1993 Supreme(Guj) 480

Gujarat High Court
Judgename :R.K.Abichandani
JAYESHKUMAR G.VYAS - Appellant
Versus
VIJAY HOUSING DEVELOPMENT CORPORATION - Respondent
S.C.A.5555 of 1993
Decided On : 12/21/1993

Headnote:Bombay Provincial Municipal Corporation Act, 1949 [LIX of 1949] - Secs. 260, 254 and 478 - Unauthorised construction - Demolition - Power of - Corporation has right to demolish unauthorised and illegal construction - Contention that taxes have been recovered therefore doctrine of promissory estoppel would apply - Held, contention rejected - Promissory estoppel not applicable against exercise of statutory power - Promissory estoppel - Words & Phrase.

       As regards the contention that the respondent-Corporation and its Officers are estopped from demolishing the structures, it would be sufficient to observe that there cannot be any estoppel against the exercise of statutory powers. Mere collection of taxes in respect of the use of the unauthorised constructions would not estop the Corporation from discharging its statutory functions under the provisions of Secs. 260, read with Sec. 478 of the Act. No legal relationship could arise by operation of promissory estoppel which would be contrary both to the Constitution and the law. The promissory estoppel cannot be used for compelling a public authority to carry out a representation or promise which is prohibited by law or which was devoid of any authority or power of the concerned officer or the public authority to make. Promissory estoppel should not be extended, though it may be founded on an express or implied promise stamped from the conduct or representation by an office of the State of public authority, when it was obtained to play fraud on the Constitution and the enforcement would defeat or tend to defeat the constitutional goals. Equally so when the conduct amounts to playing fraud on the statutory provisions. Therefore, the allegations that some officers had connived with the unauthorised constructions which would amount to fraud on statutory provisions, cannot create any equity in favour of the petitioners. If the officers have by connivance not taken action for some time, that would not debar the statutory authority from exercising its power.

       Bombay Provincial Municipal Corporation Act, 1949 [LIX of 1949] - Sec. 478 - Demolition of unauthorised construction - Hearing to the transferee who had no notice of the notice already given to original owner-transferor - Held, procedural fairness require that such transferee should be given notice - Administrative law - Audi alteram partem.

       It will be noticed from the above provision that a written notice is to be given to a person carrying out work or doing a thing and if such person is not the owner at the time of such notice, then the owner is liable for carrying out the requisition to remove or pull down the work or to undo the thing. This Section applies where the work or thing is done without written permission of the Commissioner and is, therefore, deemed to be unauthorised. This provision contemplates change of hands and can be invoked against the subsequent owner. The owner is made liable to carry out the requisition. This Section does not specify the persons who are required to be heard when this course is adopted. It would be attracted only where permission required in writing is not obtained before the work or thing is done. It does not speak of show cause notice like Sec. 260 and a requisition is required to be sent by the Commissioner straightaway. However, this would not mean that while taking action under Sec. 478, no hearing may be given. The duty to hear would be implied even when action is taken under this provision.

       Rights in property, personal liberty, status, immunity from penalties or other physical imposition, interests in preserving ones livelihood and reputation and reasonable expectations of preserving or even acquiring benefits such as licences, would be amongst the interests to which procedural protection in form of hearing may be accorded. Fair procedural standards must be observed where deprivation of a legally recognised interest is consequential. When the direct impact of a discretionary decision is so adverse that a refusal by the Court of the opportunity to be heard would be considered an afront to justice, the right to be heard becomes obvious. An administrative authority which fails to comply with a statutory duty to give prior notice or hold a hearing or make due enquiry or consider objections in the course of exercising discretionary powers effecting individual rights will seldom find the Courts casting an indulgent eye upon its omissions. Public authorities making demolition orders must either give the person concerned notice that they have intended to take this matter into their consideration with a view to coming to a decision or if they have come to a decision that they propose to act upon it and give him an opportunity of showing cause, why such steps should not be taken. In principle, a duty to give prior notice and opportunity to be heard arise when an individual would suffer a direct detriment from the act of a decision. Demolition of a structure entails serious consequences on the rights of the owners and occupiers and may affect livelihood if any vocation is carried out in such place. It would, therefore, be obvious that before making any demolition order, a hearing is required to be given to the persons concerned, viz., the owner and the occupier of the premises in question. From the provisions of Secs. 260 and 478 of the Act, no Parliamentary intention can be called out to exclude the rule of hearing. I, therefore, hold that a transferee of an unauthorisedly constructed premises would be entitled to be heard before a demolition order is passed.