1996 Supreme(Guj) 443

Gujarat High Court
Judgename :K.R.VYAS
YOGESHBHAI D.SHETH - Appellant
Versus
AHMEDABAD MUNICIPAL CORPORATION - Respondent
C.A. 219 of 1996
Decided On : 09/13/1996

Headnote:(a) Bombay Provincial Municipal Corporation Act, 1949 - Sec. 260(1) & (2) - Demolition - Requirement of notice - Not necessary where occupier of premises came into possession after order of demolition was made - In the case it is not in dispute that notice under Sec. 260(1) was issued on 16.10.1987 & it was served on society which carried out the construction of the disputed shops without any permission & contrary to the permission granted by respondent corporation - It is also admitted fact that when respondent corporation took final decision to remove the construction of the shops no body (including appellants) was in occupation of the shops - In the facts & circumstances appellants were not entitled to fresh process of hearing.

       It is not in dispute that notice under Sec. 260(1) was issued on 16-10-1987 and it was served upon the society whereby the society was called upon to submit its explanation on 26-10-1987. The Society was also called upon to appear for personal hearing 26-10-87 and to show cause why the action should not be taken. It is also not in dispute that the Society has admitted that unauthorised construction has been carried out and the shops have been constructed in the hollow plinth without the permission of the respondent-Corporation. It is also not in dispute that the society had submitted revised plan wherein they had shown the propsoed use of the common amenities, dorcots room and eight shops. However, instead of constrcuting as per the revised plan, the society has constructed 38 shops contrary to the revised plan. Thus, admittedly the construction has been carried out by the society without any permission and contrary to the permission granted by the respondent-corporation. It is also an admitted fact that when the respondent-Corporation took the final decision to remove the construction of the shops which have been made by covering the hollow plinth meant for parking space, no body, including the appellants, was in occupation of the said shops. In view of these admitted facts.

       [Para 16]

       The occupiers are not required to be afforded fresh hearing, as they have occupied the shops after the order of demolition was made.

       [Para 17]

       (b) Administrative Law - Relaxation - Allowed by Corporation in construction of approved plan - Such relaxation could not form the precedent and if the corporation has not prefer to permit such relaxation same can not be claimed as a matter of right in absence of any provision in the Act, Rules or Byelaws.

       In the past, the Ahmedabad Municipal Corporation may have approved such relaxation plans but looking to the difficulities and problems of such type of relaxation, the aggravating traffic problems and other related problems including drainage, rain water disposal etc, if the Corporation has not prefer to permit such relaxation since almost last three years, the appellants, as a matter of right, cannot claim such relaxations in absence of any provisions with respect to such relaxations in the Act, the Rules or the Byelaws.

       [Para 20]

       (c) Civil Procedure Code, 1908 - Order 39, Rules 1 & 2 - Grant of temporary injunction - Discretionary in nature - Such discretion can not be exercised merely because similar illegal constructions were made in the past & no action was taken and on the contrary the same have been regularised by corporation could not entitle plaintiff to temporary injunction to perpetuate illegality further - Giving effect to such pleas and any relief on that basis would be prejudicial to the interests of law & would result in incalculable mischief to public interest - That apart the comparision of the buildings situated on CG Road with the building in question i.e. Urvashi Tower is not proper on account different locations.

       Generally, speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The illegal/unwarranted action must be corrected, if it can be done according to law-indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law-but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent- authority to repeat the illegality, the court is not condoning the earlier illegal act/order not can such illegal order constitute the basis for a legitmiate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will be incalculable mischief to public interest.

       [Para 20]

       Even the comparison of the buildings situated on CG Road with the building in question i.e. Urvashi Tower is not proper. The road on which building in question is situated is not as developed as CG Road. It is to be noted that mostly the occupiers in the building in question are dealing in the business of repairs and fixing of accessories of motor cars. The entire complex is a residential building and, therefore, commercial activities are not only illegal but will have extremely adverse impact on the public utilies around the building.

       [Para 21]

       (d) Civil Procedure Code, 1908 - Order 39, Rules 1 & 2 - Relief on ground of balance of convenience - Contention that occupier of the shops have already settled in their business in their respective shops & hence they should not de-established by demolition of shops - On facts contention found to be not acceptable - Commissioner who made the fact finding inquiry has observed that the commercial exploitation is not only illegal but is having an extremely adverse impact on the public utilities around the building - Actually it is impossible to go through the side streets which has been taken over by commercial activities - Appellants have not been able to controvert any of the adverse findings of the commissioner that there is no nuisance or inconvenience to general public - In view of patent violation of Building Bye Laws appellant not entitled to any relief.

