SCA/7207/2008 1/33 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7207 of 2008 With SPECIAL CIVIL APPLICATION No. 7202 of 2008 With SPECIAL CIVIL APPLICATION No. 7205 of 2008 With SPECIAL CIVIL APPLICATION No. 7209 of 2008 With SPECIAL CIVIL APPLICATION No. 7203 of 2008 With SPECIAL CIVIL APPLICATION No. 7200 of 2008 With SPECIAL CIVIL APPLICATION No. 5069 of 2008 With SPECIAL CIVIL APPLICATION No. 5262 of 2008 With SPECIAL CIVIL APPLICATION No. 5458 of 2008 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= KILLOL V. SHELAT - Petitioner(s) Versus MUNICIPAL CORPORATION OF CITY OF AHMEDABAD & 1 - Respondent(s) ========================================================= SCA/7207/2008 2/33 JUDGMENT Appearance : SCA NO. 7207/2008 MR SB VAKIL, SR ADVOCATE WITH MR KV SHELAT for Petitioner(s) : 1, MR PRASHANT G DESAI, SR ADVOCATE WITH MR KAUSHAL PANDYA for Respondent(s) : 1 – 2. SCA NO. 5069/2008 MR NAVIN K PAHWA for M/S THAKKAR ASSOC. for Petitioner(s) : 1-12 MR RM CHHAYA for Respondent(s) : 1 – 2. SCA NO. 5262/2008 MR E SHAILAJA for Petitioner(s) : 1, MR RM CHHAYA for Respondent(s) : 1 – 2. SCA NO. 5458/2008 MS ROOPAL respondent PATEL for Petitioner(s) : 1-2 MR RM CHHAYA for Respondent(s) : 1 – 2. SCA NO. 7200/2008 MR MIHIR THAKORE SR ADVOCATE WITH MR AMAR N BHATT for Petitioner(s): 1, MR PRASHANT G DESAI, SR ADVOCATE WITH MR KAUSHAL PANDYA for Respondent(s) : 1 – 2. SCA NO. 7202/2008 MR MIHIR THAKORE SR ADVOCATE WITH MR AMAR N BHATT for Petitioner(s) : 1-3 MR PRASHANT G DESAI, SR ADVOCATE WITH MR KAUSHAL PANDYA for Respondent(s) : 1 – 2. SCA NO. 7203/2008 MR MIHIR THAKORE SR ADVOCATE WITH MR AMAR N BHATT for Petitioner(s) : 1-2 MR PRASHANT G DESAI, SR ADVOCATE WITH MR KAUSHAL PANDYA for Respondent(s) : 1 – 2. SCA NO. 7205/2008, MR MIHIR THAKORE SR ADVOCATE WITH MR AMAR N BHATT for Petitioner(s) : 1, MR RM CHHAYA for Respondent(s) : 1 – 2. SCA NO. 7209/2008 MR KV SHELAT for Petitioner(s) : 1, MR PRASHANT G DESAI, SR ADVOCATE WITH MR KAUSHAL PANDYA for Respondent(s) : 1 – 2. ========================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN and HONOURABLE MR.JUSTICE AKIL KURESHI Date : 14/11/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE AKIL KURESHI) SCA/7207/2008 3/33 JUDGMENT 1 This group of petitions involves similar questions of law and facts. The petitions have therefore been heard together and are being disposed of by this common judgement. 2 Essentially what is in challenge in this group of petitions is the prescription of “road line” by the Commissioner of Ahmedabad Municipal Corporation The petitioners stand to lose part of their land/buildings in such road line. They have therefore, challenged eviction notices issued by the Corporation under Section 213 of the Bombay Provincial Municipal Corporations Act(BPMC Act for short).The petitioners have also challenged the vires of Section 210(1)(a) of the BPMC Act. 3 Few relevant facts may be noted at this stage. Since facts involved in all the petitions are substantially similar, they may be noticed as stated in Special Civil Application No. 7207/1998. 3.1 The petitioner is the owner of superstructure i.e. a bungalow constructed on a plot of land alloted to him by one Brahman Mitra Mandal Cooperative Housing Society. As a member of the society, the petitioner occupies sub-plot No.1 of Final Plot No. 707/A of Town Planning Scheme No.3, Ellisbridge, Ahmedabad. The plot abuts on a road between Ashram Road to Ambawadi Circle. The existing road is 60 feet wide. The Commissioner of Ahmedabad Municipal Corporation in exercise of power under Section 210(1)(a) of the BPMC Act, prescribed regular line of the street vide his resolution dated 10.5.2007 which had the effect of SCA/7207/2008 4/33 JUDGMENT widening the street to 100ft. 3.2 Since part of the plot of the petitioner falls within the newly prescribed street line, Ahmedabad Municipal Corporation issued eviction notice dated 7.9.2007 in exercise of power under Section 213 of the BPMC Act calling upon the petitioner to surrender the possession of part of his plot falling within the road line within seven days from the date of receipt of the notice. In the said notice (produced at Annexure-A to the petition), it is also stated that after handing over the possession, the Municipal Corporation will take appropriate steps for grant of compensation under Section 216 of the BPMC Act. 3.3 The petitioner lodged his objections to the said notice vide his communication dated 19.11.2007(Annexure-B to the petition). The letter of the petitioner was replied to by the Corporation vide communication dated 28.11.2007(Annexure-C to the petition). 