The Municipal Corporation of the City of
Ahmedabad Vs. Ben Hiraben Manilal [1983] INSC 34 (5 April 1983)
MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI
(J) MADON, D.P.
CITATION: 1983 AIR 537 1983 SCR (2) 676 1983
SCC (2) 422 1983 SCALE (1)327
CITATOR INFO :
E 1985 SC1416 (126)
ACT:
Bombay Provincial Municipal Corporation
Act,1949- sections 260 and 478-scope of-No reference made to section 478 in
notice-Notice, if invalid-Wrong reference in show cause notice, if would
vitiate the notice Interpretation-language of a provision falls short of object
of legislature-Court, if could give an extended meaning to words.
HEADNOTE:
In response to the notice issued to her under
section 260 (1) (a) of the Bombay Provincial Municipal Corporation Act, 1949
the respondent contended that the impugned construction of walls without the
sanction of the municipal corporation was in existence when she had purchased
the premises. She then filed a suit in the City Civil Court and obtained
permanent injection restraining the corporation from removing the impugned
unauthorised construction. The decree of the lower court was affirmed by a
single Judge of the High Court in appeal and in further appeal a Division Bench
held that the impugned notice was beyond the powers of the Corporation in that
a notice under the section could only be issued against the person who had
constructed the building or who was constructing the building.
On further appeal to this Court it was
contended on behalf of the appellant that section 260(1) (a) read in
conjunction with the latter part of section 478 empowered the Corporation to
take action for demolition or removal of unauthorised construction both against
the person who had commenced or was constructing the building as well as the
person who was the owner of the building which had been constructed or erected
without permission in violation of the laws.
Allowing the appeal,
HELD: Although the impugned notice was not
issued under section 478, it cannot be said that the notice was unauthorised or
illegal. The question in this case being one of construction of a provision of
a statute that construction must be made as to be in conformity with its other
provisions and the provisions must be read as a whole.
Section 478 can be relied upon in support of
the notice under section 260(1) (a). [680 H; 681 A-B] 677 It is well settled
that a wrong reference to the power under which action was taken by the
Government would not perse vitiate that action if it could be Justified under
some other power under which government can lawfully do that act. [681 D-E] L.
Hazari Mal Kuthiala v. Income Tax officer, Special Circle, Ambala Cantt. &
Anr. [1961] 41 I.T.R. 12 @ 16, Hukumchand Mills Ltd. v. State of Madhya Pradesh
and Anr. [1964] 52 I.T.R. 583; and Nani Gopal Biswas v. The Municipality of
Howrah, [1958] S.C.R. 774 @ 779 relied on.
Pitamber Vajirshet v. Dhondu Navalapa, [1888]
I.L.R. 12 Bombay, 486 @ 489, approved.
It is equally well settled that 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 these are
fairly susceptible of it. But the construction must not be strained to include
cases plainly omitted from the natural meaning of the words. [682 C] In the
instant case if the provisions of section 260 (1) (a) are read in cojunction
with the latter part of the provisions of section 478 which stipulates
specifically that if the person carrying out such work or doing such things is
not the owner at the time of such notice, the owner at the time of giving such
notice shall also be liable for carrying out the requisition of the
Commissioner, it is clear that the action for demolition or removal can be
taken by the Corporation exercising power under the provisions of the Act
against persons who had not themselves built the impugned portion. These
provisions are devised to regulate the building construction for the safety,
health and well-being of the inhabitants of the municipality. It would be
anomalous to hold that if a building was constructed illegally or in an
unauthorised manner action could only be taken against the person who did the
illegal act but that after the construction was passed over to others the
building would enjoy immunity from any action in respect of the same. [681 F-H;
682 A & E]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 744 of 1978.
Appeal by Special leave from the Judgment and
order dated the 18th February, 1976 of the Gujarat High Court in C.A. No. 188
of 1974.
D.V. Patel and R.H.Dhebar for the Appellant.
Memo for the Respondent The Judgment of the
Court was delivered by SABYASACHI MUKHARJI, J. This appeal raises the question
as to the scope and ambit of the power of the Municipal authorities under 678
section 260 read with Section 478 of the Bombay Provincial Municipal
Corporation Act, 1949. There were four suits out of which gradually four
Letters Patent appeals came to be decided by the High Court of Gujarat. Out of
these four letters patent appeals, the Municipal Corporation has come up in one
of the appeals before us, i.e. Appeal No. 188 of 1974 which arose out of first
appeal No. 10 of 1968 which again arose out of the Civil Suit No. 311 of 1966.
