Gujarat High Court
Atul Prabhulal Shah vs Priyadarshanbhai Bhimbhai Mehta on 23 July, 2026
NEUTRAL CITATION
C/FA/4914/2023 CAV JUDGMENT DATED: 23/07/2026
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Reserved On : 23/06/2026
Pronounced On : 23/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4914 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/FIRST APPEAL NO. 4914 of 2023
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT
OF AMOUNT) NO. 1 of 2026
In R/FIRST APPEAL NO. 4914 of 2023
With
R/FIRST APPEAL NO. 4917 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/FIRST APPEAL NO. 4917 of 2023
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT
OF AMOUNT) NO. 1 of 2026
In R/FIRST APPEAL NO. 4917 of 2023
With
R/FIRST APPEAL NO. 4918 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/FIRST APPEAL NO. 4918 of 2023
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT
OF AMOUNT) NO. 1 of 2026
In R/FIRST APPEAL NO. 4918 of 2023
With
R/FIRST APPEAL NO. 4922 of 2023
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT
OF AMOUNT) NO. 1 of 2026
In R/FIRST APPEAL NO. 4922 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/FIRST APPEAL NO. 4922 of 2023
With
R/FIRST APPEAL NO. 4923 of 2023
With
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CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT
OF AMOUNT) NO. 1 of 2026
In R/FIRST APPEAL NO. 4923 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/FIRST APPEAL NO. 4923 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-
=====================================================
Approved for Reporting No Yes
No
=====================================================
ATUL PRABHULAL SHAH
Versus
PRIYADARSHANBHAI BHIMBHAI MEHTA
=====================================================
Appearance:
JAIMIN A GANDHI(8065) for the Appellant(s) No. 1
MR PA JADEJA(3726) for the Appellant(s) No. 1
MR JF MEHTA(461) for the Defendant(s) No. 1
=====================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. The captioned appeals arise from the common
judgment and decree dated 20.03.2023 passed in Civil Suit
No.47 of 2014 to Civil Suit No.54 of 2014, by which the learned
City Civil Court, Ahmedabad has decreed the suit in favour of
the plaintiff and passed the following operative order:-
“(1) The defendants of Civil Suit Nos.47 and 49 of 2014 to
54 of 2014 are partly allowed. Whereas the Civil Suit no. 48
of 2014 stands abated on account of demise of defendantPage 2 of 30
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during the pendency of suit, and the right of plaintiff to file
appropriate proceedings against the legal representatives of
the said defendant is reserved.
(2) The defendants of Civil Suit Nos.47 and 49 of 2014 to
54 of 2014 are directed to vacate the respective suit property
within 30 days from the date of this order and they are also
restrained from creating any third party rights in any
manner over the respective suit property, till the possession
of suit property is handed over to the plaintiff. Upon failure
on the part of concerned defendants to vacate the suit
properties within 30 days, the plaintiff shall be entitled to
seek execution through Court.
(3) The defendants of Civil Suit Nos.47 and 49 of 2014 to
54 of 2014 are also directed to pay damages at the rate of
Rs.1000/- to the plaintiff from September-2013 till date of
vacating of suit premises.
(4) The defendants of Civil Suit Nos.47 and 49 of 2014 to
54 of 2014 shall bear their own costs as well as the cost of
the plaintiff.
(5) This judgment be placed in the file of C.S. no. 47 of
2014 and a copy of this judgment be placed in Record and
proceedings of C.S. Nos. 48 to 54/2014.”
2. For convenience, parties are referred to as per their
original status before the learned trial Court.
2.1 Firstly, let me refer that the Civil Suit No.48 of 2014
has been disposed of as abated and no appeal is filed against the
order of abating the Civil Suit No. 48 of 2014.
2.2 By an order below Exhibit-27 in Civil Suit No. 47 of
2014, all eight suits were consolidated and evidence was
recorded in Civil Suit No.47 of 2014. Consequently, common
judgment and decree was passed to dispose of all the suits
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except Civil Suit No.48 of 2014, which was disposed of as
abated.
3. The brief facts of the case are that the plaintiff is
owner of bungalow located on final plot No.827-828 (part thereof)
of TP scheme No.3, Ellisbridge area, Ahmedabad abutting
Ashram road located on the main road leading from Paldi to VS
Hospital. In front part of the said bungalow, several shops
towards the main road were existed. The defendants of above
captioned suits were the tenants in these shops.
3.1 About the same time, in the year 1986, the
Ahmedabad Municipal Corporation(AMC, for short) initiated
proceedings to widen the road and to put a new road line, which
was affecting as many as 80 shop owners including the
defendants of the suit.
3.2 The affected person raised the Special Civil
Application No.5745 of 1986 before the Division Bench of this
Court questioning the implementation of the road widening
scheme. The AMC in the said Special Civil Application agreed to
provide alternative accommodation to all the occupiers/tenants
and came out with a scheme. Pursuant to which, the affected
persons/shop occupiers/tenants of the aforesaid suit have
withdrawn the Special Civil Application vide order dated
06.03.1987 and the petition was disposed of.
3.3 Consequently, the AMC provided alternative
accommodation to all the affected persons, including the tenants
and defendants of the suits at a meager rent of Rs.101/- and
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odd amount at a market area near Diwan Ballubhai school in
Paldi area of Ahmedabad, and thereafter the road widening
scheme took place.
