be entitled to get the temporary structures removed if the appellants failed to do so. It was not stated as to how this right to get the temporary structures removed should be enforced by the respondent and in the absence of any provision in that behalf it is axiomatic that this right could be enforced by the respondent only by availing itself of the machinery provided by law and not by use of force. This proposition can best be illustrated by an example which is of more frequent occurrence. Take the ordinary case of a landlord and a tenant. Suppose the lease given by the landlord to the tenant is for a period of six months and it is provided in the lease that on the expiration of the period of six months the tenant should hand over possession of the premises to the landlord and if the tenant fails to do so the landlord should be entitled to evict the tenant from the premises. Now in a case like this a right is no doubt conferred on the landlord to evict the tenant from the premises if he fails to hand over possession of the premises to the landlord on the expiration of the period of the lease but I do not think it can be disputed that the landlord cannot enforce this right against the tenant by use of force. The landlord cannot physically throw out the tenant from the premises by use of force but he must resort to a Court of law for the purpose of enforcing this right against the tenant for this right can be enforced only through the machinery provided by law. The same argument which was urged in the present case might well be urged also in this case and it might be contended that since the made by which the right to evict the tenant from the premises is not specified the mode of enforcement of the right is left to the choice of the landlord and the landlord is therefore entitled to evict the tenant from the premises in any manner he likes including use of force. This argument however carries its own refutation and is contrary not only to legal principles but also to well-accepted notions of jurisprudence. It is elementary that howsoever good the title of a person may be to possession of immovable property he cannot forcibly dispossess another of the property by use of force but must recover possession of the immovable property from that other by due process of law. If a person in possession of immovable property is dispossessed of such immovable property otherwise than in due course of law even by a person entitled to possession of such immovable property the law will restore possession of such immovable property to the dispossessed holder without regard to the question of title for the law does not permit rights to be established and enforced otherwise than by due process of law. It must therefore follow as a necessary corollary that just as in the given case the landlord cannot evict the tenant from the premises by use of force so also in the present case the respondent could not get the temporary structures removed departmentally by use of force. The right to get the temporary structures removed could be exercised by the respondent only by due process of law that is by availing of the machinery of Courts provided by law and not by use of force. I am therefore of the opinion that there was nothing in the Na Dava Kabulat which entitled the respondent to demolish the temporary structures departmentally by use of force and that the right to demolish the temporary structures departmentally by use of force claimed by the respondent could not be founded on the Na Dava Kabulat.

Mr. R.M. Shah then tried to take shelter behind the provisions of Section 478 and contended that in any event the respondent was entitled to demolish the temporary structures departmentally by use of force by virtue of the provisions contained in that section. Section 478 is in the following terms:

478 (1) If any work or thing requiring the written permission of the Commissioner under any provision of this Act or any rule, regulation or by-law is done by any person without obtaining such written permission of if such written permission is subsequently suspended or revoked for any reason by the Commissioner such work or thing shall be deemed to be unauthorised and subject to any other provision of this Act the Commissioner may at any time by written notice require that the same shall be removed pulled down or undone as the case may be by the person so carrying out or doing. If the person carrying out such work or doing such thing is not the owner at the time of such notice then the owner at the time of giving such notice shall be liable for carrying out the requisitions of the Commissioner.

(2) If within the period specified in such written notice the requisitions contained therein are not carried out by the person or owner as the case may be the Commissioner may remove or alter such work or undo such thing and the expenses thereof shall be paid by such person or owner as the case may be.

