1. Against the order made by the Auxilliary Chamber Judge ( Court No. 24), Ahmedabad on 8.7.98, this appeal is preferred by Ahmedabad Municipal Corporation (hereinafter to be referred to as "the Corporation").
2. Respondent (hereinafter referred as "plaintiff") Vijay Owners' Association Non Trading Corporation filed a Civil Suit No. 4980/94 against the Corporation for urgent orders. Notice of Motion was filed by the plaintiff for temporary injunction restraining the Corporation from implementing decision dated 12.8.94 and also restraining the Corporation, its agents, servants and persons from demolishing the construction till the final disposal of the suit. The learned Auxilliary Chamber Judge made an order below exh. 6 on 8.7.98, directing the parties to maintain status quo. The original plaintiff was also directed to file an undertaking that it would not carry out any further construction work in the disputed property till disposal of the suit and subject to that, temporary injunction in terms of para 13 (A) was granted till the disposal of the suit.
The facts leading to the present proceedings, in brief are as under.
3. The plaintiff submitted a plan to the Corporation for erecting a building consisting of 77 residential dwellings/flats and common amenities, on Final Plot No. 326/1 + 2 of Town Planning Scheme No. 19, situated in Navrangpura area of Ahmedabad. The plan was sanctioned on 17.5.91. In the plaint, it was stated that as per the plan approved, most of the work of all the floors has been carried out. It was contended that no illegal construction has been carried out and for minor changes after taking advice of the Architect, a revised plan shall be submitted. It was contended that a notice under section 260(1) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter to be referred to as "the Act"), dated 23.6.94, signed on 27.6.94, was served on the plaintiff on 30th June, 1994. Written submissions were made on 7.7.94, copies of which were given to the Deputy Municipal Commissioner and others with a request to arrange a meeting before them. In the plaint, it was specifically stated that for providing parking facility, after discussing the mater with the Architect, necessary lay out plan has been produced before the Corporation. The plaintiff has come out with a case that the projections appearing in the margin land cannot be said to be a new construction but it has merely covered the area under projections. The plaintiff has come out with a case that for cellar, parking and projections, explanation has been tendered and even if it is found that the construction is illegal, the same can be regularized. It was alleged against the officers of the Corporation that without application of mind, stereotype reply was given and though the explanation was satisfactory, it has not been accepted. The Corporation on 12.8.94 took a decision to remove unauthorised construction. On these facts, the suit was filed. It was further averred that the plaintiff was willing to give further explanation and he was willing to give security deposit in the sum of Rs. 2.00 lacs or was willing to offer bank guarantee of a nationalized bank; However, the Corporation has not accepted the same and has taken the decision illegally on 12.8.94.
4. It is required to be noted that in the instant case, the plaintiff filed a suit being Regular Civil Suit No. 4415/94 on 25.8.94 and the Court directed the parties to maintain status-quo. However, the aforesaid suit was filed without giving a notice as required under the law. The said suit was withdrawn and the present suit has been filed after issuing a notice under section 487 of the Act. On behalf of the Corporation, written statement has been filed, wherein it is pointed out as under in para 5.
" The defendant (Corporation) has granted permission to the plaintiff to construct cellar for stores, ground floor for residential purpose, hollow plinth for parking place and the first floor for residential purpose. On or about 6.11.93, it was noticed that the plaintiff commenced construction of shops in the cellar on R.C.C. pillars."
As the construction was in progress, a prohibitory order was issued on 6.11.93 under section 267 of the Act which was served to the plaintiff on 8.11.93, calling upon the plaintiff to stop the unauthorised construction. Police Inspector of Navrangpura Police Station was also requested in this behalf. Despite the prohibitory order served on the plaintiff, the plaintiff continued illegal activities of unauthorised construction. It is in view of this that the Corporation was constrained to post security guards. Sketches were prepared by the Inspector of the Corporation and it was clear that the plaintiff carried out construction in violation of the permission granted to it. Deputy Estate Officer made an inquiry and he prima-facie came to a conclusion that the plaintiff has carried out the construction as indicated in the sketches prepared by the Inspector, without permission of the Corporation. It was pointed out in the written statement that the Deputy Estate Officer visited the site and thereafter the notice was issued on 23.6.94 under section 260(1) of the Act, which was served on the plaintiff on 30th June, 1994, calling upon the plaintiff to submit an explanation on or before 7.7.94 and to produce evidence as mentioned in the show cause notice as the facts were within the special knowledge of the plaintiff. The sketches of unauthorised construction were attached with the show cause notice.
5. On behalf of the Corporation, copies of maps were produced before us. From the same, it reveals as under.
In the Cellar portion, Engineer of the plaintiff as well as Licensed Architect and the owner indicated that 13 store rooms are to be constructed. Store rooms are of different sizes and are provided with staircase for going upstairs. The staircase of each room leads to the residential unit. The plan further indicates that on the upper portion of the stores constructed in the Cellar, there are housing units, each having a living room, a kitchen, a bath room and W.C. Essentially plan was put up for residential units on the ground floor and the store room in the Cellar, and each store rooms having independent staircase for reaching the living room. Thus, from the map, it is very clear that a unit was to be constructed with a store room in cellar and a living room, a kitchen, a bath room and a W.C. on the ground floor.
On the first floor, from the plan, it appears that 10 residential units each having a kitchen, a living room, W.C. and a bath room were to be constructed. On the back side, there is hollow plinth. We are not concerned with open terrace and other part shown in the map. At the time of inspection, what was noticed is indicated in the different sketches which were served to the plaintiff.
So far as the cellar is concerned, in green colour a portion approved for store is indicated in the sketch. It appears that without permission there was excavation of much larger area than permitted and the Cellar of almost the size of the plot has been constructed which is indicated in the red colour. As per the plan, total plot area is 1770 sq. mts. and 277. 15 sq. mts. was the area permitted of the Cellar. Approximately, more than 3 times than the permission granted, Cellar is constructed. Major part of the construction in the cellar is unauthorised, and the same is shown in Red colour in the map.
On the ground floor, instead of constructing 13 residential units, the plaintiff has constructed 18 shops unauthorisedly by making changes in the design. Not only that but the plaintiff extended the portion of shops towards the road side. These things are indicated in the map. So far as the extended area is concerned, it is indicated in green colour. Thus, about 2.5 mts. of porch of each shop was taken out which was covered by means of walls and shutters were affixed.
Similarly, on the first floor, instead of 10 residential units, 18 shops have been constructed by changing size of the rooms. There also, projection has been covered with an independent entrance to each shop. Thus, area not permissible is covered. This is indicated with red colour. On the terrace, the plaintiff constructed 5 rooms and in the suit, the rooms were described as Pent Houses. The person possessing top floor gets an advantage of having a room on the terrace. Thus, 5 rooms which were constructed illegally have been also indicated in the map. These documents are duly signed by the officers of the Corporation after verification.
6. It is required to be noted that drawings/maps submitted to Corporation are signed by the owner, Structural Engineer Devendra M. Vakharia, Architect Parthiv Desai and Mahendra Pathak, Licensed Engineer. The plan has been sanctioned for which there is noting on the map and are signed by the Deputy Municipal Commissioner. Thus, if a person is constructing as per the plan, the Corporation could not have taken any action in the matter. As indicated in the above paras, construction was carried out in disregard of the plan approved and in breach of building regulations, Rules and Byelaws and therefore the Corporation has taken action.
7. It appears to us that the trial court has overlooked the provisions contained in the Act, rules, building regulations and the written statement filed by a public officer. It is required to be noted that no affidavit is filed by the engineer, architect or licensed engineer who have signed the maps in support of the say of the plaintiff that the work which was found by the Inspector and the Deputy Estate Officer was not as per the notice but was as per the plans approved.
8. In the written statement, it has been pointed out that the plaintiff was granted permission to construct ground floor and hollow plinth for parking purpose only. The plaintiff has carried out construction of walls by use of bricks and cement which is shown in red colour. The plaintiff has also covered the projection, porch and the gallery and by making substantial changes has carried out the construction of shops. The plaintiff has put up rolling shutters. The plaintiff has carried out construction outside the boundary of built up area and has also carried out construction in the margin and common area known as "Consolidated Open Plot" and thereby Consolidated open plot is reduced. No hollow plinth was found. Permission was granted to construct the first floor for residential units only. However, by making substantial changes, the shops have been constructed with shutters. Unauthorised construction is shown in red colour. It was also pointed out that the plaintiff has carried out construction in the terrace and the first floor and that construction is shown in red colour. It is also indicated that there were some occupiers in the shops and thus, unauthorised construction was permitted to be used without Building Use Permission being granted by the Corporation. It is specifically pointed out that the Deputy Estate Officer has issued a notice to the occupiers who were found in possession at that time. Mr. Chhaya, learned advocate appearing for the Corporation submitted that in all 6 occupiers as per the record of the Corporation were found and they were served with notices. They were also called to appear in person. However, they have not bothered even to file a reply to the show cause notice.
9. The plaintiff has also filed an undertaking before the Corporation that the plaintiff will carry out construction as per the permission granted by the Corporation. The plaintiff tendered further undertaking that the plaintiff would remove unauthorised construction at its own costs. The plaintiff further stated that some portion of the Cellar as well as parking place was removed. On 18.6.94, the plaintiff tendered an affidavit along with letter. The plaintiff assured on oath that as per permission granted, construction shall be carried out. By a letter dated 13.7.94, the plaintiff gave an assurance in writing that he would provide space for parking. He further stated that they are removing shutters and clearing margin on the road side. The plaintiff assured the Corporation that it will provide best possible parking in the basement. Thus, it was admitted position before the Corporation that the plaintiff has carried out unauthorised construction. There was a shop in the name of Havmor Sweets & Bakery in which, no permission was granted by the Corporation as stated by Mr. Chhaya, learned advocate for the Corporation. The decision of the Corporation which was taken on the basis of this material was served on the plaintiff on 23.8.94. Similar decision was served on 6 occupants. The plaintiff did not bother to produce original plan approved by the Corporation though the plaintiff was in possession of the same.
10. Despite the aforesaid aspects placed before the Court by a public officer, who was discharging his duties as a public officer, the Auxilliary Chamber Judge has thought it fit to brush aside by directing the parties to maintain status quo. In the plaint, there is clear and positive averments that construction is almost complete as per the sanctioned plan. In para 7 of the plaint it is specifically stated that in the cellar, store (room) is constructed as per plan and it is to be used as store. In the plaint, there is nothing to show that the building was occupied by anyone. Today, we are told that the entire building is occupied. The plaintiff has put others in possession despite the fact that no Building Use Permission is granted. How the plaintiff got water connection and connection for sewage disposal is not stated before the Court. Mr. Chhaya vehemently submitted that the Corporation has not granted any connection whatsoever.
