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The Ahmedabad Municipal Corporation Vs. Nawajkhan Aminkhan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 121 of 1974
Judge
Reported inAIR1979Guj205; (1979)GLR938; (1979)0GLR938
ActsBombay Town Planning Act, 1955 - Sections 12
AppellantThe Ahmedabad Municipal Corporation
RespondentNawajkhan Aminkhan
Appellant Advocate S.B. Vakil, Adv.
Respondent Advocate S.S. Belsare, Adv.
Excerpt:
.....the date of declaration of intention of making the scheme i. 29 (1) (c) of the act was held by the local authority before the decision to remove the cabin from the land was taken and, hence, the impugned decision was clearly contrary to the aforesaid provisions of the act. 12, clearly violated the provisions of sub-section (4) of s. 13 of the act and, therefore, the local authority was well within its right in ordering the removal of the cabin so placed at the said site. x x x x 9. xx xx xx 10. section 12 of the act clearly provides that on or after the date on which a declaration of intention to prepare a development plan is published no person shall carry on any development work in any building or in or over any land with in the limits of the said area without the permission of the..........or over any land within the limits of the same area and, hence, no permission was required of the local authority either under s. 12 or s. 29 (1) (a) of the act, and hence, the impugned notice issued under ss. 13 (4) and 29 (11 (c) of the act was illegal and unenforceable in law.4. the third ground on which the validity of the impugned notice was attacked was that no inquiry as contemplated by s. 13 (4) or s. 29 (1) (c) of the act was held by the local authority before the decision to remove the cabin from the land was taken and, hence, the impugned decision was clearly contrary to the aforesaid provisions of the act.5. the above are the three grounds on which the impugned notice has been struck down as illegal and unenforceable at law by the learned trial judge, i shall proceed to deal.....
Judgment:

1. This appeal by the Municipal Corporation, original defendant, is directed against the judgment of the learned City Civil Judge, 10th Court, Ahmedabad, dated 22nd Dec. 1974, in Civil Suit No. 1966/70 whereby he declared that the notice No. C. R. 306/24 dated 14th Nov. 1969 ex. 25, issued by the defendant-Corporation under Sections 13(4) and 29 (1) (c) of the Bombay Town Planning Act, 1954 (hereinafter called 'the Act') is illegal and beyond the powers of the defendant Corporation consequently granted a permanent injunction against the defendant Corporation restraining it from enforcing the impugned notice against the plaintiff. The defendant Corporation was also directed to pay the costs of the plaintiff.

Facts giving rise to this appeal, briefly stated, are as follows:-

2. There is an estate known as 'Christi Chambers' situate in final plot No. 77-2-70 of town planning Scheme No. 3, (Ellisbridge,) outside Shahpur gate, Ahmedabad. In the compound of the said estate the plaintiff runs a pan bids shop in a wooden cabin. It is the case of the plaintiff that the said cabin is in existence since 11th April, 1946 and he is paying rent in respect thereof to the landlord at the rate of Rs. 5/- per month. According to the plaintiff one Sulemanbhai Usmanbhai was carrying on business in the said cabin as a grocer in the year 1946 and he transferred his tenancy rights with good will in favour of the plaintiff on Payment of Rs. 251/- under the receipt ex. 26. His case is that since then he is in actual possession of the cabin and has been continuously carrying on business therein with effect from 1lth April 1946. The learned trial Judge has come to the conclusion that the receipt ex. 26 clearly establishes that the plaintiff entered into Possession of the cabin as a tenant after Purchasing the tenancy rights along with good will of Sulemanbhai Usmanbhai and has been carrying on business therein, initially as a grocer and later as a pan bidi vendor, with effect from 11th April, 1946. The learned trial judge, therefore, came to the conclusion that as the plaintiff was in occupation of the cabin since before the date of declaration of intention of making the scheme i.e., 17th Nov. 1952, the cabin was not liable to be removed either under S. 13(4) or S. 29 (1) (c) of the Act.

3. The second ground on which the impugned notice was struck down by the learned trial Judge was that mere placing of a wooden cabin prepared elsewhere on the land covered under the scheme or development plan did not amount to carrying on any development work in any building or in or over any land within the limits of the same area and, hence, no permission was required of the local authority either under S. 12 or S. 29 (1) (a) of the Act, and hence, the impugned notice issued under Ss. 13 (4) and 29 (11 (c) of the Act was illegal and unenforceable in law.

4. The third ground on which the validity of the impugned notice was attacked was that no inquiry as contemplated by S. 13 (4) or S. 29 (1) (c) of the Act was held by the local authority before the decision to remove the cabin from the land was taken and, hence, the impugned decision was clearly contrary to the aforesaid provisions of the Act.

