Skip to content


Mahomed Kasam Abubakar and ors. Vs. the Municipal Corporation of City of Ahmedabad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 306 of 1963
Judge
Reported inAIR1974Guj160; (1974)0GLR267
ActsBombay Provincial Municipal Corporations Act, 1949 - Sections 210 to 214
AppellantMahomed Kasam Abubakar and ors.
RespondentThe Municipal Corporation of City of Ahmedabad
Appellant Advocate H. Mehta, Adv.
Respondent Advocate S.B. Vakil, Adv.
Excerpt:
.....212 of the act, because the said section applies to the cases where both the land as well as the structure of the building in question belonged to a citizen. sub-section (1) of section 212 prescribes the powers which the commissioner can enjoy in order to set back the buildings which fall within a prescribed road line. the question which i am called, upon to consider is the scope and amplitude of the powers which the municipal commissioner is to enjoy under section 212 of the act. the appellant can hope to win or fail in this case only on the proper interpretation of, section 212, and not on the question whether the municipality is or is not rendered without any remedy to pull down the structure o f the property. 12. in my opinion, therefore, section 212 of the act has application to..........has called upon the plaintiff-trust to show cause why the meda, which is situated within the regular line of the said street, should not be pulled down. the plaintiff trust objected to this notice and after considering these objections, the commissioner, with the approval of the standing committee, has served the plaintiff with another notice dated 14-4-59 under sub-section (2) of section 212 of the act requiring that the structure of the meda should be pulled down. being aggrieved by this notice. the plaintiff trust has filed the present suit with a view to obtain a declaration that the municipality is not entitled to require the trust to pull down the suit meda under section 212 of the act, because the said section applies to the cases where both the land as well as the structure.....
Judgment:

1. The question which is involved in this First Appeal is whether Section 212 of the Bombay Provincial Municipal Corporations Act, 1949 (Bombay Act 59 of 1949) (hereinafter referred to -as 'the Act') applies to those buildings the structure of which belongs to a citizen but the land over which the said structure stands, belongs to the Municipal Corporation itself.

2. Short facts of the case are that the appellants-plaintiffs are acting as trustees of the Charitable Trust known as 'Karoda Pole Masjid' trust. In Dariapur, Ward No. 1 of Ahmedabad, a property bearing survey No. 3537 which consists of only a meda constructed on pillars of the gate, is situated. The land over which this meda is constructed admitted IV belongs to the Municipality, but the meda belongs to the trust. The income which the trust receives from this meda, is being spent by it for meeting the expenses of Karoda Pole Masjid. Adjoining to this meda are two other properties bearing survey Nos. 4463 and 4465.

3. It is an admitted fact that a road line as contemplated by Section 210 of the Act is prescribed by the Commissioner on both sides of the street on which this property is situated. As a result of this road line, the whole of the neighbouring property bearing S. No. 4463 and a part of the neighbouring survey No. 4465 are acquired by the Commissioner as they fall within the limits of the road line. It is an admitted fact that even the disputed meda, which is of the ownership of the plaintiff-trust, is within the road line. As the entrance to the pole, in which this meda is situated is found to be very narrow on account of the existence of this meda, and as the properties adjoining to this meda on both the sides have been acquired for the purpose of laying down a regular road line, the Municipality now proposes that this meda should be removed. For this purpose, the Municipality has issued a notice contemplated by clause (b) of Section 212(1) on 2-4-58. By this notice the Commissioner has called upon the plaintiff-trust to show cause why the meda, which is situated within the regular line of the said street, should not be pulled down. The plaintiff trust objected to this notice and after considering these objections, the Commissioner, with the approval of the standing committee, has served the plaintiff with another notice dated 14-4-59 under sub-section (2) of Section 212 of the Act requiring that the structure of the meda should be pulled down. Being aggrieved by this notice. the plaintiff trust has filed the present suit with a view to obtain a declaration that the Municipality is not entitled to require the trust to pull down the suit meda under Section 212 of the Act, because the said section applies to the cases where both the land as well as the structure of the building in question belonged to a citizen. The contention of the plaintiff-trust is that the whole purpose of Section 212 is to acquire the land on which the structure of a building is constructed and since in this case the land admittedly belongs to the Municipality, Section 212 has no application.