11. Mr. M.C. Bhatt, learned counsel appearing for the respondent submitted on the factual aspect that the Corporation has charged handsome amount for permitting the plaintiff to cover the area. He placed before us zerox copy of a receipt issued by the Corporation in favour of one Kalaben Surendrabhai Shah, owner of the land in question. Reading the same, it appears that the Corporation has received a sum of Rs. 1,18, 260/- on 6.6.91 towards the fees for covering galleries. This amount was paid by cheque. The details are indicated in the receipt. Mr. Chhaya on instructions from the officer who was present in the court and from the record, pointed out that it is the said Kalaben Surendrabhai Shah who submitted an application to the corporation. In the application, it was specifically mentioned that the galleries of second floor, 3rd floor, 4th floor, 5th floor, 6th floor, 7th floor, 8th floor and 9th floor were covered. Measurements were also given. Mr. Chhaya stated that the amount was paid for covering the galleries of the residential flats on 2nd floor to 9th floor and not for other parts of the building in question. By placing the zerox copy of this document on the record, Mr. Chhaya submitted that the contention raised is contrary to the record. It seems that the plaintiff has not instructed the counsel on the material aspect and possibly therefore, the learned counsel might have made a statement. The statement has not been pressed into service by Mr. Bhatt, and we do not propose to say anything more in the matter on this aspect in view of the statement.
12. Mr. Chhaya, learned advocate appearing for the Corporation pressed into service the decision of this Court in the case of ANUPAM REKADI CABIN ASSOCIATIOON V. JAMNAGAR MUNICIPAL CORPORATION, REPORTED IN 1995 (1) GLH 586. (Per B.N. Kirpal C.J., as his Lordship then was) He referred to the following paras.
"22. It is often said in certain quarters, perhaps at times unfairly that in order to grab public property or avoid paying just dues to the government or the local bodies, the best course to adopt is to file a suit and obtain an interim injunction. Unlike cases where injunctions are sought by a plaintiff against a private party, where an ex-parte order is seldom passed or if passed, the application is soon decided, an ad-interim injunctions against the State or local public bodies, however, tend to continue for long period of time without such application being finally disposed of. Lack of personal interest on the part of the State or such public bodies in seeing to the early disposal of such applications may be the reason for the delay in their disposal. That there may even be passive or active connivance on the part of the employees of the State or such public bodies with the plaintiff may also, at times, be not ruled out. There is, therefore, all the more reason that the court should not unwillingly become a part of a design of taking unfair advantage by securing ad-interim orders notwithstanding that there may have been clear violation or non-compliance with the substantive provisions of the law by the plaintiff. Passing interim orders indiscriminately and without apparent due application which has the effect of allowing the plaintiff to continue to enjoy the fruits of his actions, which may be contrary to law, tends to lower the court's prestige and clearly undermines the Rule of Law.
23. It is unfortunate that in recent time notwithstanding clear pronouncements by the Supreme Court with regard to the principles to be followed while giving ad-interim injunctions, the subordinate courts permitted, what has been referred to in the case of Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225 disgruntled litigants to indulge in adventurism.
24. It cannot be denied that the procedure established by law has to be followed. Public authorities whether it be the State, or a local body, are required to follow the law but procedural lapses of a person ought not to result in such ad-interim orders being passed which, in effect, protect illegalities having already been committed by the plaintiff or to protect or give license to his desire not to comply with the substantive legal provisions in the future. Rule of Law requires that the law should be respected and followed voluntarily by one and all. Violaters of the law should not be allowed to take protection of the Courts of Law by obtaining ad-interim injunctions which have the effect of allowing the violation to continue.
25. The need to see that a prima-facie case is made out, before a court grants an ad-interim injunction, cannot but be over-emphasised. In this regard, reference may usefully be made to the following observations of the Supreme Court in the case of United Commercial Bank v. Bank of India, (1981) 2 SCC 766, which was quoted with approval in Morgan Stanley's case (supra):
"No injunction could be granted under Order 39 Rule 1 and 2 of the Code unless the plaintiffs establish that they have a prima-facie case, meaning thereby that there was a bonafide contention between the parties or a serious question to be tried. The question that must necessarily arise is whether in the facts and circumstances of the case, there is a prima - facie case and, if so, as between whom? In view of the legal principles applicable, it is difficult for us to say on the material on record that the plaintiffs have a prima facie case. It cannot be disputed that if the suit were to be brought by the Bank of India, the High Court would not have granted any injunction as it was bound by the terms of the contract. What could not be done directly cannot be achieved indirectly in a suit brought by the plaintiffs.
Even if there was a serious question to be tried, the High Court had to consider the balance of convenience. We have no doubt that there is no reason to prevent the appellant from recalculating the amount of Rs. 85,84,456/-. The fact remains that the payment of Rs. 36,52,960/against the first lot of 20 documents made by the appellants to the Bank of India was a payment under reserve while that of Rs. 49,31,496/- was also made under reserve as well as against the letter of guarantee or indemnity executed by it. A payment `under reserve' is understood in banking transactions to mean that the recipients of the money may not deem it as his own but must be prepared to return it on demand. The balance of convenience clearly lies in allowing the normal banking transactions to go forward. Furthermore, the plaintiffs have failed to establish that they would be put to an irreparable loss unless an interim injunction was granted.
28. Recently, the Supreme Court, once again, in Bloom Dekor Ltd. v. Subhash Himatlal Desai and others (1994) 6 SCC 322, reemphasised the need of the courts to properly apply the provisions of Order 39 Rule 1. while adversely commenting on exparte interim injunctions being granted, it was observed in Blomm Dekor's case at page 327;
"...Unfortunately, the courts below wittingly or otherwise have aided this judicial adventurism without even determining whether they had jurisdiction..."
32. The judicial adventurism by the plaintiffs has to be discouraged and if known, principles of laws are not applied by the subordinate courts and ad-interim injunctions are granted for the asking, the superior courts would be failing in their duty if they do not correct such orders by taking appropriate actions. Judicial adventurism by the litigant or by the courts cannot be permitted. By deliberately ignoring or disregarding the decisions or directions by the superior courts, administration of justice suffers and the rule of law is undermined. Blatant disregard of the principles of law cannot be countenanced. "
Mr. Chhaya relied on the case of Manubhai Ishwarlal v. Surat Municipal Corporation, reported in 1996 (3) GLR 1, to point out that an owner is under the duty to give intimation of completion of a building and cannot occupy without the permission of the Commissioner. Mr. Chhaya placed reliance on the decision of a learned Single Judge of this Court in the case of Yogesh D. Sheth v. Ahmedabad Municipal Corporation reported in 1996 (3) GLR 416. In the said case, shops were constructed in parking place contrary to the byelaws of the Municipal Corporation and approved plans. Report was clearly indicating that there was unauthorised construction. Mr. Chhaya drew our attention to para 23 for the purpose of indicating that the message must go out loud and clear.
. In the case of SHALIN HOTEL V. AHMEDABAD MUNICIPAL CORPORATION in L.P.A. 331/95,reported in 1996(3) GLR P. 416 in para 23, the following observations are made.
"We would also expect the Municipal Corporation to take similar action against all those buildings, which have been constructed and or are being used not in accordance with the building plans or the building bye-laws. The message must go out loud and clear, viz. that laws, which include the bye-laws, are meant to be obeyed and not flouted and that monetary or any extraneous influence should not deter a Municipal authority from discharging its public duties and functions. The action which has been taken in the instant case by the respondent is in accordance with law and needs to be commended."
12. In the case of EMPIRE CONSTRUCTION & HOTEL V. MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD, REPORTED IN 1995 (2) GLR 1293, the Court considered the provisions contained in sections 260 and 263 of the Act. In the said decision, it is held that a citizen cannot invoke 8Article 14 of the Constitution to perpetuate a wrong because no action is taken in respect of another citizen. The Court pointed out in paras 6 and 7 as under.
"6.The respondent has its own building Bye-laws, which were referred to by both the sides. There are also Regulations controlling the development of the area under the Town Planning Scheme, to which reference was made. The conditions on which cellars may be permitted in a building unit are contained in paragraph III(11) titled "Cellar" in the building Bye-laws which provides for height, number of stairs, ventilation etc. and prohibits any water connection or drainage connection, domestic uses such as bed room, living room, kitchen etc., and storage of inflammable materials therein. As regards parking, it is provided in paragraph III (6) of the said Act that off street parking space for vehicles shall be provided on every new building constructed for the uses mentioned in the table as prescribed. Accordingly, parking space is to be provided for in respect of cars, scooters and cycles. For residential hotels, minimum off street parking is prescribed at item No.4 of the table. There is a provision in the Regulations controlling development of the area ( published in Manual I, Part II, Chapter III) in Regulation 22 providing that a basement or cellar shall not be counted towards the computation of floor space index. These Regulations also contain conditions on which cellar may be permitted in a building unit and they are the same as the conditions contained in paragraph III (11) of the building By-laws. the Standing Committee is given very limited powers of granting exemption from the operation of the Bye-laws as provided in Chapter VII of the Bye-laws and this does not include exemption from the provisions regarding parking and cellars as is sought to be claimed by the petitioner. As regards parking, as provided in Chapter III (6) the Municipal Commissioner can grant exemption if the conditions laid down in Clause (iv) of paragraph III (6) are fulfilled and this does not include the type of buildings for which the petitioner has been proceeded against.
7. The above provisions from the Bye-laws and Regulations of the respondent Corporation made it necessary for the petitioner to provide for parking space in the plan of the building and which admittedly was shown in the cellar of the building as noted above. It is clear while putting up the partition walls in the said cellar, the space intended for parking purpose was converted by such construction into other use to which the said area is now being put to by the petitioner. Provisions of Sec. 254(1)(d)(ii) of the said Act require that every person who shall intend to make alteration in a building involving conversion of any passage or space in the building into a room or rooms shall give notice to the Commissioner, in the form prescribed in the Bye-laws, containing the information required to be furnished under the Bye-laws. therefore, if the conversion of any space such as parking space is made into a room or rooms by erecting partition walls contrary to the provisions of the Rules or Bye-laws, provisions of Sec. 260 would be attracted and proceedings can be taken by the Municipal Commissioner in respect of such conversion of parking space into rooms. therefore, the Municipal Commissioner was authorised to take proceedings against the petitioner under Sec. 260 of the said Act and the impugned order falls within the powers conferred on the Municipal Commissioner under the said Act. The expression "Commissioner may remove" appearing in Sec. 260(2) of the said Act does not authorise the Commissioner not to take action in cases where no sufficient cause is shown and the contravention of provisions of the Rules or Bye-laws is established. In other words, it would not be open for the Commissioner to arbitrarily decide as to against whom action should be taken and against whom it should not be taken. The discretion, if any, under sub Sec.(2) of Sec. 260 cannot be arbitrarily exercised and the Commissioner is required to function keeping in view the purpose underlying the said provision, namely, removal of building or work which is found to be in contravention of the Rules or Bye-laws. from inaction, if any, in cases similar to that of the petitioner's building, it cannot be inferred that the Municipal Commissioner has taken any decision not to proceed against other similar breaches of Rules or Bye-laws."
The matter was carried before the Division Bench in Letters Patent Appeal. The documents on the record clearly indicate that in the instant case, the building constructed is not in accordance with the building plans which were sanctioned in so far as the Cellar, ground floor, first floor and the terrace are concerned. The construction in the cellar, on the ground floor and the first floor was permitted for the purpose of providing residential units. Shops have been constructed at these places not only unauthorisedly but also by extending the area of the shops and by covering projection area. In para 4, the Division Bench in the aforesaid appeal pointed out as under.