5. The above are the three grounds on which the impugned notice has been struck down as illegal and unenforceable at law by the learned trial Judge, I shall proceed to deal with the submissions in respect of the aforesaid three grounds in the order in which I have set them out.

6-7. xx xx xx

8. The learned trial Judge took the view that even if it is believed for the sake of argument that the cabin was actually removed or demolished in the year 1965 and was freshly put up or placed at the same place by the plaintiff after such demolition or removal such mere placing of the cabin would not attract the provisions of S. 12 (1) of the Act to require a commencement certificate before placing the prepared wooden cabin at the site. In order to appreciate this view taken by the learned trial Judge it is necessary to refer to the relevant provisions of the Act. S. 2 (2) defines a 'development plan' to mean a plan for the development or redevelopment or improvement of the entire area within the jurisdiction of a local authority prepared under S. V S. 3 lays down that as soon as may be after the coming into force of this Act and subject to the provisions of the Act, every local authority shall carry out a survey of the area within its jurisdiction and shall prepare and publish in the prescribed manner a development plan and submit it to the State Govt. for sanction. S. 4 enjoins upon the local authority before carrying out the survey of the area for the purpose of preparing a development plan for such area to make a declaration of its intention to prepare a development plan and publish it in the prescribed manner for inviting suggestions from the public within a period of two months. S. 7 provides that the development plan shall generally indicate the manner in which the development and improvement of the entire area within the Jurisdiction of the local authority is to be carried out and regulated. We then come to S. 12, the relevant part of which reads as under: -

'On or after the date on which a declaration of intention to prepare a development plan is published under subsection (1) of S. 4 in respect of any area, no person shall carry on any development work in any building or in or over any land within the limits of the said area without the permission of the local authority which shall be contained in a commencement certificate granted by the local authority in the form prescribed.'

The expression 'development' has been defined in Explanation (a) to mean 'the carrying out of building or other operation in or over or under any land or the making of any material change in the use of any building or other land! We next come to S. 13, which provides that the local authority shall on receipt of the application for permission furnish a written acknowledgement to the applicant and after inquiry may either grant or refuse a common cement certificate. It is further provided that if the local authority does not communicate its decision to the applicant within three months from the date of such acknowledgement, such certificate shall be deemed to have been granted to the applicant. We then come to sub-section (4) of S. 13, which is material for our purpose and reads as under: -

'If any person does any work on, or makes any use of, any property in contravention of S. 12 or of sub-section (1) of this section, the local authority may direct such person by notice in writing to stop any such work in progress or discontinue any such use; and may, after making an inquiry in the prescribed manner, remove or pull down any such work and restore the land to its original condition or, as the case may be, take any measures to stop such use.'

The contention on behalf of the defendant Corporation is that the plaintiff by placing the disputed cabin on the land forming part of the compound of Chisti Chambers in the year 1965 without obtaining a commencement certificate as required by -S. 12, clearly violated the provisions of sub-section (4) of S. 13 of the Act and, therefore, the local authority was well within its right in ordering the removal of the cabin so placed at the said site. The question which therefore, arises for consideration is whether the mere placing of a prepared cabin on the site amounts to a 'development worm within the meaning of S. 12 so as to require a commencement certificate from the local authority in the prescribed form. x x x x

