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Gulabchand Bapalal Modi Vs. the Municipal Corporation of Ahmedabad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1966)7GLR712
AppellantGulabchand Bapalal Modi
RespondentThe Municipal Corporation of Ahmedabad and ors.
Excerpt:
.....clause (b) of sub-section (1) of section 212 was issued and served on the petitioner in respect of survey number 2919. 2. as already stated, the impugned notice recited that the corporation had served an earlier notice dated june 16, 1958 under clause (b) of sub-section (1) of section 212. according to the petitioner, however, no such notice under section 212(1)(b) dated june 16, 1958 was served on him action under sub-section (2) of section 212 also cannot be taken unless the commissioner is satisfied on objections, if any, taken by such an owner that such objections are not such as to show sufficient cause to the satisfaction of the commissioner why the structure should not be pulled down and the land made open as a result of such pulling down should not be acquired by him on behalf of..........of the bombay provincial municipal corporations act, 1949 in respect of a structure standing on survey number 2919 belonging to the petitioner and situate in khadia ward no. 1 within the city limits of the municipal corporation of ahmedabad. the impugned notice dated december 31, 1959 recited that the structure standing on the said survey number fell within the regular line of the street to the extent of 75 square yards and odd, that a notice dated june 16, 1958 under section 212(1)(b) of the act calling upon the petitioner to remove the said structure falling within the said road line had been served upon the petitioner and that no objections thereon were filed by the petitioner. the notice stated that pursuant to resolution no. 1181 dated october 15, 1959 of the standing committee.....
Judgment:

J.M. Shelat, C.J.

1. This is a petition for a writ of mandamus quashing the impugned notice dated December 31, 1959 issued by the Commissioner under Section 212(2) of the Bombay Provincial Municipal Corporations Act, 1949 in respect of a structure standing on survey number 2919 belonging to the petitioner and situate in Khadia Ward No. 1 within the city limits of the Municipal Corporation of Ahmedabad. The impugned notice dated December 31, 1959 recited that the structure standing on the said survey number fell within the regular line of the street to the extent of 75 square yards and odd, that a notice dated June 16, 1958 under Section 212(1)(b) of the Act calling upon the petitioner to remove the said structure falling within the said road line had been served upon the petitioner and that no objections thereon were filed by the petitioner. The notice stated that pursuant to resolution No. 1181 dated October 15, 1959 of the Standing Committee of the Corporation, the aforesaid structure falling within the road line should be dismantled and the land thereunder be made open within seven days. The notice further stated that if the petitioner failed to comply with the aforesaid requisition within the time specified, the dismantling of the said structure would be executed under Section 212(2) of the Act by the Corporation and the costs incurred therefor would be recovered from the petitioner under Sub-section (4) of Section 212. The impugned notice has been challenged in the present petition on a number of grounds, but it is not necessary to consider all of them as it is possible to dispose of this petition on one ground only, namely, whether an earlier notice as required by Clause (b) of Sub-section (1) of Section 212 was issued and served on the petitioner in respect of survey number 2919.

2. As already stated, the impugned notice recited that the Corporation had served an earlier notice dated June 16, 1958 under Clause (b) of Sub-section (1) of Section 212. According to the petitioner, however, no such notice under Section 212(1)(b) dated June 16, 1958 was served on him in respect of survey number 2919. The petitioner's case in fact is that two identical notices dated July 26, 1959, each of them bearing the same number, namely, No. ETS. ACO/2302 were served upon him but both the notices were in respect of survey number 2916 also belonging to him and no notice under Section 212(1)(b) in respect of survey number 2919 was ever served upon him. The notice dated December 31, 1959 also stated that no objections were raised by the petitioner in respect of the alleged notice dated June 16, 1958. The petitioner's reply in the petition is that no such objections could be raised by him in view of the fact that no notice in respect of survey number 2919 was ever served upon him under Section 212(1)(b) and therefore the petitioner was not afforded any opportunity to raise objections against a notice under Section 212(1)(b) in relation to survey number 2919 and the Municipal Corporation had thus ignored the provisions of Clause (b) of Sub-section (1) of Section 212.

