AO/206/2005 1/35 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 206 of 2005 WITH CIVIL APPLICATION No. 3939 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE AKSHAY H.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AL VIJAY OWNERS ASSOCIATION - Appellant(s) Versus AHMEDABAD MUNICIPAL CORPORATION - Defendant(s) ========================================================= Appearance : MR KS NANAVATI for NANAVATI ASSOCIATES for Appellant(s) : 1, MR SI NANAVATI for NANAVATI & NANAVATI for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKSHAY H.MEHTA Date : 12/04/2006 CAV JUDGMENT 1. Admit. At the request of learned advocates appearing for the appellant and respondent, the matter was taken up for final hearing on 3rd AO/206/2005 2/35 JUDGMENT April, 2006 and it was kept for CAV judgment, which I now propose to deliver as under. 2. Appellant is the original plaintiff of Civil Suit No. 277 of 2003 pending on the file of the Ld. City Civil Judge, Ahmedabad. The suit is filed for declaration and permanent injunction. The appellant has challenged the notice served on it by respondent under Section 260 (1) and (2) of the Bombay Provincial Municipal Corporations Act [hereinafter referred to as 'the Act'] on the ground that the said notice is illegal and without any justification and prayed for declaration to that effect. The appellant has also prayed for permanent injunction to restrain the officers of respondent Corporation from demolishing the property developed by the appellant, which is situated in Ward Kalupur – 3 known as Bababhai Atmaram's Chawl, bearing survey nos. 2697, 2696, 2695, etc. [hereinafter referred to as 'the suit property']. According to the appellant, there is immovable property bearing survey no. 4441 also which is occupied by tenants. The suit property is of the ownership of the appellant. It is the say of the appellant that on account of the earthquake that occurred on 26th January, 2001 the suit property had sustained considerable damage and, therefore, the respondent had served a notice AO/206/2005 3/35 JUDGMENT under section 264 of the Act for dismantling or demolishing the suit property and securing it in accordance with the prevailing building bye- laws. It is the say of the appellant that in compliance with the said notice, the damaged structure has been pulled down and instead fresh construction in accordance with the bye-laws has been erected. It is the say of the appellant that since new construction has been put up in pursuance of the notice under section 264 of the Act and it has been on the same line as it existed before the earthquake, there was no need for the appellant to submit the plans and to get them sanctioned by respondent. It is the case of the appellant that inspite of that, respondent served notice under section 260 (1) of the Act calling upon the appellant to show cause on or before 25th October, 2002 why the construction should not be pulled down. It is the say of the appellant that the respondent, without granting any opportunity of hearing, served the appellant with another notice dated 30th October, 2002 under section 267 (2) of the Act calling upon it to stop the construction forthwith, failing which the Commissioner of respondent would take steps to remove the occupiers and also would take steps to prevent the re-entry of such persons. According to the appellant, since the said action of the respondent was not in accordance with the provisions of the Act and AO/206/2005 4/35 JUDGMENT there was no reason or justification for the respondent to give such notice to the appellant, now there is need to declare these notices illegal and without any justification and to quash them and also there is need to prevent them from taking any further action on the basis of said notices. It appears that the appellant had filed a suit prior to the present one, being Civil Suit No. 3777 of 2002, which was withdrawn since the statutory notice was not served on the respondent. Now on the basis of the aforesaid averments, the appellant has filed the present Civil Suit No. 277 of 2003 on 3rd February, 2003. Along with the suit the appellant also preferred injunction application for seeking interim relief being application at Exh. 7. The trial Court issued notice to respondent making it returnable on 11th February, 2003. In response to the notice of motion, respondent filed its reply on 25th February, 2003. 2.1. Respondent has contested the suit and the application by filing reply at Exh. 14. The respondent's say is that upon visit by the Inspector of the respondent at the site of the suit property on 7th October, 2002 and 29th October, 2002 and upon making the personal investigation and verification, it was found that the appellant was carrying on unauthorized construction and the construction that had already been AO/206/2005 5/35 JUDGMENT made was against the provisions of the Act. Hence, on the same dates prohibitory order under section 267 of the Act was served on the appellant with a direction to stop the construction forthwith. It is the say of the respondent that inspite of order/notice under section 267(1), the construction was not discontinued. Hence, a complaint under section 267 (2) of the Act was lodged with the Inspector of Police, Kalupur Police Station at Ahmedabad. One complaint was also lodged in the Court of Ld. Metropolitan Magistrate, Court no. 8 at Ahmedabad. According to the respondent, in response to the show cause notice issued by the respondent, no satisfactory replies were received and, therefore, the respondent decided to demolish the offending structure i.e. the suit property. It is the say of the respondent that the notice under section 264 of the Act was issued in respect of only 4 survey numbers, but taking undue advantage of the same, the appellant has raised construction on several other survey numbers also without submitting the plans and seeking approval of the respondent. It is the say of the respondent that the suit property is situated in the vicinity of a protected monument and hence the appellant is required to obtain “no objection certificate” from the competent authority under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 [hereinafter referred to as AO/206/2005 6/35 JUDGMENT 'Ancient Monuments Act']. However, the same has not been obtained. Without such no objection certificate, no plans can be sanctioned. It is the say of the respondent that since the construction is raised without submission of the plans and obtaining approval of the respondent, the same is required to be demolished. 