"In our opinion, the position in law regarding non-grant of injunctions with regard to such illegal constructions or misuse has been clearly enunciated in the judgment under Appeal of the learned single Judge, which judgment we approve, and we direct that the copies of the judgment of R.K. Abichandani, J. dated 28th June, 1995 and the judgment should be circulated forthwith amongst all the judges of the City Civil Court and the subordinate courts, who will keep principles enunciated therein in view while deciding similar cases."
13. We are at pains to note that despite the fact that the the judgment was circulated to all the Judges of the City Civil Court and subordinate Courts, the trial courts have continued the trend of passing orders without keeping in mind the decisions and the law on the subject. There is clear non application of mind. At this juncture, we would like to point out what the Apex Court has pointed out in the case of DELHI DEVELOPMENT AUTHORITY V. SKIPPER CONSTRUCTION LTD., reported in (1996) 4 SCC 622. (para 38).
"38. On this occasion, we must refer to the mechanical manner in which some of the courts have been granting interim orders - injunctions and stay orders without realising the harm such mechanical orders cause to the other side and in some cases to public interest. It is no answer to say that "let us make the order and if the other side is aggrieved, let it come and apply for vacating it". With respect, this is not a correct attitude. Before making the order, the court must be satisfied that it is a case which calls for such an order. This obligation cannot be jettisoned and the onus placed upon the respondents/defendants to apply for vacating it. Take this very case; a person purchases a property in auction. He does not pay as per the stipulated terms. He obtains a series of extensions. Still he does not deposit and when the vendor proposes to cancel the allotment, the court is approached and it stays the cancellation. The vendor (DDA) applies for vacating it but nothing happens except repeated adjournments. This has happened more than once. We find that as and when Skipper was not able to manage the DDA, he approached the court and it provided him a breather. He then gets time to manage the DDA. This went on up to the end of 1990 when fortunately the Delhi High Court came with a tonne of bricks upon Skipper and which order was affirmed two years later by this Court. Ultimately, no doubt, Skipper has met its nemesis but meanwhile hundreds of persons are cheated out of their hard-earned monies; their dreams of owning a flat are shattered rudely. "
14. In the instant case, it is clear from the plaint that there is no reference to possession given to anyone. The shops have come in existence and possession of some shops were parted with. Today, it is reported that the entire building is occupied by other occupiers. If a wrong doer has committed a wrong, the occupiers will have to suffer. Mr. Bhatt stated at this stage that the trial is yet to proceed and the court should not make any observations. We have stated this as the learned counsel for the Corporation has made the statement on the instructions. We put a positive question to Mr. Bhatt whether he is in a position to state that the building is not occupied by any one. There was an answer that the building is occupied. We are not expressing any opinion but we are only recording the facts. What would be the outcome when the suit is disposed of and the people have occupied the building will be the sufferer is a question. Mr. Bhatt stated that he has taken instructions from the client and thereafter he is making the statement.
15. It is necessary at this stage to refer that soon after the notice, trial court was approached and the trial court directed to maintain status quo in civil suit no. 4415/94 on 25.8.94. After serving a notice to the Corporation another suit was filed and order of status quo has been passed by the trial court, which has continued till 9.7.99, the date on which learned Single Judge of this Court (Coram: A.M. Kapadia, J.) made an order in C.A. No. 10883 of 1998 which reads as under.
"Notice as to interim relief returnable on 12.8.99. Learned Advocate Mr. M.C. Bhatt waives service of notice on behalf of the respondent. Meanwhile the respondents ( i.e. the plaintiff), his representatives or his agents shall not allot, alienate or transfer the vacant shops constructed on the first and second floors of the disputed building to any other person without informing them in writing of the pendency of litigation about the disputed building"
The order continues till this date.
16. Hon'ble Chief Justice B.N. Kirpal ( as His Lordship then was) in the case of Shwet Rajhans Cooperative Housing Society v. Surat Municipal Corporation, considered the provisions contained in section 260 of the Act and Order 39 Rule 1 and 2 of C.P.C. In that case, the plaintiff came out with a case that the construction had been raised upto the plinth level and injunction should be issued to respondent restraining it from removing the construction which was existing on the said plot. The Court pointed out that by accepting an undertaking, a person cannot be allowed to construct or maintain same which is illegal and contrary to law, merely by contending that the same will be demolished, if the suit is dismissed. No construction can be raised without building plan being passed. The Court pointed out that the construction which was undertaken was contrary to law and therefore, the action should have been taken under section 260 of the Act. It was pointed out that under these circumstances, it was not correct for the trial court to have issued an injunction and the learned District Judge was right in the approach in accepting the appeal. In the case of M.I.BUILDERS PVT. LTD. V. RADHE SHYAM SAHU, reported in (1999) 6 SCC 464, in para 73, the Court pointed out as under.
"73. The High Court has directed dismantling of the whole project and for restoration of the park of its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out, Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots."
The Apex Court in the case of K. RAMADAS SHINOY V. CHIEF OFFICER, MUNICIPAL COUNCIL, reported in (1974) 2 SCC 506, held as under.
"28. An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The Scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the Scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.
29. The Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The Scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction."
The Apex Court again pointed out para 12 in the case of VIRENDRA GAUR V. STATE OF HARYANA, reported in (1995) 2 SCC 577 as under.
"The ratio in Yogendra Pal v. Municipality relied on by Shri V.C. Mahajan renders little assistance to the respondents. In that case, this Court, while declaring Section 203 of the Haryana Municipality Act, 1973, as violative of Article 14 of the Constitution, has given effect to the judgment prospectively. The reasons given in the judgment are eloquent. The Municipalities in Punjab and Haryana States have acquired vast extents of land under different schemes and the lands stood vested in the Municipality and used the land for diverse purposes. The declaration would be rendered illegal unless the prospective operation was given. A Chaos would ensue. To obviate such a catastrophe, this Court had made the operation of the declaration prospective. That is not the situation in this case. It is seen that as soon as the appellants have become aware of the grant made in favour of PSS, they filed the writ petition. Instead of awaiting the decision on merits, PSS proceeded with the construction in post-haste and expended the money on the construction. They have deliberately chosen to take a risk. Therefore, we do not think that it would be a case to validate the actions deliberately chosen, as a premium, in not granting the necessary relief. It was open to the PSS to await the decision and then proceed with the construction. Since the writ petition was pending, it was not open to them to proceed with the construction and then to plead equity in their favour. Under these circumstances, we will not be justified in upholding the action of the State Government or the Municipality in allotting the land to PSS to the detriment of the people in the locality and in gross violation of the requirements of the Scheme. Any construction made by PSS should be pulled down and it must be brought back to the condition in which it existed prior to allotment. The Municipality is directed to pull down the construction within four weeks from today. They should place the report on the file of the Registry of the action taken in the matter."
In the case of PLEASANT STAY HOTEL AND ANR. V. PALANI HILLS CONSERVATION COUNCIL AND ORS, reported in 1995 (6) SCC 127 the relevant observations made by the Court with regard to breach of regulation and unauthorised construction are as under :-
"28. ... ... In our considered opinion, the most eloquent and patent fact that must tilt the scale in this dispute in favour of the Council is that the Hotel had admittedly made a residential construction of seven floors even though their sanctioned plan was only for two floors that necessarily means that five floors of the building have been constructed illegally and unauthorisedly. It is not surprising therefore that the entire endeavour of the Hotel now is to protect the two floors constructed above the road level and to yield to any workable formula. It is in that context that the Hotel, without prejudice to its rights and contentions, had suggested that the entire structure of seven floors might be allowed to remain and, for that purpose, it was prepared to give an undertaking that they would not use the five floors below the road level for any residential purpose but utilize it only for keeping air-conditioning plan and other attendant purposes for running the Hotel on the two floors above the road level. The Council, however, vehemently opposed the above suggestion on the ground that acceptance thereof would mean giving judicial imprimatur to utter and flagrant breach of statutory provisions to which the Hotel resorted to inspite of repeated opportunities given and reminders issued to retrace their steps and any sympathy shown to the Hotel would be wholly misplaced. ..... "
There are judgments wherein the Apex Court has taken the view that illegal construction should be demolished. In the case of DR. G.N. KHAJURIA, V. DELHI DEVELOPMENT AUTHORITY reported in (1995) 5 SCC 766, the Apex Court has observed as under.
"10. Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of courts, the illegality is not taken care of full inasmuch as the officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the the hay when the sun shined, retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite."
17. In the case of Manju Bhatia v. New Delhi Municipal Council & another, reported in (1997) 6 SCC 370, the builder, after obtaining requisite sanction to build 8 floors, constructed more floors, sold the flats and gave possession to the respective buyers. It was found that the builder constructed the building in violation of the building regulations and consequently the flats on the top four floors were ordered to be demolished. The demolition was challenged in the High Court by way of a writ petition which was dismissed. Special Leave Petition before the Apex Court was dismissed and the Court issued notice to the builder for payment to buyers.
18. In the case of PRATIBHA COOPERATIVE HOUSING SOCIETY V. STATE OF MAHARASHTRA, reported in (1991) 3 SCC 341, the Apex Court has pointed out as under.
"We are also of the view that the tendency of raising unlawful construction and unauthorized encroachment is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against the public interest and hazardous to the safety of occupiers and residents of multi-storey buildings."
In para 7 the Court observed that this case should be of pointer to all the builders that making of unauthorized construction never pays and is against the interest of the society at large. The rules and regulations and byelaws are made by the Corporations or development authorities taking in view the larger public interest of the Society and is a bounden duty of the citizens to obey and follow such rules which are made for their own benefits.
19. At the time of granting permission to erect a building, there must be strict compliance of the rules relating to the restriction and control in construction of a building to the floor space index, front setback, side setback, parking requirements including provisions of standby generator, transformer room and meter room and floor space requirements, construction abutting to the road with corridor with permissible floor area limits of nursing homes and height of rear construction. The officers of the Corporation do not possess uncanalised or unbridled power as it is controlled under the Act. The officers of the Corporation are required to use the powers in furtherance of the policy or for achieving the purpose for which the Act has been enacted. If the powers are not exercised by the officer concerned, then it would be said that the officer has failed in discharge of his duties.
20. When discretion is exercised by the officer reasonably conferred by the Statute, such exercise of power cannot be brushed aside in the way in which the trial court has done in the instant case. When the powers were exercised validly by the officers in furtherance of the policy strictly in accordance with the rules and regulations laid down under the Act and the Rules, it became the duty of the trial court to be more careful and cautious while passing the orders. It is required to be noted that entrustment of such power is for the public good and for the public cause and in the instant case, we find that while exercising such power, the authority has taken into consideration the purpose and policy of the Act. The authority has examined not only the plans and papers but in fact the junior and senior officers of the Corporation, after visiting the site and after verification, have called upon the plaintiff to rectify the error. Having failed action was sought to be taken. Under the circumstances, the Court could not have passed the impugned order. One must bear in mind that the powers are entrusted to the officers of the Corporation for implementing the provisions. For public convenience, public safety, public health etc. the provisions must be strictly complied with. If the person carrying out illegal constructions is stating that there were some minor irregularities as against which, the officer of the Corporation who was in a position to take the decision after inspecting the site and by drawing sketches has placed necessary material before the court, it was the bounden duty of the trial court to examine it, scan it thoroughly and thereafter to pass an order.
