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The Municipal Corporation of City of Ahmedabad Vs. Harilal Shankarbhai Modi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Judge
Reported in(1961)2GLR495
AppellantThe Municipal Corporation of City of Ahmedabad
RespondentHarilal Shankarbhai Modi
Cases ReferredRamrao Bhagwantrao Inamdar v. Babu Appana Samage
Excerpt:
.....notice was bad and the appeal of the plaintiff was allowed. but the court has also to take into consideration the context in which the specific as well as the general words are used......there is no justification for reading the words or for any other purpose ejusdem generis with the words dwelling or a stable used in the expression either as a dwelling or a stable or for any other purpose. the legislature has used the general words or for any other purpose and i stress the word any. in this phrase the word any is general and without any limitation. to my mind to limit the meaning of the words for any other purpose ejusdem generis is to ignore in the context the meaning of the word any. in my view the words or for any other purpose are to be given their ordinary meaning and should not be limited in their meaning by reading them ejusdem generis with the preceding specific words. in this connection my attention is drawn by mr. patel for the respondent to a decision in.....
Judgment:

R.B. Mehta, J.

1. This is & second appeal from the decision of the learned Third Extra Assistant Judge, Ahmedabad, who allowed an appeal against the order and decree, which dismissed the plaintiff's suit, passed by the learned Joint Civil Judge, Junior Division, Ahmedabad.

2. This suit is filed by the plaintiff against the Ahmedabad Municipal Corporation for a permanent injunction restraining the defendant corporation from demolishing a structure built by the plaintiff on a plot of land of which the plaintiff was a lessee, in pursuance of a notice, dated the 11th February 1954, given by the Corporation under the provisions of Section 308 of the Bombay Provincial Municipal Corporations Act, 1949. The plaintiff was a lessee of a plot of land on which he had built the suit structure, which was a shed since four years prior to the suit, and which, according to the plaintiff, was being used as a godown for storing animal fodder. The Corporation was recovering the municipal taxes from him during all this period. It is alleged by the plaintiff that the Corporation had no valid reason for giving him a notice under the provisions of Section 308 of the Act for demolishing the shed within seven days of the notice failing which the Corporation would take action to demolish the same under Sections 479 and 438 of the said Act. Section 479 confers powers on the Corporation to enforce its notice in case it is not carried out. Section 438 provides for recovering expenses of the work carried out by the Corporation in such and also other circumstances with which we are not concerned in this case. The plaintiffs case was that the defendant Corporation gave a notice to the effect that the plaintiff had constructed a Kachha shed and the use of the shed was mentioned as for residence factory and cattle: *** It was further mentioned in the said notice that the shed was built in a crowded manner; that the walls were of planks mattresses and corrugated iron-sheets; that there was no plinth there was no drainage there were no windows or ventilation and that therefore the construction was unsanitary and that for this reason the defendant Corporation asked the plaintiff under the provisions of Section 308 to demolish his shed within seven days of the receipt of the notice failing which as stated above the Corporation would proceed to demolish the same under the powers given to the Corporation under the said Act.

3. The plaintiffs case was that the said notice was given by the Junior Assistant to the Estate and City Improvement Officer of the Municipal Corporation and as such the said notice was illegal and ultra vires; that the Junior Assistant to the Estate & City Improvement Officer was not competent to send such a notice; that it was the duty of the Municipal Commissioner to have verified the contents of the notice and that not being done the notice was invalid. It was further alleged by the plaintiff that the notice itself is based on incorrect facts and that therefore it was not a valid notice. It was further the plaintiffs case that as a matter of fact looking to the user to which it was put there was no possibility of anybody's health to deteriorate; and that under the circumstances the notice was bad and illegal.

4. The defendant Corporation contended that the notice was legal and proper ana that the Junior Assistant to the Estate & City Improvement officer was validly delegated the relevant powers by the Municipal Commissioner and that the said officer had got powers to sign such notices.