3.4 The present petition is therefore, filed essentially challenging the action of the respondents in laying down a street line by virtue of which existing street is widened from 60 ft. to 100 ft. The petitioner has further challenged eviction notice dated 7.9.2007 as also the Constitutional validity of Section 210(1)(a) of the BPMC Act. 4 Facts of rest of the petitions are substantially similar except that in some cases, the petitioners are the owners/occupants of constructed premises which fall within the proposed road widening. SCA/7207/2008 5/33 JUDGMENT 5 On behalf of Ahmedabad Municipal Corporation, affidavit dated 13.5.2008 has been filed in which it is stated inter-alia that road leading from Hotel Inder Residency to Ambawadi circle is covered under the Town Planning Scheme No.3, Ellisbridge, which was sanctioned on 15.3.1945. Under the Town Planning Scheme, said road is of 60 ft. width. Said road is levelled, paved and maintained by the Corporation and is thus a “public street”. The Commissioner of Municipal Corporation for the first time prescribed road line for the street in exercise of powers under Section 210(1)(a) of the BPMC Act by resolution dated 10.5.2007. Similarly, road between Town Hall to Madalpur Garnala was also a Town Planning Road of 60 ft. width. For this road also, regular line of the street was prescribed for the first time under Section 210(1)(a) of the BPMC Act extending the street to a width of 100 ft. It is stated that as per the revised Development Plan sanctioned under Section 17 of the Gujarat Town Planning & Urban Development Act, 2002(Town Planning Act for short), 100 feet road width is provided for entire stretch from town Town Hall to Ambawadi circle. 5.1 It is further stated that Corporation first undertook the task of road widening from Hotel Inder Residency(Madalpur underpass) to Ambawadi Circle, particularly, in view of the requirement of permission with respect to Madalpur underpass from the Railway Authority, which could take some time. Corporation has issued notices to the property owners/occupiers and nearly 80% of the area is already surrendered to the Corporation. 5.2 It is stated that prescription of the road line SCA/7207/2008 6/33 JUDGMENT by the Commissioner is in consonance with the revised Development Plan sanctioned in the year 2002. While framing the revised Development Plan, objections and suggestions were invited regarding proposal of road widening to 100 ft. and after considering objections received, width of 100 ft. is prescribed for the road in question. 6 Further affidavit dated 17.10.2008 has been filed by the respondents in which the steps taken before finalisation of the revised Development Plan for the area in question are highlighted. It is pointed out that the objections and suggestions were invited and duly considered and disposed of before providing for 100 ft. Development Plan road under the revised Development Plan, which ultimately came to be sanctioned in the year 2002. 7 On the basis of above factual aspects, Counsel appearing for the parties have made detailed submissions before us. 8 Learned senior advocate Shri S.B. Vakil appearing for the petitioner in Special Civil Application No.7207/2008 submitted that powers under Section 210(1)(a) of the BPMC Act cannot be exercised for laying down regular line of public street in parts. Such prescription can be for whole of street only and not part there of. 8.1 Reliance in this regard was placed on the decision of Division Bench of this court in case of Girdharlal Ganpatram v. The Ahmedabad Municipal Corporation reported in 1960(1) GLR 223. 8.2 It was contended that if the respondents SCA/7207/2008 7/33 JUDGMENT wanted to acquire any part of the land or building belonging to the petitioner for road widening, procedure under Sections 77 or 78 of the BPMC Act had to be followed. Reliance in this regard was placed on decision of Learned Single Judge of this Court in case of Girdharpark Co-op Housing Society Limited v. Surat Municipal Corporation reported in 2006 GLH(EL) 217. 8.3 It was contended that Section 210(1)(a) of the BPMC Act is ultra vires the Constitution, since it does not provide for any hearing or safeguard before prescribing regular line of the street which may amount to depriving a citizen of his valuable property. It was also contended that detail procedure for inviting and considering objections is prescribed under Section 210(1) (b) of the BPMC Act for substitution of existing line of a street whereas no such safeguard is available when the Commissioner for the first time prescribes a regular line of the street. It was therefore, contended that powers vested in the Commissioner under Section 210(1)(a) of the BPMC Act are unguided, uncanalised and unbridled. The provision is arbitrary and discriminatory. 