3.4 The shops, which were falling in the road line, were
demolished. The shops in front of the bungalow, which belonged
to the plaintiff, is almost demolished leaving behind small space.
3.5 Another petition was filed before High Court of
Gujarat; however, this time by the plaintiff being Special Civil
Application No.13774 of 2012 against the State Government,
AMC and its officers to take the action or to implement the
statement made by the AMC before the Court.
3.6 Later on, since the issue was clarified, the plaintiff
withdrew the Special Civil Application on 08.07.2013 with a
liberty to redress the issue with the AMC.
3.7 In the backdrop of aforesaid factual aspect, plaintiff
came out with a suit against the defendants that they were
former tenants. However, having obtained the alternative
accommodation offered by the AMC in lieu of demolition of their
rented premises, lost their tenancy right over the remaining
portion of the suit premises, which is barely of two feet wide and
later on, trespassed into these shops with the oblique motive to
blackmail the plaintiff for extorting the hard earned money of the
plaintiff for vacating such premises/space.
3.8 The learned trial Court framed the issues in all the
suits at different Exhibits, but one and same issues were framed.
Thereafter, the plaintiff entered into the witness box and placed
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on record the documentary evidence alongside his oral evidence.
Despite a sufficient opportunity was granted, none of the
defendants came forward to cross-examine the plaintiff or to
challenge the legality and relevancy of the documents or the
evidence produced by the plaintiff.
3.9 The solitary defense contended by the defendants
that they are in possession of the suit shop for more than 60
years; That the relationship of landlord and tenant will not
discontinue on the demolition of the part of shops or on
acquiring the alternative accommodation and that the learned
City Civil Court has no jurisdiction to decide cause of action
pleaded and relief claimed by the plaintiff, which snaps the
landlord and tenant relationship.
3.10 The defendant, who did not cross-examine the
plaintiff, filed an application at Exhibit-58 in the suit proceeding
to permit them to cross-examine the plaintiff. By a detailed order
dated 09.02.2023 City Civil Court rejected the application
Exhibit-58. The defendant did not choose to file the appeal/SCA
against the said order, as such the order attained finality.
3.11 Alike to his earlier conduct, defendant did not enter
into the witness box and offer their oral or documentary evidence
to strengthen contention raised in the written submission.
3.12 Although, the defendant did not offer any evidence,
learned advocate appearing for the defendant filed a written
submission. The learned trial Court, after examining the
evidence on record, pleased to pass the aforesaid final order.
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3.13 Being aggrieved, appellants- defendants have
preferred these batch of appeals.
4. Heard learned advocate Mr. Jaimin Gandhi as well as
learned advocate Mr. Nilesh Shah respectively appearing for the
appellants.
4.1 In addition to oral argument, learned advocates
appearing for both the sides have also placed on record the
written submissions.
4.2 The argument of learned advocates Mr. Jaimin
Gandhi and Mr. Nilesh Shah appearing for the appellant are
summarized as under:-
4.3 That the learned trial Court has failed to consider the
existing relationship of landlord and tenant between the plaintiff
and defendant, which take away the City Civil Court’s
jurisdiction to decide the issue in view of Presidency Small
Cause Courts Act, 1882 (hereinafter referred to as the ‘Small
Cause Courts Act‘).
4.4 They also submitted that the suit shop is a tenanted
premises, whereby plaintiff was owner and defendant were
tenants for more than 60 years is admitted facts. The road
widening took place in year 1990 and though major portion of
the rented premises or suit shop was demolished in the road
widening, part thereof still remains, which demonstrate and
prove the existing and live landlord and tenant relationship
which implies that the learned City Civil Court cannot decide the
issue arised between the landlord and tenant, which is inPage 7 of 30
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exclusive domain of the Small Cause Court and to be determined
in view of the provision of the Bombay Rent Act (hereinafter
referred to as the ‘Rent Act‘).
4.5 They would further submit that since tenancy qua
undemolished or non-demolished and unacquired portion
remains, which the plaintiff has accepted in a pleading of Special
Civil Application No.13774 of 2012, without issuing the notice
under Section 12 of the ‘Rent Act‘, no ejectment proceeding can
be commenced or carried, the learned City Civil Court; however,
ignored this position of law, passed impugned various decree;
however, that question of law is sufficient to allow the appeal.
4.6 That there is no evidence on record, which infers that
the tenant have surrendered the tenancy, yet the learned City
Civil Court has erred by believing so.
4.7 Thus, it is submitted that the tenancy of some
portion, despite tenancy of the suit shop continues to operate
despite a major portion of the suit shop was demolished in 1990,
is an unnoticeable aspect that is visibly absent from the
judgment.
4.8 That the learned City Civil Court committed a grave
error in believing that since defendant – tenants have been
offered alternative accommodation by the AMC, it snaps the
relationship of landlord and tenant.
4.9 Mr. Nilesh Shah, learned advocate, in addition to
aforesaid submission, also argued that few of the tenants –
defendants have preferred standard rent application in the Small
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Cause Court and, in that standard rent application, which filed
in 1994, the landlord answered that the rent cannot be reduced
in proportion to demolition of the suit shop. Such statement in
the written statement made by the landlord indicates that he has
accepted continuation of the tenancy after the 1990 demolition.
