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The Municipal Corporation of the City of Ahmedabad Vs. Kumbhnath Co-operative Housing Society Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1975)16GLR448
AppellantThe Municipal Corporation of the City of Ahmedabad
RespondentKumbhnath Co-operative Housing Society Ltd.
Excerpt:
.....judge was clearly in error in interpreting section 13(4) and rule 9 in the manner done by him. the local authority as well may hold an inquiry itself and may pass proper orders after the conclusion of the said inquiry. he urged that this sub-rule is so framed because if after obtaining the explanation of the person to whom a notice is issued, the local authority is satisfied that this is not a case for demolition of the structure, the question of making an inquiry may not arise and in such a case, it may not be necessary for the local authority to appoint a committee. but if after perusing the explanation given by the party concerned, the local authority is not satisfied about the explanation given, it is incumbent on the local authority to hold an inquiry before passing a final order...........the town planning act and rules, the town development officer was invested with the powers of local authority and under section 13(4) of the act, the said local authority could pass appropriate orders for demolition of the unauthorised structures after holding an inquiry as prescribed under rule 9. the say of the corporation is that under rule 9, the local authority has to issue a notice and after hearing the explanation of the party concerned, the local authority may hold an inquiry either by itself or through a committee appointed by it consisting of not less than three persons. thereafter, the reasons given by the local authority or the committee, as the case may, have to be reduced to writing and duly signed. thereafter, the local authority can take a decision to demolish the.....
Judgment:

A.A. Dave, J.

1. Both these appeals involve a common question about the interpretation of Section 13(4) of the Bombay Town Planning Act, 1954 (Act No. 22/55) hereinafter referred to as the Act, and Rule 9 of the Bombay Town Planning Rules, 1955.

2. These two appeals arise out of the judgment and decree passed by the learned Judge, City Civil Court, 5th Court, Ahmedabad declaring that the notice, dated 12-1-1967 issued by the town development officer of the defendant-Corporation and his order, dated 27-1-1967 to demolish the structure raised in the respective survey numbers by the respondent-plaintiff are illegal and unauthorised and for consequential injunction to restrain the defendant-Corporation from executing the said order of demolition of the structures in question pursuant thereto.

3. In order to appreciate the question of law involved in these appeals, it is not necessary to refer to the facts in details. Suffice it to say that the plaintiffs in the above two suits challenged the order issued by the town development officer for demolition of the structures raised on the respective survey numbers by them. It was alleged that as this order was issued by the town development officer without following the proper procedure as laid down under Rule 9 of the Town Planning Rules, 1955, the order passed by the town development officer was illegal and unauthorised. It was submitted on behalf of the plaintiffs that as required under Rule 9 of the said Rules, the town development officer would appoint a committee of not less than three members to hear such cases for making a proper inquiry as contemplated in Rule 9. The say of the defendant-Corporation was that under the Town Planning Act and Rules, the town development officer was invested with the powers of local authority and under Section 13(4) of the Act, the said local authority could pass appropriate orders for demolition of the unauthorised structures after holding an inquiry as prescribed under Rule 9. The say of the Corporation is that under Rule 9, the local authority has to issue a notice and after hearing the explanation of the party concerned, the local authority may hold an inquiry either by itself or through a committee appointed by it consisting of not less than three persons. Thereafter, the reasons given by the local authority or the committee, as the case may, have to be reduced to writing and duly signed. Thereafter, the local authority can take a decision to demolish the unauthorised structure. According to the Corporation, proper procedure was followed and merely because the local authority itself held an inquiry and did not appoint a committee, it cannot be said that the provisions of Rule 9 were not complied with as alleged by the plaintiffs. The learned trial Judge, held that the notice, dated 12-1-1967 given by the local authority was legal and valid but that the decision taken by the town development officer on 27-1-1967 is illegal and invalid. The learned Judge, therefore, decreed the suits. The Corporation, therefore, has preferred the present appeals against the said decision.