21. The nature of the construction, if permitted, would affect the public at large. Individual has a right including the fundamental right within a reasonable limit, It inroads the public rights leading to public inconvenience and therefore it is to be curtailed to that extent. It is required to be noted that under the provisions restrictions are imposed to ward off all possible public inconvenience and are for safety. In the instant case, we find from the material placed on the record that the trial court has seriously erred in arriving at a conclusion without appreciating that there is violation of building regulation, byelaws and in breach of of building plan, rules and building regulations, building is erected. One must bear in mind that the violation of the concerned setback will not make it feasible for the Corporation to widen the abutting road in future and that will bring an individual closer to the danger of the road. Waiver of requirements cannot be permitted for several reasons. It would deprive the adjacent plot, its occupants of light and air and also make it impossible for fire engine to be used to fight a fire in high rise buildings. The violation of FSI will result in undue strain on civil amenities such as water, electricity, sewage collection and disposal. It is required to be noted that the absence of requirements regarding fire staircases and other fire prevention and fire fighting measures would seriously endanger the occupants resulting in the death trap causing severe inconvenience to the public at large in case of fire. In the instant case, the officers were vigilant and were careful and with a view to avoid problem which may arise affecting the public health, public safety and convenience, have taken action.
22. Mr. Bhatt, learned counsel for the appellant submitted that in the instant case, the plot in question is situated in the area which is covered under the provisions contained in Gujarat Town Planning & Urban Development Act (hereinafter referred to as " the Development Act"). His contention is that the notice has been issued by the Corporation under the provisions contained in Section 260 of the Act. He contended that no such powers are conferred upon the officers of the Corporation to take action under the provisions contained in the Development Act and if at all powers are conferred, no action has been initiated under the provisions contained in the Development Act and therefore, action is bad.
23. Before entering into that aspect, it would be interesting to point out that there are 28 villages in the area of Ahmedabad Municipal Corporation. Over and above this, there are villages in the development area which are adjoining to the Ahmedabad city. Some of them are as under.
Ghatlodiya, Chandlodiya, Memnagar, Sola, Thaltej, Makarba, Bodakdev, Vastrapur, Vejalpur, Jopdhpur etc. In Ahmedabad Urban Development Authority area, there are 150 villages, but we are not concerned with all the villages. However, in some of the areas being adjacent to Ahmedabad and Town Planning Scheme being made applicable, lot of development has taken place in those areas. Such villages are Naroda, Nikol, Odhav, Vatva, Vinzol, Kathwada, Chandlodiya, Ghatlodiya, Ranip, Sarkhej, Vastrapur, Vejalpur, Bodakdev, Thaltej, Maktampur, Sola (part) etc. So far as Vejalpur, Maktampur, Bodakdev, Thaltej, Ghatlodiya, Chandkheda, Sola, Gota, Thaltej etc. are concerned, the Town Planning Schemes are implemented. With regard to some areas, Town Planning Schemes are pending at various stages. Thus, in Ahmedabad as well as in adjacent area of Ahmedabad, there are several villages.
24. So far as building byelaws are concerned, Ahmedabad Municipal Corporation, in exercise of powers conferred under section 458 of the Act has framed building byelaws which are in Chapter III, Manual I Part II. The Ahmedabad Municipal Corporation has made various provisions indicating the manner in which building is to be erected, the procedure to be followed, areas to be reserved, parking to be provided and elevators and fire safety to be provided etc. In view of the Development Act, Regulations (Condition & Restrictions) controlling the development of the area under the Town Planing Scheme have been published which we find in the book published by the Ahmedabad Municipal Corporation in Chapter III of Manual I, Part II. It is indicated that the regulations framed by the local authority from time to time shall hold good within the area of the scheme provided that in any case in which any of the regulation mentioned therein is in conflict with any regulation or bye-law made by an authority, the provisions indicated in regulations (conditions & restriction) controlling the development area under the Town Planning Scheme shall prevail. Relevant regulations under this Scheme are considered hereafter. Floor Space Index is also provided in clause (22) in Chapter II which reads as under.
"(22) "Floor Space Index" of a plot, building unit or premises shall mean the ratio of the combined gross floor area of storeys including the area of all walls as well as mezzanine floors of a building on a plot, building unit or premises to the total area of the plot, building unit or premises.
Provided that the following shall not be counted towards computation of floor space index:-
(i) space under a building constructed on stilts (plinth on pillars) and used as a parking space.
(ii) A basement or a cellar,
(a) used for air-conditioning plant room, safe deposit vault of a bank and parking space
(b) constructed below residential buildings and to be used as storage space.
(iii) Electric cabin or an electric sub-station, water pump room garbage shaft, elevators (lifts), stairs, electric meter room.
(iv) projections, architectural features, chimneys and elevated water tanks.
(v) Minimum area required as an entrance lobby under these regulations.
(vi) Ramps leading to cellar or upper floors.
(vii) Chowks open to sky.
(viii) Well, borings and tube-wells.
High Rise building is defined in clause (27) which reads as under.
"(27) "High Rise Building" shall mean a building having more than two floors excluding the ground floor."
Residential Use is defined in clause (29) which reads as under.
"(29) "Residential Use" shall mean a use of any building unit for the purpose of human habitation only."
Definition of Gaothan Land is provided in clause (30) which is as under.
"(30) "Gaothan Land" shall mean all lands as may have been included by the Collector within the site of village, town or city, on or before the date of declaration of intention to make a scheme but shall not include any land which may thereafter be included within the site of any village under the provisions of Bombay Land Revenue Code."
So far as the relaxation part is concerned, it finds place in Chapter 18. Clauses (1) and (2) thereof are as under.
(1) In case of plots owned by : (i) Local Authority (ii) Government (iii) Housing Board and (iv) any corporate body constituted under a statute, the Municipal Commissioner may for reasons to be recorded in writing relax or waive any of the scheme regulations in the public interest.
Provided that no relaxation or waiver of any of the scheme regulations concerning built-up area, consolidated open space, marginal open spaces, provisions of high-rise buildings and F.S.I. shall be made.
(2) Not withstanding anything contained in foregoing regulations of the scheme, in cases where these regulations cause hardships to the owners because of their application to the alterations not involving addition to the existing structures erected prior to the coming into force of these regulations, the Municipal Commissioner considering the merits of each individual case may relax or waive, for reasons to be recorded in writing, any regulation of the scheme.
Provided that this relaxation shall not be made in any regulation for high-rise building."
We are not concerned with sub-clause (3) and hence we are not referring the same. Thus, even for government building FSI is not to be relaxed. It is required to be noted that in order to promote public health and safety, general moral and social welfare of the community, it was necessary to apply reasonable limitations on the use of the land and building. That was with a view to ensure that the most appropriate, economical and healthy development of the city takes place in accordance with land use plan and its continued maintenance over the years. It is for this purpose the city was divided into a number of "use zones" such as residential, commercial, industrial, recreational etc. Each use zone has its special regulations because a single set of regulations can not be applied to the entire city, as the different use zones vary in their character and function. In this respect, zoning regulations differ from building codes or sanitary codes which in general apply uniformly to all land or buildings of like use and character whatever they may be located in the Community. Zoning Regulations are not to be used for nuisance control nor can they be used to accomplish any kind of human segregation like excluding certain communities, or income groups from certain areas. Zoning protects residential areas from the harmful invasions of commercial and industrial uses; while it also promotes business and industry by the very nature of the planned and orderly development that it ensures. By requiring the spacing of buildings it provides adequate light, air, protection from fire etc. It prevents over-crowding in buildings and land and thus facilitates the provisions and continued adequacy of water sewerage transportation, schools, parks and other facilities.
25. So far as parking is concerned, there is provision in Chapter 15. Relevant part of in clauses 45(a) reads as under.
"(a) Parking spaces as required under the Town Planning Scheme Regulations or Building Bye-laws shall be provided either on the ground floor or below the ground level in cellar.
So far as revenue survey numbers are concerned (old city or where TP Scheme is not there) the provisions of parking is not to be enforced on the building units having an area of 500 sq. mtrs. or less as per regulation 31. As per rule 40, the occupation permission is not to be issued unless the space enforced as parking is paved. Thus, it is the bounden duty of the owner to provide parking space. Clause 46 reads as under.
" The parking space shall be provided on each plot on the basis of maximum permissible floor space index. Provided that in case wherein the owner agrees in writing to provide required parking space when he would construct upper floor and further indicates satisfactorily the mode of such a provision in future, the provision of complete parking space may be postponed at the time of ground floor construction."
Thus, the rule provides that in case a ground floor is constructed, the owner has to agree in writing as mentioned in clause (46) to provide parking in future.
26. As per the regulations, so far as the development and use of the property is concerned, area which is in predominantly residential zone can be used for dwelling houses, flats, tenements, buildings, chawls, public residential buildings such as boarding houses, residential clubs, hospitals, clinic, nursing homes, sanitoriums, schools, colleges and public institutions (residential), technical educational institutions, public and semi-public recreation ground, gardens, parks, sport grounds and health centres. This is only type of development which appears to have been made permissible. It is also specifically mentioned that in predominantly residential zones, shopping centres, places of public entertainment service etc. may not be permitted.
27. On behalf of the Corporation, it was strongly objected when Mr. Bhatt, learned advocate for the original plaintiff made submissions with regard to the Development Act on the ground that in the plaint there is no reference with regard to the same and for the first time in Appeal from Order, the question is being raised. It is true that in the plaint, that point is not taken. He has raised the question stating that without jurisdiction notice was issued and decision was taken. In reply before the Corporation or in written statement, no such plea is raised.
28. So far as the parking arrangement is concerned, strict compliance is absolutely necessary. In the year 1997, with the Regional Transport Office, Ahmedabad, 9,18,589 vehicles were registered till July 1997. Thereafter number of vehicles must have been registered and approximately 12 lakhs vehicles are registered with the RTO. Considering the population of the Ahmedabad for every four persons, there is one vehicle. Obviously that would require sufficient place for parking also. Over and above these vehicles, there are thousands of visitors to the city every day who are coming in their own vehicles or by hired vehicles. Number of transport buses, regularly operate in city by Ahmedabad Municipal Corporation not only within the city limits but within larger area covered under Development Act. Approximately 50,000 autorickshaws are operating providing quick transport service. Transport buses are operated by private transporters from various parts in the city. Over and above this, State Road Transport Corporation operates buses from congested area of the city which are passing through various roads of the city. Their frequency/trips have also increased. All these aspects were required to be taken into consideration. Looking to the fast development and need of the people vehicles are increasing every day in the city. In view of expansion of city, and considering distance and time use of vehicles has increased a lot. On account of blessings of the concerned department, even some residential buildings are permitted to be used as office complexes without prior approval, without providing parking. Office complex is occupied by many people and the premises are to be visited by number of people which would lead to abnormal movement of traffic and that really causes the problems for the residents of Ahmedabad. Neither police is able to manage nor the Corporation is able to manage in this regard.
29. Every year Government is collecting Crores of Rupees by way of vehicles tax. Corporation is collecting by way of octroi and vehicle tax. It is the responsibility of both these authorities, viz. State Government and AMC, to make proper arrangement with a view to see that proper use is made of funds as well as the roads. It is for them to see that roads are not over crowded.