Thus, learned advocate Mr. Nilesh Shah submitted that the
learned City Civil Court has committed serious and gross error
in decreeing the suit.
4.10 In support of their submission, learned advocates
appearing for the appellants relied upon the following
judgments:-
i) Mahendra Raghunathdas Gupta v. Vishvanath Bhikaji
Mogul, reported in 1997 (5) SCC 329.
ii) Madhuriben Shashikant Joshi v. Sarlaben Yashchandra
Desai, reported in 2006 (1) GLH 777.
iii) Rameshkumar Chhotalal Shah v. Patel Varanasibhai
Shivram, reported in 2011 JX(Guj) 1611.
iv) Sevumal Topandas Sadhwani v. Jaynomal Nanomal,
reported in 1993 (2) GLH 628.
v) Shankarrao Jagtap Sakaram v. Vasantrao Sakaram Pawar,
reported in 1999 (1) GLR 94.
vi) Thavardas Vasantmal Bharvani v. Jagdishbhai
Tekchandbhai Pamnani, reported in 2010 (2) GLR 1136.
vii) Rajkot Nagarik Sahakari Bank Limited v. Jignesh Jayantilal
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Ramanuj, reported in 2011 (3) GLR 2129.
viii) Patel Bhailalbhai Talsibhai v. Chandulal Girdharlal,
reported in 1986 (2) GLR 990.
ix) Parvatishanker Mulshanker v. Prafulchandra Ravjibhai
Patel, reported in 1979 (1) GLR 762
x) Nanubhai Pragji v. Chhaganlal Ranchhodji, reported in 1993
(2) GLR 1613
xi) Govindbhai Parshottamdas Patel & Others v. New Shorrock
Mills, Nadiad, reported in 1984 (1) GLR 156
xii) National Thermal Power Co. Ltd. v. CIT, reported in 229 ITR
383 (SC).
4.11 Upon the above submissions, learned advocates
appearing for the appellants submitted to upturn the judgment
and decree passed by the learned City Civil Court and dismiss
the suits filed by the original plaintiff.
5. Au contraire, Mr J.F. Mehta learned advocate
representing the original plaintiff supports the impugned
judgment and decree and submits that at no point of time,
plaintiff credited that defendants are tenants of the suit shops
after 1990 demolition.
5.1 He would further submit that the learned advocate
appearing for the appellant has read some portion of the
pleading in Special Civil Application No. 13774 of 2012. At no
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point of time, even in pleading, plaintiff accepted that, after
1990, the defendants continue their status as a tenant.
5.2 He would further submit that in the pleading of the
Special Civil Application, plaintiff pleaded that the defendants
are rank trespassers and they have unauthorizedly trespassed
upon the remaining portion of approximately 2 feet wide and 10
feet long, which otherwise falls in the possession of the plaintiff.
5.3 Learned advocate Mr. J.F. Mehta referred to the order
passed in Special Civil Application No. 5745 of 1986 by the
Division Bench of this Court and submitted that the affected
persons have preferred Special Civil Application to get the
alternative accommodation in lieu of compensation, which can
be granted to landlord and tenant at the time of widening the
road line. The Division Bench of this Court accepted the
contention as well as the submission of AMC in context to the
prayer made by the affected person, whereby AMC came out with
a scheme to provide alternative accommodation at two sites:
firstly, open market site behind Diwan Ballubhai High School,
Paldi, and another in Mahalaxmi Shopping Centre, opposite
Munshaw’s Bungalow, Ellisbridge, Ahmedabad.
5.4 He would further submit that the affected person
chose the first option and accepted the alternative
accommodation, pursuant to which the Special Civil Application
was disposed of. The scheme was framed and as many as 44
shops and 33 stalls were granted by making a scheme, and at a
yearly rental of Rs.101/-.
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5.5 He would further submit that it was not a statutory
obligation upon the AMC to provide alternative accommodation
while implementing the road widening scheme, alternative
accomodation was provided in lieu of compensation.
5.6 Further argued that, in lieu of the compensation, the
AMC agreed to provide alternative accommodation and it was
accepted. Learned advocate Mr. J.F.Mehta submitted that once
an alternative accommodation has been accepted by the tenants
of the shops, their tenancy right extinguishes.
5.7 He would further submit that subsequent re-entry of
the defendants into the remaining part of the suit shops is an
act of encroachment or a rank trespasser. Therefore, the learned
City Civil Court has jurisdiction to decide this issue and to
remove encroachment.
5.8 He would further submit that none of the defendant –
appellants have not challenged order passed below Exhibit-58 by
which they have been denied to cross-examine the plaintiff. As
appellant – defendant have not challenged the order below
Exhibit-58 and order attained finality. Thereby, appellant –
defendant cannot argue that no sufficient opportunity is granted
to them.
5.9 In line of aforesaid circumstances, it is submitted by
learned advocate Mr. J.F. Mehta that the appeals are filed only
with the malafide intention to extort the amount from the
plaintiff and thus, such appeals deserve to be dismissed.
