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In Re: Ali Mahomed Gulam Hoosein - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 118 of 1907
Judge
Reported in(1907)9BOMLR737
AppellantIn Re: Ali Mahomed Gulam Hoosein
DispositionApplication dismissed
Excerpt:
.....by fire pulls down its remaining walls to six feet above the plinth and the house abuts on a street, the height to which he can raise his new building is governed by the provisions of section 349b of the city of bombay municipal act, 1888,;where in reconstructing a house, the owner set it back by five inches from the street on which it originally abutted :;that the house should be taken as abutting on the street notwithstanding the set back. - - ' if the building 'abuts on' the street and has been 'erected or raised' within the meaning of the section the conviction is admittedly good. the purpose is unmistakeably the health and well-being of the city of bombay. the law does not require that existing buildings, safe in themselves, should be partially pulled down when they do not..........building which existed after the fire was the ruin. the original building had ceased to exist. the word building includes a variety of things as appears from clause (s) of section 3 of the act, which is not a complete definition of the word but an extension of its ordinary meaning, the ordinary meaning being left undefined. in its ordinary meaning, it includes a ruin such as was left by the fire and its meaning in the act includes a building in a ruinous condition as appears from section 354. it follows that within the meaning of the act as well as according to actual facts there was a building when structural operations were begun and this building was the ruin. it is clear that section 346 b contemplates two classes of cases at least: (1) building newly erected; (2) buildings already.....
Judgment:

Heaton, J.

1. The admitted facts are that the applicant's house in Chukla Street which comprised several stories was burnt in February 1906 so that nothing remained but the four walls of the ground floor. In rebuilding the house the front wall was pulled down to the plinth and the other three to some six feet or so above the plinth. The applicant then proceeded to build and has built to a height greater than is allowed by Section 349B of the City of Bombay Municipal Act (Bombay Act III of 1888) if that section applies. He has been convicted by the Chief Presidency Magistrate of an offence under Section 471 of the Act for contravening the provisions of Section 349B. That section runs: 'subject to the maximum prescribed by Section 349 A the height to which a building may be erected or raised shall be regulated by the width of the street on which it abuts in accordance with the following rules etc.' If the building 'abuts on' the street and has been 'erected or raised' within the meaning of the section the conviction is admittedly good.

2. The phrase to 'erect a building' is defined in Clause (2) of Section 337 of the Act and so much of that definition as it is necessary hero to quote is as follows : -'To erect a building means to newly erect a building or to re-erect any building pulled down to the plinth'. In this case there was admittedly no newly erected building and there was no re-erected building because the old one was not ' pulled' down to the plinth. What those words mean exactly it is unnecessary to enquire, for it is practically conceded that they do not cover this case where three out of four walls were left standing to a height of six feet or so above the plinth.