The short facts are that on the 26th March,
1960, the plaintiff respondent herein purchased a built-up house. In 1965,
there was construction of some walls without the sanction of the Municipal
Corporation. On the 21st July, 1965, notice was issued by the Estate officer of
the Municipal Corporation under Section 260(1)(a) of the Bombay Provincial
Municipal Corporation Act, 1949. In reply to this notice, the
plaintiff-respondent contended that the impugned construction was not made by
the plaintiff but was in existence when she had purchased the premises. On 6th
September, 1965, a suit was instituted before the City Civil Judge, Ahmedabad,
claiming permanent injunction restraining the defendant the appellant herein
from removing the impugned unauthorised construction and for other incidental
reliefs. The learned Judge decreed the suit. There was a first appeal in which
the decree was affirmed. Thereafter there was Letters Patent Appeal in which
two points were urged namely: (i) whether the notice, in the facts and
circumstances of this case, was valid, and (ii) whether the Commissioner of the
Municipal Corporation had delegated the power of issuing notice to the Estate
officer. On the second point of the Letters Patent Appeal, it was held in
favour of the appellant and this point is not pressed before us. On the first
point, it was held that the notice impugned was beyond, in the facts and
circumstances of the case, the powers of the Municipal Corporation, Ahmedabad
because it was held that the notice under the section could only be issued
against the person who had constructed the building or who was constructing the
building.
In as much as the notice was issued under
Section 260 of the Act, it would be material to set out the relevant provisions
of the Act i.e. section 260(1)(a). It provides:
"Proceedings to be taken in respect of
building work commenced contrary to rules or by laws:- (1) If the erection of
any building or the execution of any such work as is described in section 254
is commenced or 679 carried out contrary to the provisions of the rules or
byelaws, the Commissioner, unless he deems it necessary to take proceeding in
respect of such building or work under section 264, shall- (a) by written
notice, require the person who is erecting such building or executing such work
or has erected such building or executed such work on or before such day as
shall be specified in such notice, by a statement in writing subscribed by him
or by an agent duly authorised by him in that behalf and addressed to the
Commissioner, to show sufficient cause why such building or work shall not be
removed, altered or pulled down." Clause (b) of Section 260 provides that
in the contingency specified in sub-section (1) set out herein before, in the
alternative the Commissioner shall require the person to show cause why such
building and work shall not be removed, altered or pulled down. Sub-section (2)
of Section 260 provides that if the person concerned fails to show sufficient
cause to the satisfaction of the Commissioner Or the building is not altered or
removed, Commissioner may remove, alter or pull down the building the expenses
of which shall be paid by the said person. Before us, learned advocate for the
appellant, drew our attention to Section 478 of the Act in support of the
action taken by the Corporation. Section 260 speaks of erection of any building
or the execution of any such work as is described in section 254 "is
commenced or carried out contrary to the provisions of the rules or
bye-laws." Then it further provides that Commissioner shall require the
person "who is erecting such building or executing such work or has
executed such building or executed such work" to show cause why the
infringing portion shall not be demolished or altered or pulled down. Now
section 254 stipulates that notice is to be given to the Commissioner for
addition, alteration etc. in the building.
There was no dispute in the instant case that
the portion of the building mentioned in the notice of the Corporation was done
without the sanction of the Corporation or notice to the Corporation. The
expressions used in section 260 by themselves are not quite clear, as to
whether it is directed against the person who has commenced or carried out the
construction contrary to the provisions of the bye-laws or the rules or whether
in view of the language used 680 in sub-clause (a) of sub-section (1) of
section 260 namely "has erected such building" notice could also be
issued to any person other than who has actually built the unauthorised
building. But it is submitted that if section 260 is read in conjunction with
section 478 of the Act and if so read then it contemplates action both against
the person who has commenced or is constructing the building as well as the
person who is the owner of the building which has been constructed or erected
without the permission and in violation of the laws or the rules. Section 478
is as follows:
"Works or thing done without written
permission of the Commissioner to be deemed unauthorised:- (1) If any work or
thing requiring the written permission of the Commissioner under any provision
of this Act, or any rule, regulation or bye-law is done by any person without
obtaining such written permission or if such written permission is subsequently
suspended or revoked for any reason by the Commissioner, such work or thing
shall be deemed to be unauthorised and, subject to any other provision of this
Act, the Commissioner may at any time, by written notice, require that the same
shall be removed, pulled down or undone, as the case may be, by the person so
carrying out or doing. If the person carrying out such work or doing such thing
is not the owner at the time of such notice then the owner at the time of
giving such notice shall be liable for carrying out the requisition of the
Commissioner.