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5.10 He would also submit that the learned trial Court has
not committed any error in passing the judgment, and thereby,
requests this Court to confirm the said judgment and decree,
and further, requests this Court to disburse the amount of
mesne-profit deposited by the appellant in favor of the original
plaintiff. Ultimately, it is prayed to dismiss the appeals.
6. Regard being had to the rival submissions of learned
advocates for both the sides and on perusal of the Record &
Proceedings, inasmuch as, common judgment and decree, some
of the facts appear undeniable.
6.1 Plaintiff is owner of bungalow located on final plot
No.827-828 (part thereof) of TP scheme No.3, Ellisbridge area,
Ahmedabad. The bungalow constructed on this plot has shops in
the front portion, which had been rented to defendants or their
ancestors.
6.2 In 1986, the AMC came out with the road widening
scheme and issued notice under Section 212-213 of the BPMC
Act.
6.3 In the road widening scheme, if rented property is
demolished, the compensation received for the implementation of
the scheme has to be divided amongst the landlord and plaintiff
in view of the provision of law. More than 80 shops were to be
demolished for widening the road from Paldi to VS Hospital in
the city of Ahmedabad. More than 80 shop occupiers, be it the
owner or tenant, were affected.
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6.4 Before the the road widening scheme was
implemented, some of the affected persons filed Special Civil
Application No.5745 of 1986 before the Division Bench of this
Court. It is disposed of on 06.03.1987 permitting the parties to
withdraw the same as AMC came out with the scheme of
providing the alternative accommodation, which was treated to
be in lieu of the compensation.
6.5 The scheme was also prepared by the AMC on
20.02.1989 (Annexure-B in the paper-book) and pursuant to
which all the affected persons, be the petitioners before the High
Court or otherwise, were provided the alternative
accommodation in TP Scheme No.3, Final Plot No.929 in
Ellisbridge area (Annexure-C, Colly.)
6.6 After providing the alternative accommodation, the
shops given in the road widening area were demolished and
some part of the demolished shops, which were outside the
range of the road widening, were kept as it is in dilipidated and
in half-demolished position.
6.7 All the shop-keepers being affected by the road
widening, have shifted themselves as well as their businesses to
the alternative accommodation. However, some of the erstwhile
shop occupiers/tenants re-entered into the remaining part or the
part, which was outside the range of the road widening, remain
dilapidated and in half-demolished position.
6.8 In this backdrop, the centric issues arise that,
i) Whether City Civil Court has jurisdiction to decide the suit
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filed by the plaintiff or in view of Section 28 of the ‘Rent Act‘ as
well as the provisions of the ‘Small Cause Courts Act‘, the Small
Cause Court has jurisdiction ?
ii) Secondly, whether appellant – defendant proved that they
hold the tenancy right for dilapidated and half-demolished part
of the suit shops which stands on bare small piece of land ?
iii) Whether City Civil Court has committed error preparing
impugned judgment and decree ?
iv) What decree?
6.9 All the appellants came out with the case that they
are the tenants and they continued their possession as tenant
since more than 60 years. None of them have ever surrendered
their tenancy rights and even after the demolition of the shops
took place in the road widening scheme, they continue to occupy
the remaining portion of the shops as tenant, and therefore, they
cannot be evicted without following the process laid down in the
‘Rent Act‘.
7. Firstly, let me notice that the appellant claims to be
the tenant of the remaining portion of the suit shop, failed to
demonstrate a single document on record, which suggests and
proves that the landlord – tenant relationship continues to live
after the suit shops itself were demolished in the road widening
scheme of 1990. It is true that mere non-payment of rent would
not ipso-facto evict the tenant, the scheme of the ‘Rent Act‘
provides that before ejection of the tenant on the ground of
arrears of rent, notice under Section 12(2) of the ‘Rent Act‘ is
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required to be served upon the tenant and further to grant one
month time to pay the arrears of rent. Nonetheless, when the
tenants claim that they are in possession of the part of the suit
shops since 1990, to demonstrate the same, appellants were
required to place on record at least one such rent receipt or any
document equivalent to the said, which without doubt establish
that the relationship of landlord and tenant continued after
1990.
8. Learned advocate Mr. Jaimin Gandhi as well as
learned advocate Mr. Nilesh Shah referred to para 3 of the SCA
No.13774 of 2012 filed by the plaintiff, more particularly para
3.5 and 3.6 to submit that even plaintiff admits that appellants –
defendants are in possession since 1990 in capacity of tenant.
Therefore, such admission of the plaintiff is sufficient to prove
that appellants were the tenants and its tenancy right are
neither surrendered nor snapped due to demolition of the shops
in 1990. I am not impressed by such submission.
9. Taking up few paragraphs from the pleading and to
argue the case is impermissible. Conjoint reading of para 3.5,
3.6 & 3.7 of the SCA No.13774 of 2012 indicates that the
petitioner has pleaded in para 3.7, which is continuation of
paras 3.5 & 3.6 that the appellants – defendants are occupying
the premises as unauthorized encroacher and have further
prayed to demolish the part of the premises occupied by the
appellants – defendants for effective implementation of the
scheme by performing their duty. Therefore, it is incorrect to say
that the plaintiff has accepted the landlord – tenant relationship
even after the year 1990.
