The short question that arises is as to whether the powers under S. 260 and S. 478 of the B.P.M.C. Act are in conflict with each other. I do not find any such difficulty arising. The procedure prescribed under S. 260 of the B.P.M.C. Act presupposes a situation whereby an application has been made and the application has either been rejected or where the permission granted has been exceeded or, lastly, a situation whereby deemed permission is pleaded, but is not justified. The basic distinction between these two sections is that a show cause notice will be required for purposes of ascertaining whether the aforesaid circumstance is warranted or not because the record of the Corporation will indicate that some application was, in fact, made and that there was, therefore, some basis for the situation that has come up. {Para 6}
7. Section 478 of the B.P.M.C. Act contemplates an entirely different set of cases whereby the records of the Corporation indicate that no application whatsoever was ever made and, consequently, that it was neither rejected nor granted nor was there any deemed permission. This is the basic distinction between the two sets of cases. In the latter category of cases, S. 478 of the B.P.M.C. Act provides that the structure shall be deemed to be unauthorised and under these circumstances there is no justification for its continuing in existence. The Municipal Commissioner, therefore, in all cases where he finds that there is no obligation would have been justified in invoking the provisions of Section 478 of the B.P.M.C. Act and ordering the demolition. There is no question in such a situation of issuing show cause notice nor does the law require it.
1. With the uncontrolled growth of unauthorised structures erupting in the cities, the time has come now for the Courts to specify in no uncertain terms as to what is the correct ambit and scope of the powers vested in the Corporation to order demolition or to themselves pull down or remove the structures. The traditional argument that has been advanced to the effect that it is a basic requirement of law that the procedure of showing cause or hearing and passing of an order must precede the demolition has unfortunately resulted in a time-consuming and laborious exercise in every case, inevitably followed by litigation, with the result that for decades together the structures continue in existence without any legal justification whatsoever. In the meanwhile, ration-cards are obtained, licences are issued, names are put down on the voters' lists and all sorts of evidence establishing long-term user comes forth in support of the plea that it would be harsh and improper to order demolition. The net result, however, is that the law is subverted, slumlords have a hey-day and building activities continue in flagrant breach of all established norms of planning and rules and regulations. It is, therefore, very essential that the law be correctly applied and, more importantly, that the Courts desist from mechanically interfering in all except the genuine cases. It has unfortunately become the order of the day, particularly in the trial Courts, for suits to be filed by the basket-load and injunction orders passed against the Municipal Corporations either in collusion with the representatives of the Corporations, both in the Court and outside, or, more importantly, because of the case having gone by default, which is another sublet method of collusion. Once such an order is passed, either the proceedings remain pending for abnormally long period of time with not even an application made to vacate the injunction order. In several other cases an even cleverer mode is employed whereby the plaintiff withdraws the suit and files another one. The law requires that such proceedings cannot be instituted without statutory notice, but this provision is observed more in the breach.
It is in these circumstances that the point involved in the present Second Appeal is one of crucial importance and requires to be decided and implemented forcefully. First, the facts.
2. The plaintiff, who is a motor mechanic, is the owner of house property C.T.S. No. 481, situated at Rasta Peth, Pune. He constructed what may be termed as a fencing or a compound partition measuring about 5' x 5' in height which consists of wooden pillars and tin-sheets around the open space admeasuring 60' x 60' in the said property. The obvious intention of enclosing this area was in order to cordon off and convert it into a shed, which could be thereafter used for two garages. Since no permission of the Corporation had been obtained, a demolition notice No. 2604 dated 2-1-1976 was served on him. The plaintiff challenged the notice by filing Civil Suit No. 22 of 1976 before the Court of the Fourth Joint Civil Judge, Junior Division Pune, and prayed for a perpetual injunction against the defendants restraining them from proceeding with the contemplated action. Among other things, the plaintiff contended that the structure had been put up in the year 1948, prior to the coming into operation of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the B.P.M.C. Act") and that, consequently, the notice in question was liable to be quashed. It was the case of the Corporation that the suit was not maintainable, in the first instance, as a statutory notice under Section 487 of the B.P.M.C. Act was necessary which had not been served, but, more importantly, that the action of demolition was fully justified in so far as the requisite permission had not been obtained from the Corporation before erecting the structure in question. The learned trial Judge dismissed the suit against which the plaintiff filed Civil Appeal No. 570 of 1978. The Appeal Court, by its judgment and order dated 16-1-1981, allowed the appeal, inter alia, holding that it was impermissible for the Corporation to straightway resort to the provisions of Section 478 of the B.P.M.C. Act, without having served a show cause notice as required under Section 260 of the B.P.M.C. Act without having held the requisite enquiry before coming to the conclusion that the structure requires demolition. Having regard to the long-term consequences of this interpretation of the law, the Pune Municipal Corporation has preferred the present Second Appeal. Undoubtedly, this is an appeal of the year 1982 and the same has taken a long time to come up for final hearing. The respondent has been duly served, but he is unrepresented. Regardless of that fact, Shri Ketkar, learned Counsel appearing on behalf of the Pune Municipal Corporation has taken me through the record and has not kept anything back from the Court. He went even to the extent of pointing out every argument that was advanced on behalf of the present respondent, who was the original plaintiff before the trial Court, not only in the pleadings but also in the course of the legal submissions.