(2) If within the period specified in such
written notice the requisitions contained therein are not carried out by the
person or owner, as the case may be, the Commissioner may remove or alter such
work or undo such thing and the expenses thereof shall be paid by such person
or owner, as the case may be." It is true that the notice impugned in this
case was not issued under section 478. This section was also not placed for
consideration by the learned Trial Judge or the First Appellate Court or in the
Letters Patent Appeal before the High Court. But the question being one of
construction of a provision of a statute, in our opinion, that construction
must be so made as to be in conformity with the other provisions of that
particular statute and the provisions must be read 681 as a whole. This being a
question of law, this section can be relied upon in support of the notice under
section 260(1)(a). If indeed section 478 comprehends both the owner or the
occupier who has actually constructed and as well as the owner or occupier of
the building which has been unauthorisedly constructed, then the action of the
Corporation can be supported. It is well settled that the exercise of a power,
if there is indeed a power, will be preferable 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. See in this connection the observations in Pitamber
Vajirshet v. Dhondu Navalapa.(1) See in this connection also the observations
of this Court in the case of L. Hazari Mal Kuthiala v. Income-tax Officer,
Special Circle, Ambala Contt. & Another(2) This point has again been
reiterated by this Court in the case of Hukumchand Mills Ltd. v. State of
Madhya Pradesh and another(3) where it was observed that it was well settled
that a wrong reference to the power under which action was taken by the
Government would per se vitiate that action if it could be justified under some
other power under which Government could lawfully do that act. See also the
observations of the Supreme Court in the case of Nani Gopal Biswas v. The
Municipality of Howrah.(4) The question that, therefore, falls for
consideration is, whether section 260(1)(a) of the Act read in conjunction with
section 478 of the Act of 1949 empowers the Municipal Corporation to take
action for demolition or removal of unauthorised construction. Even though the
expressions in section 260 are not quite explicit, but if the provisions of
section 260(1)(a) are read in conjunction with the latter part of the
provisions of section 478 which stipulates specifically that if the person
carrying out such work or doing such things is not the owner at the time of
such notice, the owner at the time of giving such notice shall also be liable
for carrying out the requisition of the Commissioner, makes it clear that the
action for demolition or removal can be taken by the Corporation or Municipal
authorities exercising power under provisions of the said Act against persons
who had not themselves built the infringing portion.
682 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.") If
we keep in mind purpose of these regulations and the object of these regulations,
i.e. regulating the building construction in a municipal statute, it appears
that it will be anomalous result if it be said that if a building is
constructed illegally or in an unauthorised manner, action can only be taken
against the person who is doing the unauthorised act or illegal act but after
the construction of the building is passed over to others, the construction of
the building enjoys immunity from any action in respect of the same. That it
appears, could not be a proper construction particularly in this case in view
of the specific language used in the latter part of sub-section (1) of section
478 of the Act set out herein before. Keeping in background the facts of this
case and the said provisions, in our opinion, the action taken by the
Corporation was warranted by the provisions of the Act. Therefore it cannot be
said that the notice issued by the Municipal Corporation was unauthorised or
illegal. In that view of the matter, the judgment and order of the High Court
of Gujarat impugned in this case must be set aside on this aspect of the matter
and the appeal is thus allowed and the respondent's suit dismissed. We express
no opinion on the other point of delegation. The parties will bear, in the
facts and circumstances of the case, their own costs throughout.
683 We have proceeded on the construction of
the powers of the Municipality in the situation mentioned herein before.
We must, however, observe that learned
Advocate for the appellant assured us that in view of the fact that the
infringement in question was not of a very significant nature, i.e. building
certain railings or walls, if it could be regularised on a proper application
by the respondent, the Corporation or the Municipality concerned will see that
the same is done and the railings or the walls on the infringing part are not
removed or demolished.
P.B.R. Appeal allowed.
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