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10. Before the road widening scheme implemented by the
AMC, some of the petitioners filed Special Civil Application
No.5745 of 1986 before the Division Bench of this Court. The
implementation of the road line was allowed by the Division
Bench of this Court on the statement made by learned Counsel
appearing for the AMC and consequently, petitioners were
permitted to withdraw the Special Civil Application. The entire
order of the Division Bench having a bearing upon the disputed
issue between the parties, is required to be referred. The order is
reproduced hereinunder:-
” When these petitions were called on for
admission, after hearing the Counsel for the petitioners as
well as the respondents, we suggested to the Counsel for the
respondent-Municipal Corporation to consider the possibility
of granting alternative accommodation to the petitioners at
certain market and shopping centre sites developed by the
Municipal Corporation in the city of Ahmedabad. Taking note
of the fact that the Municipal Corporation disposes of these
shops/premises at the market price to the members of the
public on certain terms and conditions approved by the
Municipal Corporation, we thought it would be possible for
the Municipal Corporation to grant alternative
accommodation to the petitioners who are to be evicted on
account of their shops/premises or part thereof being within
the regular line of the road. Mr. Nanavati, learned advocate
for the petitioners, while conceding the fact that the
petitioners would have no legal right to claim any particular
site belonging to the Municipal Corporation, made a request
that since the petitioners were to be adversely affected on
the implementation of the road line, the petitioners could be
considered for grant of alternative accommodation on
priority basis on such terms and conditions as may be
agreed upon by and between the parties. In view of these
submissions made at the bar during the hearing of these
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petitions, Mr. Panchal, learned advocate for the Municipal
Corporation makes the following statement:
“Even though in law the petitioners have no right to any
alternative accommodation and even though the
Municipal Corporation does not concede any such right,
having regard to the fact that the Municipal Corporation
is in a position to consider the petitioners’ request for
alternative accommodation at two sites, namely, (1)
open market site behind Divan Ballubhai High School,
opposite N.I.D., Paldi, Ahmedabad, (2) Mahalaxmi
shopping centre, opposite Munsho’s bungalow,
Ellisbridge, Ahmedabad, the Municipal Corporation has
in principle agreed to consider sympathetically the grant
of alternative accommodation to the petitioners at the
said two sites at the price to be fixed by the Municipal
Corporation after considering the view point of the
petitioners in that behalf at a later date. The area will
also have to be determined keeping in mind the extent to
which each petitioner is affected by the prescribed road
line.”
In view of the above statement made by Mr.
Panchal, Mr. Nanavati seeks leave to withdraw these
petitions. Mr. Nanavati also states that till such time as the
alternative accommodation is made available to the
petitioners, the road line may not be implemented by the
Municipal Corporation for otherwise the petitioners will
suffer on account of total loss of business premises by some
and partial loss by others. We are sure that the Municipal
Corporation will keep this fact in mind and expedite the
arrangement regarding granting of alternative
accommodation so that it synchronises with removal of the
petitioners’ properties falling within the road line.
In view of the above, the petitions are rejected as
withdrawn. Notice discharged.”
11. What could be inferred from the aforesaid order that
the affected persons were asking for alternative accommodation
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in lieu of offering their possession over the shops, including the
suit shops. It is needless to say that the road widening scheme
provides only for the compensation to the affected persons and
there is no obligation to provide alternative accommodation.
However, the learned Counsel appearing for the AMC agreed to
provide the alternative accommodation on request of the affected
persons and two choices were given. One in the open market
behind Diwan Ballubhai school at Paldi and another at
Mahalaxmi Shopping Centre, opposite Munshaw Bungalow,
Ellisbridge.
12. Ultimately, the open market behind Diwan Ballubhai
school at Paldi was accepted, fixed and finalized for the purpose
of providing the alternative accommodation. The letter of the
Municipal Commissioner, at Annexure-B in the paper-book
fixing the scheme to provide the alternative accommodation,
reads as under:-
” Letter of the Municipal Commissioner
Classification No. ETS/SCH/45/28 Date: 20/02/1989
Name of Department: EstateSubject: Regarding providing alternative arrangement
to the shopkeepers affected by the road line of the
Corporation Act placed upon the properties on the
road from Paldi to V. S. Hospital.
Municipal Secretary,
Enclosures:
1. Fair copy showing the shops mini-stalls for providing the
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facility of alternative in the market plot of T.P. Scheme No.3,
Final Plot No.9291.
2. List of 80 units getting affected by the road line.
3. List of the occupants of 34 units getting affected in which
the area remains of less than 100 sq. ft.
4. List of the affected occupants included in the petition but
whose area remains more than 100 sq. ft.
5. Copy of the lease agreement to be executed.
Due to the road line placed under the Municipal
Corporation Act from Paldi to V. S. Hospital, as stated in the
statement enclosed herewith, 80 persons are affected by the
acquisition proceedings under the Corporation Act for widening the
road. Out of them, there are total 78 shops and two banks. The
said two banks which get affected are not eligible for an
alternative. Out of the remaining 78 shops, 4 shops are in the
possession of the owners. The said 4 shops being of ownership,
are not eligible for an alternative. The remaining 74 shops are
affected by the road line to a greater or lesser extent. Following
the notices of acquisition proceedings in this regard, 17 out of the
said affected occupants had filed a writ petition before the High
Court of Gujarat. In the said petition, the High Court of Gujarat
has directed the petitioners to make representation before the
Municipal Corporation for providing an alternative and directed
the Municipal Corporation to do the needful after taking into
consideration their representation. Pursuant to the said order, the
applicants were given an opportunity to make representation
before the Director, Estate and Town Planning. In the
representation, the applicants have fixed a demand that the land
for the Municipal Market near Divan Ballubhai Primary School be
given for constructing shops at the rate of Rs.1,000/- per sq. m.
and that, they may immediately pay 50 percent of the original
price and pay the remaining amount in installments.
