Indian
City Properties Ltd. & Anr Vs. The Municipal Commissioner of Greater Bombay, & Anr [2005] Insc 396 (5 August 2005)
Ruma
Pal & Dr. Ar Lakshmanan
(Arising
out of Special Leave Petition (Civil) No.13573 of 2001) RUMA PAL, J.
Leave
granted.
The
appellant is the owner of Plot No. 2M/748 situated at M.L. Dhanukar Marg,
Mumbai. On the plot, there is a bungalow, an out-house, cooling towers, a pump
room, servants quarters and a watchman's room. The first appellant has let out
the bungalow and the outhouse to the appellant No.2 for use as a guest house.
On 16th November, 1999 a notice was issued to the appellants under Section 299
of the Mumbai Municipal Corporation Act, 1888, (hereinafter referred to as
"the Act") to the effect that the Corporation would take possession
of "certain land not occupied by a building" forming part of the
premises within the regular line of public street as prescribed by the
Commissioner, under Section 299 of the Act.. together with its enclosing wall,
hedge, or fence, if any, and any platform, verandah, step or other structure,
which may be found upon the said land". Notice was also given that if
necessary the authority issuing the notice namely, the Deputy Municipal
Commissioner (Zone-I), Greater Bombay, would "proceed to clear the
building".
Section
299 in so far as it is relevant is extracted verbatim below:- "299. Acquisition
of open land or of land occupied by platforms, etc, within the regular line of
a street.
(1) If
any land not vesting in the corporation, whether open or enclosed, lies within
the regular line of a public street, and is not occupied by a building, or if a
platform, verandah, step or some other structure external to a building
abutting on a public street, or a portion of a platform, verandah, step or other
such structure, is within the regular line of such street, the Commissioner
may, after giving to the owner of the land or building not less than seven
clear days' written notice of his intention so to do, take possession on behalf
of the corporation of the said land with its enclosing wall, hedge or fence, if
any, or of the said platform, verandah, step or other such structure as
aforesaid, or of the portion of the said platform, verandah, step or other such
structure aforesaid which is within the regular line of the street, and, if
necessary, clear the same and the land so acquired shall thenceforward be
deemed a part of the public street".
The
question is whether the land in the appellant's premises which is sought to be
affected by the notice is "not occupied by any building" or occupied
by "some other structure external to a building"? In terms of the
Section, if the land is occupied by a building it is outside the scope of
Section 299;
but if
there are only structures external to a building, action may be taken under
Section 299 by the respondent to take possession of the land and demolish the
structure. The notice was challenged by the appellants under Article 226 of the
Constitution contending that the former was true in its case.
By an
order dated 2nd May,
2001, the High Court
directed the Prothonotary and Senior Master of the High Court to appoint an
Officer of the Court to visit the property and verify whether the proposed
acquisition affected any of the structures of the appellant. Pursuant to the
order, the Commissioner was appointed. The Commissioner visited the premises
upon notice to the parties and submitted a report. According to the report, the
proposed acquisition affected the following permanent existing structures in
the premises to the extent indicated:
1.
Servants Room in two parts a)13'-6"x 9'-6" 128.25 (Gr. Floor
structure) b) 12'-6"x20'-6 256.25
2.
Security Cabin(Gr.Floor Structure) 6'-6x6'-6' 42.25
3.
Pump Room with Compressor 9'-0"x6'-0" 54.00 (Gr.Floor Structure)
4.
Under ground RCC tank with Cylinder shape pre-cast tank 14'-6"x11'-6"
166.75 on Top
5.
A.C. Plant 12'-6x 10'-6" 131.25
6.
Part portion of Main Structure in a) 2x13'.6"x10'-0" 270 two parts
viz. Ground and First b) 2x9'-0"x2'-6" 22.50 Floors, staircase, part
bed room Part bed room and balcony.
2 The
writ petition was ultimately dismissed on 15th July 2001 by the High Court
which held Section 299 of the Act permitted such action against the six
structures which were held to be "other structures" external to the main
building within the meaning of the phrase in Section 299. The High Court
however noted the respondents' submission that "the petitioners will be
entitled either for compensation or permissible FSI in accordance with the
relevant provisions and rules".
The
appellants contend that the High Court misconstrued Section 299 of the Act and
erred in treating the six items mentioned in the Commissioner's report as
structures external to a building. According to the appellants each structure
was a 'building' within the definition of the word in Section 3(s) of the Act
of which possession could not be taken under Section 299 of the Act. Our
attention was also drawn to several photographs in support of the submission.