6. I do not see how Section 478 can possibly apply to the facts of the present case. Section 478 deals with two classes of cases. The first class of cases is where any work or thing requiring the written permission of the Municipal Commissioner under any provision of the Act or any rule regulation or by-law is done by any person without obtaining such written permission and in such a case Section 478 provides that the work or thing go done shall be deemed to be unauthorized and subject to any other provision of the Act the Municipal Commissioner may at any time by written notice require that the same shall be removed pulled down or undone as the case may be by the person so carrying out or doing. The second class consists of cases where any work or thing requiring the written permission of the Commissioner under any provision of the Act or any rule regulation or bylaw is done by any person after obtaining such written permission but such written permission is subsequently suspended or revoked for any reason by the Municipal Commissioner; in such a case also the work or thing done is deemed to be unauthorized and the Municipal Commissioner is empowered by Section 478 by written notice to require that the same shall be removed pulled down or undone as the case may be by the person so carrying out or doing. It is therefore obvious that Section 478 can apply only where any work or thing requiring the written permission of the Municipal Commissioner under any provision of the Act or any rule regulation or by-law is carried out or done by any person without obtaining such written permission after the commencement of the Act or where such written permission of the Municipal Commissioner obtained under any provision of the Act or any rule regulation or by-law after the commencement of the Act is subsequently suspended or revoked for any reason by the Municipal Commissioner. Section 478 declares that in such a case the work or thing carried out or done shall be deemed to be unauthorized and the Municipal Commissioner may at any time by written notice require that the same shall be removed pulled down or undone as the case may be by the person who has carried out or done the work or thing. The plain and grammatical construction of Section 478 requires that the work or thing which is deemed to be unauthorized under that section must have been done or carried out after the commencement of the Act. Section 478 is obviously designed to hit any work or thing carried out or done after the commencement of the Act in cases where the work or thing is done or carried out without the written permission of the Municipal Commissioner or where such written permission having been obtained from the Municipal Commissioner is subsequently suspended or revoked for any reason by the Municipal Commissioner. When the written permission given by the Municipal Commissioner is subsequently suspended or revoked by the Municipal Commissioner for any reason the effect is as if no such written permission was at any time given by the Municipal Commissioner and the work or thing carried out or done during the subsistence of such written permission is therefore deemed to be unauthorized. Both the classes of cases contemplated by Section 478 are therefore in effect and substance classes of cases where the work or thing is carried out or done without the written permission of the Municipal Commissioner; in one class of cases the written permission is not given at all by the Municipal Commissioner while in the other class of cases the written permission having been given is subsequently suspended or revoked by the Municipal Commissioner. Section 478 has been enacted to prevent the carrying out or doing of the work or thing in both the classes of cases and it is therefore obvious that the work or thing contemplated by Section 478 must be work nothing carried out or done after the commencement of the Act. Section 478 could not have been enacted to prevent the carrying out or doing of a work or thing which was already carried out or done prior to the commencement of the Act. The language of Section 478 also makes it clear that the work or thing which is intended to be hit by that section is work or thing carried out or done after the commencement of the Act. If such work or thing is carried out or done without the written permission of the Municipal Commissioner or if the written permission having been granted by the Municipal Commissioner for the carrying out or doing of such work or thing is subsequently suspended or revoked by the Municipal Commissioner such work or thing is declared by Section 478 to be unauthorized and the Municipal Commissioner is empowered at any time by written notice to require that the same shall be removed pulled down or undone as the case may be by the person who carried out or did such work or thing. Section 478 therefore on a true construction applies only to work or thing carried out or done after the commencement of the Act. In the present case the temporary structures were erected by the appellants long prior to the commencement of the Act and Section 478 cannot therefore be invoked by the respondent for the purpose of justifying the threatened demolition of the temporary structures.

7. But apart from this there is another equally cogent and effective reason why in my opinion Section 478 cannot avail the respondent. The argument founded on Section 478 was put on behalf of the respondent in the following form. The temporary structures sought to be demolished by the respondent were erected by the appellants after obtaining the written permission of the Chief Officer of the Ahmedabad Borough Municipality on 28th January 1946 and such written permission given by the Chief Officer of the Ahmedabad Borough Municipality not being inconsistent with the provisions of the Act continued in force after the enactment of the Act under Clause 5 of Appendix IV of the Act. The written permission given by the Chief Officer of the Ahmedabad Borough Municipality thus had the same force and effect as if it were the written permission of the Municipal Commissioner under the Act or any rule regulation or by-law. When the Municipal Commissioner required the appellants to remove the temporary structures within a period of seven days from the notice dated 22nd January 1954 the Municipal Commissioner in effect and substance suspended or revoked the written permission granted to erect the temporary structures and the temporary structures were therefore deemed to be unauthorized and the Municipal Commissioner was entitled to require the same to be removed or pulled down by the appellants. This argument however suffers from two major defects. The first defect is that it equates the written permission given by the Chief Officer of the Ahmedabad Borough Municipality with the written permission of the Municipal Commissioner mentioned in Section 478. It is no doubt true that Clause 5 of Appendix IV of the Act contains a saving provision in regard to permissions granted under the Bombay Municipal Boroughs Act 1925 But the saving provision merely continues such permissions in force in so far as they are not inconsistent with the provisions of the Act and does not create any legal fiction deeming such permissions as permissions granted by the Municipal Commissioner under the Act or any rule regulation or bylaw. The written permission granted by the Chief Officer of the Ahmedabad Borough Municipality under the Bombay Municipal Boroughs Act 1925 therefore undoubtedly continued in force after the commencement of the Act by virtue of Clause 5 of Appendix IV of the Act but it continued as a written permission granted by the Chief Officer of the Ahmedabad Borough Municipality under the Bombay Municipal Boroughs Act 1925 and could not be deemed to be a written permission granted by the Municipal Commissioner under the Act or any rule regulation or by-law. The written permission of the Chief Officer of the Ahmedabad Borough Municipality under which the temporary structures were erected by the appellants could not therefore be equated with the written permission of the Municipal Commissioner under any provision of the Act or any rule regulation or by-law and even if the action of the Municipal Commissioner in issuing the notice dated 22nd January 1954 could be treated as suspension or revocation of such written permission it could not be said that the necessary conditions for the application of Section 478 were satisfied. But apart from this the other defect in the argument urged on behalf of the respondent was that the argument rested on the erroneous assumption that the action of the respondent in issuing the notice dated 22nd January 1954 amounted to suspension or revocation of the written permission granted by the Chief Officer of the Ahmedabad Borough Municipality to the appellants to erect the temporary structures. I do not see how the requisition of the Municipal Commissioner in the notice dated 22nd January 1954 to the appellants to remove the temporary structures within a period of seven days could possibly be said to amount to suspension or revocation of the written permission granted by the Chief Officer of the Ahmedabad Borough Municipality to erect the temporary structures. The requisition to remove the temporary structures within a period of seven days was made by the Municipal Commissioner by virtue of the condition attached to the granting of the written permission to erect the temporary structures and could not amount to suspension or revocation of such written permission. The Municipal Commissioner in calling upon the appellants to remove the temporary structures within a period of seven days sought to enforce a condition subject to which the written permission was granted to erect the temporary structures and there was no suspension or revocation of such written permission. The condition subject to which the written permission was granted by the Chief Officer of the Ahmedabad Borough Municipality to the appellants itself provided that the respondent could at any time require the appellants to remove the temporary structures and it was in enforcement of this condition that the Municipal Commissioner issued the notice dated 22nd January 1954 calling upon the appellants to remove the temporary structures within a period of seven days. The Municipal Commissioner did not seek to do anything contrary to the written permission or opposed to the written permission so as to constitute suspension or revocation of the written permission. What the Municipal Commissioner sought to do was to enforce a condition of the written permission. That is very much different from saying that the Municipal Commissioner suspended or revoked the written permission. I cannot therefore persuade myself to take the view that when the Municipal Commissioner issued the notice dated 22nd January 1954 calling upon the appellants to remove the temporary structures within a period of seven days the Municipal Commissioner either suspended or revoked the written permission granted by the Chief Officer of the Ahmedabad Borough Municipality to the appellants to erect the temporary structures. If that is so I do not see how the provisions of Section 478 can possibly help the respondent to sustain the validity of the action threatened to be taken by the respondent.