2.2. The Ld. Judge on 25th March, 2003 passed an order directing the appellant to submit plan regarding the suit property before the respondent within three months from the date of the order and till such time the respondent took decision thereon, it was directed to maintain status-quo. The notice of motion, thereupon, was disposed of. 2.3. It appears that the appellant did not submit the plans as per the direction of the Ld. Judge. Hence, on 27th October, 2004 the respondent applied its seals on all the shops constructed on all the survey numbers. The appellant, therefore, filed notice of motion at Exh. 28 and also at Exh. 29. Exh. 28 was injunction application and Exh. 29 was for removal of the seals. These applications were filed on 27th October, 2004. They were contested by the respondent by filing reply at Exh. 29 on 2nd November, 2004. The main averments that were made in the reply were AO/206/2005 7/35 JUDGMENT that the appellant had failed to comply with the directions given by the Court for submission of the plans and that the illegal use of the suit property was continued by the occupiers. It is the say of the respondent that the appellant constructed 254 shops on all the survey numbers illegally and these shops were put to use by the occupiers even without obtaining Building Use Permission [ B U Permission] as required under the Act. These shops are known as “China Bazar” at Pankornaka, Ahmedabad. Hence, respondent was constrained to apply seals to prevent their re-entry in the shops. The Ld. Judge by order dated 2nd November, 2004 disposed of the notice of motion on the ground that the prayer for removal of seals was of mandatory nature which could not be granted without verifying the evidence and so far prayer 9 (a) was concerned, it could not be granted since the appellant had not complied with order of the Court dated 24th March, 2003. The Ld. Judge observed that respondent could not be directed to open the seal. 2.4. Against the said order, the appellant approached this Court by filing Appeal From Order No. 385 of 2004. It appears that in view of the Diwali and Id festivals, for temporary period, the seals were removed to enable the shop keepers to do the business, but thereafter the premises AO/206/2005 8/35 JUDGMENT have been again sealed. The said Appeal From Order was finally disposed of by this Court by order dated 21st March, 2005. The order of the Ld. City Civil Judge dated 2nd November, 2004 was quashed and set aside and this Court remanded the matter to the trial Court for its reconsideration, keeping in view the development which took place subsequent to the date of the said impugned order. 2.5. Upon remand of the proceedings, the Ld. Judge, City Civil Court No. 19, heard the matter extensively and disposed of Exhs. 28 and 29 by order dated 29th April, 2005, which is impugned in this appeal. It was contended that though appellant had tried to submit plans to the respondent, the same were not accepted. It was also contended that the appellant had already taken steps to obtain No Objection Certificate from the competent authority under the Ancient Monument Act and the same was awaited. It was also submitted that under the provisions of the Act, the respondent had no power to apply seals and restrain the occupiers from making use of the property. It was further contended that because of the action of the respondent, number of families have been forced to vacate the premises and their plight has become miserable. According to the appellant, there was no need for it to comply with the provisions of AO/206/2005 9/35 JUDGMENT sections 253 and 254 of the Act by giving notices to the Commissioner of intention to erect building and to make additions, etc., in the building. As against that, the respondent contended that since the appellant had failed to comply with notice under section 261, the seals were required to be applied. It was contended by the respondent that the exercise of power under section 267 (2) of the Act was completely justified and, therefore, there was no need to grant the relief prayed for by the appellant. The Ld. Judge came to the conclusion that the construction of 254 commercial shops was illegal, without obtaining prior permission of the respondent and, therefore, the respondent was justified in applying the seals. The Ld. Judge also observed that the balance of convenience was not in favour of the appellant. On the contrary the Ld. Judge observed that if such illegal use was permitted, it would become very difficult for the respondent to carry on the administration of the City. The Ld. Judge, therefore, rejected the notice of motion Exhs. 28 and 29 with no order as to costs. Against the said order, the present appeal under Order 43 Rule 1 read with section 104 of the Code of Civil Procedure is filed. 3. I have heard Mr. KS Nanavati, Ld. Senior Advocate of Nanavati Associates for the appellant and Mr. SI Nanavati, Ld. Senior AO/206/2005 10/35 JUDGMENT Advocate of Nanavati and Nanavati for respondent. I have also perused the record of the appeal including the compilations submitted by the learned counsels. 