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Gujarat High Court
Judgename :N.N.MATHUR
Premjibhai D.Karane @ Babubhai - Appellant
Versus
Ahmedabad Municipal Corporation - Respondent
S.C.A. 3997 of 1996
Decided On : 07/11/1996
A brief survey of the relevant provisions of the BPMC Act indicates that the public street vests in the Corporation. There is a statutory obligation on the Commissioner to prescribe a line on both the sides of the public street or road. The provisions further give additional power to the Commissioner to order demolition of building or part of the building, if in his opinion it outside the regular line of the public street.
[Para 6]
The concept of prescribing a line or a regular line or a street line is not new. A Civic body in order to secure uniformity of appearance, draw a line on the sides of the road, and projection of building or part thereof beyond the line is not allowed. It may have some relevance with the width of the road, but it does not necessarily or solely depends on the width alone. There are number of factors which are required to be considered by the authority in prescribing the street line. This power of a Civil body has been recognized by the Legislation under Sec. 210 of the BPMC Act. Prescribing a "line" is a distinct independent statutoty power of the Commissioner under the BPMC Act. It is an obligatory power in public interest. It is significant to notice that while there is a provision of drawing a street line or a regular line under the BPMC Act, there is no such provisions in the Town Planning Act. Under the Act, the Town Planning Scheme requires various items to be prescribed, which includes road but not the regular line. The Legislature in its the wisdom has not provided any provisions with respect to regular line or street line in the Town Planning Act and has conferred this power on one of the most important executive authority of the scheme, i.e. Municipal Corporation. Thus, there is no conflict in powers under Sec. 210 of the BPMC Act and sanctioned scheme under the Act and as such the question of altering or variation of the scheme does not arise, whether it is a case of width of the road or shortening the size of the final plot. Viewing from another angle also, a regular line or street line brings all the buildings on the road in line. It being in larger public interest, any individual building or part thereof even on the final plot under the sanctioned scheme must give way to the line prescribed under the Act.
[Para 7]
(b) Bombay Provincial Municipal Corporation Act, 1959 - Sec. 210(a) & (b) - Municipal Commissioner prescribing street line - Challenged on the ground that Commissioner could not have exercised powers as powers under could be exercised only when a line is to be prescribed for the first time which is not so in the case as road constructed by Municipal Corporation existed and it had two edges - Held prescribing a line or a regular line or street line is a positive act of the authority under any law in force of the relevant time & it is not a matter presumption - No material on record to show that prior to 1994, the line was prescribed under any Act applicable at the time.
Simply because the road has been constructed by the Municipal Corporation and it has two edges, it cannot be said that a regular line must have been prescribed by the Municipal Corporation. Prescribing a line or a regular line or street line is a positive act of the authority under any law in force at the relevant time and it is not a matter of assumption. Thre is no material on record to show that prior to 1994, the line was prescribed either under the BPMC Act or under the Bombay Town Planning Act. It is not in dispute that either under the Bombay Town Planning Act or under the new Act there is no provision of prescribing the line, and as such the question of prescribing the line does not arise.
[Para 9]
(c) Bombay Provincial Municipal Corporation Act, 1959 - Sec. 212 - Notice for demolition of petitioners shop for the purpose of widening the road - Legality of the notice challenged on the ground that the land in fact is sought to be used for the purpose of parking & thus changing the purpose for which it was sought to be acquired - Contention held to be without force because respondent wants to remove only that part of shop which is projected beyond the prescribed line and in view of that object the purpose for which land is sought to be acquired is irrelevant - That apart Law is now well settled that land sought to be acquired for the purpose may be used for other purposes.