30. In the year 1997, when Special Civil Application No. 9988/1995 was heard the aforesaid aspects were considered. It was also pointed out to the Court hearing that application that only on the CG road, there are 57 new constructions of buildings, out of which only 11 buildings have provided parking place, but the other, though in the plans indicated that they have provided for parking, in fact, have not provided parking. It was also noted that there are some buildings for which Building Use Permission is not granted, and yet the buildings are used for shops, offices and hotels. Parking place has been converted into shops. Counsel for the Municipal Corporation submitted in that matter that the residential zone has been converted into commercial zone by unauthorised act of the builders or the occupiers. Even then, till today, we find that in most of the cases, no action has been taken by the Corporation and in some cases they are restrained from taking action either by an order of injunction status quo or stay or have illegally charged fees and has allowed the use contrary to law/Rules, which are not carried in the appeal and the Corporation has kept mum thereafter.
31. A person buying a flat or a property in a residential zone would purchase the same knowing full well that it is a residential zone, and there will be no nuisance to him if he constructs the house for residence or purchases the flat meant for residence. If part of the building or the neighbouring building is permitted, with the blessings of others, to be used as office complex or for commercial purpose i.e. shopping complex, it is bound to cause lot of nuisance to the person occupying the property adjacent to such premises or occupying the flat in the building. Under the TP Scheme, once the residential zone is declared and the people are purchasing property and plans are approved for residence, then in that case, it is the duty of the State Government as well as the Corporation or the Local Authority including the development authorities to see that the zoning system is strictly maintained/enforced and no unauthorised use is permitted so as to cause nuisance to others. Without the change of zone in accordance with law, if persons are permitted to use the property for the purpose other than for which permission is granted considering the zone, it means to allow the persons to act in violation of the rules and the laws made by the State Government, and we are sure that the State Government would not like to see that the people are permitted to commit breach of the law.
32. The legislature in exercise of the powers conferred by Sec. 3 of Gujarat State Legislature (Delegation of Powers) Act, 1976, enacted the Act to consolidate and amend the law relating to the making and execution of development plans and town planning schemes in the State of Gujarat. Act is enacted keeping in mind the provisions contained in other statutes for local government i.e. Bombay Provincial Municipal Corporation Act and other laws for local government which are covered under entry 5 of the State List.
33. Chapter II of the Development Act refers to development area and constitution of the development authority. Area development authority is to be constituted as per the provisions contained in section 5 of the Act. Sec.6 gives an option to the State Government to designate Local Authority functioning in the development area or part thereof to function as area development authority.
34. Area development authority has to function as per Sec.7 of the Development Act. Reading Sec.7 it becomes clear that it has to undertake the preparation of development plans for the development area; prepare and execute town planning schemes; carry out surveys in the development area for the preparation of development plans or town development schemes; and, control the development activities in accordance with the development plan in the development area. Sec.8 of the development act refers to expenses of area development authority incurred by an area development authority in discharge of its function. If under section 6 a local authority is designated, as the area development authority, question of determination and making the contribution may not arise. Section 9 refers to development plan, the copy of which is to be made available to the public for inspection under section 10. Section 11 refers to manner of preparation of draft development plan. Section 12 refers to contents of draft development plan. Publication of draft development plan is contemplated under section 13. Suggestions or objections to draft development plan are to be considered in view of section 14. It is thereafter, with modification if any, draft development plan is to be published in the manner provided in section 5. After publication as contemplated under section 15, the draft development plan is to be submitted to the State Government for sanction and it is for the State Government to sanction the plan as contemplated under section 17. Section 19 refers to variation of final development plan. Section 20 permits the area development authority to acquire the land for any purpose specified in section 12. Section 21 refers to revision of the plan.
35. Chapter 3 of the development act makes a provision for declaration of urban development area and Constitution of urban development authority. Powers and functions of urban development authority are enumerated under section 23. Section 24 refers to expenses of urban development authority. The local authority has to contribute towards the expenses.
36. Chapter 4 refers to control of development and use of land included in development plans. On or after the date on which a draft development plan is published in the official gazette in respect of any development area, no person shall carry on any development in any building or in over any land within the development area without the permission in writing. A Person has to pay the development charge etc. as leviable under the act. Thus the restriction imposed makes it clear that the building which is already erected is not to be touched, except for maintenance improvements or other alternation of the building which affects only interior of the building or which do not materially affect the external appearance thereof. It is at this stage it would be proper to refer to section 13. The draft development plan has to publish broadly indicating (a) the uses of which lands in the area covered by the plan are proposed to be put and any survey carried out for the preparation of the draft development plan; (b) Maps, charts and statements explaining the provisions of the draft development plan; (c) The draft regulations for enforcing the provisions of the draft development plan; (d) procedure explaining the manner in which permission for development of any land may be obtained from the area development authority or as the case may be, the authorized officer; (e) A statement of the state of development by which it is proposed to meet any obligation imposed on the area of development authority by the draft development plan and, (f) An approximate estimate of the cost involved in acquisition of land reserve for public purpose etc.
37. Section 29 refers to grant or refusal of permission. This has reference to section 27 and section 28. Sec. 32 refers to lapse of permission. Sec. 33 refers to power of revocation and modification of permission to development. Sec. 34 refers to sanction for sub-division or lay out of Private Street. Sec. 35 refers to penalty for unauthorized development or use or continuance or retention of the use without permission. Sec. 36 gives power of removal of unauthorized development or use. Section 37 refers to removal of unauthorized temporary development summary.
38. Chapter V refers to town planning schemes. Sec. 44 refers to contents of draft scheme. Sec. 45 refers to reconstitution of plots. Sec. 46 refers to disputed ownership of the land included in the area in respect of which a declaration has been made. Sec. 47 refers to objections to draft scheme. Sec. 48 refers to power of state government to sanction the draft scheme. Section 49 refers to restrictions on use and development of land after declaration of a scheme. Section 52 refers to contents of preliminary and final scheme. Section 65 refers to power of government to sanction or refuse to sanction the scheme and effect of sanction. These are the relevant sections to be considered for the purpose of finding out the real purpose in enacting the Act.
39. It is also required to note at this stage the dictionary meaning of the words development ( or develop) and erection ( or erect). The meaning of the word "develop" as indicated in the Random House Dictionary of the English Language reprint 1977 is as under.
"1. To bring out the capabilities or the possibilities of; bring to a more advanced or effective state; 2. to cause to grow or expand; 3. to elaborate or expand in detail ; to develop a theory; 4. to into being or activity generate; evolve 5. to transfer the details of ( a two dimension design, pattern or the like) from one surface onto another without altering the distance between points; 6. Math. to express in an extended form as in a series; 7. Photog in a. to render visible ( the intent image or the like) b. to treat ( an exposed film or image or the like) with chemicals so as to make visible latent image 8. Chess. to bring ( a piece) into the effective play; 9. to grow into a more mature or advanced state; advance expand; 10. to come gradually into existence or manifest; 12. Biol to undergo differentiation in ontogeny or progress in phylogency; 13. to undergo developing as a photographic film."
Development' is noun of verb `to develop'. It reads as under.
"1. the act of process of developing; progress 2. a developed state, form or product 3. music the part of a movement or composition in which a theme or themes are developed; 4. a large group of dwellings constructed as a unified community; 5. Chess the act or process of developing chess pieces. developmental adj. developmentally adverb - Syn. 1. expansion, elaboration, growth, evaluating unfolding, maturing, maturating 2. maturity, ripness"
So far as word "erect" is concerned the said reads as under.
1. Upright in position or posture; 2. raise or directed upward; 3. Bot. vertical throughout & not spreading a ear erect; 4. heraldry represented palewise. a. sword erect. b. animal or part an animal represented upright; 5. optics (of an image) having the same position as the object not inverted; 6. to build, construct, raise, to erect a house; 7. to raise and set in an upright a vertical position, to erect a telegraph pole; 8. to construct (something) upon a given base, to erect a philozical system; 9. geom. to draw or construct ( a line or figure); upon a given line base, or the like. 10. optics. to change (an inverted image) to the normal position; 11. to set up or establish as an institution found. 12. to become erect, stand up or out.
40. The provisions contained in the municipal laws for local government are not made redundant. The new areas of development thus would be governed by both the laws. The development of the area is one thing and erection of a building which is permitted considering the local requirement is another thing. The development act through its zoning regulations finger to a guidance for development and it provides a larger frame work. It would provide plotting, roads and indicate the site for public amenities through its development plan. In view of this, provisions of both the statutes are to be read harmoniously and in case of conflict, the later regulations shall prevail but not necessarily the Act or the rules/regulation made is repealed.
41. Section 49 refers to restriction of use of land, development of land. Development of a land is not really to be understood as erection of a building.
42. Our attention was drawn to sub-clause (8) of section 2 of the Development Act which reads as under.
"(viii) "development" with all its grammatical variations and cognate expressions, means the carrying out of any building, engineering, mining or other operation, in or over or under land or the making of any material change in any building or land or in the use of any building or land, and includes layout and sub-division of any land;"
Sub-sections (iii) & (iv) read as under.
"(iii) "appropriate authority" in relation to a development area, means an area development authority or an urban development authority, as the case may be;
(iv) "Area Development Authority" means an area development authority constituted under section 5 and includes a local authority designated as such under sub-section (1) of Section 6 or Government Company designated as such under Section 6A."
Sub-clause (14) of section 2 reads as under.
"(xiv) "local authority" means a municipal corporation constituted under the Bombay Provincial Municipal Corporations Act, 1949, Bom. LIX of 1949 as in force in the State of Gujarat, a municipality constituted or deemed to be constituted under the Gujarat Municipalities Act, 1963, Guj. XXXIV of 1964 a committee appointed for a notified area under the Gujarat Municipalities Act, 1963 or a gram or nagar panchayat constituted or deemed to be constituted under the Gujarat Panchayats Act, 1961, Guj. VI of 1962."
Section 6 reads as under.
Sec. 6. Power to designate a local authority as area development authority.
(1) The State Government may, instead of constituting an area development authority for a development area, designate any local authority functioning in a development area or part thereof, as the area development authority for that development area.
(2) The local authority designated under sub-section (1) as the Area Development Authority shall, for the purposes of performing the functions assigned to an area development authority under this Act, set up a Planning Committee consisting of the following members, namely:-
(i) xxx xxx
(ii) xxx xxx
(iii) xxx xxx Our attention is invited to section 29 of the Development Act which refers to grant or refusal.
Sec.29. Grant or refusal of permission.
(1) On receipt of an application under Section 27 or Section 28, the appropriate authority shall furnish the applicant with a written acknowledgment of its receipt and after satisfying itself that the development charge. ( and scrutiny fees) if any, payable by the applicant has been paid and after making such inquiry as it thinks fit may, subject to the provisions of this Act, by order in writing--
(i) grant the permission with or without any condition; or
(ii) grant the permission, subject to any general or special orders made by the State Government in this behalf, or
(iii) refuse to grant the permission.
(2) Any permission under sub-section (1) shall be granted in the prescribed form and every order granting permission subject to conditions or refusing permission shall state the grounds for imposing such conditions or for such refusal.