3.1. It clearly appears that the suit property comprises 254 commercial shops. It also appears that these shops have been constructed without submission of the plans and without obtaining prior approval of the respondent. Whether plans are required to be submitted and the prior approval was needed are the questions to be considered. It is also clear that even after the direction of the Court, the appellant had not submitted the plans within stipulated time, but they were submitted very late. These plans were not approved by the respondent. It also appears that at the State level, the authority under Ancient Monument Act has refused permission and now the representation is made to the Director General at the Central level. The main contention of Mr. KS Nanavati is that decision on notice under section 260 (1) was taken without granting any opportunity of hearing and, therefore, such decision was illegal and violative of principles of natural justice. It is submitted by Mr. KS Nanavati that whether compliance of sections 253 and 254 was required is the question under consideration in the suit and hence there was no AO/206/2005 11/35 JUDGMENT need for the respondent to resort to the drastic remedy of demolition of the premises, as that would cause irreparable loss to the appellant and others. It is contended by Mr. KS Nanavati that the plans were submitted on 10th November, 2004 and they were accepted by the respondent on 17th November, 2004 and thereafter, the same were disapproved by respondent by raising about 45 objections on 22nd November, 2004. However, subsequently, on 28th December, 2004 the plans were resubmitted after taking care of the objections raised by the respondent and, therefore, all those objections have lost their significance. He has, therefore, submitted that even if there is no No objection Certificate received from the Department of Archaeology, plans could be approved subject to the grant of No Objection Certificate. He has also submitted that under the Act, the respondent has no authority to seal the premises. He has placed reliance on the decision of the Apex Court and has submitted that the respondent could compound the objections and condone certain irregularities. According to him, when there are triable issues, the interest of the appellant is required to be protected. 3.2. As against that, Mr. SI Nanavati for the respondent has submitted that the appellant cannot be granted any equitable relief since AO/206/2005 12/35 JUDGMENT his action is dishonest. He has submitted that the appellant was served with notice under section 264 only in respect of 4 survey numbers, but taking disadvantage of the same, the appellant acquired other surrounding survey numbers which were essentially residential premises and constructed the suit property which is a commercial property housing 254 shops, without complying with the provisions of sections 253 and 254 of the Act. He has submitted that the appellant has not submitted any plan and sought approval before raising construction and such construction cannot be allowed to exist. He has further submitted that the No Objection Certificate under the Ancient Monument Act is compulsory. In its absence the respondent cannot grant any approval to the appellant. He has further submitted that apart from the No Objection Certificate, there are about 45 irregularities which have been committed by the appellant by non-compliance with the provisions of the Act as well as the General Development Control Regulations [GDCR] and, therefore, it is not possible for the respondent to approve the plans or grant the sanction to the appellant. He has also submitted that the respondent has power and authority under the Act to apply the seal to prevent re-entry in the offending premises. According to him, the illegal construction has been raised on 18 survey numbers including 4 survey AO/206/2005 13/35 JUDGMENT numbers for which notice under section 264 has been given. However, out of them, for 7 survey numbers the appellant is neither owner nor the power of attorney holder and, therefore, he has no locus-standi to prefer these proceedings. According to him, section 267 read with section 478 gives power to respondent to prevent re-entry. Such power would include power to apply seal to the shops as it would not be feasible for respondent to employ security guards for 254 shops. In his submission, in view of non-compliance of notice under section 267, which was given at the stage when the construction was on, respondent was compelled to apply seals. Mr. SI Nanavati has also placed reliance on several decisions of the Apex Court as well as this Court which will be referred to in due course. 3.3. In reply, Mr. KS Nanavati for the appellant has submitted that the GDCR came subsequent to the construction and, therefore, there was no cause for the appellant to comply with those provisions. He has also submitted that even if there is power to seal the premises, it can be exercised only when the activity of construction is going on and not thereafter. He has also submitted that powers under section 478 cannot be invoked since no notice has been given under that section. He has AO/206/2005 14/35 JUDGMENT submitted that issues are such that compounding his permissible and the respondent should adopt that course instead of taking drastic action against the appellant. He has reiterated the submission that when the disputes are under consideration before the trial Court, the action of application of seal or demolish of the premises cannot be resorted to. 3.4. In reply to the reply of Mr. KS Nanavati, Mr. SI Nanavati has submitted that in the present proceedings only the question with regard to action of the respondent in applying seals to 254 shops is under consideration and there is no question of demolishing the premises under section 478 of the Act at this stage. He has, therefore, submitted that this appeal be dismissed with costs. 