A'Bad Municipal Corporation Vs Jayendragiri Trikamgiriji Mahant

1.This appeal is filed by Ahmedabad
Municipal Corporation and others against the
judgment and decree dated 29.11.1989 rendered by
the learned City Civil Judge (5th Court) in Civil
Suit No.3246 of 1986 so far as it imposes a fine
of Rs.2,000/- on the appellant no.1.

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2.This appeal is pending since 1991. The
endorsement on the board suggests that respondent
nos.3 and 4 are unserved and, therefore, this
Court issued fresh notice on 22.1.2015 to
respondent nos.3 and 4. However, the report filed
by the bailiff suggests that respondent nos.3 and
4 are not found and identified and, therefore,
the process was returned as unserved. From the
record, it appears that the respondent nos.3 and
4 herein are the original defendant nos.4 and 5
and therefore their presence is otherwise not
required for deciding the issue involved in this
appeal and, therefore, when this appeal is very
old and issue involved is very limited, this
Court has taken up the same for final hearing. It
is relevant to observe that the original
plaintiffs, though served, have not filed
appearance before this Court.

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C/FA/541/1991 JUDGMENT

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seeks permission to delete the present respondent
nos.3 and 4 who are the original defendant nos.4
and 5 because they are formal parties in this
appeal and their presence is not required for
deciding the issue involved in this appeal.
Permission as prayed for is granted. Respondent
nos.3 and 4 stand deleted from the present
proceedings.

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4.That the original plaintiffs filed the
suit for mandatory injunction requiring defendant
nos.1,2 and 3-Municipal Corporation and its
officers to remove the drainage pipes installed
by them in the property of joint ownership of
both the plaintiffs and the 6th defendant situated
at survey no.346 and its sub-numbers being 346/1
and 346/3 admeasuring 31 gunthas situated at
behind Dudheshwar Water Works, Mahakali Temple
Road, Ahmedabad. The suit was also filed for
permanent injunction against them from relaying
any such drainage line or pipes or providing any
water closet, toilet or water connection in the
suit land belonging to the plaintiffs and 6th
defendant. It is the case of the plaintiffs that
the suit land in question is a chawl inhabitated
by defendant nos.4 and 5 amongst other persons.
It is the further case of the plaintiffs in the
suit that plaintiffs along with defendant no.6
own the property situated in Dariapur-Kazhipur,

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Page 3 of 10

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C/FA/541/1991 JUDGMENT

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behind Dudheshwar Water Works. For partition of
the suit land amongst the members of the HUF,
Civil Suit came to be filed in which the decree
was passed on 6.8.1982. In the said property,
there is a temple and certain portion of the land
is being used as `Samadhi'. In certain other
portion of the property, there are certain
hutments. In view of the decree dated 6.8.1982
drawn by the Civil Court, certain property came
to the share of the plaintiffs whereas certain
portion of the property came in possession of the
defendant no.6 and others. There are 39 hutments.
The remaining area which was common was used as
`Samadhi' place and that could not be partitioned
by metes and bounds. The plaintiffs and defendant
no.6 were keeping it for the common use of the
people of the sect. It is further the case of the
plaintiffs that defendant nos.4 and 5 are the
tenants of the said property and because of the
instigation of the said defendants, the other
tenants with defendant nos.4 and 5 gave an
application to the defendant no.1-Ahmedabad
Municipal Corporation for grant of water
connection, drainage line and for construction of
water closets in the suit land. It is the case of
the plaintiffs that there is a facility of
latrine and water connection at the boundary of
the land in question given by defendant no.1-
Corporation and therefore it cannot be said that

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C/FA/541/1991 JUDGMENT

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tenants are without the said facilities. It is
further contention of the plaintiffs that the
plaintiffs initially filed Civil Suit No.603 of
1980. In the said proceedings, defendant no.1-
Corporation had filed a pursis-cum-undertaking
vide Exh.15 wherein it was stated that the
Corporation does not desire to carry out the work
of constructing public latrines/water closets in
the property of the plaintiffs and, therefore,
the said suit was withdrawn. It is the grievance
of the plaintiffs in the present suit that
despite such undertaking given by the defendant-
Corporation, without intimating the plaintiffs,
they have put drainage line in the property of
the plaintiffs. Hence, this suit is filed for
mandatory injunction and for removal of the
drainage line etc.

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5.In the said suit, the present
appellants-original defendant nos.1 to 3 have
filed the written statement Exh.28 in which it
was mainly pointed out that under the provisions
of Bombay Provincial Municipal Corporation Act of
1949, it is the duty of the Corporation to
provide certain basic amenities to the tax
payers. Under Section 188 of the said Act, the
plaintiffs are not entitled to pray for mandatory
injunction against the Corporation because the
Municipal Commissioner retains inherent power to

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C/FA/541/1991 JUDGMENT

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grant basic amenities to people at large in case
the landlord refuses to provide or comes in the
way of providing such basic amenities like water
facilities, drainage facilities, water closet
etc. to its tenants, if the tenants so apply to
the Corporation. It was further contended that
there is a deliberate attempt on the part of the
plaintiffs to harass the tenants and various
litigations are pending between landlords and
tenants. The Corporation has further contended
that pursis Exh.15 was given in Civil Suit No.603
of 1980. However, no breach has been committed by
the Corporation and they have not constructed any
water closet as undertaken by them. However, only
drainage line was laid down for which no
undertaking has been given by the Corporation.