3. The difficult question in this case is as to the applicability of the word 'raised.' Broadly 'raised' means carried to a greater height than before. The building is still unfinished, the further construction of it has been stopped until this case is decided. But admittedly it has not yet reached the height of the former building and it is said there is no intention to carry it so high. Therefore Mr. Jinnah argues for the applicant that the building has not been 'raised.' The words of the section are 'the height to which a building may be erected or raised.' What building are we to apply these words to The house as it originally stood or the ruin left by the fire? The defence say the former, the prosecution, that the latter is meant. It is argued that where a building is pulled down the question whether the building as reconstructed is 'raised' will depend upon its height compared with the height of the original building. That may be so and at any rate may be conceded for the purposes of this case. Having taken the height of the original building as the test in the case of a building partially pulled down must the same test be taken in the case of a building partially destroyed by fire It is urged that it should; that you must not in the one case interpret the word 'building ' as 'the original building' and in the other case interpret it as the 'ruin left by the fire. ' We are urged by the defence to treat Section 349B as a penal enactment and to interpret it strictly; and by the prosecution, to consider the intention of the Legislature and to give effect to that intention, Whether we are to interpret strictly or broadly it is clear to my mind that before doing the one or the other we should try to understand what was the intention of the Legislature. We are dealing with legislation of a somewhat technical kind enacted for a specific purpose and consequently must road it with that purpose in mind. The purpose is unmistakeably the health and well-being of the City of Bombay. To secure a sanitary sufficiency of light and air there must be some relation between the width of a street and the height of the buildings on both sides. The precise relation determined for the City of Bombay is described in Section 349B. No doubt it is based on the teachings of modern sanitary science and equally no doubt the legislature intended that all reasonable opportunities should be seized of enforcing the standard laid down. The law does not require that existing buildings, safe in themselves, should be partially pulled down when they do not conform to the standard. To do that would no doubt be an evil to the rights of property owners, greater than the sanitary good obtained by enforcing the standard universally. But as soon as a property owner pulls down a building wholly or partially he may come tinder the operation of the law. If he pulls the building down to the plinth he brings the case under the greatest of the restrictions imposed by Section 349B. If he pulls it down to a smaller extent he is apparently only prohibited from making the new building higher than the old if to do so would be to offend against that section. To that extent the Legislature protects the rights of property owners who pull down but not to the plinth, not of course because sanitary welfare is disregarded but because in the opinion of the Legislature it must not override the rights of The property owners who deliberately deal with their buildings short of pulling down to the plinth or discourage them from structurally improving their property. The case before us is not a case of pulling down but of accidental destruction by fire. It is not specifically dealt with in the Act; we have to infer The intention of the Legislature. Is that intention in favour of The property owner or of sanitary welfare of the City? On the one side it is argued that as the Legislature has had regard for the rights of the property owners who deliberately pull down, it is to be inferred that an equal regard for their rights is intended in the case of accidental destruction. On The other hand is the consideration that the intention to improve sanitary welfare is to be enforced in all reasonable cases. Is it reasonable to take advantage for the purpose of sanitary improvement of destruction by fire To that question my mind can only give one answer : it is reasonable. It seems to me clear that the intention of the Legislature was that such opportunities for sanitary improvement should be seized. Is that intention given effect to by the words of the section I think it is. It deals with building3 'erected' 'or raised.' The word 'erected' has the very narrow and technical meaning imposed by Clause 2 of Section 337 so that word alone was not enough for the purpose. To use it alone would be to shut out large classes of cases which are not intended to be excluded. Therefore the word 'raised' was inserted. The section contemplates that a 'building' is to be 'raised'. The building which existed after the fire was the ruin. The original building had ceased to exist. The word building includes a variety of things as appears from Clause (s) of Section 3 of the Act, which is not a complete definition of the word but an extension of its ordinary meaning, the ordinary meaning being left undefined. In its ordinary meaning, it includes a ruin such as was left by the fire and its meaning in the Act includes a building in a ruinous condition as appears from Section 354. It follows that within the meaning of the Act as well as according to actual facts there was a building when structural operations were begun and this building was the ruin. It is clear that Section 346 B contemplates two classes of cases at least: (1) building newly erected; (2) buildings already in existence which are to be the subject of structural change. This brings out very clearly the difference between a building partially pulled down and a building partially destroyed by fire. In the former case the building to which structural change is to be applied is the original building and the pulling down is a part of the structural change; in the latter case it is the ruin to which structural change is to be applied. Therefore it seems to me that on the strictest and most logical reading of Section 349B it covers the present case. The only building which was the subject of structural operations was the ruin and that building has beyond question been raised. It was also contended that Section 349B cannot apply because the building does not 'abut' on a street. The original building did abut on the street; this is conceded. The ruin left by the fire also abutted on the street. But in the course of the structural operations the wall contiguous with the street was pulled down and set back five inches. So between the present building and the street there is a space of five inches owned by the owner of the building. Consequently the building is not coterminous with the street. Therefore, it is argued it does not abut on the street for to ' abut on' means to be coterminous with. I imagine that no one who has realized the facts would suppose that the Legislature intended to exclude such a case as the present and to treat the building as not abutting on the street. The word 'abut' is not defined. It is sufficiently elastic in meaning to include the present case. There can be no question that the Legislature intended it to have so much elasticity. Of course there is the argument 'where will you draw the line;' if you concede five inches you will be logically bound to concede six, seven and so on. The answer to that objection is that each case is to be separately treated according to its own circumstances and the Court is to determine whether the words of the section include or exclude the case. But there is another answer to the objection. I hold that the building to which the section is to be applied in this case, is the ruin; now the ruin did 'abut on' the street even in the most limited interpretation of the phrase. It is to be observed that in the arguments for the defence the building as to which the section operates is at one moment (when wo are considering what 'raised' means) the original building; at the next moment (when we are considering what 'abut on' means) it is the new building. To me it seems that the building to which in this case the words of the section apply is the ruin and that it is well to be consistent throughout the case and to treat the building as the same whether we are considering the meaning of one word or another. For these reasons I would reject this application.

Davar, J.

3. I concur.


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