3. The first point canvassed by Shri Ketkar is that this Court would have to examine the question as to whether the structure, namely, the fencing or partition that had been put up by the plaintiff comes within the legal definition of the term "building". Sub-section (5) of Section 2 of Ihe B.P.M.C. Act defines "building" and the same reads as follows:--
"(5) 'building' includes a house, out-house, stable, shed, hut and other enclosure or structure whether of masonry, bricks, wood, mud, metal or any other material whatever, whether used as a human dwelling or otherwise, and also includes verandah fixed platforms, plinths, doorsteps, wails including compound walls and fencing and the like;"
It is evident from the definition that even an enclosure made of wood, metal, etc., which forms a compound wall or fencing, would still come within the definition of the term "building". There is no dispute, therefore, that the trial Court was right in holding that the notice served on the respondent was competent. I need to record here that both the Courts below have conclusively held that the structure in question was of recent origin and, furthermore, that no permission was asked for nor was it granted nor did it deem to have been granted and, consequently, that the erection of the same was unauthorised. It is on the short technical aspect that the Appeal Court has allowed the plaintiff's appeal by holding that the procedure prescribed under Section 260 of the B.P.M.C. Act was necessary before ordering demolition or, in other words, that it was a condition precedent. It is this aspect of the law that is contested in the present Second Appeal.
4. Shri Ketkar, learned Counsel representing the Corporation, has drawn my attention to the provisions of Sections 253 and 254 of the B.P.M.C. Act, which make it mandatory for any citizen who desires to either erect a new building or to carry out repairs or modifications to an existing structure to apply for requisite permission from the Municipal Commissioner. No such activity is permissible in the absence of the permission. Such permission may be granted subject to condition in keeping with the requisite rules and regulations. It may be rejected or in certain situations it may be deemed to have been granted. In sum and substance, what is necessary is that the starting point of the entire operation must emanate from an application supported by the requisite plans, documents etc. Shri Ketkar pointed out to me that in those cases where a party proceeds without permission or in defiance of a refusal order or, more importantly, where the action is beyond the permission granted such as the familiar situation where an application is made for constructing a building and the actual structure goes well beyond the original sanction plan or where an application is made for repairs and the structure is effectively rebuilt and modified into a new building. Shri Ketkar pointed out, therefore, that when such a situation comes to the notice of the Corporation, there exists a disputed set of facts namely, the question as to whether the party has confined to the fourcorners of the permission granted or, where the deemed permission is pleaded, that, in fact, this position is right in law or whether the charge of the Corporation that the structure offends either the rules and regulations governing the building constructure or whether it exists or is variant from the sanctioned plan and in such a situation the law contemplated a notice under Section 260 of the B.P.M.C. Act. When such a show cause notice is issued, it is open to the party to point out that the action is within the fourcorners of the law and that, consequently, no further steps are warranted. One cannot rule out a situation where such a notice may be motivated, arbitrary, groundless or misconceived and the law, therefore, affords the citizen an opportunity of contesting the matter on merits. Shri Ketkar isjustified in his grievance that experience has shown that the show cause notice is treated virtually as the starting point of a litigation, that all sorts of pleas are taken up, the proceeding is dragged on and, in the meanwhile, the unauthorised structure continues to remain in existence. The same is the fate with a legal challenge whereby on some technicalities existent or imaginary, injunction orders are obtained and kept in operation indefinitely. The show cause notice contemplated under Section 260 of the B.M.P.C. Act, even if required by law, unfortunately frustrates the very objective of the very provisions which have been laid down in order to curb, stop and, if necessary, demolish unauthorised structures and those which are beyond the scope of legal provision. If the law is to be put into proper effect, the Corporation will also have to ensure that they dispose of the proceedings pursuant to the issuance of such a show cause notice immediately and correctly, but, more importantly, that the proceedings that go before the Courts are defended efficiently and honestly and on a time-bound basis. It is all very well to complain and to blame without taking stock of the fact that most of the time the fault lies wit h the representatives of the Corporation and those who are handling proceedings on their behalf.