       The Commissioner, who personally visited the site has further observed that the commerical exploitation is not only illegal but is having an extremely adverse impact on the public utilities around the building. Not only are the residents of the building harassed because of the nuisance of repairs and fixing up of accessories but the roads on the side of the building and in front of the building are completely chocked up because of this activity. Actually, it is impossible to go through the side street which has been virtually taken over by accessories shops for the purpose of their business and this entire activity takes place in the margin of this building as well as on the public street on the side and in front of the building. According to the Commissioner, the development of the road is presently at the initial, stage and it is possible to initiate preventive steps before the problem on this road also assumes menacing proportions. In this particular case, the illegalities have not only created adverse impact on the in house residents of the building but have adversely affected and blocked public street traffic. In this case the problem of the illegalities in the building and of exceeding FSI is further compounded by the fact that the commercial activities are patently a public nuisance. Considering the difficulties and problems of the residents and the aggravating traffic problems and other related problems, including drainage, rain water disposal etc, the Commissioner preferred not to grant any relaxation regularising the illegal constrcution. The appellants have not been able to controvert any of the aforesaid findings recorded by the Commissioner and show that there is no nuisance or inconvenience to the general public. In view of this, when there is patent violation of the Building Byelaws, I do not find any merit in the submission of the learned Advocates for the appellants.

       [Para 24]

       Considering the facts on record Court is of the opinion that in view of the illegality in the construction of the shops in as much as the space meant for the parking has been converted into shops, which is admitted by the society for which no evidence is required to be led and the sole aim of the appellants is to prolong the litigation to suit their own purpose against the public interest, causing inconvenience to the general public, creating traffic problems and nuisance to the residents of the area and therefore injunction as prayed for cannot be granted as there is no merit in the case.

       [Para 29]

       (e) Bombay Provincial Municipal Corporation Act, 1949 - Secs. 69(1) & (2) & 260 - Power of demolition - Exercise of - Contention that power vests only in commissioner and is required to be exercised by him alone on his satisfaction has no force in view of the provisions under Sec. 69 - Sec. 260 under which the notice has been issued is not included in Sub-sec. (2) of Sec. 69 & therefore, commissioner is authorised to delegate his powers under Sec. 260 to any Municipal Officer by order in writing as in the case to Town Planning Officer - As a result notice issued by him to appellants can not be faulted on that account.

       Sec. 260 under which the notice has been issued is not included in Sub-sec. (2) of Sec. 69. Therefore, under sec. 69 the Commissioner is authorised to delegate his powers, functions and duties exercisable by him under Sec. 260 to any Municipal Officer by order in writing. My attention has been invited to the order of delegation of power to the Town Development Officer for the purpose of issuing notice under Sec. 260. Therefore, the contention that the notice is illegal on the ground that it has been issued by the Town Planning Officer and consequently therefore the satisfaction arrived at by him is not the satisfaction of the Commissioner, is not sustainable.

       [Para 31]

       (f) Bombay Provincial Municipal Corporation Act, 1949 - Secs. 29(1), 49, 68, 260 - Rule 4 of Rules - Gujarat Town Planning & Urban Development Act, 1976, Sec. 6, 7 & 27 - Rejection of revised plan - Power of - Contention that standing committee alone entitled to exercise powers and in absene of any thing on record to suggest that same was delegated to commissioner under Sec. 68 same can not be exercised by commissions or his delegate not validly made - Sec. 6 of Town Planning Act deals with delegation of powers to Area Development Authority but as is clear from Sec. 7 Area Development Authority is not entrusted with the powers to be exercised under Sec. 260 of Bombay Provincial Municipal Corporation Act - In the case revised plan was rejected under Sec. 29(1) of Bombay Provincial Municipal Corporation Act - There is no provision under Act of 1976 for demolition of unauthorised construction therefore, powers were rightly exercised under Sec. 260 of 1949 Act.

       Sec. 6 of the Gujarat Town Planning & Development Act, 1976 deals power to designate a local authority as Area Development Authority. It provides that the State Government may, instead of constituting an Area Development Authority for a development area, designate any local authority functioning in a development area or part thereof, as the Area Development Authority for that development area. Sec. 7 of the said Act deals with the powers and functions of Area Development Authority.

       [Para 34]

       On the bare reading of Sec. 7 it is clear that the Area Development Authority is not entrusted with the powers under sec. 260 of the BPMC Act. The functions under Sec. 7, inter alia, are for prepration of development plans under the provisions of the said Act for the development area. Thus, even if the powers under Sec. 7 of the Town Planning Act are assigned to the Standing Committe, the same are quite different and distinct from the powers under Sec. 260 of the BPMC Act. At this stage, it is necessary to refer to Sec. 27 of the Town Planning Act which provides that any person, not being the Central Government or a State Government, intending to carry out any development in any building or in or over any land within the limits of a development area on or after the date referred to in Sec. 26, shall, except where such development is for any of the purposes specified in the proviso to that section, make an application in writing to the appropriate authority for persmission for such development in such form and containing such particulars and accompanied by such documents as may be prescribed. Sec. 29 of the Town Planning Act deals with grant or refusal of permission on receipt of an application under Sec. 27 or Sec. 28. Sec. 49 deals with restrictions on use and development of land after declaration of a scheme. Reading the said provisions, it is clear that an application for revised plan in the instant case was submitted in writing to the appropriate authority and the Town Development Officer of the Ahmedabad Municipal Corporation has rejected the revised plan under Sec. 29(1) of the BPMC Act. Since there is no provisions under the town planing Act for demolition of the unauthorised construction, the powers are required to be exercised under Sec. 260 of the BPMC Act and that exactly has happened in the present case to which the appellants are not entitled to make any grievance.

       [Para 35]