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Emperor Vs. Budhabhai Sakarbhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 324 of 1943
Judge
Reported inAIR1944Bom290; (1944)46BOMLR477
AppellantEmperor
RespondentBudhabhai Sakarbhai
DispositionAppeal allowed
Excerpt:
bombay town planning act (bom. i of 1915), section 15- building'-screen of corrugated iron sheets whether wall-bombay municipal boroughs act (bom. xviii of 1925), section 3(2).;a screen of corrugated iron sheets is a 'wall', and therefore a ' building' within the meaning of the term as used in section 15 of the bombay town planing act, 1915. - - it thus clearly falls within the area of the accused's plot and of the town planning scheme. xviii of 1925), says that a building for the purposes of that act shall include any hut, shed or other enclosure, whether used as a human dwelling or for any other purpose, and shall also include walls, verandahs, fixed platforms, plinths, door-steps and the like......by the chief officer of the ahmedabad municipality under section 15(1)(c)(ii) of the bombay town planning act (bom. 1 of 1915) for having put up a corrugated iron screen on the north-western side of his plot no. 54814 in the ellis bridge town planning scheme area without the previous permission of the municipality2. section 15, sub-section (1), clause (a), of the bombay town planning act, provides that when a local authority has published a declaration of intention to make a scheme, no person shall within the area included in the scheme erect or proceed with any building or work unless he has applied for and obtained the necessary permission from the local authority.3. it is not disputed that the accused put up the corrugated iron screen without obtaining the permission of the.....
Judgment:

N.J. Wadia, J.

1. This is an appeal by the Government of Bombay against an order of the Stipendiary First Class Magistrate, Ahmedabad, acquitting the accused Budhabhai Sakarbhai. The accused had been prosecuted by the Chief Officer of the Ahmedabad Municipality under Section 15(1)(c)(ii) of the Bombay Town Planning Act (Bom. 1 of 1915) for having put up a corrugated iron screen on the north-western side of his plot No. 54814 in the Ellis Bridge Town Planning scheme area without the previous permission of the Municipality

2. Section 15, Sub-section (1), Clause (a), of the Bombay Town Planning Act, provides that when a local authority has published a declaration of intention to make a scheme, no person shall within the area included in the scheme erect or proceed with any building or work unless he has applied for and obtained the necessary permission from the local authority.

3. It is not disputed that the accused put up the corrugated iron screen without obtaining the permission of the Municipality. It is also not disputed that there has been a declaration of intention to make a town planning scheme, and that the accused's plot is within the area included in the scheme. The screen complained of has been erected just above the masonry compound wall of the accused's plot, and, although it was contended by the accused at the trial that the screen was not within the area of his plot, it appears clearly from the sketch, which has been prepared for the purpose of this case, that the screen is more than a foot within the boundary of the accused's plot. The masonry compound wall, which is 1' 2' thick, is on the boundary line, but just inside the accused's plot, and the screen is on the inner side of this masonry wall. It thus clearly falls within the area of the accused's plot and of the Town Planning Scheme.

4. The accused contended that he was compelled to put up this screen to ensure the privacy of his property, because, his plot was at the extreme end of the Town Planning Scheme area. Beyond his plot was ordinary village site land which was not subject to the restrictions of the Town Planning Scheme, and his neighbour on that side, Mr. Dahyabhai, had1 constructed a building of four storeys in close proximity to his compound1 wall, with the result that the privacy of his property was seriously affected.

5. The main contention urged on behalf of the accused, and which prevailed with the learned Magistrate, was that the screen of corrugated iron, which the accused had put up, was not a building within the meaning of Section 15(1) (a) of the Bombay Town Planning Act. The Town Planning Act does not define what a building is. In the absence of any definition of the word in the Act itself, the Court would be entitled to look at the definition of that word in analogous Acts. Section 3, Sub-section (2), of the Bombay Municipal Boroughs Act (Bom. XVIII of 1925), says that a building for the purposes of that Act shall include any hut, shed or other enclosure, whether used as a human dwelling or for any other purpose, and shall also include walls, verandahs, fixed platforms, plinths, door-steps and the like. This is the definition of the word 'building' for the purposes of Section 123 of that Act, which prohibits the construction of or alteration or addition to a building or part of a building without the previous permission of the Municipal authorities. I see no reason why that definition should not be applied for the interpretation of Section 15 of the Bombay Town Planning Act. According to that definition a 'wall' would be a building for the purposes of Section 15(1) of the Bombay Town Planning Act. Even according to the ordinary dictionary meaning of the word, a wall would be a building. In the Shorter Oxford English Dictionary a building is defined as ' That which is built; a structure, edifice'.

6. The next question is whether the screen of corrugated iron sheets, which has been put up by the accused, could be called a wall. In the Roads Improvements Act, 1925, (15 & 16 Geo. V, c. 68), wall is defined as including 'any partition of whatsoever material constructed, and any bank'. In the Shorter Oxford English Dictionary one of the meanings of a wall is ' an enclosing structure round a garden, yard, or other property.' Webster's New International Dictionary defines wall as ' a work or structure of stone, brick, or other material, raised to some height and intended for defence or security, or for an inclosure' or as ' a solid and permanent inclosing fence'. In my opinion, therefore, the corrugated iron structure or screen put up by the accused is a wall, and therefore a building, for the purposes of Section 15(1) of the Bombay Town Planning Act.

