AO/147/2006 1/23 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 147 of 2006 With CIVIL APPLICATION No. 6807 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE P.B.MAJMUDAR ====================================== 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 ? ====================================== PRATIK MEDICINES Versus MUNICIPAL CORP.OF AHMEDABAD AND OTHERS ====================================== Appearance : MR MIHIR JOSHI with MR AMAR N BHATT for Appellant. MR SB VAKIL with MR RM CHHAYA for Respondent No.1. NOTICE SERVED BY DS for Respondent Nos. 2 - 10. ====================================== CORAM : HONOURABLE MR.JUSTICE P.B.MAJMUDAR Date : 29/11/2006 ORAL JUDGMENT By filing this Appeal from Order under Order 43 of the Civil AO/147/2006 2/23 JUDGMENT Procedure Code, the appellant - original plaintiff of Civil Suit No.456/2004 has challenged the order passed by the learned trial Judge below Exh.6-7 by which the learned trial Judge has rejected the interim injunction application submitted by the plaintiff under Order 39 of the Civil Procedure Code. The appellant-plaintiff has filed the aforesaid suit on the ground that the plaintiff is a partnership firm registered under the Partnership Act and that Sheth Vadilal Sarabhai General Hospital and Chinai Maternity Home are two separate public charitable trusts registered under the Bombay Public Trust Act. The aforesaid hospital belongs to defendant No.1–Ahmedabad Municipal Corporation but the management of said hospital is with defendant Nos.2 to 10, who are appointed on the Board of Management of the Hospital, which includes the trustees of Sheth Vadilal Sarabhai General Hospital and Chinai Maternity Home as well as the municipal councilors. It is the case of the plaintiff that the management of the hospital is mainly dominated by the municipal councilors and municipal authorities. The aforesaid hospital complex is having buildings, offices, wards as well as open plot. The aforesaid trust has leased out part of the open land admeasuring 13.9 feet by 14.9 feet, which is situated near the surgical ward of the hospital. The aforesaid open piece of land was leased out by fixing the monthly rent at Rs.16,500/-. It is the case of the plaintiff that the plaintiff was required to construct the shop over the said open land for which a lay out plan was given by the trust to the plaintiff. After obtaining lease and after making construction of the shop, the plaintiff has started its business of selling medicines at the said place. The land in question is situated in the hospital campus. It is not in dispute that the land belongs to the Municipal Corporation and the management of the hospital vests with the aforesaid Trust. The Ahmedabad Municipal Corporation served a AO/147/2006 3/23 JUDGMENT notice to the plaintiff under Section 260 (1) of the Bombay Provincial Municipal Corporation Act (herein after referred to as “Corporation Act” for short) stating that the plaintiff has carried out construction without submitting building plan and the plaintiff was asked to show cause as to why the said construction should not be demolished. It is the case of the plaintiff that the plaintiff had replied the said notice by giving all necessary information and details. After considering the reply of the plaintiff, the corporation wrote a letter to the plaintiff, by which the plaintiff was asked to submit the plans within seven days and accordingly, the plaintiff submitted necessary plans. Inspite of that defendant no.1 – Corporation had served a notice upon it on 28-7-2003 under Section 260 (2) of the Bombay Provincial Municipal Corporation Act asking the plaintiff to remove said structure, which is constructed unauthorizedly and without taking prior permission. It is the aforesaid notice under Section 260 (2) of the Act, which has given rise to the aforesaid suit. By filing aforesaid suit, the plaintiff has prayed that the Honourable Court may be pleased to declare notice/order under Section 260 (2) as illegal, arbitrary and discriminatory and the same is required to be set aside. In the aforesaid suit, the plaintiff has submitted an application under Order 39 of the Civil Procedure Code with a prayer to restrain the defendants from acting further on the basis of said notice. Initially, learned trial Judge granted ad-interim injunction in favour of the plaintiff, however, after hearing both the sides, ultimately, learned trial Judge has rejected the prayer for interim injunction. Learned trial Judge has found that the plaintiff has failed to make out a AO/147/2006 4/23 JUDGMENT prima facie case and that he has failed to show that the alleged structure is legal and authorized structure. Learned trial Judge found that if the injunction