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AO/39/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 39 of 2011
To
APPEAL
FROM ORDER No. 42 of 2011
With
CIVIL
APPLICATIONS No. 1219 of 2011
TO
CIVIL
APPLICATIONS NO. 1222 OF 2011
=========================================================
ASHOKBHAI
NATWARLAL SHAH - Appellant(s)
Versus
MUNICIPAL
CORPORATION OF THE CITY OF AHMEDABAD - Respondent(s)
=========================================================
Appearance
:
MR
HARDIK C RAWAL for
Appellant(s) : 1,MR NIMESH V DIXIT for Appellant(s) : 1,MRS MH RAWAL
for Appellant(s) : 1,
HL PATEL ADVOCATES for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 15/02/2011
ORAL
ORDER
1. The
present Appeals from Order have been preferred by the appellants
being aggrieved by the order dated 11.10.2010 passed by the City
Civil Judge, Ahmedabad below notice of motion Ex. 6/7 which came to
be rejected.
2. It
is the case of the appellants that by virtue of public notice dated
27.04.2008 issued under Section 210(1)(b), the respondent intended to
widen the existing road as a result of which the appellants fear loss
of income. After issuance of final notice pursuant to objections by
the appellants, the appellant filed Civil Suit No. 691 of 2008 before
the City Civil Court, Ahmedabad challenging the action of the
respondent in which application for interim injunction was preferred
below notice of motion Ex. 6/7 which came to be rejected vide order
dated 11.10.2010. Hence the present Appeals from Order is filed.
3. Mr.
Rawal, learned advocate appearing for the appellants has submitted
that this is a case of colourable exercise of powers as without
considering the objections raised by the appellants in proper
perspective and without considering the other viable alternatives the
final decision to raze the sources of income of the appellants is
taken which will deprive the appellants of their sources of income.
4. This
court has heard learned advocates for the parties and perused the
papers on record including the impugned order. The trial court has
considered provisions of section 210 of the B.P.M.C. Act and in para
9 observed as under:
“9.
Perusal of the above provision makes it clear that the Muni.
Commissioner is empowered to prescribe the road-line u/s 210 of the
B.P.M.C. Act and provision of sec. 209 and/or sec. 77, 78 and 79 are
not attracted as submitted by the learned adv. Mr. Dixit and it also
emerges from the above provision that this being fresh line in
subsitution of original line, the case falls under the provision of
sec. 210(1)(b) of the B.P.M.C. Act. The procedure required to be
followed is very clearly stated in the provision and the documentary
evidence as well as pleadings filed by the defendant Corp. makes it
clear that the same has been followed and the objection filed by the
plaintiff and produced on record by the plaintiff reflects that
sufficient opportunity was given to the plaintiff to make his
representation and as such the say of the plaintiff that he has not
given any opportunity to make requisite representation cannot be
believed. The say of the plaintiff that such re-prescription of the
road-line is not the requirement and is colourable exercise of the
powers is not supported by any evidence. The Muni. Commissioner is
prescribing or re-prescribing the road line after consultation of
various departments and after detailed study of roads and
cross-roads as well as flow of traffic on the roads. It is true that
due to this road-line, the plaintiff will be put to some loss but at
the same time, these road lines are prescribed in the interest of
public at large and to give smooth traffic to public at large and
hence, I am of the opinion that the public interest weigh more than
the individual interest. I agree with the submissions made by
Learned adv Mr. Vasu for the defendant and agreed that neither there
is any illegality in the notice nor there is anylacuna in following
the procedure as laid down u/s. 210(1)(b) of the B.P.M.C. Act.
Neither, I find any prima-facie case of the plaintiff nor balance of
convenience in favour of the plaintiff and as observed by me earlier,
interest of public at large is involved in the present case and as
such, balance of convenience is in favour of the defendant-Corp. And
hence, the notice of motion taken out by the plaintiff fails and I
pass the following order:-”
5. This
court is in complete agreement with the reasonings adopted and
findings arrived at by the trial court. The Appeals from Order are
devoid of any merits and deserve to be dismissed.
6. In
the premises aforesaid, Appeal from Order is dismissed. However, it
is clarified that the respondent corporation shall not take any
action till 04.03.2011. It is also clarified that if the appellant
files any application before the trial court for expediting the suit,
the trial court shall expedite the same.
7. In
view of the order in Appeals from Order, Civil Applications shall not
survive and are accordingly disposed of.
(K.S.
JHAVERI, J.)
Divya//
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