1988 Supreme(Bom) 97

IN THE HIGH COURT OF BOMBAY
C.S. Dharmadhikari S.N. Variava, JJ.
Meherbai Kari Khandalawala others..... Petitioners.
Versus
Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 others.... Respondents.
Writ Petition No. 1203 of 1985, decided on 11-3-1988.
Advocates appeared :
F.H.A. Taleyarkhan with N.H. Seerwai and P.K.B. Purohit, for petitioners.
A.S. Bobade, A.G. with V.A. Gangal A.G.P., for respondents Nos. 1, 4, 5 6.
A.V. Swant with R.N. Dhorde, for respondents Nos. 2 3.
Ashok Desai, for respondent No. 7.
C.J. Swant with Mrs. Rajani Ayer, for respondents Nos. 8 9.
N.H. Gurusahani with H.G. Advani, for respondent No. 10.

Headnote:Article 46-Phrase "Weaker section"-Meaning thereof.

       The phrase "weaker section" would mean those who are from the dismally depressed categories, comparable economically and educationally to Schedule Castes and Tribes or those who live in poverty and destitution, those who barely eke out a miserable existence, those who are helpless victims of an exploitative society.

       Article 226.

       See Urban Land (Ceiling and Regulation) Act, 1976, Section 21 (1).

       Section 114 – Repeal- Presumption there against-Whether it can be by Implication.

       There is a presumption against repeal by implication. This is on the assumption that the legislature enacts law with a complete knowledge of all existing laws pertaining to the same subject and the failure to and a repeating clause indicates that the intent was not to repeal existing legislation. Where the provisions of a special statute are wholly repugnant to the general statute, it would he possible to infer that the special statute was repealed by the general enactment. A general statute applies to all persons and localities within its jurisdiction and a scope as distinguished from a special one which in its operation is confined to a particular locality. Therefore, when it is doubtful whether the special statute was intended to he repealed by the general statute the Court should try to give effect to both the enactments.

       Section 21 (1)-Constitution of India, 1950, Article 226-Writ filed against grant of permission to construct on certain plot-Maintainability-On ground that petitioners neither flat purchasers nor contracting parties with owners of plots, petition cannot be said to be not-Maintainable.

       It is to be seen that the petitioners are all residents of Koregaon Park area and that this petition has been filed as public interest litigation. Further the petitioners have averred in the petition that in Pune there is an acute shortage of water supply and that even the sewarage treatment capacity is totally inadequate, resulting in very high proportion of sewerage water being dumped into the river. The petitioners have pointed out that the standing Committee of Respondent No.2 have accorded sanction for drafting a Rs. 49.85 crore plan for laying down underground lines, out fall sewers, pumping stations and water treatment plans. The petitioners have averred that the City of Pune and Koregaon Park area are not geared for construction activities and/or development activities until the entire infrastructure required for hygienic living is provided. The petitioners aver that they are therefore, likely to be affected by the proposed constructions. The fact that the basic amenities are already in short supply is not denied or disputed by any.

       By this petition the petitioners are not seeking to enforce and terms of the leases between the Respondents Nos. 7, 8 and 9 of the one hand and Respondent No. 5 on the other, but are impugning the facts of statutory authorities in granting permission for development contrary to the law in force. The petitioners therefore cannot be said to be mere way farers or busy body who have no interest in the cause of action. Under these circumstances held that the petitioners have a locus and can maintain this petition body.

       

       Section 21 (1)-Purview Building Regulation, 227-Collections Rules not complied with in granting permission to construct under Section 21 (1) on certain plots Rules having force of law-Permission illegal.

       It is not necessary for a law in force to have any nomenclature or to be gazetted. All the parties have submitted that these rules were in existence and had force of law (at least till l5th February, 1950). These ruler have in fact been printed and published even by Respondent No. 2 in ail its publications. Even in the Pune Building Regulations, Regulation 227 provides that in respect of various residential colonies, special building regulations were made and that this regulations continue to be in force in respect of constructions in these colonies. It is admitted by Respondent 2 that apart from Collectors Rules, in respect of Koregaon Park there were no other special building regulations. Respondent no. 2 also admits that the reference to special building regulation in Regulations 227 is to the Collectors rules. Under these circumstances it will have to beheld that the Collectors Rules, at the relevant time, had a statutory force.

       

       Section 21 (1)-Maharashtra Regional Town Planning Act, 1966, Section 51-Permission granted to construct is per plans sanctioned-But collectors Rules not complied with In granting permission-Such permission would have to be revoked.

       The Collectors Rules were always applicable and bad the force of law the permission granted to the Respondents to construct as per plans sanctioned would have to be revoked. On a question from Court, Respondent No.2 has stated that powers under Section 51 will be exercised. Respondent No.2 to exercise powers under Section 51 of the Maharashtra Regional and Town Planning Act and to revoke the permission granted for development of Plots Nos. 15, 16, 28, 50, 51, 84, 85 and 114 in Koregaon Park area, Pune in accordance with law. However, in respect of Plots Nos. 7, 8, 9, and 22 the work already having been completed, even under Section 51, the permission cannot be revoked.

       Section 51

       See Urban Land (Ceiling and Regulation) Act, 1976, Section 21 (1).