is granted protecting such unauthorized construction, people will be tempted to raise illegal construction or unauthorized construction as per their choice. Learned trial Judge has accordingly rejected the injunction application vide his judgement and order dated 12-5-2006. Being aggrieved by the aforesaid order of the learned trial Judge, the appellant – plaintiff has preferred this Appeal from Order under Order 43 of the Civil Procedure Code. Mr.Mihir Joshi, learned Senior Counsel appearing for the appellant has vehemently argued that action of the corporation is arbitrary, mala fide and discriminatory. It is submitted by him that initially, the Board of Management of the trust had leased out the open piece of land to the present appellant on certain conditions and such lease was granted for a period of ten years, however, subsequently, the Board of trustees terminated said lease on the ground that the appellant has violated the terms of lease agreement and that the construction is carried out contrary to the rules and regulations and without getting prior permission for construction from the Corporation. The present appellant, therefore, filed a suit being Civil Suit No.1873/2003 challenging said action of the aforesaid trust by which the lease was terminated. In the said suit, an injunction application was pressed into service against the dispossession. Said injunction application was rejected by the trial Court and the prayer for injunction was also refused by this Court, against which the appellant herein had preferred Special Leave Petition before the Honourable Supreme Court being Special Leave to Appeal (Civil) No.2388-2389/2004. It is pointed out by both the learned advocates that said petitions were disposed of by the Honourable Supreme Court with a AO/147/2006 5/23 JUDGMENT direction that the appellant herein shall not be evicted without following the due process of law and such disposal of the petitions shall not affect the merits of the suit being Regular Civil Suit No.456/2004 (the suit in question), pending before City Civil Court, Ahmedabad. Accordingly, so far as earlier suit is concerned, the same was in connection with termination of lease, wherein the authority was permitted to act in accordance with law as per the judgement of the Supreme Court. Mr.Joshi, learned Senior Counsel appearing for the appellant further submitted that in response to the notice under Section 260 (1) of the Act dated 12-5-2003, the appellant has already submitted necessary plans and that on 5th June, 2003, the Corporation had informed his client to clear certain queries raised in the aforesaid letter, which is produced at page 55 of the paper book. As per the said letter, the Corporation had raised 12 queries, one of which is whether the parking provisions for cars and visitor's parking is in accordance with GDCR, Clause No.19.1. There is also a query regarding violation of requirement of margin other than the road side as per GDCR, Clause No.12.4.1. The appellant was also informed that sanitary accommodation is not proposed as per GDCR, Clause No.17.9 (A). The appellant was also asked to furnish the original copy of Municipal Property Tax Clearance Certificate and original copy of Betterment Tax Clearance Certificate. The plaintiff also gave its reply in response to the queries on 7-6- 2003. Regarding the property tax, the plaintiff submitted that this being V.S.Hospital property, which is the property of the Corporation, without insisting for property tax, building plans may be sanctioned. The plaintiff also requested that betterment tax also may not be insisted upon as the property belongs to the Corporation. Regarding the query in connection with percolating well, the plaintiff requested that same may not be AO/147/2006 6/23 JUDGMENT insisted upon. Regarding sanitary provision and parking area, the plaintiff pointed out in its reply dated 7-6-2003 that the Commissioner has power to condone the said requirement, and, therefore, deficit parking area may be condoned and plaintiff may be given building permission. Said reply is finding place at page 56 of the paper book. After replying to the queries, the plaintiff has requested that without insisting for the aforesaid things, development plan may be sanctioned. It is not in dispute that the appellant – plaintiff could not satisfy the queries. Thereafter, the Corporation passed an order under Section 260 (2) of the Corporation Act. It is submitted by Mr.Joshi that in response to the notice under Section 260 (1) of the Act, the appellant having submitted necessary plans, the appellant can be said to have complied with provisions of Section 260 (1) of the Corporation Act and, thereafter, it was not open to the Corporation to