3.It appears that a notice dated nil and bearing No. ETS. ACO/2302 signed by the Town Development Officer was served upon the petitioner on October 25, 1961. This notice no doubt referred to both the survey numbers 2916 and 2919 and called upon the petitioner to remain present at the aforesaid premises on October 31, 1961 between 8-00 to 11-00 A.M. when the Junior Assistant of the Town Development Officer would visit the premises to inspect and take notes of the buildings falling within the said regular line of the street. On January 31, 1962, the Corporation served another notice under Section 388(2) on one Feniben, a tenant of the premises in survey number 2919, to the effect that the municipal staff would come to the premises on February 1, 1962 to dismantle the structures on survey number 2919 and survey number 2916 falling within the said road line. Though the said notice was served upon the tenant, that notice admittedly was not served on the petitioner. It is somewhat strange that the said notice, though in respect of both the survey numbers, was served on the said Feniben although she was in possession of the structure situate on survey number 2919 and not the structure standing on survey number 2916. In pursuance of the said notice, the municipal employees went to the premises on February 1,1962 and dismantled the structure standing on survey number 2916 which fell within the regular line of the street, but not the structure standing on survey number 2919.

4. The question, therefore, is whether the Municipal Corporation had at all served upon the petitioner a notice under Section 12(1)(b) in respect of survey number 2919 before it served upon him the impugned notice dated December 31, 1959 under Section 212(2). As already stated, the notice dated December 31, 1959 refers to an earlier notice dated June 16, 1951 having served upon the petitioner under Section 212(1)(b). No copy of such-notice, however, has been produced by the Corporation though service of such notice has been denied in categorical terms by the petitioner. As against the contention of the petitioner that no notice under Section 212(1)(b) in respect of survey number 2919 was served upon him, the Deputy Estate Officer of the Municipal Corporation in his affidavit in reply has sought to make out a case that the date June 16, 1958 set out in the notice dated December 31, 1959 was a mistake, that the petitioner had tried to take advantage of the mistake in the date and that a notice under Section 212(1)(b) in respect of survey number 2919 was issued on July 26, 1959 and actually served upon the petitioner on July 30, 1959. The Deputy Estate Officer has also annexed as Exhibit I to his affidavit in reply a translation of an alleged notice dated July 26, 1959 which refer to survey number 2919. If the original of that translation had been served upon the petitioner, such service would be sufficient compliance of the provisions of Section 212(1)(b). But although an English translation has been annexed to the affidavit as Exhibit I, the original of the copy of the notice dated July 26, 1959 has not been produced and barring a mere allegation in the affidavit in reply that such a notice had been served upon the petitioner, no proof of such a notice dated July 26, 1959 with reference to survey number 2919 has been adduced. On the other hand, the petitioner has produced two original notices both dated July 26, 1959 and annexed them as Exhibit 'C to his affidavit in rejoinder. These two notices are no doubt notices under Section 212(1)(b) but unfortunately for the Corporation, both of them relate to survey number 2916 and the structure which is alleged therein to have been found within the regular line of the street is stated to be admeasuring 18 square yards. Neither of the two notices states that the area was 75 square yards and odd which is the case of the Municipal Corporation in relation to the structure standing upon survey number 2919. It thus appears that the municipal authorities through some mistake or inadvertence issued the two notices dated July 26, 1959 in respect of the same survey number, namely, survey number 2916 and forgot to issue any notice in respect of survey number 2919. Therefore it seems that the allegation made by the petitioner that no notice under Section 212(1)(b) in respect of survey number 2919 was served upon him is correct. Even until today, the Municipal Corporation has not been able to adduce any evidence whatsoever by way of an affidavit by any one of the municipal employees to establish that such a notice in respect of survey number 2919 was prepared and issued or served upon the petitioner at any time. The result, therefore, is that the petitioner's case in this regard must be accepted.