5. Having pointed out the ambit and scope of Sections 253 to 260 of the B.P.M.C. Act, Shri Ketkar thereafter analysed the provisions of Section 478 of the B.P.M.C. Act. He pointed out to me that this section incorporates a deeming provision whereby the Municipal Commissioner, who is the highest officer of the Corporation, is empowered to pass an order directing the demolition of an unauthorised structure. It is virtually a summary power, but is a very necessary one because one is aware of the speed with which such structures are sought to be put up and it is, therefore, essential in the law to provide an equally speedy counter-remedy for their removal. If the cancerous growth of such structures is to be curtailed, this power is not only necessary but will have to be effectively used to frustrate that activity. S. 478 of the B.P.M.C. Act does not contemplate the procedure of serving any show cause notice but that has been done away with for good reasons. The section provides for an order to be passed straightway in those of the cases where no permission whatsoever has been obtained. Undoubtedly, it is true that on the passing of such an order, it is open to the party to point out that such permission has, in fact, been obtained, like for instance the situation whereby permission has been deemed to have been granted or a situation whereby the Municipal Authorities are in error. Barring these two situations, it is open to the Commissioner to pass an order for the demolition.
6. The short question that arises is as to whether the powers under S. 260 and S. 478 of the B.P.M.C. Act are in conflict with each other. I do not find any such difficulty arising. The procedure prescribed under S. 260 of the B.P.M.C. Act presupposes a situation whereby an application has been made and the application has either been rejected or where the permission granted has been exceeded or, lastly, a situation whereby deemed permission is pleaded, but is not justified. The basic distinction between these two sections is that a show cause notice will be required for purposes of ascertaining whether the aforesaid circumstance is warranted or not because the record of the Corporation will indicate that some application was, in fact, made and that there was, therefore, some basis for the situation that has come up.
7. Section 478 of the B.P.M.C. Act contemplates an entirely different set of cases whereby the records of the Corporation indicate that no application whatsoever was ever made and, consequently, that it was neither rejected nor granted nor was there any deemed permission. This is the basic distinction between the two sets of cases. In the latter category of cases, S. 478 of the B.P.M.C. Act provides that the structure shall be deemed to be unauthorised and under these circumstances there is no justification for its continuing in existence. The Municipal Commissioner, therefore, in all cases where he finds that there is no obligation would have been justified in invoking the provisions of Section 478 of the B.P.M.C. Act and ordering the demolition. There is no question in such a situation of issuing show cause notice nor does the law require it.
8. The appellate Court unfortunately failed to draw the distinction between the two sets of cases and was, therefore, in error in having held that the present case was one covered by Section 260 of the B.P.M.C. Act. In this view of the matter, the learned appellate Judge was in error in having allowed the appeal, more so when both the Courts have come to the conclusion that the structure in question was unauthorised.
9. Shri Ketkar has relied on a decision of the Supreme Court in the case of Municipal Corpn. Ahmedabad v. Ben Hiraen, . That case, however, is not directly in point, though it contemplates notice under Section 478 of the B.P.M.C. Act, but the question arose as to on whom the notice is required to be served. The controversy in the present case is entirely different and the decision will not apply. Shri Ketkar, however, relied on another decision of the Supreme Court in the case of State of Bombay v. Pandurang, . The Supreme Court had occasion to observe as follows (at p. 246) :--
"When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purpose and between what person the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion."
The principle enunciated by the Supreme Court in this case would apply squarely to the present proceedings. Where there is a deeming provision, it is essential that due and proper effect be given to that provision be cause in the present context in the absence of any permission, the deeming provision immediately reduces the character of the structure in question to that of unauthorised one.
That would justify an immediate order for demolition and it would not at all be necessary, if any prior permission by way of an application had not been made, for the Corporation to take any further steps by way of a notice in the matter.
10. The appeal accordingly succeeds. The appellate order is set aside and the decision of the trial Court dismissing the suit is confirmed. In the circumstances of the case, there shall be no order as to costs.
11. Appeal allowed.
Print Page
No comments:
Post a Comment