Instead of considering only the petitioners for the
purpose of alternative arrangement, out of all the 74 affected
shopkeepers, the shop area of 34 shopkeepers remains less than
100 sq. ft. after deduction. Out of them, the areas of two shops
remain 96 sq. ft. and 97 sq. ft. Therefore, the said two
shopkeepers will carry on business at the said two places.
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Therefore, regarding the said two shopkeepers whose shop area
remains 96 sq. ft. and 98 sq. ft., it remains to be considered
whether they should be given an alternative or not. If they give an
undertaking to shift from the original place, it is appropriate to
give them an alternative. Now, in the plan prepared by the
Engineering Department, provision has been made for 44 shops
and 33 stalls. Out of the said 34 shopkeepers, there are five(5)
shops whose original area, even before being deducted in the road
line, is less than 50 sq. ft. It is appropriate to give them the
alternative of stalls. Hence ….
1. Thus, it would be appropriate to allot land on a 99-
year lease to the total 34 shopkeepers for
development of only ground floor shops, on payment
of premium at the rate of Rs.1,000/- per sq. m. (Since
the occupant will use only one-third of the property,
the provisions of Section 79D will be complied with.)
2. The remaining twelve persons are those whose shops,
even after deduction on account of the road line, have
an area of more than 100 sq. ft. Therefore, as per the
prevailing policy, they are not eligible to be provided
with an alternative. However, since they are the
petitioners, it would be appropriate to allot land to
them for development on a 99-year lease on payment
of premium at the rate of Rs.1,100/- per sq. m., as
they are willing to shift from the original premises.
3. Thus, out of the 34 shopkeepers, five (5) shopkeepers
are to be provided with stalls as an alternative.
Accordingly, out of 13 stalls, after allotting 5 stalls, 8
stalls would remain. Similarly, after excluding the
said 5 shopkeepers from the 34 shopkeepers, the
remaining 29 shopkeepers together with the 12
shopkeepers (petitioners) would make a total of 41
shopkeepers to whom shops are to be provided as an
alternative. Out of 44 shops, after allotting 41 shops,
3 shops would remain. Thus, as 8 stalls and 3 shops
would remain, it would be appropriate to invite offers
from those shopkeepers who are not eligible for an
alternative to pay the premium amount and if they
are willing to offer a higher premium, to allot land to
them for development of only ground floor shops.
However, they shall have to shift from the original
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premises.
Thus, as stated above, by taking premium, on the land near
the Municipal Market near Divan Ballubhai School, they shall be
able to construct only ground floor construction according to the
plan prepared by the Municipal Corporation. Construction of the
basement shall not be done. If required in future, the Municipal
Corporation shall carry out construction of the upper floor.
The annual rent of Rs. 101/- for the land given on lease
shall be paid by the lessee and the Municipal Tax and Education
Cess in respect thereof shall also be paid by the lessee. The other
conditions shall be as per the lease agreement.
Approval:
Taking note of the above, it is requested that approval
of the Municipal Corporation be obtained through the Standing
Committee for authorizing the Municipal Commissioner to provide,
as an alternative arrangement, on lease for 99 years, by executing
a lease agreement after taking the premium amount, annual rent
of Rs. 101/-, Municipal Tax and Education Cess amount, the
space for shop/mini stall as shown in the statement according to
the plan prepared by the Municipal Architect in the open land of
Ellisbridge T.P. Scheme No. 3 (Varied), Final Plot No. 929 (in the
market plot near Divan Ballubhai Primary School), to the
shopkeepers affected by the acquisition proceedings for widening
the road from Paldi Cross Roads to V. S. Hospital.
(For) Municipal Commissioner
Copy of the resolution of the Standing Committee
passed on the letters of the Municipal Commissioner,
Estate Department No. ETS.SCH/45/28 dated
20/02/1989 and 10/08/1989.
The meeting of the Standing Committee was held in the Standing
Committee Room on Friday, 18/08/1989 at 12:00 noon; Copy of
the resolution passed therein.
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Item No. 20 Resolution No. 1030 Year 1989-90
Resolved that after all the facts contained in the letters of
the Municipal Commissioner No. ETS.SCH/45/28 dated
20/02/89 and 10/08/89 became known, recommendation be
made to the Corporation to grant approval for authorising the
Municipal Commissioner to provide, as an alternative
arrangement, by executing a lease agreement for 99 years after
taking the premium amount, annual rent of Rs. 101/-, Municipal
Tax and Education Cess amount, the space for shop/ministall as
shown in the letter of the Municipal Commissioner according to the
plan prepared by the Municipal Architect in the open land of
Ellisbridge T.P. Scheme No. 3 (Varied), Final Plot No. 928 (in the
Municipal Market plot near Divan Ballubhai Primary School), to the
shopkeepers affected by the acquisition proceedings for widening
the road from Paldi Cross Roads to V. S. Hospital.
