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Baroda Municipal Corporation Vs. Patel Dahyabhai Gordhanbhai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1985)1GLR113
AppellantBaroda Municipal Corporation
RespondentPatel Dahyabhai Gordhanbhai and ors.
Cases ReferredEmperor v. Matubhai M. Shah
Excerpt:
.....it, therefore, clearly transpires that a permission is necessary when one wants to erect a new building and here the building must be given the popular meaning. 6. this illustration clearly shows that by following such conversion of an erected building, you may be making breach of the by-laws and, therefore, before such conversion is made, the permission of the commissioner is necessary so as to see whether by such conversion, you are committing the breach of the by-laws or otherwise. this provision clearly presupposes the existence of huts and temporary structure and under the present by-laws regarding the construction of new building, such huts, temporary sheds and similar structures cannot be permitted. section 3(7): building' shall include any hut, shed or other enclosure,..........necessary, the same cannot be demolished by the municipal corporation. thereafter, they served the suit notice dated 8-11-1969 and filed the present suit on 15-6-70 for injunction restraining the defendant-corporation from demolishing the cabins.2. the learned trial judge framed six issues and held that on true and correct interpretation of section 254 of the act, permission is not necessary for constructing such cabins which can be removed, and granted permanent injunction from removing or interfering with the cabins put up by the plaintiffs on said land. the corporation, being aggrieved, by the said decision, filed an appeal in the district court baroda and the learned 2nd extra assistant judge by his judgment and decree dated 22-12-76 dismissed the appeal holding that the notice.....
Judgment:

S.A. Shah, J.

1. Being aggrieved by the judgment of the 2nd Extra Assistant Judge. Baroda dismissing the appeal and confirming the decree of the trial court, the present appellant who is the original defendant has filed this Second Appeal. The respondents are the original plaintiffs who filed a suit in the Court of Civil Judge Senior Division. Baroda contending that they are in possession of wooden cabin the land survey No. 420 of village Savand, Dist: Baroda. That the town planning scheme was under progress during that time. However, the appellant municipality save a notice under Section 260 of the Bombay Provinicial Municipal Corporations Act, 1949 (Bombay Act No. 59 of 1949) hereinafter referred to as 'Act') dated 24-10-69 to the plaintiff No. 6 informing that they have constructed the cabin without prior permission of the Corporation and being against the rules and by-laws the plaintiffs were required to show cause as to why the said cabin should not be demolished. The plaintiffs gave an explanation that the land was allowed to be used for N. A purpose and they have put only wooden cabins which can be removed and the cabins cannot be said to be the construction and no permission being necessary, the same cannot be demolished by the municipal corporation. Thereafter, they served the suit notice dated 8-11-1969 and filed the present suit on 15-6-70 for injunction restraining the defendant-corporation from demolishing the cabins.

2. The learned Trial Judge framed six issues and held that on true and correct interpretation of Section 254 of the Act, permission is not necessary for constructing such cabins which can be removed, and granted permanent injunction from removing or interfering with the cabins put up by the plaintiffs on said land. The Corporation, being aggrieved, by the said decision, filed an appeal in the District Court Baroda and the learned 2nd Extra Assistant Judge by his judgment and decree dated 22-12-76 dismissed the appeal holding that the notice issued by the corporation under Section 260 was not justifiable since the plaintiff has erected only kutcha cabins, and the pillars of the cabins are placed on the earth and are not proved to be rooted in the earth. The substantial questions of law as framed and which arise for my consideration are as under:

(1) Whether in the facts and circumstances of the case, the learned District Judge in confirming the finding of the trial court committed a substantial error of law in holding that the structure put up by the plaintiffs is not a building as defined in the Bombay Provincial Municipal Corporations Act, 1949 and therefore, no permission is required of the corporation to put up such structure.

2. Whether in the facts and circumstance of the case the learned District Judge committed a substantial error of law in agreeing with the trial court that the action of the corporation to remove the alleged unauthorised structure was a purported action and, therefore, no statutory notice is required to be served and that the suit was not required to be filed within the statutory period of limitation.

3. Mr. Oza, the learned Counsel appearing on behalf of the appellant Corporation has relied upon the definition of 'building' given in Section 2(5) which reads as under:

'Building' includes a house, out-house, stable, shed, hut and other enclosure or structure whether of masonary, bricks, wood, mud, metal or any other matetrial whatever, whether used as a human dwelling or otherwise and also includes verandas, fixed platforms, plinths, door-steps, walls including compound walls and fencing and the like.