Learned
counsel appearing on behalf of the respondents has submitted that the
definition of the word "building" in Section 3(s) was subject to the
context to the contrary and that in the context of the language of Section 299,
it was clear that at least items 1-5 in the Commissioner's report were structures
in respect of which proceedings could be taken under Section 299. It is
contended that the expression "other structure external to a
building" in Section 299 means such other structures as are not part of
the main building. It is said that an important test to determine what
structure can be considered as part of a building is whether the FSI is
exhausted by "such other structure". In reckoning the FSI of
constructed structures, water tanks, pump rooms, security canopy or make-shift
servant quarters with temporary construction are not counted. It is the
respondent's case that in the present case no FSI is exhausted by the
structures proposed to be taken away. Reference has been made to Regulations
3(42), 30 and 35 of the Development Control Regulations for Greater Bombay,
1991 (referred to as "the Regulations"). It is said that the land
beneath the disputed structures was considered to be vacant. According to the
respondent the legislative intent is to provide for acquisition of such external
structures of buildings as are required in public interest to widen the road.
It was also submitted that the need for taking over the portion of the premises
in question was admittedly to widen the existing road on which the premises
abutted and to bring it in within the regular line of the public street which
had been determined by the Commissioner under Section 297. According to the
respondents, the adjacent properties falling on the prescribed regular line had
given or not contested the area needed for road expansionand that the
appellants were really interested in the grant of a greater Floor Space Index
(FSI) under the Regulations in lieu of the portion of the premises sought to be
taken over by the Corporation.
However
it was said that the Corporation was not interested in item six of the
Commissioner's report and it was conceded that the said item fell outside the
purview of the Commissioner's power under Section 299. As far as the remaining
part of the premises was concerned, the Corporation was willing either to grant
FSI in terms of the Regulations or pay compensation to the appellants in
respect of the loss or damage which may be suffered by reason of the widening
of the street.
The
word 'building' occurs in different statutes and has been construed according
to the context in which the word has been used. It is not necessary to consider
those judgments given the fact that the word "building" has been
defined in sub- section(s) of Section 3 of the Act as follows:- (s)
"building" includes a house, outhouse, stable, shed, hut, tank
(except tank for storage of drinking water in a building or part of a building)
and every other such structure, whether of masonry, bricks, wood, mud, metal or
any other material whatsoever." The body of the Section however qualifies
the definition with the words "unless there be something repugnant in the
subject or context". The phrase in Section 3 means precisely what it saysnamely,
that the definition will apply unless excluded expressly or by necessary
implication. The onus is on the person alleging such exclusion. It is not the
respondent's case that the items found to be permanent existing structures by
the Commission of the High Court, would not fall within the general definition
of building. The submission is that the word should be read in a more
restrictive manner in the context of Section 299.The question then is - has,
the onus been discharged by the respondent? The definition itself is in terms
an inclusive one and is therefore to be widely construed. It seems to indicate
that a structure would be a building if it has been erected by the use of
whatever material, which may or may not be used by human beings since it
specifies stables and tanks as buildings. The respondent's submission is that
the servant quarters, security cabin, the pump room, underground RCC Tank with
Cylinder shape pre-cast tank and the AC Plant are temporary building and are
ancillary to the main residential building and not buildings for the purposes
of exclusion from Section 299.
Section
299 itself does not draw a distinction between a main building and an ancillary
building, or between a permanent building and a temporary building. But the
phrase 'temporary buildings' has been defined in Section 3(sb) of the Act which
says that:- "temporary building" means any building which is
constructed principally of mud, leaves, grass, cloth, thatch, wood, corrugated
iron or asbestos cement sheets or such other material and includes a building
of whatever size constructed of whatever material which the Commissioner has
allowed to be built as a temporary measure".
In
other words a temporary building is that which is not permitted to remain
permanently. When the Act separately defines a temporary building as opposed to
a "building" it indicates that, in the absence of the word
'temporary' in a particular section what is meant is a permanent building.
This
Court in Municipal Corporation of Greater SCC 18, construed the words
"every other such structure" in Section 3(s) in the context of
Section 143 (a) of the Act (which authorizes a levy of general tax on building
and land) and held that - a petrol storage tank although not fixed to the earth
was such a structure, holding that permanency is the test.