pass order under Section 260 (2) of the Corporation Act. He submitted that as per the original notice under Section 260 (1) of the Act, the appellant was required to submit necessary plans within seven days, which he did and, therefore, once the appellant having satisfied the notice under Section 260 (1) of the Act, there was no question of passing an order under Section 260 (2) for demolition of the structure in question. Mr.Joshi further submitted that the appellant has not been specifically informed that its building plans are rejected, therefore, according to him, by way of deeming fiction, it can be presumed that building plans are sanctioned and in that view of the matter, notice/order issued under Section 260 (2) of the Act can be said to be arbitrary, illegal and discriminatory. It is further submitted by Mr.Joshi that in any case, another adjoining occupier namely, AMJAY Medimix (I) Pvt. Ltd. is also permitted by the trust to put up the construction and it was permitted to run an MRI center on lease. When AO/147/2006 7/23 JUDGMENT the other occupier was permitted to put up the construction and when its plans were sanctioned, the appellant cannot be discriminated in the matter of giving the same type of treatment. Mr.Joshi further submitted that the queries which were raised by the Corporation vide letter dated 5-6-2003 are irrelevant. So far as parking facility is concerned, it should be in connection with entire Vadilal Sarabhai Hospital complex, therefore, only for the sake of demolishing the construction of the appellant, aforesaid notice is issued to the appellant – plaintiff. Mr.Joshi further submitted that it is true that his client has put up the construction without submitting any building plans but the Corporation can rectify such plans subsequently by granting permission retrospectively. Mr.Joshi further submitted that even if there is a violation of building rules or plans, it is not mandatory that such structure must be demolished as the Corporation can rectify the action of the plaintiff by charging penalty and by sanctioning the plans by giving retrospective effect. Mr.Joshi submitted that in view of the decision of the Honourable Supreme Court in Syed Muazaffar Ali and Others Vs. Municipal Corporation of Delhi, reported in 1995 Supp. (4) SCC 426, even unauthorized construction can be compounded or regularized and that the authority should resort to demolition only in case of serious and grave breach of building regulations. Relying upon the said decision, it is further submitted by him that mere departure from the authorized plan or putting up a construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of the structure. It is required to be noted that in the aforesaid decision the Honourable Supreme Court has held that some unauthorized construction are amenable to compounding and some may not be. There AO/147/2006 8/23 JUDGMENT may be cases of grave and serious breach of the licensing provisions or building regulations that may call for extreme step of demolition. Mr.Joshi also submitted that in any case, when the plaintiff had already submitted the plans in response to the notice under Section 260 (1) of the Act and, subsequently, when the Corporation had not informed it that its building plans are rejected, it can be presumed that the plans are sanctioned and that notice under Section 260 (1) of the Act can be said to have been waived by the Corporation. It is submitted that in any case, similar treatment was required to be given to the plaintiff as has been given to AMJAY Medimix (I) Pvt. Ltd., as according to Mr.Joshi, plans of aforesaid AMJAY Medimix (I) Pvt. Ltd. were rightly sanctioned by the Corporation. Mr.Joshi further submitted that in any case, having taken the scrutiny fee for scrutinizing the plans submitted by the plaintiff, it is not open to the Corporation to pass further order under Section 260 (2) of the Act, as the plaintiff can be said to have complied with the notice under Section 260 (1) of the Act. It is also submitted that subsequent act of the Corporation by which the scrutiny fees was taken for scrutinizing the plans, itself, shows that the notice in question is waived by the Corporation. It is further submitted by him that, in any case, the Corporation is estopped from taking any action for removing unauthorized construction carried out by the plaintiff as they have acted contrary in the case of AMJAY Medimix (I) Pvt. Ltd. It is, therefore, submitted that during the pendency of the suit, injunction is required to be granted restraining the Corporation from demolishing the superstructure erected by the plaintiff. He submitted that he is not in a position to point out whether any exemption is available to the appellant from