4. Relying upon the said definition. Mr. Oza submits even if the cabins were considered as made of wood and having no foundation, it would, come within the meaning of 'building' and if the said cabin is building, then the provision of Section 253 of the act would be attracted, and it is obligatory for the plaintiffs-respondents to obtain permission of the Corporation before such wooden cabins are constructed and admittedly the plaintiffs having not obtained such permission from the Corporation, the Corporation has power to remove or pull down such building at the expenses of the plaintiff.

5. In order to appreciate the arguments of Mr. Oza. it would be necessary to reproduce the provisions of Section 253. Section 253 is regarding notice to be given to Commissioner of intention to erect building. The relevant provisions are as under:

253 (1): Every person who shall intend to erect a building shall give to the Commissioner notice of his said intention in the form prescribed in the by-laws and containing all information as may be required to be furnished under the by laws.

(2): Every such notice shall be signed in the manner prescribed in the by-laws and shall be accompanied by such documents and plans as may, be so prescribed.

(3): In this Chapter, the express 'to erect a building' means.-

(a) newly to erect a building on any site whether previously built upon or not;

(b) to re-erect:

(i) any building of which more than one-half of the cubical contents or the building above the level of the plinth have been pulled down, burnt or destroyed,

(ii) any masonary building of which more than three fourths of the superficial area of the external wall above the level of the plainth has been pulled down, or

(iii)any frame building of which more than three quarters of the number of the posts or beams in the external walls have been pulled down, or

(c) to convent into a dwelling house any building or part of a building not originally constructed for human habitation or, if originally so constructed, appropriated for any other purpose.

(d) to convert into more than one dwelling house a building originally Constructed as one dwelling house only,

(e) to convert by any structural alteration into a place of religious worship or into a sacred building any place or building not originally meant or constructed for such purpose,

(f) to roof or cover an open space between walls or buildings as regards the structure which is formed by rooting or covering such space,

(g) to convert by a structural alteration two or more tenements in a building into a greater or lesser number,

(h) to make any structural alteration in a building so as to affect its drainage or sanitary arrangements or its stability, (i) to convert into a stall, shop, warehouse or godown any building not originally constructed for use as such, or

(j) to construct in a wall adjoining any street or land not vested in the owner of the wall, a door opening on such street or land,

and each of the above operations shall be deemed to be the erection of a new building for the purposes or this chapter.

Now, Section 254 provides for making any alteration or repairs to a building, not being a frame building, involving the removal or recrection of any external or party-wall thereof or of any wall which supports the roof thereof, to an extent exceeding one-half of such wall above the plinth level, such halt to be measured in superficial foot. This section also provides alteration in a building involving sub-division or any room, conversion of any passage and reparation, removal, construction, reconstruction etc. of any portion of a building abutting on the street which stands within the regular line of such street. The pertinent question, therefore, that arises is as to when the permission of the Commissioner is necessary in view of the provisions of Section 253 and 254 of the Act. The definition of building which 1 have reproduced above is a very wide definition. The building has been subjected to different provisions for various purposes and, therefore, we shall have to read the permission that is necessary under Section 253 and 254. Sub-section 3 of Section 253 defines the expression 'to erect a building'. Sub-clause (3) in terms states that to erect a building means:

(a) newly to erect a building on any site whether previously built upon or not.

It, therefore, clearly transpires that a permission is necessary when one wants to erect a new building and here the building must be given the popular meaning. The word 'erection' also suggests that such a building must be erected and such erection cannot include in its meaning construction of a temporary nature. If we read subsequent provision particularly Section 207 of the Act, it provides that every person who intends to erect a new building or execute any such work as is described in Section 231, shall erect the building or execute the work in such manner, under such supervision, through such qualified agency, and subject to such conditions and restrictions as may be prescribed by the by-laws. There are also by-laws which prescribe several conditions which shall have to be complied with before a building can be constructed. The purpose of giving powers to the Corporation is to see that the (1) construction of building is not hazardous as to endanger the life of the passersby. (2) all the provisions regarding sanitary conditions have been properly complied with and (3) that the building is constructed within the regular line of street and several other relevant considerations. Now, if we refer to the definition of word 'building' appearing in Section 2(v), it includes even shed, hut, plinths, doorsteps, compound wall and fencing. When you are constructing fencing, can you say that you are erecting a building and whether the construction of fencing around your land to protect from fee possible trespassers would amount to construction of a building within the meaning of Section 253? To my opinion, though the definition of building is wide, enough to include all types of construction permanent, temporary etc., it shall be subject to the by-laws and the rules and must be made under the supervision of an expert as provided in Section 257. Now, if we further see the provisions of Section 253(3)(c) to (j) it provides that converting a building not constructed for human habitation or if originally so constructed for any purpose requires permission. Clause (d) provides to convert into more than one dwelling house a building originally constructed as one dwelling house only. Clause (e) provides conversion by any structural alteration into a place of religious worship or into a sacred building any place or building not originally meant or constructed for such purpose. Clause (f) provides as under:

to roof or cover an open space between walls or buildings as regards the structure which is formed by roofing or covering such space.