9. xx xx xx

10. Section 12 of the Act clearly provides that on or after the date on which a declaration of intention to prepare a development plan is published no person shall carry on any development work in any building or in or over any land with in the limits of the said area without the permission of the local authority. For the purpose of the said section, the expression 'development' means 'the carrying out of building or other operation in or over or under any land or the making of any material change in the use of any building or other land. The question then is not the placing of a cabin, albeit pre-fabricated, on the site 'development' within the meaning of Explanation (a) to S. 12 of the Act? The expression 'building' has not been defined under the Act. Section 12 introduces a prohibition to the carrying out of any development work in or over any land within the limits of the area covered by the development plan without the permission of the local authority to be contained in the commencement certificate. The definition of the expression 'development' clearly shows that besides the constructions of any building, 'any other operation' in or over or under any land would amount to carrying on of development work within the meaning of S. 12 of the Act. If a structure meant for the purpose of being used as a shop is prefabricated in a factory or at a place other than the site at which it is intended to be placed and is subsequently brought and placed on the site with a view to be kept there almost permanently, in my view, it amounts to 'development' with in the meaning of Explanation (a) to S. 12, for otherwise, a strip of land could be developed by the owner with impugnity by placing a series of prefabricated cabins with a view to earning rent or carrying on business or other activity therein, thereby truncating the salutary provisions of the Act and the development plan prepared with a view to offering an orderly and planned development of the area to improve the living conditions of the people in the area and reduce health hazards. The language of the definition development contained in explanation (a) to S. 12 is of wide amplitude and I see no reason to give it a restricted meaning so as to carve out fabricated structures brought on the site from the purview of the expression development work.' If such a limited meaning is given to the expression 'development' even raising of prefabricated houses, which will soon become a reality will not amount to carrying on 'developement work' within the meaning of S. 12of the Act. Such could not be and indeed never was the intention of the legislature. Such a narrow construction would render the salutary provisions of the Act nugatory and would defeat the attempt on the part of our town planners to offer better and healthy living conditions to the people of the area. I am, therefore, of the opinion that the learned trial Judge was not right in giving a narrow meaning to the term 'development' contained in Explanation (a) to S. 12 of the Act by taking the view that a pre-fabricated cabin if brought and placed on a selected parcel of land would not amount to 'development' of the land within the meaning of S. 12 so as to require the owner to obtain a commencement certificate from the local authority. As pointed out earlier, if such a narrow meaning is given to the expression 'development work' in S. 12, the owner of land would be able to develop the land with impugnity without obtaining the necessary permission of the local authority by placing a number of pre-fabricated cabins meant to be used as shops, etc. on his land. With respect to the learned trial judge, for the above reasons, I am unable to subscribe to the view that the mere placing of a pre-fabricated cabin over a selected parcel of land does not amount to carrying on of development work within the meaning of S. 12 of the Act.

11. Lastly, the learned trial judge has taken the view that as no inquiry as contemplated by S. 13 (4) and S. 29 (1) (c) of the Act was held by the local authority, the impugned notice is illegal and invalid and cannot be enforced in law. S. 13 (4) provides that if any person does any work on or makes any use of any property in contravention of Section 12, the local authority may direct such person by notice in writing to stop any such work in progress or discontinue any such use and may after making any inquiry in the prescribed manner, remove or pull down any such work and restore the land to its original condition. S. 29 (1) (c) also provides that if any person contravenes the provisions of clause (a) or (b), the local authority may direct such person by notice in writing to stop any work in progress and after making an inquiry in the prescribed manner, remove, pull down or alter any building or other work or restore the land in respect of which such contravention is made to its original condition. The key words in both these provisions are 'after making an inquiry in the prescribed manner' and the word 'prescribed' means 'prescribed by rules or orders made under the Act.' Rule 9 prescribes the manner of inquiry under Ss. 13, 16 and 29 and the relevant part provides that for the purpose of making an inquiry under subsection (4) of S. 13 and clause (c) of sub-section (1) of S. 29, the local authority shall serve a notice in writing upon the person con-traveling any of the aforesaid provisions calling upon him to show cause why he should not be directed to remove, pull down or alter the building or other work or to stop the work in progress or to discontinue the use of the property or part of the property or to restore the land to its original condition, as the case may be Sub-rule (2) of Rule 9 lays down that the local authority, if it considers it expedient so to do, may appoint a committee of not less than three of its members to hear such cases. This sub-rule is clearly discretionary and it is left to the local authority if it considers it expedient so to do to appoint a committee to hear such cases. Sub-rule (3) of Rule 9, next provides that any representation which may be made by or on behalf of the person served with the notice on the date specified under sub-rule (1) or which may be received on or after such date, shall be considered. Minutes shall be kept of the inquiry so held and the decisions arrived at in such inquiry shall be reduced to writing together with reasons for the same. Reasons for the decision shall be signed by all persons giving such decision. In the instant case a notice under Rule 9 (1) ex. 25, was served on the plaintiff calling upon him to show cause by 5th Jan. 1970 and to remain present in person or through a representative at 4.00 P. M. for offering his views or showing cause. In response to this notice, the plaintiff sent a written explanation on 4th May, 1970 along with two accompaniments and it was after considering this written representation that the local authority took the decision that as the cabin was in margin land and was placed without the permission of the local authority in contravention of the regulations, it was necessary to remove it. There is, therefore, clear evidence on the record of the case to suggest that an inquiry was held by the local authority, in the manner prescribed by Rule 9 of the Rules framed under the Act and, hence, the learned trial Judge was clearly in error in taking the view that no such inquiry as contemplated by Rule 9 was held by the local authority. Therefore, the third ground on which the legality and the validity of the notice has been questioned is also not well founder.

12. xx xx xx xx xx

13. In view of the above, the appeal is allowed, the decree passed by the trial court is set aside and the suit is directed to be dismissed with no order as to costs throughout. The Municipal Corporation shall not enforce the impugned notice for a period of three months from today.

14. Appeal allowed.


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