7. A similar question whether a screen of corrugated iron sheets was a building for the purposes of Section 123 of the Bombay Municipal Boroughs Act was considered in an unreported judgment of this Court in Emperor v. Nurullamia Aminsaheb Kadri (1938) Criminal Appeal No. 526 of 1937, decided by N.J. Wadia and Divatia JJ., on February 18, 1938 (Unrep.) to which I was a party. Divatia J. and I held in that case that such a structure was a wall and therefore a building for the purposes of that section. This decision was referred to and followed in another unreported judgment in Emperor v. Sheth Ratanji Palmji (1939) Criminal Appeal No. 85 of 1939, decided by Broomfield Ag. C.J. and Sen J., on June 26, 1939 (Unrep.) by Broomfield Ag. C.J. and Sen J., in which also the question for consideration was whether a screen of corrugated iron sheets was a building for the purposes of Section 123 of the Bombay Municipal Boroughs Act.

8. One of the reasons for prohibiting the erection of buildings or walls without permission in a town planning area is that the erection of structures without any restrictions as to height or as to the distance between adjoining structures would be objectionable on grounds of sanitation and public health, and would also affect prejudicially the amenities of adjacent buildings. This ground would apply with equal force whether the wall was one of brick and mortar or of corrugated iron sheets.

9. In my opinion, therefore, the screen of corrugated iron sheets put up by the accused is a building for the purposes of Section 15 of the Bombay Town Planning Act, and the conduct of the accused in putting up this screen without obtaining the previous permission of the local authority amounts to an offence under Section 15(1)(c)(ii) of the Act.

10. The accused admitted that he had put up the screen without obtaining the permission of the local authority. A consideration, which appears to have weighed much with the learned Magistrate, is that the accused found it necessary in order to preserve the privacy of his building to put up this screen, because on the village site land adjacent to his plot, which was not part of the Town Planning Scheme, one Dahyabhai had put up in close proximity to the accused's wall a four storied building, the windows of which overlooked the accused's property, and it was on the complaint of this very neighbour that the Municipality took action against the accused. Theseconsiderations cannot, however, affect the question whether the accused's act amounts to an offence under the Town Planning Act or not. The language of Section 15 of the Act is quite general and forbids the erection of any building on any part of a plot included in a town planning scheme without the permission of the local authority. If the accused found it necessary in order to secure the privacy of his property to erect such a structure, he should have first applied for the permission of the local authority. If such permission had been applied for, it is possible that the hardship to which the accused had been subjected because of the fact that the land of his neighbour was not subject to the restrictions of the town planning scheme, would have been duly considered by the local authority.

11. The appeal is allowed, and the order of acquittal made by the trial Magistrate set aside. The accused is convicted under Section 15(1)(c)(ii) of the Bombay Town Planning Act, and sentenced to pay a fine of Rs. 50.

12. I have no doubt that if the accused applies again to the local authority for permission to erect such a structure or to continue the one which exists at present, the local authority will consider the special circumstances which have been referred to above.

Weston, J.

13. Section 15(1) of the Bombay Town Planning Act, 1915, provides that, where a declaration of intention to make a town planning scheme has been published by a local authority, no person within the area included in the scheme shall, without the permission of the local authority, erect or proceed with any building or work, or remove, pull down, or alter any building or part of a building, or remove any earth, stone or material. It is not disputed that the opponent, after the publication of a declaration of intention to make the scheme, did, on the boundary of his property within the area, erect above a masonry wall a screen made of corrugated iron sheets for the purpose of securing that his house should not be overlooked from a four-storied building, which had been erected very close to it in the adjoining area outside the town planning scheme. I agree with my learned brother that the meaning of building for the purposes of Section 15(1)(a) seems sufficiently wide to include a corrugated iron screen such as that erected by the opponent. But, if the matter is open to doubt, I have no hesitation in holding that erection of such a screen falls within the more general ' proceed with any work.'

14. The learned Magistrate has acquitted the opponent, because, in the circumstances under which the construction was put up by the opponent, it appeared that his intention was not to do anything which would affect injuriously the town planning scheme, but that his intention was only to secure his property against encroachments by the large building erected near it on the very ordinary rights of any house-holder. But the scheme of Section 15 of the Bombay Town Planning Act is not that the propriety of any construction within the town planning area shall be judged by individual owners of property, nor is it the scheme of the section that the propriety of any construction shall be judged by the Magistrate before whom a complaint of contravention of the provisions of the section may be brought. The scheme is that the local authority shall consider what constructions or alterations may be made by individual owners, and that the local authority shall grant or withhold its permission to those constructions or alterations as it thinks fit. The opponent has attempted to take his stand on his supposed rights, when his proper course was to apply for permission. That he has committed contravention of the provisions of Clause (a) of Sub-section (2) of Section 15 is clear, and this appeal therefore must be allowed.

15. I do not think there is any reason to apprehend that the local authority, if and when the opponent does seek to obtain the necessary permission for such construction as may be necessary to ensure him reasonable privacy, will be inclined to consider this conviction or the omission by the opponent to seek permission at the proper time as in any way prejudicing proper consideration of the merits of the matter.

16. I agree, therefore, with the order proposed by my learned brother.


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