SCA/4970/1987 of NADIAD SAHER SHRAMJIVI NAGRIK SAHAKARI SOCIETY LIMITED Vs NADIAD NAGARPALIKA on 13 July 1995

ORAL JUDGMENT

The judgment and the order passed by the learned 2ndJoint District Judge of Kheda at Nadiad on 29th August 1987in Civil Miscellaneous Appeal No. 95 of 1986 is under challenge in this petition under Articles 226 and 227 of theConstitution of India. By his impugned order, the learnedlower appellate Judge accepted the appeal filed by and onbehalf of the Nadiad Nagarpalika (respondent No.1 herein) andset aside the order passed by the learned Civil Judge (S.D.)at Nadiad below the application at Exh. 5 in Regular CivilSuit No. 32 of 1986. By his aforesaid order, the learnedTrial Judge had directed the parties to maintain status quoby not compelling members of the petitioner herein forremoval of their lorries on public streets.

2. It is not necessary to set out in detail the factsgiving rise to this petition. It may be sufficient to notethat the petitioner is a co-operative society having itsmembers as lorriwalas. These members of thepetitioner-society were keeping their lorries in stationaryposition on public streets. It appears that their stationarylorries on public streets obstructed the pedestrian and thevehicular traffic thereon. Thereupon respondent No.1 wantedto remove them from public streets. The petitioner thereforefiled one suit in the court of the Civil Judge (S.D.) atNadiad inter alia for a permanent injunction restrainingrespondent No.1 herein from compelling members of thepetitioner to remove their lorries in question. It came tobe registered as Civil Suit No. 32 of 1986. The petitionerherein made an application for an interim relief in thenature of the relief of permanent injunction claimed by it inthe suit. It was taken on record as Exh. 5. After hearingthe parties, by his order passed on 31st March 1986therebelow, the learned Trial Judge granted to the petitionerthe desired interim relief. Its copy together with theapplication for interim relief is at Annexure E to thispetition. That aggrieved respondent No.1 herein. Ittherefore carried the matter in appeal before the DistrictCourt of Kheda at Nadiad. Its appeal came to be registeredas Civil Miscellaneous Appeal No. 95 of 1986. It appears tohave been assigned to the learned 2nd Joint District Judge.After hearing the parties, by his judgment and order passedon 29th August 1987 in the aforesaid appeal, the lowerAppellate Court was pleased to accept the appeal and to setaside the order passed by the learned Trial Judge at AnnexureE to this petition. A copy of the judgment and the orderpassed in appeal as aforesaid is at Annexure F to thispetition. The aggrieved petitioner has thereupon invoked theextra-ordinary jurisdiction of this court by means of thispetition under Articles 226 and 227 of the Constitution ofIndia for questioning the correctness of the judgment and theorder at Annexure F to this petition.

3. Shri Parikh for the petitioner has invited my attentionto two communications of 13th February 1985 and 18th February 1985 addressed to the petitioner and the Collector of Khedarespectively and submitted that respondent No.1 as way backin 1985 proposed creation of a shopping centre for smallshopkeepers, and yet nothing concrete has been done by or onbehalf of respondent No.1 so far. Copies of thesecommunications are at Annexures A and B respectively to thispetition.

4. It cannot be gainsaid that it would be a duty ofrespondent No.1 municipality to create a market. Derelictionof duty on the part of respondent No.1 does not entitle thepetitioner or its members to encroach upon public streets forcarrying on their business however small in magnitude ornature.

5. I am fortified in my view by the binding Division Benchruling of this court in the case of Gulamali Gulamnabi Shaikhv. The Municipal Commissioner and Ors. reported in 1986G.L.H. 616. In that case also public streets of Ahmedabadwithin the municipal areas were encroached for carrying onsmall business and they moved this court against theirremoval from public streets. This very contention was urgedbefore this court that an obligation was cast on theMunicipal Corporation of Ahmedabad to construct and tomaintain markets. in that context, this court has held thatcasting of such obligations on the municipal corporation doesnot confer any rights on hawkers to carry on business onpublic streets. Sitting as a single Judge I am indeed boundby the aforesaid Division Bench ruling of this court. Evenotherwise, I am in respectful agreement therewith. Theaforesaid Division Bench ruling of this court is on all foursapplicable in the present case. What applies to publicstreets within municipal areas of Ahmedabad would beapplicable to municipal areas of any other city.

6. Shri Parikh for the petitioner has made a grievance thatno principles of natural justice were observed beforeordering removal of members of the petitioner from the placesthey occupied for carrying on their business. Thissubmission has to be stated only to be rejected in view ofthe aforesaid Division Bench ruling of this court in the caseof Gulamali Gulamnabi Shaikh (supra). The very samecontention pressing into service principles of naturaljustice in that case was rejected by this court.

7. It may be noted that the aforesaid Divison Bench rulingof this court has been followed by another Division Bench ofthis court in its unreported ruling in Special CivilApplication No. 3719 of 1982 decided on 5th August 1994.

8. The ruling of this court in the case of Nehru Marg Cabin Association v. Modasa Nagar Palika and Ors. reported in1988(1) G.L.H. 289 will not come to the rescue of thepetitioner in this case for the simple reason that it runscounter to the aforesaid Divison Bench ruling of this courtin the case of Gulamali Gulamnabi Shaikh (supra). Theaforesaid ruling of this court in the case of Nehru MargCabin Association (supra) has been rendered by a learnedsingle Judge of this court. It is a settled principle of lawthat in the case of a conflict between two rulings of thesame court, the decision rendered by the larger Bench has tobe followed. Besides, the aforesaid ruling of the learnedsingle in the case of Nehru Marg Cabin Association (supra)has not taken note of the aforesaid Division Bench ruling ofthis court in the case of Gulamali Gulamnabi Shaikh (supra).In that view of the matter, the learned Civil Judge's rulingin the case of Nehru Marg Cabin Association (supra) can besaid to be per incuriam. It is a settled principle of lawthat a judgment per incuriam has no binding efficacy.

9. Shri Parikh for the petition has then urged that theinterim relief granted by this court remained in operationfor last about 8 years and the same interim relief may becontinued and the trial Court may be directed to expedite thehearing of the suit. I am unable to countenance thissubmission for the simple reason that members of thepetitioner are carrying on their business on public streetsand the aforesaid Division Bench ruling of this court in thecase of Gulamali Gulamnabi Shaikh (supra) would not permitthem to do so.

10. In view of my aforesaid discussion, I am of the opinionthat the judgment and the order at Annexure F to thispetition under challenge in this petition calls for nointerference by this court in this petition under Articles226 and 227 of the Constitution of India. This petitiontherefore deserves to be rejected.

11. In the result, this petition fails. It is herebyrejected. Rule is accordingly discharged with no order as tocosts. The interim relief stands vacated.

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hn/4970.87