(3) Every order under sub-section (1) shall be communicated to the applicant in the manner prescribed by regulations.
(4) If the appropriate authority fails to communicate its order to the applicant within three months from the date of receipt of the application, such permission shall be deemed to have been granted to the applicant on the expiry of the said period of three months.
(5) If any person carries on any development work or retains the use of any building or work, or continues the use of land in contravention of the provisions of section 27 or section 28 or of any permission granted under subsection (1) of this section, the appropriate authority may direct such person, by notice in writing, to stop further progress of such work or to discontinue any use and may, after making an inquiry in the prescribed manner, remove or pull down any building or work carried out and restore the land to its original condition or, as the case may be, take any measures to stop such use.
(6) Any expenses incurred by the appropriate authority under sub-section (5) shall be a sum due to the appropriate authority under this Act from the person in default."
43. Our attention is invited to section 49 of the Development Act which refers to restriction of use and development of land after declaration of the scheme. Relevant sub-clauses 1(a) and (3) read as under.
"Sec.49 Restrictions on use and development of land after declaration of a scheme.
(1) (a) On or after the date on which a draft scheme is published under section 41, no person shall, within the area included in the scheme, carry out any development unless such person has applied for and obtained the necessary permission for doing so from the appropriate authority in prescribed form and on payment of such scrutiny fees as may be prescribed by regulations.
(3) On and after the date referred to in clause (a) of sub-section (1), the appropriate authority intending to carry out development of land, within the area included in the scheme, for its own purpose in exercise of its powers under any law for the time being in force shall carry out such development in conformity with the provisions of such scheme, and of the bye-laws and regulations relating to construction of buildings."
44. Mr. Bhatt invited our attention to section 117 of the Development Act which reads as under.
"Sec.117- Effect of other laws.
Notwithstanding anything contained in any other law for the time being in force-
(a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained;
(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained."
45. Mr. Bhatt fairly submitted that the aforesaid section has been deleted subsequently. According to his submission, when the application was made to the Corporation for the purpose of the development of the land, as also when action was sought to be taken, this section was in force and therefore, that section is to be read. Mr. Bhatt submitted that thus, reading the aforesaid provisions, it becomes very clear that the application was made for development of the plot namely for erection of a building to the local authority i.e. the Corporation constituted under the provisions of the Act. The owner might have given the application under the provisions contained in the Act as well as the Development Act. According to his submissions, it was the duty of the respondent Corporation to decide the application in accordance with law. He further submitted that after the plans were sanctioned, if any action was required to be taken, it could have been taken only under the Development At and under no other provision. Mr. Bhatt submitted that the permission is granted under sections 29 and 49 of the Development Act and therefore, the action should be taken under that provision only. According to his submission, permission granted under the provisions of the Act is redundant in view of the provisions of the Development Act.
46. It is also required to refer at this stage to section 32 of the Development Act which reads as under.
Sec.32 Lapse of permission.
"Every permission granted or deemed to have been granted under section 29 shall remain in force for a period of one year from the date of such grant and thereafter it shall lapse :
Provided that, the appropriate authority may, on application made to it, from time to time, extend such period by a further period or periods not exceeding one year at a time, so that the extended period shall in no case exceed three years in the aggregate :
Provided further that the lapse of the permission as aforesaid shall not bar any subsequent application for fresh permission under this Act.
47. Provisions are to be strictly applied which are contained in the Development Act. Every permission granted shall remain in force for a period of one year from the date for such grant and thereafter it shall lapse unless appropriate authority on application being made to it, has extended such period by a further period not exceeding one year at a time. If proviso is read, it becomes clear that such extension can be for a period of three years in aggregate and not more than that. No doubt, after the lapse of the permission, one can again submit an application for fresh permission under the Act. In the instant case, no application is made after expiry of the period of one year expired, under the provisions contained in the Development Act.
48. So far as Bombay Provincial Municipal Corporations Act is concerned, the rules framed under the Act (Appendix IV Chapter 12) is required to be referred under the caption " buildings regulations and buildings loans". Sub-rule (2) of Rule 6 reads as under.
"Rule 6(2) : If the person who is entitled under rule 3 or 4 to proceed with any building of work, fails so to do within the period of one year prescribed in the said rules, respectively, for proceeding with the same, he may at any subsequent time give fresh notice of his intention to erect such building or execute such work and thereupon the provisions hereinbefore contained shall apply as if such fresh notice were a first notice of such person's intention."
49. Rules 3 and 4 refer to when a work should proceed, or when a building/work which is disapproved by the Commissioner may be proceeded with subject to terms, or not to proceed with the building/work. Here also the period fixed is one year and within one year, one has to proceed with the work. However, there is nothing to indicate as to within what period, one has to complete the work of erection of a building.
50. Now, reading the provisions of the Development Act and the Act, it is clear that under the Development Act, permission granted shall lapse as contemplated under section 32 of the Development Act. So far as building permission granted under the Act is concerned, if the work has not commenced within the prescribed period, then he has to apply again. However, after the work of erection of the building has commenced if it is not completed within a period of one year, the permission granted would not lapse. Thus, the contention of Mr. Bhatt if accepted then, permission granted would lapse within a period of one year unless it is renewed. In the instant case, as there being no application before the Corporation, the permission has lapsed and the construction must be said to be without permission if contention of Mr. Bhatt is to be accepted.
51. Mr. Bhatt submitted that in view of section 117 of the Act, as the permission was granted for development with respect of land, the development shall not be deemed to be unlawfully undertaken or carried out by raising the fact that permission, approval or sanction required under such law for such development has not been obtained. We have indicated that the regulations of development framed under the Act and under the Development Act are different and both are in the booklet published by the Ahmedabad Municipal Corporation. It is not the case that the building permission is granted only under the rules framed under section 458 and not under the regulations under the Development Act. We have indicated that there are two different provisions and if there is any conflict with regard to regulations, the regulations made under the Development Act shall prevail. In the instant case, there is no conflict and therefore, both the provisions are to be read.
52. It is required to be noted that the premises are under the area of the Corporation to which the provisions contained in the Act apply. When under the Act as well as under the Development Act, Regulations are framed and if the regulations are not in conflict, then it cannot be said that the action cannot be taken under the provisions contained in the Act. According to Mr. Bhatt, action could have been taken only under section 49 of the Act. Mr. Bhatt submitted that in view of section 36 of the Development Act, action could have been taken only under that provision and not under section 260 of the Act. It is required to be noted that the area is under the Corporation and the law namely BPMC Act applies to it. However, in the Development Act, there is no provision that notwithstanding anything contained in the Act, the Development Act shall apply. Mr. Bhatt is not right when he submits that in view of section 117, other laws are not applicable and as permission has been granted under this Act, action could have been taken only under section 36 of the Development Act. Section 117 refers to permission, which must be in conformity with the provisions of the scheme, and the byelaws and regulations relating to construction of building.
53. Section 49 puts restriction on use and development of land after the Scheme is published. The provision is to be made for : zones, lay out, filling up or reclamation of law-lying/levelling up of land, lay out of streets or roads, construction, diversion, extension, alteration and removal of bridges and other structures, allotment or reservation of land for roads, open spaces, gardens, public purposes of all kind, drainage, sewerage, lighting, water supply etc. etc. Thus, the land may not be used contrary to the provisions made in the scheme seems to be the intention.
54. Under the Development Act, as indicated above, Scheme provides for better town planning. Everyone in the area is required to contribute for development and one is required to pay development charges. That care is taken by Section 26 of the Development Act. It is in view of this that even for improvements, development in existing building development charges are to be paid. This permission has thus reference to use of land for the purpose as indicated and one has to pay development charges. This permission has has nothing to do with erection of a building. In an area under the limits of Corporation, in view of town development scheme one has to pay development charges before the use of land and has to erect a building as per provisions contained in Rules and regulations. If the breach of Rules/regulations is committed, action will have to be taken in the area under Corporation under the Act.
55. It is required to be noted that the Development Act and the BPMC Act operate in different fields. In the State List II of VIIth Schedule of Constitution of India, entry no. 5 reads as under.
"5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration."
Entry 18 reads as under.
" Land, that is to say, rights in or over land, land tenures including the relation for landlord and tenant, and the collection of rents, transfer and alienation of agricultural land, land improvement and agricultural loans, colonization."
56. Mr. Bhatt placed reliance on the decision of the learned Single Judge in the case of Anilkumar Radheshyam Tulsian v. Surat Municipal Corporation, reported in 1998 (2) GLR 1664. In view of this decision, he contended that when Urban Development Authority is constituted, exercise of power relating to development and redevelopment of area under its jurisdiction by any other authority is excluded. Where powers of Urban Development Authority are delegated to a municipal authority, exercise of powers by such municipal authority would be as an Urban Development Authority under the Act and not as municipal authority under the relevant municipal statute. He submitted that in view of this decision, the municipal authority, even if it has exercised its power, has to exercise powers under the Development Act and not under the BPMC Act. According to Mr. Bhatt as the powers were exercised under the provisions contained in the Act, notice is illegal and no action could have been taken. So far as this decision is concerned, the matter was carried in appeal by Surat Municipal Corporation. The decision was cited before one of us (P.B. Majmudar, J.) in the case of MANSINGHBHAI KAHALSINGBHAI & ORS. V. SURAT MUNICIPAL CORPORATION, reported in 2000 (2) GLH 269. In para 12 of the said judgment, the Court has held as under.
"12. So far as the second argument of Mr. Mankugia regarding the issuance of notice under Section 260(1) of the BPMC Act is concerned, it is stated by him that since the area in question is covered under the T.P. Scheme the Corporation has no power to issue such a notice and for that purpose he relied upon a judgment of this Court rendered in Appeal from Order which arose from an order passed by the Trial Court below Exh.5. The judgment of this Court (Coram: Balia, J.) was stayed by the Apex Court and subsequently the Apex Court held that the observations of the learned single Judge of this Court were not meant to lay down any law on the question raised in the suit. Aforesaid order of the Apex Court is kept on record. Gujarat Town Planning and Urban Development Act and BPMC Act operate in two separate fields. So far as the T.P. Scheme is concerned it is mainly concerned with the development of town or city while Chapter 15 of the BPMC Act is concerned, it deals with regularisation about the building and every person who intend to erect a building shall submit an application for getting the construction permission in accordance with the building byelaws as per the provisions of BPMC Act and the Commissioner is empowered to reject the application under Section 255 of the BPMC Act. Similarly the Commissioner is empowered to demolish the construction which is being carried without approval or sanction and which is contrary to the bye laws. The petitioners had submitted their development plan to the Corporation. The Corporation being the local authority has option therefore, to decide whether to sanction the plan or not. Mr. Desai has also placed on record the particulars about the construction in question which according to him was illegal or contrary to the sanctioned plan. The same is kept on record. It, therefore, cannot be said that the commissioner has no power under section 260(1) of the said Act and, therefore, the arguments of Mr. Mangukia deserves to be rejected. The petitioner in fact had not even replied to the notice issued under section 260(1) of the Act and inspite of notice given by the Corporation the petitioners had continued to make further construction."
The decision aforesaid is confirmed by Letters Patent Bench.