4. The trial Court has rejected this contention of the plaintiff-trust and has dismissed the suit with the result that the plaintiff-trust has preferred this appeal.

5. Shri Mehta, who appeared on behalf of the plaintiff-trust contended that Section 212 of the Act gives summary power to the Commissioner to pull down a building and acquire the land underneath which falls within the regular line of a street solely with a view that the land which is so opened can become a part of public street and can vest in the Municipality as such. According to Shri Mehta, therefore, where only the structure of a building belongs to a citizen and the land over which the said structure is standing belongs to Municipality, Section 212 of the Act has no application because, the land which is of the ownership of the Corporation itself cannot be acquired by it. In this connection Shri Mehta has drawn my attention to Sections 210 to 214 of the Act and has tried to show that all these five sections -are enacted by the Legislature solely with a view to acquire the land on which a building is constructed and, therefore, if the land on which a building is constructed belongs to the Municipality, the proper remedy for the Municipality is to act under Section 209 which empowers the Municipal Commissioner to acquire the buildings standing on a -particular piece of land.

6. In order to appreciate the contentions raised by Shri Mehta it would first be necessary to make a short reference to Sections 210 to 214 of the Act Section 210 empowers the Municipal Corporation to prescribe a line on one or both sides of a public street. Section 211 says that if any building or a part thereof is abutting on a public street and is found within the regular line of the street, the Commissioner may require such building to be set back to the regular line of the street whenever it is proposed to rebuild such building or to remove, reconstruct or make any addition or alterations in any portion thereof, which is within the regular line of the street. Then comes Section 212 with which we are concerned in this appeal. It gives additional powers to the Collector to set back the buildings to regular line of street. It is in the following terms:

'212(1) If any building or any part thereof is within the regular line of a public street and if, in the opinion of the Commissioner, it is necessary to set back the building to the regular line of the street he may, if the 'Provisions of Section 211 do not apply, by written notice

(a) require the owner of such building to show cause within such period as is specified in such notice by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, why such building or any -part thereof which is within the regular line of the street shall not be Dulled down and the land within the said line acquired by the Commissioner: or

(b) required the said owner on such day at such time and place as shall be specified in such notice to attend personally or by an agent duly authorised by him in that behalf and show cause why such building or any part thereof which is within the regular line of the street shall not be pulled down and the land within the said line acquired by the Commissioner.

(2) If such owner fails to show sufficient cause to the satisfaction of the Commissioner why such building or any part thereof, which is within the regular line of the street shall not be pulled down and the land within the said line acquired as aforesaid the Commissioner may, with the approval of the Standing Committee, require the owner by a written notice, to pull down the building or the part thereof which is within the regular line of the street and where a Part of a building is required to be pulled down, to also enclose the remaining part by Putting up a protecting such period as is prescribed in the notice.

(3) If within such Period the owner of such building fails to pull down such building or any -part thereof coming within the said line, the Commissioner may Pull down the same and where a part of a building is pulled down, may also enclose, the remaining Part by putting up a protecting frontage wall -and all the expenses incurred in so doing shall be paid by the owner.

(4) The Commissioner shall at once take possession on behalf of the Corporation of the portion of the land within the said line theretofore occupied by the said building, and such land shall thenceforward be deemed a part of the public street and shall vest as such in the Corporation.

(5) Nothing in this section shall be deemed to apply to buildings vesting in the Government.'

Section 213 which follows is with regard to the acquisition of open land or of land occupied by platforms, etc. within the regular line of the street, and Section 214 provides for the acquisition of the remaining part of building and land after their portions within the regular lines of street are acquired.