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6.The defendant no.6 filed written
statement Exh.61 and supported the case of the
plaintiffs. The defendants no.4 and 5 though duly
served had not filed any written statement.

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7.The trial Court framed the issues at
Exh.45. During the course of the trial, the
plaintiffs examined plaintiff no.2 at Exh.51 and
produced documentary evidence Exh.48 to 50 and
the certified copy of the order passed in Civil
Suit No.603 of 1980 at Exh.75. The defendant-
Corporation had not examined any witness nor

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C/FA/541/1991 JUDGMENT

¶45

produced any documentary evidence in support of
its case whereas defendant no.6 examined himself
at Exh.68 and documentary evidence at Exh.70 and
71 were produced.

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8.On the basis of the documentary as well
as oral evidence produced on record, the learned
trial Court held that plaintiffs are not entitled
to claim any of the reliefs prayed for and,
therefore, the suit is dismissed. However, while
disposing of the suit of the plaintiffs, the
present appellants-original defendant nos.1 to 3
were directed to pay Rs.2,000/- by way of fine on
the ground that the appellants herein have not
complied with their undertaking given in the
earlier suit.

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9.Theappellantshave,therefore,

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preferred this appeal against the direction given
by the learned trial Court to pay an amount of
Rs.2,000/- by way of fine to the plaintiffs.

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10.Learned advocate Mr.Bhatt appearing for
learned advocate Mr.Tanna for the appellants
mainly submitted that the Corporation has not
breached the undertaking given by it in the
earlier suit. He further contended that it is the
duty of the Corporation to provide the drainage
facilities to the persons who are residing in the

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C/FA/541/1991 JUDGMENT

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Corporation area as per the provisions of the
BPMC Act. He referred to the observation made by
the learned trial Court and submitted that
learned Judge, having once held that no breach of
undertaking is committed by the Corporation,
should not have awarded Rs.2,000/- by way of fine
to the plaintiffs.

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11.Learned advocate further contended that
the Corporation was duty bound to give basic
amenities to the tenant as they have applied for
the same and even while doing so, Corporation has
not committed any breach of the conditions of
undertaking filed by it before the Court in the
previous suit. He further contended that
Rs.2,000/- has been already paid to the
plaintiffs. However, the Corporation has filed
the appeal on a limited issue that the order
passed by the learned trial Court may not be
treated as precedent in the subsequent cases.

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12.Learned advocate has referred to the
order dated 1.5.1991 passed by this Court in
Civil Application No.2522 of 1990 in First Appeal
No.541 of 1991 and submitted that the appellants
shall not, pending the appeal, crave for getting
back Rs.2,000/- which the respondents have
recovered.

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C/FA/541/1991 JUDGMENT

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13.I have considered the arguments
canvassed on behalf of learned advocate for the
appellants. I have also gone through the record.
The issue involved in this appeal is in a very
narrow compass; whether the trial Court was
justified in imposing fine of Rs.2,000/- on the
present appellants or not. From the record, it is
clear that the learned trial court has dismissed
the suit filed by the plaintiffs and also
observed that before laying the water pipe line,
the Corporation has not issued notice to the
plaintiffs who are owners of the land and,
therefore, the Corporation has not fulfilled the
undertaking given to the Court. It is observed
that without due process of law, the Corporation
will not provide any water closet or water pipe
line as per the said undertaking. However, no
show cause notice was issued. In my view, the
aforesaid findings are not correct. It is the
duty of the Corporation to provide the basic
facilities to the persons who are residing within
the limits of the Corporation. In the present
case, the drainage line was laid by the
Corporation and, therefore, there was no breach
of the undertaking as observed by the learned
trial Court.

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14.Hence, this appeal is partly allowed.
The judgment and order dated 29.11.1989 passed by

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C/FA/541/1991 JUDGMENT

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the learned City Civil Judge, (5th Court), in
Civil Suit No.3246 of 1986 is quashed to the
extent it imposes a fine of Rs.2,000/- on the
appellant no.1. However, once the Corporation has
already paid Rs.2,000/- by way of fine imposed by
the trial Court, at this stage, it is not proper
for this Court to direct the plaintiffs to refund
the said amount to the Corporation. However, it
is made clear that the observation made by the
learned trial Court shall not be treated as
precedent in any other proceedings.

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(VIPUL M. PANCHOLI, J.)

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Srilatha

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A'Bad Municipal Corporation v. Jayendragiri Trikamgiriji Mahant

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A'Bad Municipal Corporation v. Jayendragiri Trikamgiriji Mahant

Case brief

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