Full Judgment Text
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PETITIONER:
THE MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD
Vs.
RESPONDENT:
BEN HIRABEN MANILAL
DATE OF JUDGMENT05/04/1983
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
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
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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]
JUDGMENT:
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.
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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
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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 there in 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
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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
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. 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
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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.
684