the provisions of the Corporation Act or the rules and regulations AO/147/2006 9/23 JUDGMENT framed by the Corporation, in the matter of submission of building plans on the ground that the property in question belongs to the Municipal Corporation. On the other hand, learned Senior Counsel Mr.S.B.Vakil appearing for Mr.R.M.Chhaya for the Municipal Corporation submitted that the plaintiff was required to take prior permission and unless the plans were sanctioned by the Corporation it was not open to the plaintiff to complete the construction by taking law in its hand. It is submitted that even the trust itself has terminated the lease and as per the order of the Honourable Supreme Court the Trust was permitted to take appropriate proceedings in accordance with law before evicting the appellant herein from the premises in question. It is submitted by Mr.Vakil that on termination of lease status of the appellant can be said to be that of a trespasser, who can be evicted by following due process of law. Mr.Vakil further submitted that the premises in question belongs to the Corporation and the management of it vests with the Trust, but the Trust granted lease without inviting any tenders or giving any advertisement and that too without taking prior permission of the Charity Commissioner, which is required to be taken under the Bombay Public Trusts Act. Mr.Vakil further submitted that so far as the Corporation is concerned, the Corporation was required to see whether the construction is carried out as per the building plans and if there is any violation of rules in that behalf, the Corporation was required to act in accordance with law. Mr.Vakil further submitted that even if the concerned Trust might have acted contrary to the rules and regulations or even if the building plans are wrongly sanctioned in favour of AMJAY Medimix (I) Pvt. Ltd., that is no ground, which may be available to the appellant for getting discretionary order under Order 39 of the Civil Procedure Code. Mr.Vakil has submitted that he has informed his client to take AO/147/2006 10/23 JUDGMENT appropriate proceedings in accordance with law even against AMJAY Medimix (I) Pvt. Ltd. or any other erring party. He submitted that even if any irregularity is committed in other case, the plaintiff cannot take benefit of it by invoking Article 14 of the Constitution of India, as the appellant cannot plead reverse discrimination. Mr.Vakil also pointed out that in view of authorization given by the Corporation, concerned officer has issued the aforesaid notice to the appellant. Mr.Vakil further submitted that in response to the notice under Section 260 (1) of the Act, the appellant had submitted its plans and scrutiny fee was taken from it as per the rules but the appellant was asked to satisfy certain queries, which admittedly, are not satisfied by the appellant and on that ground order under Section 260 (2) was passed. It is submitted that when it is not in dispute that construction was carried out without taking any permission, the appellant cannot say that the Corporation must sanction the plans and must rectify the construction carried out by the appellant unauthorizedly. It is submitted by Mr.Vakil that even by deeming fiction only those plans can be said to have been sanctioned, which can be sanctioned legally and not otherwise. It is submitted by Mr.Vakil that it was not obligatory on the part of the Corporation to inform the appellant that its building plans are rejected. He submitted that the Corporation has never informed the appellant that its plans are sanctioned and when the appellant has admittedly not complied with the queries raised by letter dated 5-6-2003, an order under Section 260 (2) of the Act is passed and no fault can be found with such order. I have heard both the learned advocates and I have gone through the voluminous documentary evidence produced on record. It is required to be noted that Sheth Vadilal Sarabhai General Hospital and Chinai Maternity Home Trusts had obliged the appellant and AMJAY Medimix (I) Pvt. Ltd. by giving them lease of the open plot of land for a period of AO/147/2006 11/23 JUDGMENT ten years by charging certain amount, however, such lease was subsequently terminated and, for taking the possession, the trust was required to follow due process of law. So far as Corporation is concerned, it is a separate body altogether, which is constituted under the Bombay Provincial Municipal Corporation Act. It is not in dispute that before erecting any construction in the disputed land, permission was required to be taken by the appellant. It is no doubt true that, in a given case, Corporation may give permission subsequently by regularizing such construction but so far as facts of