6. This illustration clearly shows that by following such conversion of an erected building, you may be making breach of the by-laws and, therefore, before such conversion is made, the permission of the Commissioner is necessary so as to see whether by such conversion, you are committing the breach of the by-laws or otherwise. If for any construction, alteration, conversion or re-erection, in view of the wide definition of Section 2(5), permission is necessary, there was no use making provision only for the types of conversion, alteration therefore, clear that an erection of a building must have a meaning in the or re-erection as provided in Sub-section 3. All this will be a futile exercise. It is, ordinary sense of the word i.e. to say an erection of a building of permanent nature. Now, the word 'building' is subject to various provisions, under the scheme of the Act. One of the provisions is Section 129 under which the property taxes are levelled and such taxes are levelled on buildings and lands in the city. Similarly, water tax is also leviable for providing water supply to the city. Again a conservancy tax is also leviable. Here, the wide meaning of the word 'building' would be applicable as defined in Section 2(5) whether it is a permanent structure or a temporary structure. Again the provisions of Section 263 (a) give power to the municipality if necessary in the public interest. Such huts or sheds which are constructed before the appointed day and which are contrary to the provisions of rules or by-laws be demolished or altered. Similarly, provisions of Section 308 of the Act give power to the Commissioner that if any but or shed used either as a 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 may be removed or altered after due notice as prescribed in the section. This provision clearly presupposes the existence of huts and temporary structure and under the present by-laws regarding the construction of new building, such huts, temporary sheds and similar structures cannot be permitted. In the case of Emperor v. Braz H. De Souza reported in XIII B.L.R. 494, it was held as under:

Where a term is interpreted in a statute as 'including' and C, the comprehensive sense is not to be taken as strictly defining what the meaning of the word must be under all circumstances, but merely as declaring what things may be comprehended within the term where the circumstances require that they should.

Therefore, the word 'building' must be given the appropriate meaning having regard to the purpose for which the same is being used.

7. Miss Shah, the learned 'Counsel for the respondent relies upon the decisions of the Bombay High Court in the case of Emperor v. Matubhai M. Shah reported in XXIV B.L.R. 105 in which accused was charged with offence punisnable under Section 96(5) of the Bombay District Municipal Act for erecting huts on his land without permission of the municipality. The trying Magistrate was of the opinion that accused has not committed any offence under Section 96, but however, he altered the charge and convicted the accused under Section 97 read with Section 105 of the Act. Therefore, one of the questions before the Division Bench of the Bombay High Court was whether the accused has committed an offence by erecting hut without the permission of the municipality as required under Section 96(1) of the Bombay District Municipality Act. It may be noted that under the Bombay District Municipalities Act, 1901, the word 'building' was defined as under:

Section 3(7): 'Building' shall include any hut, shed or other enclosure, whether used as a human dwelling or otherwise, and shall include also walls, verandahs, fixed platforms, plinths, door-steps and the like.

Section 96 provided for the permission which is also similarly worded which reads as under:

Section 96(1): Before beginning to erect any building or to alter externally or add to any existing building, or to reconstruct any projecting portion of a building in respect of which the Municipality is empowered by Section 92 to enforce a removal or set-back, the person intending so to build, alter or add shall give to the Municipality notice thereof in writing....

Sub-section 2 provides for the permission to erect and Sub-section 5 provides that if any person begins any construction, alteration addition or reconstruction without giving the notice required under Sub-section I or without furnishing the documents or affording the information above prescribed, shall be punished with fine which may extend to Rs. 1000/- and such construction shall be altered or demolished in accordance with the provisions of such notices.

8. The question, therefore, arose was whether the construction of hutments would come within the meaning of erection of building. The learned Magistrate has held as under:

I agree with the learned pleader Mr. Singpe in so far that Section 96 not application to huts and sheds although the word 'Building includes huts and shed as per Section 3 of the Bombay District Municipal Act. In this section is made applicable to huts and sheds Sections 97 and 98 will ever remain, dormant and no Munucipality will have occasion to use them, and that does not appeal to be the motive of the Legislature.