8.4 Reliance was also placed on following decisions : 1) In case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and others reported in (2002) 5 SCC 111, in which in paragraph-10, it is observed that keeping pace with the approach to concept of equality under Articles 14 and 16, Courts have whenever possible, sought to curb an arbitrary exercise of power against individuals by centres of power. SCA/7207/2008 8/33 JUDGMENT 2) Decision in the case of The State of West Bengal v. Anwar Ali Sarkar and another reported in AIR (39) 1952 Supreme Court 75 was relied upon to contend that the provisions of Section 210(1)(a) of the BPMC Act are discriminatory and violative of Article 14 of the Constitution. For the same purpose, reliance was also placed on decision of Patel Gordhandas and others v. The Municipal Commissioner, Ahmedabad and another reported in AIR 1963 Supreme Court 1742. 9 Learned senior advocate Shri Mihir Thakore appearing for some of the petitioners contended that the Development Plan sanctioned by the Government cannot be the basis for acquiring the land under the BPMC Act. 9.1 He contended that the requirement of hearing must be read in Section 210(1)(a) of the BPMC Act, failing which, provision would be rendered unconstitutional. 9.2 For the said purpose, he relied on the following decisions i.e. State of Maharashtra v. Mrs. Kamal Sukumar Durgule and ors. reported in 1985 (1) SCC 234, Olga Tellis and others v. Bombay Municipal Corporation and others reported in AIR 1986 SC 180, Mohinder Singh Gill and another v. the Chief Election Commissioner, New Delhi and others reported in (1978) 1 Supreme Court Cases 405 and Mrs. Maneka Gandhi v. Union of India and others reported in (1978) 1 Supreme Court Cases 248 and contended that requirement of hearing must be read into Section 210(1) (a) of the BPMC Act, failing which, the provisions would be rendered ultra vires the Constitution. SCA/7207/2008 9/33 JUDGMENT He relied on the decision in the case of District Registrar and Collector, Hyderabad and another v. Canara Bank and others reported in (2005) 1 Supreme Court Cases 496, to contend that powers vested in the Commissioner under Section 210(1)(a) of the BPMC Act being without any safeguards are possible of arbitrary use and that provision giving such unabridged and unguided powers would not stand the test of reasonableness under Article 14. 10 Learned advocate Shri Pahwa appearing for some other petitioners in addition to adopting the arguments of the other Counsel submitted that the existing road is provided under the sanctioned Town Planning Scheme. Any change in the existing road would therefore, have the effect of varying a sanctioned Town Planning Scheme which can be done only after following the procedure laid down under the Town Planning Act. 11 On the other hand learned senior advocate Shri P.G. Desai appearing for the respondents opposed the petitions and submitted that the road widening is necessary to remove congestion on account of heavy traffic. The Commissioner after taking into consideration all aspects of the matter prescribed the regular line of the street in exercise of powers under Section 210(1)(a) of the BPMC Act along the line as provided in the proposed road under the sanctioned revised Development Plan. Such prescription was made for the first phase between Ambawadi circle and Railway underpass. Subsequently, the road line was prescribed also for road between Madalpur underpass and Town Hall. He contended that having thus prescribed regular line of the street, it was SCA/7207/2008 10/33 JUDGMENT thereafter open for the Commissioner to take possession of the land falling within the newly prescribed street line by following procedure under Section 213 of the BPMC Act. He contended that steps for giving compensation to the land losers would be taken under Section 216 of the BPMC Act. 11.1 He contended that under Section 210(1)(a) of the BPMC Act, no hearing is necessary before prescription of the regular line of street for the first time by the Commissioner. In the present case, regular line of the street prescribed by the Commissioner is exactly the same as provided in the sanctioned revised Development Plan. Detailed procedure was followed under the Town Planning Act and objections/suggestions were invited, considered and disposed of before sanctioning the revised Development Plan. In the present case, therefore, there would be no requirement of further hearing before effecting the road widening through prescription of regular line of the street. 