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John A. Saldanha and ors. Vs. the City Municipal Council, Mangalore - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 5749 of 1969
Judge
Reported inAIR1973Kant186; AIR1973Mys186; (1973)1MysLJ86
ActsMadras Public Health Act, 1939 - Sections 89(1) and 90(1); Madras General Clauses Act, 1867 - Sections 15
AppellantJohn A. Saldanha and ors.
RespondentThe City Municipal Council, Mangalore
Appellant AdvocateR.I. D'sa, Adv. for ;A.M. D'sa, Adv.
Respondent AdvocateM.C. Narasimhan, Adv.
DispositionPetition allowed
Excerpt:
.....absolutely prohibited, (b) in the case of any factory, workshop or workplace in existence at the time when the notification comes into force or of any offensive trade in existence at such time, the restrictions, limitations and conditions, if any specified in the notification, shall be observed in the areas aforesaid. the said section provides that where an act confers a power to make any rules or bye-laws, or to issue orders, the power shall be construed as including a power exercisable in the like manner and subject to the like consent and conditions, if any to rescind, revoke, amend or vary the rules, bye-laws or orders. but that power has got to be exercised in the like manner and subject to the like consent and conditions, if any, regulating the issuance of the original..........in the areas aforesaid.'5. what is important to note is that the notification ear-marking an area as residential locality has to be issued within one year from the commencement of the act or within such further time as the state government may allow. the first notification dated 30th june. 1943 was indisputably issued within the prescribed time. thereafter, as admitted by the counsel on both sides the government did not extend the tune to issue any further notification. it is therefore obvious, that the impugned resolution was passed beyond the period prescribed by section 89 (1).6. mr. m. c. narasimhan. learned counsel for the municipality, contended that a power to issue any notification includes also a power to amend the notification and the impugned resolution was passed in the.....
Judgment:

Jagannatha Shetty, J.

1. In this petition under Article 226. John Saldhana the petitioner, challenges the resolution of the Manealore Municipality ('Municipality') declaring a portion of his residential property as non-residential,

2. His property bearing T. S. No. 233/3 is situate at Kodialbail. Mangalore, This entire area alone with many other surrounding premises, was originally notified as a residential locality by a notification dated 30-6-1943 issued under Section 89(1) of the Madras Public Health Act (Act III of 19391 ('the Act').

3. On 27-11-1963 the Municipality by its resolution resolved that out of the said premises. 1 acre 93 cents should be excluded from the residential area and be notified as non-residential. Thereafter, after observing certain formalities, a final resolution was passed on 21-2-1967 affirming the earlier decision; and the same was notified on 28-2-1967 under Section 89 of the Act The notification was published in the Mysore Gazette dated 23-3-11567. The decision of the Municipality has been challenged on these grounds :

(i) That the Municipality has no jurisdiction to emend the notification dated 30th June. 1943; and

(ii) That the resolution dated 21-2-1967 was in contravention of Section 89 (1) of the Act and therefore void.

4. Before we Ho into the contentions, let us see the relevant provisions of the Act, Section 89 provides :

'89 (1) Every urban local authority shall, within one year from the commencement of this Act or within such further time as the Government may allow in the case of any such authority notify in the prescribed manner, the localities, divisions, wards, streets or portions of streets in its local area which shall be reserved for residential purposes.

(2) An under local authority may at any time subsequent to the issue of a notification under Sub-section (1) notify additional localities, divisions, wards, streets or portions of streets as areas which shall be reserved for residential purposes.

(3) A notification issued under Sub-section (1) or Sub-section (2) may declare that operations in any factory, workshop or workplace in existence at the time when it comes into force, or that the continuance of any offensive trade carried on by any person at such time, shall be subject to such restrictions, limitations and conditions as may be specified in the notification,'

Section 90 (1) provides for the conditions to be complied with, before issuing the notification, Section 92 enumerates the following consequences ensuing on the Issuance of any notification, under the above provisions.

'(a) The construction or establishment of any new factory, workshop or workplace, or the carrying on of any new offensive trade in the areas specified in the notification shall be absolutely prohibited,

(b) In the case of any factory, workshop or workplace in existence at the time when the notification comes into force or of any offensive trade in existence at such time, the restrictions, limitations and conditions, if any specified in the notification, shall be observed in the areas aforesaid.'

5. What is important to note is that the notification ear-marking an area as residential locality has to be issued within one year from the commencement of the Act or within such further time as the State Government may allow. The first notification dated 30th June. 1943 was indisputably issued within the prescribed time. Thereafter, as admitted by the counsel on both sides the Government did not extend the tune to issue any further notification. It is therefore obvious, that the impugned resolution was passed beyond the period prescribed by Section 89 (1).

6. Mr. M. C. Narasimhan. learned counsel for the Municipality, contended that a power to issue any notification includes also a power to amend the notification and the impugned resolution was passed in the exercise of the said amending power. Section 15 of the Madras General Clauses Act, was relied on in support of the contention. The said section provides that where an Act confers a power to make any rules or bye-laws, or to issue orders, the power shall be construed as including a power exercisable in the like manner and subject to the like consent and conditions, if any to rescind, revoke, amend or vary the rules, bye-laws or orders.

7. We agree with learned Counsel that the power to issue a notification shall be construed as including a power to rescind, revoke, amend or vary that notification. But that power has got to be exercised in the like manner and subject to the like consent and conditions, if any, regulating the issuance of the original notification. One of the conditions for issuing a notification under Section 89 (1) is that it should be issued within one year from the commencement of the Act or within such further time as the State Government may allow in that behalf. In the instant case, it is admitted that the said condition has not been complied with while passing the impugned resolution and therefore Section 15 of the Madras General C'auses1 Act, cannot save it.

8. Mr. Narasimhan next contended that the impugned resolution has been approved by the Director of Public Health and the Director of Town Planning as required under Section 90 (1) and therefore it must be regarded as valid. In our opinion, there is no merit in this contention. The resolution which is validly passed before it becomes operative, must receive the approval of the other statutory authorities like the Director of Public Health and Town Planning. But, their approval cannot have the effect of rendering an illegal decision valid one,

9. The policy that underlies the provisions of the Act as it appears to us, is this : The Municipality must make up its mind before reserving any area for residential purposes. The decision once taken may be altered within the period provided by Section 89 (1), After the period, the Municipality may notify additional localities, divisions, wards, streets or portions of streets for residential purposes, but cannot exclude any area from a residential locality. When once a certain locality is reserved for residential purposes, people select their places, build their houses, schools, colleges, parks and places of public resort etc. If a portion is excluded therefrom, for non-residential purposes, serious consequences would ensue. Then, there would be no restriction for the establishment of any factory or for its working hours, or for the carrying on of any offensive trade. The result is that the peaceful at mosphere of the locality would be disturbed to the disadvantage of the residents and life in the neighbourhood would become miserable, and, that is evidently intended to be avoided.

10. In the result, we allow the writ petition and quash the impugned resolution Exhibit A. In the circumstances, there will be no order as to costs.


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