4. Mr. Christie, learned Advocate appearing for Mr. S.B. Vakil for the Corporation submitted that the learned trial Judge was clearly in error in interpreting Section 13(4) and Rule 9 in the manner done by him. He submitted that under Section 13(4) of the Act, the local authority has been authorised to pass proper orders after holding an inquiry as prescribed in Rule 9. He urged that Section 13 does not envisage any inquiry being held by a committee. No doubt, Rule 9(2) states that the local authority if it considers expedient to do so, may appoint a committee of not less than three persons to hear such cases. However, Mr. Christie urged that there is no compulsion on the local authority to appoint a committee for holding such an inquiry. The local authority as well may hold an inquiry itself and may pass proper orders after the conclusion of the said inquiry.

5. Mr. C.M. Trivedi, learned Advocate for the respondents-plaintiffs, on the other hand urged that Rule 9 should be interpreted in such a manner so as to harmonies Sub-rule (2) and Sub-rule (3) of Rule 9. He urged that no doubt Sub-rule (2) is so worded as to give discretion to the local authority to appoint a committee or not. He urged that this Sub-rule is so framed because if after obtaining the explanation of the person to whom a notice is issued, the local authority is satisfied that this is not a case for demolition of the structure, the question of making an inquiry may not arise and in such a case, it may not be necessary for the local authority to appoint a committee. But if after perusing the explanation given by the party concerned, the local authority is not satisfied about the explanation given, it is incumbent on the local authority to hold an inquiry before passing a final order. In such a case, Mr. Trivedi urged that an inquiry could only be held by a committee appointed by the local authority and not by the local authority itself. He submitted that Sub-rule (3) envisages that the reasons for the decision shall be signed by all persons giving such decision. That necessarily would go to show that this Sub-rule contemplates an inquiry by committee and not by the local authority.

6. In my opinion, with respect to the learned Judge, the view taken by him cannot be accepted. The rules framed under the Town Planning Act cannot have an overriding effect on the Section itself. Section 13(4) of the Act states-

If any person does any work on, or makes any use of any property in contravention of Section 12 or 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.

It will thus be seen that Sub-section (4) of Section 13 authorises the local authority to remove or pull down any such unauthorised work after making necessary inquiry in the prescribed manner. This section, therefore, envisages an inquiry by the local authority itself and not necessarily by a committee. No doubt, an inquiry has to be made in the prescribed manner. What is the manner of such inquiry is mentioned in Rule 9. Sub-rule (1) of Rule 9 states-

For the purpose of making an inquiry under Sub-section (4) of Section 13, Sub-section (4) of Section 16 and Clause (c) of Sub-section (1) of Section 29 (hereinafter referred to as the aforesaid provisions'), a local authority shall serve a notice in writing upon the person contravening any of the aforesaid provisions calling upon him to show cause why he should not be directed to remove, etc. etc.

So the first requisite for holding an inquiry is that a notice should be served by the local authority upon a person contravening any of the provisions to show cause why he should not be directed to remove, pull down or alter the building, etc. Thereafter, an explanation which may be received from the party concerned has to be considered. If after considering the explanation, the local authority is of the view that an inquiry should be held not by itself but by a committee of not less than three persons, it may appoint such committee as envisaged in Sub-rule (2) of Rule 9 which says-

The local authority, if it considered it expedient to do so, may appoint a committee of not less than three of its members to hear such cases.

It seems that Sub-rule (2) of Rule 9 should have followed Sub-rule (3) and not preceded it because unless the explanation is received from the party in response to the notice, the question of making an inquiry would not arise. Sub-rule (3) states 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 before such date, shall be considered. It does not state that it shall be considered by the committee. I have already referred to Sub-rule (2) under which it is discretionary for the local authority to appoint a committee. Sub-rule (2) does not compel the local authority to appoint a commitee for the purpose of holding an inquiry against the person who has been served with a notice for removing the unauthorised construction. Sub-rule (3) further states-

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 decisions shall be signed by all persons giving such decision.