Mr. R.M. Shah also relied on the provisions of Section 479 and tried to justify the action threatened to be taken by the respondent by reference to the provisions of that section. Section 479 runs as follows:

479 (1) Subject to the provisions of this Act and the rules by-laws regulations and standing orders when any requisition or order is made under any provision of this Act or of any rule by-law regulation or standing order by written notice by the Commissioner or by any municipal officer duly empowered in this behalf a reasonable period shall be prescribed in such notice for carrying such requisition or order into effect and if within the period so prescribed such requisition or order or any portion of such requisition or order is not complied with the Commissioner may take such measures or cause such work to be executed or such thing to be done as shall in his opinion be necessary for giving due effect to the requisition or order so made; and unless it is in this Act otherwise expressly provided the expenses thereof shall be paid by the person or by any one of the persons to whom such requisition or order by addressed.

(2) The Commissioner may take any measure execute any work or cause anything to be done under this section whether or not the person who has failed to comply with the requisition or order is liable to punishment or has been prosecuted or sentenced to any punishment for such failure.

Now Section 479 is on the face of it inapplicable for the foundation for the exercise of the power of the Municipal Commissioner under that section is that a requisition or order should be made under any provision of the Act or rule regulation by-law or standing order by written notice by the Municipal Commissioner or by any Municipal Officer duly empowered in that behalf and such requisition or order or any portion of such requisition or order should not be complied with within the period prescribed in such notice for carrying out such requisition or order into effect. This foundation is obviously lacking in the present case. I do not find here any requisition or order made under any provision of the Act or any rule regulation by-law or standing order by written notice by the Municipal Commissioner or by any Municipal Officer duly empowered in that behalf. The notice dated 22nd January 1954 was no doubt a notice issued by the Municipal Commissioner and it did make a requisition or order on the appellants to remove the temporary structures within a period of seven days but the requisition or order could not be said to have been made under any provision of the Act or any rule regulation by-law or standing order. The requisition or order made by the Municipal Commissioner by the notice dated 22nd January 1954 was as I have pointed out above made in exercise of the right arising under the Na Dava Kabulat and was not made under any provision of the Act or any rule regulation by-law or standing order within the meaning of Section 479. Section 479 cannot therefore avail the respondent and the contention of Mr. R.M. Shah based on that section must fail.

8. It is clear from the aforesaid discussion that the respondent was not entitled to demolish the temporary structures departmentally by use of force and that the notice dated 22nd January 1954 issued by the Municipal Commissioner on behalf of the respondent threatening to demolish the temporary structures departmentally by use of force was not a valid notice. The appellants must therefore succeed and the respondent must be restrained by a permanent injunction from acting upon the notice dated 22nd January 1954 and from demolishing or pulling down the temporary structures by use of force or otherwise than by due process of law. I therefore allow the second appeal set aside the decree passed by the learned Assistant Judge and issue a permanent injunction restraining the respondent by itself its servants and agents from acting upon the notice dated 22nd January 1954 and from demolishing or pulling down by use of force or otherwise than by due process of law the temporary structures standing on Survey No 2 Plot Nos. 7 and 8 situate in kalupur Ward Ahmedabad. The respondent will pay the costs of the second appeal to the appellants.


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