True Copy Dated: 18/08/1989
Sd/-
P. M. Sukhadiya
Municipal Secretary
Copy of the Corporation Resolution passed
on Standing Committee Resolution No. 1030
dated 18/08/1989.
Meeting of the Ahmedabad Municipal Corporation
The adjourned ordinary monthly meeting of the Ahmedabad
Municipal Corporation was held in “Gandhi Hall” on Friday,
29/09/1989 at 6:00 p.m. Copy of the resolution passed therein.
Item No. 8 Resolution No. 482 Year 1989-90
Resolved that approval is granted in accordance with the
recommendation of Standing Committee Resolution No. 1030
dated 18/08/1989.
True Copy Dated: 30/09/1989
Sd/-
P. M. Sukhadiya
Municipal Secretary ”
(Translated from Gujarati to English for better understanding)
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13. It was followed by the Resolution of the AMC dated
18.08.1989 No.10309, which shows the notices issued to the
multiple affected persons allotting the alternative
accommodation, at Annexure-C (Colly.).
14. Thus, it demonstrates that all the affected persons,
including the appellants – defendants were provided alternative
accommodation at the instance of the AMC to take the
possession of the suit shops and other shops. Consequent
thereto, the roads were widened and suit shops along with the
other shops were demolished.
15. Thus, in this factual scenario, it is highly
unbelievable that at the time of road widening, appellants –
tenants were in possession of the part of the suit shop at the
time of the demolition of the shops.
16. In view of the aforesaid scheme, tenants have vacated
the premises and resumed their possession at the alternative
site. This amounts to implied surrender of the tenancy. Even
otherwise the tenants cannot have two different tenanted
premises for one tenancy right. In other words, the tenant
cannot continue its tenancy at suit shops after obtaining the
alternative accommodation, which was granted in lieu of the
demolition of the tenanted shops, whereby after demolition of the
suit shops in the road widening scheme, the right of the
appellants – tenants of the suit shops does not remain. Re-entry
to the remains of suit shops thereof would be no less than the
entry of the encroacher or possession to dwell upon the desire of
extorting the money from the owner of the property.
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17. At the cost of repetition, this Court reiterates that
tenancy was created for the shops prior to 1990 and in the
demolition, the tenants accepted the alternative sites and started
the business at alternative, now cannot come back and say that
in the remaining part of suit shop, the tenancy survives or exists
and they legitimately can occupy the same.
18. In the aforesaid reasons, the centric issue that
whether landlord and tenant relationship existed on the day
when the suit was filed, answer of which has the repercussion
over the jurisdiction of the City Civil Court, is held that no
landlord or tenant relationship did not existed post demolition of
the shop, more particularly in view of the alternative
accommodation offered and accepted by the tenants.
19. In view of aforesaid finding, the City Civil Court has
inherent jurisdiction under Section 9 of ‘the Code’ to conduct the
suit and to pass the decree. The former tenant, whose tenancy
rights has been seized pursuant to road widening scheme and
availing alternative accommodation scheme, cannot rely upon
the provisions of the ‘Rent Act‘ to say that he should not be
evicted without following the procedure laid down there. The
possession and status of the appellants – defendants post 1990
after widening of the road and demolition of the shops remains
that of rank trespasser or encroacher. The City Civil Court;
therefore, has the jurisdiction to decide the issue.
20. Learned advocate Mr. Jaimin Gandhi as well as
learned advocate Mr. Nilesh Shah half-heartedly submitted that
since the appellants have not led the evidence as learnedPage 25 of 30
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advocate have not informed them, the suit runs ex-parte against
them and culminated into the ex-parte decree, breaches the
principle of natural justice. Thus, they have submitted to
remand the matter for fresh hearing.
21. To answer the said submission, let me say that the
Record & Proceedings of the suits exposes that more than
sufficient opportunity and multiple dates were granted by the
learned City Civil Court to cross-examine the plaintiff and to
challenge the evidence thereof. The defendant did not encash
those opportunities, except filing the application at Exhibit-58,
which was turned down by the learned City Civil Court. The
appellant, who raise quarrels before this Court of not providing
the opportunity, did not chose to assail the order passed below
Exhibit-58 and even thereafter they did not chose to enter into
the witness-box. Surprisingly, yet they have filed the written
submission.
22. The Supreme Court, in Rajneesh Kumar & Anr. v.
Ved Prakash, reported in 2024 INSC 891, in context to
condoning the delay under Section 5 of the Limitation Act,
declined to accept the lawyers’ carelessness, negligency to be a
reason for condoning the delay. The observation of the Supreme
Court is relevant to answer this submission that the appellant –
defendant, a poor litigant, could not get the opportunity to lead
the evidence. In para 10 & 11, the Supreme Court after referring
to the judgment in the case of Salil Dutta v. T.M. & M.C.