According to the learned Judge, if the inquiry was to be held by the town development officer as local authority, the words used in Sub-rule (3) that 'the reasons for such decisions shall be signed by all the persons giving such decisions' would not have been there. The learned Judge was, therefore, of the view that Sub-rule (3) necessarily envisaged an inquiry by a committee. With respect to the learned Judge, such a nar-now interpretation of Sub-rule (3) is not justified. As already stated earlier, Section 13(4) of the Act authorised the local authority, after holding an inquiry in the prescribed manner, to pass appropriate orders for removal of unauthorised structure. Thus, it is the local authority which has been authorised to pass appropriate order after holding an inquiry. The inquiry is to be held by it in the prescribed manner. But Section 13(4) does not envisage any inquiry by any authority other than the local authority. However, Rule 9(2) has given a discretion to the local authority that instead of holding the inquiry itself, it may appoint a committee of persons not less than three, to hold such an inquiry. In case, the local authority does not choose to hold the inquiry itself but appoints a committee of not less than three persons, Sub-rule (3) states that the decision shall be signed by all the persons giving such decision. But if no committee is appointed, the question of the decision being signed by all the persons would not arise. But Sub-rule (2) and Sub-rule (3) are so framed so as to include both the contingencies viz. inquiry by the local authority that is town development officer himself or an inquiry by a committee appointed by the town development officer. In my opinion, merely because Sub-rule (3) mentions that the reasons of the decision shall be signed by all the persons giving such decision, the authority vested in the local authority of passing appropriate orders after holding an inquiry as provided in Section 13(4) cannot be taken away. If the intention of the legislature was that such an inquiry has necessarily to be held by the committee, the legislature could have used appropriate words. The very fact that the discretion is left with the local authority to appoint a committee, clearly goes to show that the legislature did not intend that such an inquiry should necessarily be held by a committee and that it cannot be held by the local authority itself. The learned Judge has, while interpreting Sub-rules (2) and (3), given his own reasons why the local authority cannot hold itself an inquiry and that in the light of the words used in Sub-rule (3), such an inquiry should be held by a committee only. According to the learned Judge, a contingency may arise when after hearing the explanation of the person concerned, the local authority may not think it necessary to hold an inquiry. In such a case, the local authority may not appoint a committee. According to the learned Judge, Sub-rule (2) as framed gives a discretion to the local authority to meet with such contingency. With respect to the learned Judge, I am unable to agree with him. As already stated earlier, Sub-rule (2) should have followed Sub-rule (3) and not preceded it. Sub-rule (3) states of a representation made by or on behalf of the person who is served with a notice. Therefore, the question of holding an inquiry would arise only after considering the said explanation offered by the person concerned. After hearing his explanation, the local authority may conduct an inquiry itself or it may appoint a committee to do so. But merely because last words used in Sub-rule (3) enjoined on all the members of the committee to sign the reasons for such decision, would not take away the powers of the local authority to hold an inquiry itself. If Sub-rule (3) is interpreted in this fashion, Sub-rule (2) would not only be negatory but Section 13(4) would be affected inasmuch as the authority of the town development officer to hold an inquiry and pass appropriate orders would impliedly be taken away. In my opinion, reading Section 13(4) of the Act with Rule 9 as a whole, I have no hesitation in holding that the local authority has got a discretion in the matter and that the inquiry may be held either by the local authority or by a committee appointed by it, if it is expedient to do so.

7. It cannot, therefore, be said in the instant case, that merely because a 'committee is not appointed, the order passed by the town development officer directing the plaintiffs to remove the unauthorised structures was wrong or unauthorised. The decrees passed by the learned trial Judge, therefore, in both the suits cannot be sustained.

8. In the result, both the appeals are allowed. The judgments and decrees passed by the learned trial Judge in both the suits are set aside and both the suits are dismissed with costs throughout.


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