The
context of Section 299 is Chapter 11 of the Act which deals with the regulation
of streets. The chapter contains inter alia
(a) provisions
relating to the construction, maintenance and improvement of public streets and
(b) preservation
of the "regular line" in public streets. Section 296 of the Act falls
within the first set of provisions and provides:-
"(1)
The Commissioner may, subject to the provisions of Sections 90,91 and 92
(a)
acquire any land required for the purpose of opening, widening, extending or
otherwise improving any public street or of making any new public street, and
the buildings, if any, standing upon such land;
(b)
acquire in addition to the said land and the buildings, if any, standing
thereupon, all such land with the buildings, if any, standing thereupon, as it
shall seem expedient for the corporation to acquire outside of the regular
line, or of the intended regular line, of such street;
(c) lease,
sell or otherwise dispose of any land or building purchased under clause (b).
(2)
Any conveyance of land or of a building under clause (c) may comprise such
conditions as the Commissioner thinks fit, as to the removal of the existing
building, the description of new building to be erected, the period within
which such new building shall be completed and other such matters." The
power of acquisition under Section 296 is to be exercised by the Commissioner
under the provisions of the Land Acquisition Act 1894 [See: Sections 87,91 (i)]
Sections 297 to 311 are grouped together under the sub- title
"Preservation of Regular Line in Public Streets". Section 297
prescribes the method by which the Commissioner may prescribe a line on each
side of any public street which is called the "regular line" of the
street. Section 298 allows the Commissioner to dispose of proposals relating to
re-building or removal or re-construction or additions in respect of any part
of a building abutting on a public street which is within the regular line of
such street. In passing an order on the proposals under Section 345 or 346, the
Commissioner may require such building to be set back to the regular line of
the street. Section 301 mandates payment of compensation to be paid by the
Commissioner to the owner of any building or land acquired for a public street
under Sections 298 or 299 for any loss which such owner may sustain in
consequence of his building or land being so acquired and for any expenses
incurred by such owner in consequence of an order made by the Commissioner
under either of the Sections.
It
needs to be noted that in all these sections the word used is 'building' in
contradistinction with Section 299 which speaks of 'structures' and
'buildings'.
The
word 'structure' is used as a generic term so that while all buildings may be
structures, all structures are not buildings. That structure which is not a
building and is a platform, verandah, step, or some other such structure
external to a building may be taken over by the Commissioner under Section
299(1) if it is within the regular line of the street. The words "some
other such" must be construed as structures similar or like platform,
verandah and step. The words must be read ejusdem generis with the preceding
words since the word 'such' means "of the type previously mentioned"
. The word "other" has also been held to indicate that it must be
construed ejusdem generis . The underlying characteristic of platforms,
verandahs and steps is that they are not independent structures and are
external to a building, that is they are attached to the outside and form an
inessential part of a building. In our opinion, therefore in order to be a
building for the purpose of Section 299 the structure would have to be an
independent, permanent structure. Thus there is no repugnancy if one were to
read the definition of building and Section 299 and in our opinion the word 'building'
has been used in Section 299 in the sense defined in Section 3(s).
Of the
six items listed by the Commissioner in his report, learned counsel appearing
on behalf of the respondents has, as we have noted earlier, already conceded
that the part of the main structure described against serial No. 6 would be
excluded from the purview of the action proposed in the impugned notice under
Section 299. Even without the concession in our view, applying the test of
independence and permanence each of the items fall within the definition of
'building' in Section 3(s) of the Act, and therefore, fall outside the purview
of Section 299.
The
next argument put forth by the respondent is that the word 'building' in
Section 299 must be understood in the context of floor space index (FSI) as
provided under the Development Control Regulation of Greater Bombay 1991. The
argument is unacceptable.
FSI
merely relates to the permission to build having regard to various features
such as height of the building, tenement density, object with which the
building is to be erected etc. The computation of the FSI is in a context which
is wholly different from the context in which the word has been used in Section
299. In any event it is in dispute which structures are taken into account for
the purposes of calculating FSI.
Apart
from the language of Section 299, and the immediate context in which the
Section appears the power to take over possession conferred on the Commissioner
under Section 299 in respect of certain structures is a summary power. Having
regard to the nature of the power, it is unlikely that the legislature intended
that the Commissioner would exercise such summary powers in respect of
independent structures which have been defined as 'building' under the Act.
Needless
to say it is always open to the municipal authority subject to the provisions
of the Act, to acquire any land or building under Section 296 of the Act.
In the
circumstances of the case, we allow the appeal by setting aside the impugned
judgment as well as the impugned notice dated 16th November, 1999. There will be no order as to costs.
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