11.2 He relied on the following decisions : 1) In the case of Premjibhai D. Karane alias Babubhai v. Ahmedabad Municipal Corporation reported in 1996(2) GLH 230, in which Learned Single Judge of this Court held that power under Section 210 of the BPMC Act is not subject to or in conflict with the Town Planning Act and further that for prescribing the line of public street for the first time, the Commissioner is not required to follow procedure under Section 210(1)(b) of the Act. 2) Case of Mahomed Kasam Abubakar Bhavnagari and ors. v. Municipal Corporation of the City of SCA/7207/2008 11/33 JUDGMENT Ahmedabad reported in 15 GLR 267, in which Learned Single Judge of this Court observed that primary object of Sections 210 to 214 is to preserve road lines in such a manner that all municipal functions regarding the maintenance of a public street can be suitably performed. Removal of structure and acquisition of land are merely incidental to this primary object. 3) Case of The Municipal Corporation of the City of Ahmedabad and others v. The State of Gujarat and another etc. reported in AIR 1972 SC 1730, in which the Apex Court while upholding the Constitutional validity of BPMC Act observed that two sections 216(1) and 389(1) read together make it clear that full indemnification in terms of money for the loss caused is to be made to the owner of the property or other interests affected by reason of the exercise of powers under Section 212. 4) Case of Maganlal Chhagganlal (petitioner) Ltd. v. Municipal Corporation of Greater Bombay and others reported in AIR 1974 SC 2009, in which the Apex Court while upholding the Constitutional validity of the Bombay Municipal Corporation Act (3 of 1988) observed that if from the preamble and surrounding circumstances as well as the provisions of the statute, necessary guidelines could be inferred the statute will not be hit by Article 14. 5) Case of Navinchandra M. Randeria & ors. v. State of Gujarat & ors. reported in 1989(1) GLH 604, in which Division Bench of this Court upheld the action of Surat Municipal Corporation of acquiring the private land for the purpose of road widening. SCA/7207/2008 12/33 JUDGMENT 6) Case of Olga Tellis and others v. Bombay Municipal Corporation and others (supra), wherein the Apex Court was dealing with the provisions empowering the Commissioner to cause removal of encroachment without previous notice. The Apex Court observed that while vesting in the Commissioner the power to act without notice,the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. It was further observed that the ordinary rule which regulates all procedure is that persons who are likely to be affected by proposed action must be afforded an opportunity of being heard as to why action should not be taken. 7) Case of M/s. Babubhai & co. and others v. State of Gujaat and others reported in AIR 1985 SC 613, wherein while upholding the validity of Section 54 of the Bombay Town Planning Act , 1955, the Apex Court observed that mere absence of corrective machinery by way of appeal would not render the provision invalid. 12 Before adverting to the contentions raised by both sides, it will be useful to note some of the provisions contained in the BPMC Act. 12.1 Section 2(52) of the BPMC Act defines “public street” as under : “(52) “ public street” means any street- (a)heretofore levelled, paved, metaled, channelled, sewered or repaired out of municipal or other public fund, or (b)which under the provisions of section 224 is declared to be, or under any other provision of this Act becomes, a SCA/7207/2008 13/33 JUDGMENT public street;” 12.2 Section 2(63) of the BPMC Act defines “street” as under : “(63) “street” includes any highway and any causeway bridge arch road, lane footway, sub-way, court, alley or riding path of passage, whether a thoroughfare or not, over which the public have a right of passage or access or have passed and had access uninterruptedly for a period of twenty years, and, when there is a footway as well as carriage way in any street, the said term includes both;” 12.3 Section 77 of the BPMC Act empowers the Commissioner subject to certain conditions to acquire immovable property for the purpose of the Act through agreement. 12.4 Section 78 of the BPMC Act inter-alia provides for acquisition of property under the Land Acquisition Act by the Government when Commissioner under Section 77 is unable to acquire immovable property through agreement. 12.5 Section 202 of the BPMC Act provides for vesting of public street in the Corporation. 12.6 Sub-section(1) of Section 203 of the BPMC Act requires the Commissioner to level, metal or pave, alter and repair as may be required the public street which has vested in the Corporation. 