5. Two main points were taken before the learned trial Judge. One was to the effect that the Junior Assistant to the Estate & City Improvement Officer of the Ahmedabad Municipal Corporation had no power to send such a notice. The second point taken was that on a correct reading of Section 308 of the said Act the provisions thereof were applicable only to huts or sheds which were used as a dwelling or a stable or for any other purpose which is similar to a dwelling or a stable In other words it was contended that the words 'for any other purpose in Section 308 under which the said notice was given should be read ejusdem generis with the preceding words 'dwelling or a stable. It was contended that the hut or the shed in question was not used as a dwelling or a stable or for any other purpose which it was contended should be a similar purpose namely residence or dwelling for humans or animals but was used as a godown for cattle fodder and that therefore it was not covered by the provisions of Section 308; and that therefore the notice was bad on this ground on the first point the learned trial Judge held that the Junior Assistant to the Estate & City Improvement Officer was validly delegated the powers to give notice under Section 308 of the Act. On the second point the learned trial Judge came to the conclusion that the words for any other purpose could not be read ejusdem generis but that they were or general import. In these circumstances the plaintiffs suit was dismissed by the learned trial Judge. On appeal the learned Third Extra Assistant Judge held on the first point that there was a valid delegation of power to the Junior Assistant to the Estate & City improvement Officer under the provisions of the Bombay Provincial Municipal Corporations Act 1949 and that therefore the notice was valid. On the second point the learned Judge came to the conclusion that the words or for any other purpose in Section 300 of the Act should be read ejusdem generis in the result the learned Third Extra Assistant Judge held that as the shed in question was being used as a godown it was not covered by the provisions of Section 308 of the Act and that therefore the notice was bad and the appeal of the plaintiff was allowed.

6. The validity of the notice by the Junior Assistant to the Estate & City improvement Officer is not challenged in this Court. It is however contended by the appellant Municipal Corporation before this Court that the words for any other purpose in Section 308 could not be read ejusdem generis. Now it is necessary to set out the provisions of Section 308 of the said Act which are as follows:

7. If the Commissioner is of opinion that any hut or shed used either as dwelling or as a stable or for any other purpose is likely by reason of its being built without a plinth or upon a plinth of insufficient height or without proper means of drainage or ventilation or on account of the impracticability of scavenging or owing to the manner in which it and other huts or sheds are crowded together to cause risk of disease to the inmates thereof or to the inhabitants of the neighbourhood or is for any reason likely to endanger the public health or safety he may by written notice which shall be affixed to some conspicuous part of such hut or shed require the owner or occupier thereof or the owner of the land of such hut or shed stands to remove or alter such hut or shed or to take such order for the improvement thereof as the Commissioner shall deem necessary.

8. It is contended on behalf of the plaintiff-respondent that the words or for any other purpose in the second line of this section should be read applying the ejusdem generis rule. In other words it is said that where specific words are followed by general words the general words should be construed to have limitation on them hearing in mind the meaning of the specific words used preceding the general words. It is true that speaking generally the Court has to bear in mind this aspect of the interpretation of a statute. But the Court has also to take into consideration the context in which the specific as well as the general words are used. At the same time the fundamental rule of the interpretation of a statue has also to be borne in mind that as far as possible the Court shall give effect to every word used by the Legislature in a statute in its normal and grammatical meaning. Now bearing this position in mind prima facie it seems to me that there is no justification for reading the words or for any other purpose ejusdem generis with the words dwelling or a stable used in the expression either as a dwelling or a stable or for any other purpose. The Legislature has used the general words or for any other purpose and I stress the word any. In this phrase the word any is general and without any limitation. To my mind to limit the meaning of the words for any other purpose ejusdem generis is to ignore in the context the meaning of the word any. In my view the words or for any other purpose are to be given their ordinary meaning and should not be limited in their meaning by reading them ejusdem generis with the preceding specific words. In this connection my attention is drawn by Mr. Patel for the respondent to a decision in Kajaria Traders (India) Ltd v. Foreign Import & Export Association reported in 62 Bombay L.R. 753 where Mr. Justice K. T. Desai had to consider Section 69 of the Indian Partnership Act. Section 69 of the Indian Partnership Act is as follows:

69 (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person Suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.

x x x x x

(3) The provisions of Sub-sections (1) and (2) shall apply also to a claim of setoff or other proceeding to enforce a right arising from a contract but shall not affect

(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm or any right or power to realise the property of a dissolved firm or

(b) the powers of an official assignee receiver or Court under the Presidency towns Insolvency Act 1909 or the Provincial Insolvency Act 1920 to realise the property of an insolvent partner.

9. A question arose as to whether an application under Section 8 of the Indian Arbitration Act. 1940 is a proceeding covered by the words other proceeding in Section 69(3) of the Indian Partnership Act 1932 In other words whether the cords other proceeding should be read as analogous to a set off or whether they were of general import. It was held by Mr. Justice K.T. Desai and with respect I agree that the words a claim to set off must have a limiting effect on the words other proceeding in Section 69(3) That construction with respect was warranted by the context. Bearing in mind the purpose of the statute evident from the language of Section 69(1) it was clear that the purpose of the Legislature was to provide for rights of suit and such other kindred rights. Further the Legislature has not used the words or for other purpose in Section 308 of the Act under consideration hut the words used are or for 'any other purpose. In other words the use of the word any must be given its ordinary meaning and import. The use of the word any in the context makes the phrase for any other purpose of general import without limitation by the preceding words. I do not wish to say that lie use of the word any is determinative of the question in all cases. But it is a circumstance of some significance. And in the context looking to the purpose of the section the word any in this case indicates no limitation by the preceding specific words. So the decision of Mr. Justice K.T. Desai does not lend any assistance to the argument of Mr. Patel in this case.