4.1 Section 210 of the Act empowers the Commissioner to prescribe a line of a public street which under Sub-section (2) is called the regular line of the street. Under Sub-section (3) of the section, the Municipal Commissioner has to maintain a register with plans attached showing all public streets in respect of which a regular line of the street has been prescribed and such register has to contain such particulars as to the Commissioner may appear to be necessary and has to be kept open for inspection by any person. Sub-section (4) of that section provides that subject to the provisions of Sub-section (5) no person can construct or reconstruct any portion of any building on land within the regular line of the street except with the written permission of the Commissioner. Section 211 empowers the Municipal Commissioner to order a set-back of a building abutting on a public street and within the regular line of the street whenever it is proposed to rebuild such building or to take down such building to an extent exceeding one-half thereof above the ground level or to remove, reconstruct or make any addition to or structural alteration in any portion of such building which is within the regular line of the street. Sub-section (2) of Section 211 provides that when a building or any part thereof within the regular line of the street falls down or is burnt down or it is taken down, whether under the provisions of the Act or otherwise, the Commissioner is authorised to take possession on behalf of the Corporation of the portion of land within the regular line of the street theretofore occupied by the said building and, if necessary, clear the same, and the land acquired under this section is deemed to be a part of the public street and should vest as such in the Corporation. Section 212, with which we are presently concerned in this petition provides for the additional power of the Municipal Commissioner to order set-back of buildings to the regular line of the street. Sub-section (1) provides that 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 should not be pulled down and the land within the said line acquired by the Commissioner; or (b) require the said owner on such day and 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, Sub-section (2) of Section 212 then provides that if such an 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 should not be pulled down and the land within the said line acquired, the Commissioner may, with the approval of the Standing Committee, require the owner by a written notice to pull down the building or a part thereof which is within the regular line of the street within such period as is prescribed in the notice by him. It is clear from the provisions of Section 212 that the power under Sub-section (2) cannot be exercised by the Municipal Commissioner unless a notice has been served on the owner under Clause (a) or Clause (b) of Sub-section (1) and an opportunity is given to the owner to show why such building or a part thereof should not be pulled down and the land within the regular line of the street should not be acquired by the Commissioner. Action under Sub-section (2) of Section 212 also cannot be taken unless the Commissioner is satisfied on objections, if any, taken by such an owner that such objections are not such as to show sufficient cause to the satisfaction of the Commissioner why the structure should not be pulled down and the land made open as a result of such pulling down should not be acquired by him on behalf of the Corporation. It is clear thus that a notice under Section 212(1), either under Clause (a) or under Clause (b), is a condition precedent to the exercise of power under Sub-section (2) of Section 212. Therefore, if no such notice has been served as required by Sub-section (1), there would be no occasion for the owner to raise any objections to the requisitions contained in such a notice and to show cause why the structure in question should not be pulled down and to show sufficient cause to the satisfaction of the Commissioner. It follows that if such a condition precedent has not been performed or satisfied, no action can be taken under Sub-section (2) of Section 212 and if a notice is served under Sub-section (2) such a notice would be inconsistent with the provisions of Section 212(2) and therefore would be invalid. The Municipal Corporation having failed to establish that the requisite notice under Sub-section (1) of Section 212 had been served upon the petitioner in respect of the structure standing on survey number 2919, the Municipal Commissioner was not entitled to and had in fact no power to act under Sub-section (2) of Section 212 and to issue the impugned notice thereunder. That being the position, we have to come to the conclusion that the impugned notice dated December 31, 1959 was invalid and therefore must be set aside.

5. The result, therefore, is that the rule is made absolute and the impugned notice dated December 31, 1959 is held illegal, void and inoperative and is set aside and the Municipal Corporation, its officers, agents and servants are restrained from enforcing the said notice or taking any action thereunder. The first respondent will pay to the petitioner the coats of this petition.


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