The third contention of the learned Advocate is that the portion of the petitioners shop was sought to be demolished and the land was required for the purpose of widening the road, but infact, it is sought to be utilised for the purpose of parking. Therefore, the contention is that the notice given under Sec. 212 of the BPMC Act is bad in law for the reason that the purpose for which it was sought to be acquired has been changed. It is further submitted that the petitioner has also not been heard on the question that the land is sought to be acquired for the purpose of parking. He further submits that powers under Sec. 212 can be acquired only for the purpose of widening the road and not for the purpose of parking. There is no substance in any of the submissions. The plain and simple case of the respondent is that as part of the shop of the petitioner is projected beyond the Prescribed Line, that part is required to be removed. Since I have upheld that act of prescribing Line, the purpose for which the land is sought to be acquired becomes irrelevant. Even otherwise, it is now well settled that the land sought to be acquired for the purpose may be used for other purposes.
[Para 10]
( 1 ) THIS is a Rule taken out at the instance of the petitioner-Premjibhai D karana, a tenant, who is running mailing Labour Work under the seal and title of Mehul consultancy Services on the C. G. Road in the City of Ahmedabad, against the respondent-Ahmedabad Municipal Corporation for an appropriate writ or direction under article 226 of the Constitution of India quashing and setting aside the order of the municipal Commissioner, Ahmedabad dated 31. 12. 1994 under Sec. 210 (1) (a) of the bombay Provincial Municipal Act, 1959 (for short, the BPMC Act) prescribing the street-line and the notices dated 29. 1. 1995 and 28. 5. 1995 under Sec. 212 of the BPMC act, calling upon the petitioner to demolish or remove the portion of the shop coming within the road-line within a period of 35 days and to make the land underneath open.
( 2 ) THE facts as culled out from the pleadings of the parties appear that the petitioner, a tenant in the building situated in Jagdishpur T. P. Scheme No. III, Final plot No. 318, received a notice dated 29. 1. 1995 calling upon him to show cause as to why a part of the shop which is coming in the way of widening the road should not be demolished. The petitioner submitted a detailed reply through his Advocate. As there was no reply from the respondent-Corporation, the petitioner approached this Court by way of filing Special civil Application bearing No. 4193/95. The said Special Civil Application was dismissed as withdrawn by order of the Court dated 19. 9. 95. However, the petitioner was given liberty to make all submissions factually or legally before the Corporation by way of representation. The petitioner, thereafter made a detailed representation dated 21. 9. 1995. While the petitioners representation was pending, he came across the news item in the newspaper sandesh, Ahmedabad edition dated 3. 5. 1996 wherein it was mentioned that the Corporation had decided to grant FSI to a property which is going to be damaged or acquired because of the widening of the road. As the property measurements were belonging to the subject property, the petitioner sent a letter to the Corporation. However, the respondent-Corporation issued a notice dated 28. 5. 1996 to the petitioner stating that his contentions are untenable, and therefore, he will have to demolish the portion of his shop, otherwise, forcible action of demolition will be taken. The said notice was issued in pursuance of a Resulution of the Standing Committee of the Corporation dated 26. 6. 1995. It is not in dispute that the width of the road as provided under the Town Planning scheme No. 3 is 80 ft. The shop of the petitioner is located on the final plot No. 318 earmarked finally under the Town Planning Scheme No. 3 in Chanakiapura Ward. The said scheme under the Bombay Town Planning Act is now deemed to be a scheme under the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the new Town Planning Act, 1976 ). In view of Sec. 124 of the New Act, the scheme made under the Bombay Town Planning Act is deemed to have been made under new act. The Development Plan was prepared in the year 1983 under the new Town Planning act which provides 100 ft. vide Road on the C. G. Road. Recently the respondent-Corporation has undertaken the renovation of the entire C. G. Road.
( 3 ) IT is contended by Mr. Shailesh Brahmbhatt, learned Advocate for the petitioner that the impugned order prescribing the road line and as a consequence, notice for demolition is ex facie illegal, as it has an effect of alteration or variation of the sanctioned scheme. Advancing the contentions, the learned Advocate submits that the C. G. Road and the final plot No. 318 are part of the sanctioned scheme under the provisions of the New town Planning Act and as such it is part of the statute in view of Sec. 65 of the Act, and this cannot be altered in any manner except in accordance with the provisions of Sec. 71 of the Act. Under the sanctione
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