Private Ltd. reported in (1993) 2 SCC 185, observed as under:-
’10. It appears that the entire blame has been thrown on the
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head of the advocate who was appearing for the petitioners
in the trial court. We have noticed over a period of time a
tendency on the part of the litigants to blame their lawyers
of negligence and carelessness in attending the proceedings
before the court. Even if we assume for a moment that the
concerned lawyer was careless or negligent, this, by itself,
cannot be a ground to condone long and inordinate delay as
the litigant owes a duty to be vigilant of his own rights and
is expected to be equally vigilant about the judicial
proceedings pending in the court initiated at his instance.
The litigant, therefore, should not be permitted to throw the
entire blame on the head of the advocate and thereby
disown him at any time and seek relief.
11. In the aforesaid context, we may refer to a decision of
this Court in the case of Salil Dutta v. T.M. & M.C. Private
Ltd. reported in (1993) 2 SCC 185, wherein this Court
observed as under:-
“8. The advocate is the agent of the party. His acts and
statements, made within the limits of authority given to
him, are the acts and statements of the principal i.e. the
party who engage him. It is true that in certain situations,
the court may, in the interest of justice, set aside a
dismissal order or an ex parte decree notwithstanding the
negligence and/or misdemeanour of the advocate where
it finds that the client was an innocent litigant but there is
no such absolute rule that a party can disown its
advocate at any time and seek relief. No such absolute
immunity can be recognized. Such an absolute rule would
make the working of the system extremely difficult. The
observations made in Rafiq [AIR 1981 SC 1400] must not
be understood as an absolute proposition. As we have
mentioned hereinabove, this was an on-going suit posted
for final hearing after a lapse of seven years of its
institution. It was not a second appeal filed by a villager
residing away from the city, where the court is located.
The defendant is also not a rustic ignorant villager but a
private limited company with its head office at Calcutta
itself and managed by educated businessmen who know
where their interest lies. It is evident that when their
applications were not deposed of before taking up the suit
for final hearing they felt piqued and refused to appear
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before the court. May be, it was part of their delaying
tactics as alleged by the plaintiff. May be not. But one
thing is clear they chose to non-cooperate with the court.
Having adopted such a stand towards the court, the
defendant has no right to ask its indulgence. Putting the
entire blame upon the advocate and trying to make it out
as if they S.L.P. (CIVIL) NOS. 935-936 OF 2021 were
totally unaware of the nature or significance of the
proceedings is a theory which cannot be accepted and
ought not to have been accepted.” (Emphasis supplied)”
23. Thus, every litigant, who appears in Court, needs to
be vigilant of his right and is also expected to be vigilant in the
judicial proceedings pending before the Court. Litigant cannot be
permitted to pass the entire blame upon the advocate. Rather, it
has become now a tendency to put a blame on the advocates just
trying to make it out as if they were (litigant) totally unaware of
the nature or significance of the proceedings.
24. In Hameed Joharan v. Abdul Salam, reported in
(2001) 7 SCC 573, the Supreme Court’s following pertinent
observation is relevant:-
“…It cannot, but be the general policy of our law to use the
legal diligence and this has been the consistent legal theory
from the ancient times. Even the doctrine of prescription in
Roman Law prescribes such a concept of legal diligence and
since its incorporation therein, the doctrine has always been
favoured rather than claiming dis-favour. Law courts never
tolerate an indolent litigant since delay defeats equity. The
Latin maxim Vigilantibus non dormientibus jure subventiunt’
(law assists those who are vigilant and not those who are
indolent). As a matter of fact, lapse of time is a species for
forfeiture of right….”
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25. Thus, the submission that the appellants –
defendants did not get the opportunity to lead the evidence is
just another designed tactic to avoid the consequences of the
decree. Alone, the ex-parte decree is legal and valid in eyes of
law. Appellant – defendant, who chose to remain absent from
putting evidence, cannot impeach impugned decree on the
ground of ex-parte decree.
26. Lastly, it was argued that the standard rent
applications were entertained by the Small Cause Court and in
reply thereof, the plaintiff had accepted the continuation of the
tenancy post 1990 demolition is concerned, in para 8.10 of the
impugned judgment, the learned City Civil Court dealt with the
same argument and held that the standard rent application
No.752 of 1994 filed by Care Well Tailor did not reach to the
logical conclusion, deciding any issue on merit as it was
dismissed for non-prosecution on 11.12.1997. In these
circumstances, the submission, again failed to buttress the case
of the appellants. In a nutshell, the appellants fail in their
appeals.
27. For the reasons aforesaid, the appeals found arid of
merits, deserve dismissal. The facts of the case discussed
hereinabove makes it clear that the judgments upon which
learned advocates for the appellants are relying, are factually
distinguishable.
28. Ex-consequenti, all appeals fail and are accordingly
dismissed.
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29. Interim-relief, if any, granted earlier is discontinued.
Connected CA, if any, does not survive.
30. Registry to send the Record and Proceedings to the
concerned Court forthwith.
31. Registry to keep the copy of this judgment in all the
matters.
Sd/-
(J.C. DOSHI, J.)
After pronouncement of the judgment, learned
advocate appearing for the appellant seeks stay on the
enforcement of the judgment and to continue the interim-relief
for 04 weeks. This Court, for the reasons recorded hereinabove,
does not find any reason to grant the relief. Accordingly, the
request is rejected.
Sd/-
(J.C. DOSHI, J.)
Raj
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