7. The contention of Shri Mehta that the purpose of above referred sections is to acquire land covered by a building for the purpose of widening the road line and, therefore, where the land belongs to the Municipality, no action under these sections can be taken, postulates that the power of the Municipal Commissioner to set back the building to the regular line of a street as conferred by sub-section (1) of Section 212, is limited only to those cases in which the land over which a structure is built, can be acquired. This contention therefore obviously seeks to limit the power of the Commissioner only to the cases wherein all the comprehensive consequences of the action which can be taken under Section 212 are likely to ensue. In my opinion, this approach is obviously incorrect. Sub-section (1) of Section 212 prescribes the powers which the Commissioner can enjoy in order to set back the buildings which fall within a prescribed road line. Now it is obvious that the exercise of a power may have many and varied consequences but it is not always necessary that all these varied consequences should ensue by the exercise of that power. Therefore, it would be an obvious mistake to limit the exercise of that power only to those cases wherein all the consequences ensue. In other words, the exercise of a power and the consequences which ensue from that exercise are two different phenomena related to each other as cause and effect. The cause need not always produce a particular effect, nor should it always justify its existence from the emergence of a particular effect.

8. It is obvious that Sections 210 to 214 are comprehensive enough to cover the cases where both the structure and the land over which the structure is built, belongs to one owner as also the cases where the structure and land belong to different owners. They therefore speak of the removal of the structure and the acquisition of the land for the purpose of road line. Thus, removal of the structure and acquisition of land are the two consequences or the effects resulting from a cause, namely, the exercise of a power. In a case both these consequences may not ensue but the exercise of the Dower would not depend upon the ensuance of both the consequences. In fact, Section 212 of the Act does not make the power of the Commissioner conditional on the emergence of a particular consequence. Sub-section (1) thereof contemplates unconditional impact of that Power, the consequence of the exercise whereof depend upon the facts of each case. Therefore, if the structure of a building belongs to a citizen and the land below belongs to the Municipality itself, the power exercised by the Municipal Commissioner would result in the -removal of the structure only without resulting in the acquisition of land which the Municipality already owns.

9. In fact it is wrong to -presume that the primary object of Sections 210 to 214 is acquisition. The primary object of these sections is to preserve road lines in such a manner that all municipal functions regarding the maintenance of a public street can be suitably performed. Removal of structure and acquisition of land are merely incidental to this primary object. Therefore, the exercise of power under these sections cannot be limited only to the purpose of the acquisition of the land.

10. If the proposition canvassed by the appellant is accepted, I find that many absurd results might follow. Take for instance a house which is built over a piece of municipal land but which falls within the road line and obstructs the flow of traffic, or there is an emerging projection over the street which obstructs the passage of say a double deck bus passing on that street. If the contention of the appellant is accepted, Section 212 of the Act would be rendered useless in such cases. However, the magnitude of the power which the Legislature has vested in the Commissioner is wide enough to cover such cases. This will be evident from the wordings of subsection (1) which advisably speaks of 'any building or any part thereof' to be set back to the regular line of a street. The disputed meda is obviously a building which falls within the regular lines of street in which it is situated and can, therefore, be removed under this section.

11. Shri Mehta's next contention was that the meda could be acquired by the Commissioner under Section 209 and therefore, the Corporation would have no difficulty in administrating its affairs if it is held that Section 212 has no application to the cases having similar facts. It is of course true that under Section 209 the Commissioner can acquire the suit meda. But that is not the question which is involved in this appeal. The question which I am called, upon to consider is the scope and amplitude of the powers which the Municipal Commissioner is to enjoy under Section 212 of the Act. This scope does not get limited because he can achieve his objects by using his power under a different section. The appellant can hope to win or fail in this case only on the proper interpretation of, Section 212, and not on the question whether the Municipality is or is not rendered without any remedy to pull down the structure o f the property.

12. In my opinion, therefore, Section 212 of the Act has application to the facts of the present case and, therefore this appeal should fail. The same is, therefore, dismissed with costs and the decree passed by the lower court is confirmed.

13. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //