FA/222/1996 of FAJALMIYA RASULMIYA SHAIKH C/OHINDUSTAN AUTO CENTRE Vs AHMEDABAD MUNICIPAL CORPORATION on 20 December 1996

ORAL ORDER

The learned City Civil Judge, Ahmedabad by his well reasoned judgment and order, after considering the evidence onrecord, has arrived at a finding that the appellant is inunauthorised occupation of the suit cabin, and that he hadmade encroachment upon the part of the street land by puttingup cabin and, therefore, he is not entitled to the reliefsprayed for in the suit. As can be seen from the admission ofthe appellant himself that the respondent Corporation has notgiven any licence to do business ;the land below thesuperstructure of ther suit shop belongs to the Corporation;the respondent Corporation had not recovered any amount fromhim for regularisation of his cabin ; on 21-5-1987 the suitshop was demolished and removed by the Corporation and that hehad no right over the land of ther suit shop and he has nodocumentary evidence to show that the Corporation allotted thesuit cabin to Johatram, there is hardly any case in favour ofthe appellant. Mr.Hathi for the appellant has submitted thatthere is nothing on record to show that the suit premises aresituated on the public street and, therefore, the Corporationhas no power to remove the encroachment under section 231 ofthe BPMC Act. Mr. Hathi has also made a grievance that theneighbouring shops have been regularised by the Corporationand by not regularising the shop of the appellant, theappellant has been discriminated upon. I do not find anymerit in the submissions of Mr. Hathi. It is the case of theCorporation right from the beginning that the appellant hasmade encroachment on the part of the street land which causeshindrances and interruption to the public in passing andre-passing to the street. As per the evidence of VinodbhaiLaljibhai Panchal ,Ex.75, an officer of the Estate Department,examined on behalf of the respondent, the suit premises are onthe road and they create obstruction to the public in theingress and egress and that the Corporation has not given any permission or licence to the appellant to carry on business inthe suit premises. Similarly as per the evidence of CivilEngineer Mr. Gyasuddin Malik and the map on record, it isclearly established that the suit premises are situated on thepublic street kept open for the ingress and egress for thepublic at large. In view of this it is not open to theappellant to make a grievance about the alleged regularisationmade by the Corporation in favour of the other shop owners.Since the appellant has failed to establish any legal rightover the suit premises, he is not entitled to take recourse tothe so-called regularisation alleged to have been made of theother shops. In view of what is discussed above, theCommissioner was justified in proceeding with the removal ofthe illegal construction erected on the public street inexercise of his powers under Section 231 of the BPMC Act.There being no substance in the appeal, the same is dismissedsummarily.

At this stage Mr. Hathi requests to continue thestatus-quo for a reasonable period to enable him to approachthe higher Court. Considering the facts and circumstances ofthe case and more particularly since the appellant iscarrying on business in the suit premises , the respondent isdirected to maintain status-quo as of date for a period of sixweeks from today.

�����(K.R.Vyas,J.)Verified copy