57. Before us a copy of the decision of the Apex Court has been placed for perusal. In unequivocal terms, it is mentioned that the observations which have been made by the trial court as also by the appellate court were only made for the purpose of deciding the interlocutory mater and were not made to lay down any law on the question raised in the suit. In view of this, it is clear that the learned Single Judge has not laid down any law as contended by Mr. Bhatt.
58. A Division Bench of this Court in the case of BHARAT HAIR DRESSERS V. SURAT MUNICIPAL CORPORATION, reported in 1987 (2) GLH 26 UJ 21 had an occasion to consider the provisions contained in the Act as well as the Development Act. In the said case it was contended as under.
"First contention raised on behalf of the appellants is that after the Gujarat Town Planning & Urban Development Act, 1976 (hereinafter referred to as "the Urban Development Act") came into force, it is the Surat Urban Development Authority which can take action for providing roads and /or public streets in the city of Surat; and the Municipal Commissioner acting under the Act has no power to do so. In support of this contention, our attention was invited to sections 7 (1) (vi), 12 (2) (d), 20 (1), 36, 40(3)(c) and 107 of the Urban Development Act. It was urged that these are special provisions with respect to extension and development of roads and acquisition of land for that purpose; and, therefore, they will prevail over the general provisions contained in the Act in this behalf. It was also contended that the Urban Development Act being later in point of time, the relevant provisions of the Act stand impliedly repealed."
While negativing the contention, the court observed as under.
"There is no substance in these contentions. The Urban Development Act has been enacted with a view to consolidate and amend the law relating to the making and execution of development plans and town planning schemes in the State of Gujarat. Considering the object with which the Urban Development Act has been enacted and the relevant provisions thereof relied upon by the learned advocate for the appellants, it is not possible for us to agree with the contention that the said provisions are special provisions for prescribing street lines and the actions that can be taken for setting back buildings to the regular line of streets. The object of the two enactments are quite different; and the relevant provisions of the two Acts operate in different fields and do not come in conflict with each other. Sections 12 (2)(d) and 40(3)(c) of the Urban Development Act lay down what a draft development shall indicate and a town planning scheme may contain. Sections 7 (6), 20(1) and 107 of the said Act provide for the power to acquire lands for the purpose of a town planning scheme or development plan under the Land Acquisition Act. Thus, the power or authority under the Urban Development Act are quite different from the power or authorities of the Municipal Commissioner under the Act. Therefore, neither the rule of interpretation that special provisions should prevail over the general provisions nor the rule of implied repeal can have application to the facts of this case."
Thus the Division Bench has much earlier negatived the arguments that the Development Act would apply and not the Corporation Act. We are bound to follow the precedent.
59. In the case of SOLAPUR MIDE INDUSTRIES ASSOCIATION V. STATE OF MAHARASHTRA reported in AIR 1997 SC 8, the provisions contained in the Act as well as the Maharashtra Industrial Development Act were considered by the Court. In para 2, the court observed as under.
"2. It is not disputed that since the State Government has not yet withdrawn the industrial estate/industrial area concerned from the hold of the Corporation, the provisions of the 1961 Act continue to apply. The Preamble thereof is suggestive of its objects sought to be achieved namely the orderly establishment in industrial areas and industrial estates of industries, and to assist generally in the organization thereof, and for that purpose to establish the Industrial Development Corporation and for purposes connected with the matters therewith. The purpose of the 1949 Act on the other hand, as is suggestive from its Preamble, is to provide for the establishment of Municipal Corporation with a view to ensure a better municipal government of the cities in which municipal corporations are set up. These being the basic differences as to the ambit of the two statutes, the High Court, in our view, rightly arrived at the conclusion that there were inter se no conflict between the two. There may be certain areas such as provision for civil amenities in which there is identity of purpose but these are ancillary and incidental to the main purpose of the respective two statutes. The suggestion drawn from Assembly debates, to which our attention has been drawn, while passing the 1961 Act, suggestive of the fact that the industrial estates or industrial areas on ripening were meant to be kept under the purview of the 1961 Act until some civic administration in the form of Panchayat or Municipality could take over is not supported by any statutory provision available in the respective two Acts. As said before the topics of legislation being different, there was no question of their rubbing against each other because being enacted under two different legislative fields."
60. In our view, there is no conflict between the different provisions and so far as the authority under the Development Act being the local authority having jurisdiction over the area and the petitioner availing services which are rendered by the Corporation, it is difficult to accept the contention raised by Mr. Bhatt.
61. In the case of MANEKLAL CHHOTALAL V. M.G. MAKWANA, reported in AIR 1967 SC 1373, Full Bench of the Apex Court held as under.
"40. The legislation, in question, can be broadly stated to be a legislation in regard to land. As pointed out by this Court in Sri Ram Narain Medhi v. The State of Bombay(1).
"It is well-settled that these heads of legislation should not be construed in a narrow and pedantic sense but should be given a large and liberal interpretation".
Further, in Navinchandra Mafatatlal v. The Commissioner of Income-tax, Bombay City(2), this Court expressed the rule of interpretation, as follows :
"The cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider, that in construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude."
In construing Entry No. 18, of List III, this Court, in Atma Ram v. The State of Punjab(1), adopted the interpretation placed by the Judicial Committee of the Privy Council in Megh Rai v. Allah Rakhia(2), while construing Item 21 of List II (Provincial List) of the Seventh Schedule to the Government of India Act, 1935, which was more or less substantially, in terms of Entry No. 18 of List II of the Seventh Schedule to the Constitution. Their Lordships of the Privy Council concluded that Item 21 relating to land, would include mortgages as an incidental and ancillary subject. This Court, in referring to that decision, observed at p. 755 :
"Their Lordships observed that Item 21 aforesaid, forming a part, as it did, of the Constitution, should on ordinary principles, receive the widest construction, unless, for some reasons, it is cut down either by the terms of that item itself, or by other parts of the Constitution, which have, naturally, to be read as a whole; and then proceeded to make the following very significant observations :
"As to item 21, `land', the governing word, is followed by the rest of the item, which goes on to say, `that is to say'. These words introduce the most general concept--rights in or over land'. `Rights in land' must include general rights like full ownership or leasehold or all such rights. `Rights over land' would include easements or other collateral rights, whatever form they might take. Then follow words which are not words of limitation but of explanation or illustration, giving instances which may furnish a clue for particular matters........".
41. The various aspects dealt with in the Act, in question, can be considered to deal with `land', and, accordingly, the competency of the State Legislature to enact the measure, in question, can be found in Entry No. 18."
62. Even otherwise, reading various provisions which are referred hereinbefore, we find no substance in the contentions raised by Mr. Bhatt. Reading various chapters and sections thereunder with object of the Development Act and the entry under which the Act is enacted, it becomes quite clear that it is for the purpose of the town planning and the development of the urban area, the Act has been enacted. For the development area and constitution of area development authorities, declaration of urban development areas and constitution of urban development authorities and control of development and use of land included in development plan and considering the town planning schemes, it is very clear that the Act has made provision for different purpose altogether namely: development of the town planning and the urban areas. It has nothing to do with the functions of the local authorities which are to be carried out under the Act or other Municipal Acts which are enacted with the aid of entry 5 of List II. It is in view of this, that powers are given to the local authority as area development authority and that area development authority is required to see that if there is overlapping between the two Acts namely the Act and the development Act as far as possible, the provisions contained in both the Acts are implemented. In our view both the Acts are operating in different fields.
63. The BPMC Act is enacted to provide for the establishment of the Municipal Corporation with a view to ensure a better municipal government or the local self government. This is a basic difference as to the ambit and scope of the statute and in our opinion, there is no conflict between the two Act.
64. At this juncture, it would be relevant to refer Part IX and Part IX(A) of the Constitution of India. These Part IX and Part IX(A) were introduced in the Constitution of India and provisions were made effective w.e.f. 1.9.93.
65. Article 243P sub-clause (b) refers to "district" means a district in a state. sub-clause (c) refers to metropolitan area, which reads as under.
"243P (c): "Metropolitan area" means an area having a population of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous areas, specified by the Governor by public notification to be a Metropolitan area for the purposes of this Part."
Sub-clause (d) refers to municipal area which reads as under.
"243P(d): "Municipal area" means the territorial area of a Municipality as is notified by the Governor."
Sub-clause(e) of Article 243P reads as under.
"243P(e): "Municipality" means an institution of self-government constituted under Art. 243Q."
In the instant case, we are concerned with the Municipal Corporation and therefore, we are required to refer to Article 243Q. Sub-Article (c) of Article 243Q reads as under.
243Q (c):A municipal corporation for larger urban area, in accordance with the provisions of this Part Provided that a municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township."
66. In the instant case, the property in question is in municipal area and as a local self-government - municipal corporation under the Act is rendering all types of services as contemplated under the Act for which Chapter 15 for building regulations, Chapter 14 for streets, Chapter 12 for drains and drainage. Chapter 13 for water supply may be perused. As indicated earlier under the Act, Rules are framed for building regulations, drainage and drainage works, water supply etc. which are found in Schedule A of the Act provides rules under section 453 of the Act.
67. Constitution of the municipalities, composition of municipalities, constitution and composition of Wards Committees etc., reservation of seats, duration of municipalities, disqualification for membership, powers, authority, responsibilities of municipalities etc. power to impose taxes by, and Funds of, the Municipalities Finance Commission, audit of accounts of municipalities, elections to the municipalities, committee for district planning, committee for metropolitan planning etc. are provided in Chapter IXA of the Constitution.
Article 243(W) reads as under :
"243W: Powers, authority and responsibilities of Municipalities, etc.- Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow -
(a) the Municipalities, with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities. Subject to such conditions as may be specified therein, with respect to -
(i) the preparation of plans for economic development and social justice.
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule.
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule."
The Twelfth Schedule reads as under:-
1. Urban planning including town planning.
2. Regulation of land-use and construction of buildings.
3. Planning for economic and social development.
4. Roads and bridges.
5. Water supply for domestic, industrial and commercial purposes.
6. Public health, sanitation conservancy and solid waste management.
7. Fire services.
8. Urban forestry, protection of the environment and promotion of ecological aspects.
9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded.
10. Slum improvement and upgradation.
11. Urban poverty alleviation.
12. Provision of urban amenities and facilities such as parks, gardens, playgrounds.
13. Promotion of cultural, educational and aesthetic aspects.
14. Burials and burial grounds; cremations, cremation grounds and electric crematoriums.
15. Cattle pounds; prevention of cruelty to animals.
16. Vital statistics including registration of births and deaths.
17. Public amenities including street lighting, parking lots, bus stops and public conveniences.
18. Regulation of slaughter houses and tanneries.
Article 243(ZE) pertains to committee for metropolitan planning which reads as under :
"243ZE. Committee for Metropolitan planning) There shall be constituted in every Metropolitan area a Metropolitan Planning Committee to prepare a draft development plan for the Metropolitan area as a whole.
(2) The legislature of a State may, by law, make provision with respect -
(a) the composition of the Metropolitan Planning Committees; (b) the manner in which the seats in such Committees shall be filled:
Provided that not less than two-thirds of the members of such Committee shall be elected by, and from amongst, the elected members of the Municipalities and Chairpersons of the Panchayats in the Metropolitan area in proportion to the ratio between the population of the Municipalities and of the Panchayats in that area;
(c) the representation in such Committees of the Government of India and the Government of the State and of such organizations and institutions as may be deemed necessary for carrying out the functions assigned to such Committees;
(d) the functions relating to planing and co-ordination for the Metropolitan area which may be assigned to such Committees;
(e) the manner in which the Chairpersons of such Committees shall be chosen.