12.7 Clause(a) of Section 205 of the BPMC Act permits the Commissioner when authorised by the Corporation to lay out and make a new public street. SCA/7207/2008 14/33 JUDGMENT 12.8 Sub-section (1) of Section 206 of the BPMC Act provides that Corporation shall from time to time with the sanction of the State Government specify the minimum width for different classes of public streets according to the nature of the traffic likely to be carried thereon, the localities in which they are situated, the heights up to which buildings abutting thereon may be erected and other similar considerations. 12.9 Sub-section(1) of Section 209 reads as under: “209. Power to acquire premises for improvement of public streets. (1)The Commissioner may, subject to the provisions of sections 77, 78 and 79- (a) acquire any land required for the purpose of opening, widening, extending, diverting or otherwise improving any public street, bridge or sub-way or of making any new public street, bridge or sub-way and the buildings, if any, standing upon such land; (b) acquire in addition to the said land and the buildings, if any, standing thereupon, all such land with the buildings, if any, standing thereupon, as it shall seem expedient for the Corporation to acquire outside of the regular line, or of the intended regular line, of such street; (c) lease, sell or otherwise dispose of any land or building purchased under clause(b)......... “ 12.10 Section 210 of the BPMC Act reads as under: “210. Power to prescribe street lines. (1) The Commissioner may, SCA/7207/2008 15/33 JUDGMENT (a) prescribe a line on one or both sides of any public street: Provided that every regular line of a public street operative under any law for the time being in force in any part of the City on the day immediately preceding the appointed day shall be deemed to be a street line for the purposes of this Act until a street line is prescribed by the Commissioner under this clause; (b)from time to time, but subject in each case to the previous approval of the Standing Committee, prescribe a fresh line in substitution for any line so prescribed or for any part thereof : Provided that such approval shall not be accorded unless, atleast one month before the meeting of the Standing committee at which the matter is decided, public notice of the proposal has been given by the Commissioner by advertisement in the local newspapers and special notice thereof, signed by the Commissioner, has also been put up in the street or part of the street for which such fresh line is proposed to be prescribed and until the Standing Committee has considered all objections to the said proposal made in writing and delivered at the office of the Municipal Secretary not less than three clear days before the day of such meeting. (2)The line for the time being prescribed shall be called “the regular line of the street”. (3)A register with plans attached shall be kept by the Commissioner showing all public streets in respect of which a regular line of the street has been prescribed and such register shall contain such particulars as to the Commissioner may appear to be necessary and shall be open to inspection by any person upon payment of such fee as may from time to time be prescribed by the Standing Committee. (4)(a) Subject to the provisions of sub-section(5) no person shall construct or reconstruct any portion of any building on land within the regular line of the street except with the written permission of the Commissioner and in accordance with the conditions imposed therein and the Commissioner shall in every case in which he gives such permission, at the same time, report his reasons in writing SCA/7207/2008 16/33 JUDGMENT to the Standing Committee. (b)No person shall construct or reconstruct any boundary wall or a portion of a boundary wall within the regular line of the street except with the written permission of the Commissioner : Provided that if, within sixty days after the receipt of an application from any person for permission to construct or reconstruct a boundary wall or a portion thereof, the Commissioner fails to acquire the land within the regular line of the street under section 213 the said person may, subject to any other provisions of this Act or the rules or by-laws, proceed with the work of construction or reconstruction of such boundary wall or a portion thereof, as the case may be. (5)(a) When the Commissioner grants permission under clause(a) of sub-section (4) for the construction or reconstruction of any building on land within the regular line of the street he may require the owner of the building to execute an agreement binding himself and his successors in title not to claim compensation in the event of the Commissioner at any time thereafter calling upon him or any of his successors by written