4. From the aforesaid narration, it clearly appears that the appellant has constructed building in Kalupur ward within the limits of respondent Corporation. It is also clear that the said building is constructed on 18 city survey numbers. The disputed question is whether it is altogether a new construction or reconstruction or merely renovation or retrofitting of the original structure. The appellant has claimed that during earthquake that occurred on 26th January, 2001 the original AO/206/2005 15/35 JUDGMENT structure standing on the site was damaged and it was in precarious condition. The respondent, therefore, had issued notice under section 264 requiring the appellant to pull it down. In pursuance of the said notice the damaged structure was pulled down and in its place the present structure is erected. This claim of the appellant has been strongly opposed by the respondent. The facts of the case show that the present structure is constructed on 18 city survey numbers. They are city survey nos. 2693, 2694, 2695, 2696, 2697, 2698, 2700, 2708, 2702, 2705, 2712, 2713, 2714, 2715, 4440, 4401, 4441 and 4448. The record shows that majority of these survey numbers were previously residential premises. They have now been converted into commercial shops, 254 in number, popularly known as 'China Bazar'. The respondent has pleaded that the appellant has set up altogether new construction which is totally illegal since the appellant has failed to comply with mandatory provisions of the Act prior to raising construction. It is an admitted fact that before raising disputed construction, the appellant has not complied with provisions of sections 253 and 254 of the Act. Section 253 of the Act requires a person intending to erect building to give notice to the Commissioner of his such intention. It is to be given in the form prescribed in the bye-laws and it has to contain all such information as may be required to be furnished AO/206/2005 16/35 JUDGMENT under the bye-laws. So far the expression “to erect the building” is concerned, it means newly to erect building on any site whether previously built upon or not. It also means any masonry building of which 3/4th of the superficial area of the external walls above the level of the plinth has been pulled down. The notice is required to be given even if a person intends 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. Section 253 states that these operations shall be deemed to be the erection of new building for the purposes of Chapter XV, which deals with building regulations. Similarly section 254 requires a person to give notice to Commissioner of his intention to make additions, etc., to building. It includes any measure to repair, remove, construct, reconstruct or add to any portion of a building abutting very street within the regular line of such street. However, provisions of sections 253 and 254 of the Act do not come into play if notice under section 264 of the Act for removal of the dangerous structures which are in ruins or likely to fall, is served on the concerned person by the Corporation and in pursuance of such notice, the dangerous structure is pulled down and in its place new structure is erected. The appellant has banked upon this provisions and has averred that since it has received a notice under section 264 of the AO/206/2005 17/35 JUDGMENT Act, there is no question of complying with the provisions of sections 253 and 254 of the Act. This stand of the appellant does not get complete support from the material produced by both the sides on record. It clearly appears that out of the aforesaid 18 city survey numbers in respect of only 4 survey numbers, notice under section 264 has been served on the appellant. They are city survey nos. 2696, 2705, 4440 and 4441. The appellant is not in a position to dispute this fact because all this is a matter of record. It is, therefore, obvious that the appellant has taken disadvantage of the notice issued under section 264 of the Act in respect of the given 4 city survey numbers and has extended its construction of the suit property to other 14 city survey numbers. There is no doubt about the fact that on 14 such city survey numbers new construction has been put up by the appellant. When this is the position, the appellant is bound to comply with the provisions of sections 253 and 254 of the Act. If no compliance is there, it will render the construction illegal. The appellant is, therefore, not right in contending that it was not required to comply with sections 253 and 254 because there was notice under section 264 of the Act. The construction of the appellant, which is made on at-least 14 city survey numbers is illegal on this count. AO/206/2005 18/35 JUDGMENT 4.1. It is the say of the respondent that the appellant was required to submit the plans of the proposed building and obtain its prior approval. No such plans had been submitted before raising construction. The appellant is also not in a position to dispute this fact. It is an admitted fact that the respondent had served the appellant notice under section 260 (1) of the Act. Section 260 deals with proceedings to be taken in respect of building or work commenced contrary to rules or bye-laws. By such notice the concerned person is required to be called upon to show cause why the construction of a building commenced contrary to rules or bye- laws should not be removed, altered or pulled down and sub-section (2) prescribes that if person failed to show sufficient cause, to the satisfaction of the Commissioner, the Commissioner may remove, alter