(3) Every Metropolitan Committee shall, in preparing the draft development plan,-
(a) have regard to - (i) the plans prepared by the Municipalities and the Panchayats in the Metropolitan area;
(ii) matters of common interest between the Municipalities and the Panchayats, including co-ordinated spatial planning of the area, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation;
(iii) the overall subjectives and priorities set by the Government of India and the Government of the State;
(iv) the extent and nature of investments likely to be made in the Metropolitan area by agencies of the Government of India and of the Government of the State and the other available resources whether financial or otherwise;
(b) consult such institutions and organizations as the Governor may, by order, specify.
(4) The Chairperson of every Metropolitan Planning Committee shall forward the development plan, as recommended by such Committee, to the Government of the State."
If there is no metropolitan area, then for a district almost similar provision is made in Article 243(ZD).
Article 243(ZF) reads as under.
"243ZF:- Continuance of existing laws and Municipalities.-- Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is consistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier.
Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State."
68. Considering the mandate of the Constitution, submissions made by Mr. Bhatt are required to be rejected. Article 243Q refers to municipalities for urban area which also provides for an industrial establishment in the area.
69. The Apex Court in the case of SAIJ GRAM PANCHAYAT V. STATE OF GUJARAT, reported in AIR 1999 SC 826, pointed out that Article 243Q deals with the Constitution of the Municipalities. In para 18 the Apex Court has pointed out as under.
" It is next contended that the proviso to Cl. (1) of Art. 243-Q applies only to urban areas. It does not apply to a transitional area. Since the industrial areas in question have been subsequently notified as transitional areas they can not be equated with industrial townships. This contention also cannot be accepted. Article 243-Q deals with Constitution of Municipalities. Municipality is defined under Art. 243P(e) to mean an institution of Self-Government constituted under Art. 243-Q. Article 243-Q constitutes three types of municipalities; (a) Nagar Panchayat (b) Municipal Council and (c) Municipal Corporation. The proviso to Article 243Q deals with all three types of municipalities constituted under clause (1). It provides for a municipality which may not be constituted in certain circumstances. This would refer to any of the three types of Municipalities. Although the proviso refers to such urban area or the part thereof, this urban area also covers a transitional area in transition from from rural to urban. It is because this area is also in the process of turning into an urban area that it is put under Part IX A which deal with Municipalities in urban areas. Therefore, in respect of any of these three types of areas set out in Cl. (1) of Art. 243-Q, having regard to the size of the area, the Municipal services being provided or proposed to be provided by an industrial establishment in that area, and such other factors as the Governor will deem fit to consider, he may, by public notification specify such area to be an industrial township. All these relevant factors would be in operation in an industrial area already notified many years back under an Industrial Development Corporation Act as in the present case. Therefore, there is no breach of Art. 243-Q if such an area is, under the provisions of an Industrial Development Act, equated with an industrial township under Art. 243-Q."
70. In the case of Saij Gram Panchayat (supra), relevant factors were taken into consideration and the Court held that as industrial establishment is already established, there is no breach of Art. 243Q, If such area is under the provisions of the Industrial Development Act, equated with industrial township under Art. 243-Q no grievance can be made. Thus, from the provisions, it is very clear that there must be a municipality under Art. 243-Q. However, industrial establishment under a notification as contemplated under the proviso may be declared as industrial township. Nonetheless, institutions referred in Art. 243-Q are meant for municipal services. In the instant case, the Corporation duly established under the Act is providing municipal services. In our opinion, in view of this, only one conclusion that the Building regulations as made applicable must be implemented. In the instant case, as there being no conflict with regulations and the duties, we are of the view that the powers are rightly exercised by the Corporation.
71. Article 21 of the Constitution must be strictly enforced. Local government is bound to see that the life of the persons residing in the city is made meaningful, complete and worth living.
72. People in search of work, move to urban agglomeration. All amenities and living conveniences also attract people to move from rural areas to cities. Industry is equally responsible for concentration of population around the industries. It is the responsibility of the local government to see that the people who are coming to the cities are under the law compelled to have accommodation in such a way that it may not affect adversely the life and liberty of other citizens. It appears that keeping this aspect in mind, the Development Act as well as the provisions contained in the Corporation Act are required to be strictly implemented. Right to decent environment and smoke free and pollution free environment follows from the quality of life which is guaranteed by Art. 21 of the Constitution. The Rules are made with a view to see that proper parking facilities are provided and roads are sufficiently widened to see that on account of increase in number of vehicles, people moving on their own from one place to another place are not adversely affected.
73. On account of requisite parking being not provided, the roads are being congested on account of bottle-necking, and the people suffer a lot. That would affect their health and would create several problems. On account of absence of parking, the people park their vehicles on the roads and footpath, as a result of which, common man finds it very difficult for moving from one place to another place. This causes not only inconvenience but causes health hazards and in our view, the action not taken by the officers to avoid such a situation would not only require to be condemned but would require to be taken very seriously by the Corporation. In the instant case, the officers concerned were vigilant and before construction was completed, they have served orders after hearing the person who was erecting a building and six occupiers of the shops.
74. During this session, we have come across several cases, wherein the Corporation has sanctioned plans. However, the construction is not carried out as per the plan and before the building use permission is granted, flats, shops etc. are transferred or handed over to the persons who have book the same.
75. Under the building regulations, there is a provision for classification and experience of persons who are licensed to act as Surveyor, Architect, Structural Designer etc. The persons working as above-referred must have a valid license issued by the Corporation. It is the responsibility of this class of persons to prepare plans and section and see that position on site is according to the drawings i.e. the plan. It is the duty of these licensed persons to comply with other regulations prescribed under the Rules and the byelaws. It is the duty of this class of persons to strictly comply with the provisions. It is their duty to submit a completion report in form 4. It is incumbent upon every person who is engaged under the byelaws to supervise the erection of a building and to submit a completion certificate in form 5. Thus, it is these licenced professionals who are equally responsible if the building is not erected in accordance with the rules. They have not to act merely as per the the desire or advice of the owner. Under the Rules, they have to act as per the plans approved and have to erect the building as per the rules and byelaws. In our opinion, the Corporation must initiate appropriate action against this class of persons who are directly or indirectly responsible for erection of a building otherwise than the approved plan. It is the responsibility of the licensed engineer, supervisor etc. to report to the Corporation, if erection is not as per the plan. It is in view of this, the Corporation should immediately take action. If such licensed persons permit to carry out erection of a building in contravention of the provisions of law, then , in the city, these people will create further jungle of cement and concrete. We hope that the Corporation will take this aspect very seriously and take action in the matter and shall report to this Court within a period of three weeks.
76. It is required to be noted that the officers exercising powers under the Act are also entitled to exercise powers under the Development Act. The Apex Court in the case of MUNICIPAL CORPORATION OF AHMEDABAD CITY V. BEN HIRABEN MANILAL, reported in (1983) 2 SCC 422 in para 5 observed as under.
"5. ..... It is well settled that the exercise of a power, if there is indeed a power, will be referable to a jurisdiction, when the validity of the exercise of that power is in issue, which confers validity upon it and not to a jurisdiction under which it would be nugatory, though the section was not referred, and a different or a wrong section of different provisions was mentioned. .
77. In the case of HUKUMCHAND MILLS LTD. vs. THE STATE OF MADHYA PRADESH & ANR. reported in AIR 1964 SC 1329, the Apex Court held as under:
" It is true that in the opening part of the notification it is said that the amendments were made under r. 17 of the Tax Rules; but that in our opinion would not conclude the matter, for if the Government had the power to make amendments under Act 1 of 1948, the amendments in the Rules could be justified under that power in spite of the wrong words used in the opening part of the notification of December 28, 1949. It is well settled that merely a wrong reference to the power under which certain actions are taken by Government would not per se vitiate the actions done if they can be justified under some other power under which the Government could lawfully do these acts."
78. Thus, there is mere omission to refer to the other provisions. Other provisions are indicated and merely omission would not vitiate the action when Corporation was authorised lawfully to initiate action, especially when the attention of the plaintiff was also drawn to the aforesaid illegal construction in question and he was given opportunity to explain the same in the notice. The Apex Court in the aforesaid case of MUNICIPAL CORPORATION OF AHMEDABAD CITY V. BEN HIRABEN MANILAL (supra) pointed out that the object must be carried out and held:-
"7. Chapter XV of the Bombay Provincial Municipal Corporation Act, 1949 as applicable to the area concerned, deals with the building regulations and includes section 260 of the Act. These provisions are to regulate the building construction for the safety, health and well-being of the inhabitants of the particular municipality or corporation. Therefore the provisions should be read broadly which will effectuate the intention of the Legislature and prevent the mischief which was intended to be remedied or avoided by the provisions. It is well-settled that when a problem of construction comes before a court, the intention of the legislature must be given effect to as expressed in the language of the provisions. Where the language is explicit, no problem arises. Even where the usual meaning of a language falls short of the whole object of the legislature, a more extended meaning may be given to the words if they are fairly susceptible of it. The construction must not, however, be strained to include cases plainly omitted from the natural meaning of the words. It has been said very often that it is the duty of a judge to make such construction of a statute as shall suppress the mischief and advance the remedy. (See in this connection the observations of Maxwell on The Interpretation of Statutes, 10th Edition p. 68, under the heading "Beneficial Construction.")
79. Mr. Bhatt submitted that the matter ought to have been remanded to the trial court for deciding the matter afresh as he has raised the question pertaining to the Development Act which was not raised before the trial court. He further submitted that the impugned order reveals that there is non application of mind and therefore, the matter ought to have been remanded to the authority itself to decide the matter afresh.
80. We have heard the learned advocates at length. We have passed the order after considering the material placed before us and therefore, we find no merits in the submission for remanding it back either to the trial court or the officer concerned. So far as the order issued by the authority under section 260 is concerned, it is not a judicial order and no reasoned order is required to be passed as court is required to pass. Along with the notice, the maps with explanatory notes were submitted wherein the nature of illegality was clearly mentioned. In view of clear picture nothing more was required to be stated.
81. Mr. Bhatt submitted that a chance should be given for regularisation. So far as the new regulations are concerned, Mr. Bhatt submitted that the new regulations have come into force. It is required to be noted that no such new regulations have come into force which is made clear by the learned advocate appearing for the Corporation. Mr. Bhatt ought to have placed on record the regulations which have come into force.
82. We are of the view that the trial court has not applied its mind in proper perspective and the trial court has not bothered to consider the notice along with the maps with explanation and the written statement which in detail are pointing out unauthorized construction.
83. In view of what we have stated hereinabove, we are of the view that the Corporation has rightly issued notice. Inspite of numerous judgments, the trial court is granting stay without considering the facts and circumstances of the case. Thus, the approach of the trial court is required to be deprecated.
84. In the result, the appeal is allowed with cost. Interim order passed by this Court stands vacated. Injunction granted by the trial court is vacated.