10. Next Mr. Patel drew my attention to the case of Ramrao Bhagwantrao Inamdar v. Babu Appana Samage 42 Bom. L.R. 143 where a Full Bench of the former Bombay High Court held that in Order XXIII Rule 1 Sub-rule (2)(b) of the Civil Procedure Code the words or that there are other sufficient grounds must be read to be not of general import but as being analogous to 'a formal defect as stated in Sub-rule (2)(a). Now here also it may be stated that the words used in Rule 1 Sub-rule 2(b) are other sufficient grounds and the word any as it appears in Section 308 of the Act under consideration is not found. Further this interpretation of the words other sufficient grounds is in consonance with the object of withdrawal of suits as contemplated under Order XXIII Rule 1 Sub-rule (2) where in certain contingencies leave to file a fresh suit on the same subject matter can be granted by the Court. So that this decision also is not of much assistance in construing Section 308 where the Legislature has used the added word any. In my view therefore it is not possible to accept the argument that the words or for any other purpose in Section 308 should be read ejusdem generis with the previous words as a dwelling or as a stable.

11. It was further argued in support of the application of the ejusdem generis rule that if the Legislature wanted these words for any other purpose to be read in a general way and without any limitation of the preceding words it was not necessary to use the words either as a dwelling or as a stable and that the Legislature could have said any hut or shed used for any purpose. The argument at first sight appears to be plausible but I do not think that it is tenable in view of the use of the words of general import namely for any other purpose. I do not think the intention of the Legislature was exclude from the operation of Section 308 those huts and sheds which are used for purposes which are not analogous to dwelling and stables. The different reasons enumerated in Section 308 warranting demolition of a hut or shed are all of them not peculiar only to huts and sheds which are used only for residence of humans or animals. On a simple reading of the words of the section I do not see any justification for reading the words or for any other purpose in an ejusdem generis manner or in other words to limit their meaning by the illustrations given by the preceding words dwelling or a stable. In my view therefore the learned Third Extra Assistant Judge was in error in coming to the conclusion that the words or for any other purpose should be read ejusdem generis.

12. But the difficulty of the Municipal Corporation does not end for in this case the notice which is given mentions the construction to be residence factory or cattle-shed and as stated above it further mentioned that the sheds have been built (though the shed is only one) in a crowded manner with walls of planks mattresses and corrugated iron-sheet without a plinth drainage or ventilators and are unsanitary. To my mind Section 308 requires that the authority giving notice has to consider before giving notice the use to which a hut or shed is being put to and in context with the use it has to come to its conclusion whether by reason of any of the defects mentioned in Section 308 the hut or shed in question is likely to cause risk or disease to the inmates thereof or to the inhabitants of the neighbourhood or is for any reason likely to endanger the public health or safety. The notice in question is based on the assumption that the hut or shed is a residence factory or a cattle-shed. The hut or shed in question on the finding of the Court below however is used as a godown. In other words in giving notice the authority which has given the notice does not seem to have taken into consideration the user or the hut or the shed in question. It is only after taking into consideration the user that the authority has to consider whether bearing in mind that uses the hut or shed requires to be demolished or not. In this case therefore it is obvious that the authority which had given the notice has not applied its mind. It was contended by Mr. Shah for the defendant Corporation in this connection that it was not necessary while giving a notice to bear in mind the user to which the hut or shed is put. I am unable to agree to this submission for in terms the section provides as follows:

If the Commissioner is of opinion that any hut or shed used either as a dwelling or as a stable or for any other purpose is likely by reason of its being built etc. etc....

13. Before coming to the conclusion that the hut or the shed in question requires to be demolished the authority giving the notice has to consider the use to which a hut or shed is being put to; for different considerations may arise for demolition of different huts and sheds and sheds bearing in mind the different uses to which they may be put to illustrate it may be that a particular shed might he used for a residential purpose and the requirements for a hut or a shed for a residential purpose might be different from the requirements of a hut or a shed which might be used for a godown. Therefore in coming to the conclusion to which the authority comes to for demolishing a hut or a shed under the provisions of Section 308 it is obligatory for the authority to bear in mind the use to which a particular hut or shed is being put to. Therefore in my view the notice in the instant case is one which on the face of it shows that this aspect of the case has not at all been considered by the authority which has given the notice. In other words the authority which has given the notice has on the face of it not applied its mind to the matter before it. In these circumstances the notice which is given in this case is invalid. For these reasons though on different grounds the appeal will be and is dismissed with costs.


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