the present case are concerned, it cannot be said that Corporation has acted contrary to law by enforcing statutory provisions contained under Section 260 of the Bombay Provincial Municipal Corporation Act. In this behalf certain provisions of the Bombay Provincial Municipal Corporation Act are required to be referred to, which are as under : “Section 253. Notice to be given to Commissioner of intention to erect building. (1) Every person who shall intent to erect a building shall give to the Commissioner notice of his said intention in the form prescribed in the by-laws and containing all such information as may be required to be furnished under the by-laws. (2) Every such notice shall be signed in the manner prescribed in the by-laws and shall be accompanied by such documents and plans as may be so prescribed. (3) In this Chapter the expression “to erect a building” means - (a) newly to erect a building on any site whether previously AO/147/2006 12/23 JUDGMENT built upon or not, (b) to re-erect - (i) any building of which more than one-half of the cubical contents of the building above the level of the plinth have been pulled down, burnt, or destroyed, (ii) any masonry building of which more than three -fourths of the superficial area of the external walls above the level of the plinth has been pulled down, or (iii) any frame building of which more than three quarters of the number of the posts or beams in the external walls have been pulled down, (c) to convert into a dwelling house any building or part of a building not originally constructed for human habitation or, if originally so constructed, appropriated for any other purpose, (d) to convert into more than one dwelling house a building originally constructed as one dwelling house only, (e) to convert by any structural alteration into a place of religious worship or into a sacred building any place or building not originally meant or constructed for such purpose, (f) to roof or cover an open space between walls or buildings as regards the structure which is formed by roofing or covering AO/147/2006 13/23 JUDGMENT such space, (g) to convert by a structural alteration two or more tenements in a building into a greater or lesser number, (h) to make any structural alteration in a building so as to affect its drainage or sanitary arrangements or its stability, (i) to convert into a stall, shop, warehouse or godown any building not originally constructed for use as such, or (j) 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, and each of the above operations shall be deemed to be the erection of new building for the purposes of this Chapter. Section 254. Notice to be given to Commissioner of intention to make additions, etc. to building. (1) Every person who shall intend - (a) to make any addition to a building, (b) to make any alteration or repairs to a building, not being a frame-building, involving the removal or re-erection of any external or party-wall thereof or of any wall which supports the roof thereof, to an extent exceeding one-half of such wall above the plinth level, such half to be measured in AO/147/2006 14/23 JUDGMENT superficial feet, (c) to make any alteration or repairs to a frame-building, involving the removal or re-erection of more than one-half of the posts or beams in any such wall thereof as aforesaid, or involving the removal or re-erection of any such wall thereof as aforesaid to an extent exceeding one-half of such wall above plinth level, such half to be measured in superficial feet, (d) to make any alteration in a building involving - (i) the sub-division of any room in such building so as to convert the same into two or more separate rooms, or (ii) the conversion of any passage or space in such building into a room or rooms, (e) to repair, remove, construct, re-construct or add to any portion of a building abutting on a street which stands within the regular line of such street, (f) to carry out any work in a building involving - (i) the construction or reconstruction of a roof, (ii) the conversion of a roof into a terrace, (iii) the conversion of a terrace into a roof, or (iv) the construction of a lift shaft. (g) to carry out any repairs to a building involving the AO/147/2006 15/23 JUDGMENT construction of a floor of a room (excluding the ground floor), (h) to permanently close any door or window in an external wall, or (i) to remove or reconstruct the principal staircase or to alter its position, shall give notice to the Commissioner, in the form prescribed in the by-laws and containing all such information as may be required to be furnished under the by-laws. (2) Every such notice shall be signed in the manner prescribed in the by-laws and shall be accompanied by such documents and