The Chief Justice, Maclod, as he then was observed, as under:

I agree that the view taken by the learned Magistrate was correct. Although under Section 8(7) 'building' would include any hut, shed or other enclosure, whether used as a human dwelling or otherwise, it does not follow that wherever the word 'building' is used in the Act it includes a hut or a shed. Sections 96, 97 and 98 come under the heading in Chapter IX or 'powers to regulate buildings etc' and it was clearly the intention of the Legislature that while the provisions of Section 96 should apply to building in the ordinary sense of the words special provision was made for huts and sheds whether built for temporary purposes or for a more permanent object.

9. It, therefore, appears that the view which has been taken by the Bombay High Courtshat-the word 'building' so far used in Section 96 where the permission to erect new building was necessary was used in its ordinary sense. The provisions of Bombay district Municipalities Act and the provisions of the Act though not identical, are similar. The scheme is also simliar and, therefore, I am of the view that the word erection of building used in Section 253 of the Act is used in its ordinary sense and nop in its comprehensive sense as defined in Section 2(5) of the Act. In the aforesaid view of the matter the huts constructed by the plaintiffs being temporary construction without having any foundation will not faly within the provisions of Section 253 and no permission is necessary to construct. It, therefore, necessarily follows that the notice issued by the appellant-corporation under the provisions of Section 260 is ultra vires, illegal and void and the respondent plaintiff is entitled jar the injunction as prayed for.

10. The question urged by Mr. Oza was that the purported notice was served to the plaintiffs on 24-10-69 and statutory notice under Section 487 was given by the plaintiffs on 8-11-69 and the suit has been filed on 15-6-70 i.e. to say after 7 months from the date of receipt of the notice. The suit having not filed within 7 months (adding one month for the notice) it is barred by limitation as provided in Section 487 of the Act. The trial court has not accepted tins contention on the ground that the suit is for permanent injunction. The trial Court has held that 'Article 133 of the Limitation Act states that the period of limitation is three years for a suit for which no period of limitation provided elsewhere in this schedule, so no period of limitation is prescribed. Hence Article 133 of the Limitation Act is the proper article and the period prescribed is 3 years. The defendant's advocate has not submitted anything as to how, the suit is barred by law of limitation.' Again before the appellate court, no contention regarding limitation has been raised by the appellant-corporation. However, Mr. Oza raises the contention that the special provision has been made in Section 187 that the suit would be only maintainable if it has commenced within 6 months next after the accrual of the cause of action. Mr. Oza contends that since the notice has been received by the plaintiff on 24-10-69, that being the cause of action, the suit must be filed within 6 months from 24-10-69 and even excluding one month for notice, the suit ought to have been filed on or before 24-5-70. Since the suit was filed on 15-6-70. the same was barred under the provisions of Section 437. To my opinion, the contention of Mr. Oza is totally misconceived and is liable to be rejected.

11. Section 287(i)(b) in terms states as under:

Unless it is commenced within six months next after the accrual of cause of action.

Now, though the notice has put the plaintiffs on guard and they have been informed of the intended action of the Corporation, however, the plaintiffs have rushed to the Court before the intended action was carried out by the Corporation. Therefore, the cause of action for the respondents-plaintiffs was not merely a notice, but an intended threat that their huts will be demolished. It is, therefore, obvious that the cause of action is continuous and the suit can be filed at any time before such action is taken.

12. Now, let us consider the contention of Mr. Oza in another manner. Section 487 provides filing of a suit in respect of an act or purported act to be done in pursuance of or in execution of the provisions of the Act. Necessarily, all the acts or intended acts of the corporation must be lawful acts as permitted by the provisions of the Act. Such acts can never cover the ultra vires or illegal acts because no servant or officer has any power to commit or take action which is not permitted within the provisions of the Act. By giving a wrong meaning, officers cannot assume power and, therefore, such ultra vires and illegal acts can never be said to be the acts done or purporated to be done in pursuance of the provisions of statute. To my opinion, this period of limitation which has been prescribed by the legislature is to challenge the action of the municipality which is ultra vires action and there are reasons for providing short period of limitation because the Corporation has to deal with various small questions like giving of permissions, taxes, octroi etc. and the persons who are dissatisfied with the action of the municipality have to challenge the same within reasonable time of six months, and therefore legislature has provided for a shorter period in respect of the acts of the municipal servants which have been done in pursuance of the provisions of the Act. In above view of the matter, I reject the 2nd contention of Mr. Oza. In the result, appeal fails and is dismissed with costs.


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