Full Judgment Text
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CASE NO.:
Appeal (civil) 4801 of 2005
PETITIONER:
Indian City Properties Ltd. & Anr.
RESPONDENT:
The Municipal Commissioner of Greater Bombay, & Anr.
DATE OF JUDGMENT: 05/08/2005
BENCH:
Ruma Pal & Dr. AR Lakshmanan
JUDGMENT:
J U D G M E N T
( 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\005.. 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,
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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
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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 expansion\027and 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 says\027namely, 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
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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
Bombay Vs. Indian Oil Corporation Limited 1991 (Suppl.) 2
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\027
(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).
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(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
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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.