Gujarat High Court
Empire Construction And Hotel Co. Ltd. vs Municipal Corporation Of The City Of ... on 28 June, 1995
Equivalent citations: (1995)2GLR1293
JUDGMENT R.K. Abichandani, J.
1. The petitioner Company seeks to challenge the order dated 19-6-1995 at "Annexure A" to this petition passed by the Respondent No. 2, Municipal Commissioner of Ahmedabad by which unauthorised construction made as shown in the notice under Section 260(1) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as the "said Act") was directed to be removed and prays for restraining the respondents from implementing or enforcing the impugned order.
2. The petitioner constructed a residential hotel known as "Shalin Hotel" in the city in the year 1991. The petitioner was given revised plan sanction on 20-4-1991 for the hotel building. As per the plan which was put up for the building there was a proposed construction of cellar of about 1300 sq. metres for making provision for parking 19 cars, 108 scooters and 122 cycles in the cellar. The petitioner had thus got the entire cellar sanctioned for parking purpose only. Over and above this, there was also provision for parking 2 cars and 94 cycles at the ground level of the premises. Building user permission under Section 263 of the said Act was granted to the petitioner on 9-9-1991. Thereafter, a show cause notice was given on 29-11-1991 to the petitioner under Section 260(1) of the said Act requiring the petitioner to show cause why the alleged construction in the cellar space converting it into a non-parking use, should not be removed. On 27-12-1991 the petitioner was asked to remove the unauthorised construction by an order made under Section 260(2) of the said Act. Thereupon, Civil Suit No. 762 of 1992 was filed by the petitioner in which an interim order against removal was granted. Later, in February 1995 as the petitioner had removed the construction which was objected to, the Corporation filed a note in the Civil Court pointing out that the Corporation had cancelled the notice as the petitioner had removed the construction in respect of which notice was issued, without prejudice to the right of the Corporation to issue fresh notice in respect of the new construction made at the said place. As the notices and order under Section 260(1) and 260(2) of the said Act were withdrawn, the petitioner withdrew the said suit.
3. Thereafter, a fresh notice under Section 260(1) of the said Act was given to the petitioner on 30-4-1995 for showing cause as to why the construction made by the petitioner in the cellar should not be removed. A reply was given by the petitioner on 23-5-1995 to the said notice. The petitioner was given an opportunity for personal hearing on 8-6-1995. As no one turned up at the hearing, the Deputy Estate Officer made an order under Section 260(2) on 9-6-1995 requiring the petitioner to remove the unauthorised construction within 3 days failing which action would be taken by the Corporation under the said provision. Against the said order the petitioner again approached the Civil Court by filing Civil Suit No. 3091 of 1995 raising a contention that in similar cases deficit parking was condoned by charging fees. Interim relief was granted against demolition by the City Civil Court on 10-6-1995. Against that Order an Appeal from Order No. 277 of 1995 was preferred by the Municipal Corporation before the High Court. It appears that during the hearing of that Appeal from Order and Civil Application No. 2345 of 1995 made therein a direction was given on 16-6-1995 for giving an opportunity of being heard personally to the petitioner's Managing Director on 17-6-1995 and, accordingly, the hearing was given by the Municipal Commissioner to the Chairman and the Managing Director of the petitioner. The contentions which were raised by the petitioner are dealt with by the Municipal Commissioner in the impugned order which was made on 19-6-1995 and for the reasons mentioned in that order the Municipal Commissioner directed the removal of the unauthorised construction for which notice dated 30-4-1995 was issued under Section 260(1) of the said Act. Request for regularising the construction done in the parking space was turned down by the Municipal Commissioner. In Appeal from Order No. 277 of 1995 this fact was placed on record. The petitioner had indicated that it would withdraw the Civil Suit and pursue the remedy of filing a fresh suit or a writ petition, as may be advised against the order dated 19-6-1995. Appeal from Order No. 277 of 1995 was, therefore, disposed of without entering into the merits of the case and without prejudice to the rights and contentions of either party. The implementation of the order dated 19-6-1995 was directed to be deferred till 26-6-1995. The respondent Corporation and the Municipal Commissioner appeared by caveat and have filed their affidavit-in-reply.
4. The learned Counsel appearing for the petitioner strongly contended that the petitioner was treated unequally by being made a target for proceedings under Section 260(1) and 260(2) of the said Act, while no action was taken against other similar buildings in which cellars meant for parking were openly put to other use. It was contended that the plea of the respondents that action was being taken in a phased manner was "hypocritic, lacking in bona fides and rationality". It was argued that the power under Section 260 was discretionary and the Municipal Commissioner was under no obligation to demolish the unauthorised construction. It was further contended that the right of the petitioner to equality guaranteed by Article 14 of the Constitution of India stood on a higher pedestal than the implementation of the provisions of Section 260(1) and 260(2) of the said Act. Therefore, when no action was being taken under Section 260 of the said Act against others, taking of action against the petitioner under the said provisions was violative of fundamental right guaranteed by Article 14 of the Constitution. It was contended that in the guise of undertaking action under Section 260(1) of the said Act in a phased manner the respondent authorities cannot practise discrimination against the petitioner. It was further contended that a "Khatri" deposit of Rs. 3,67,000/- was taken by the Municipal Corporation in 1990-91 at the time of granting building use permission and the requirement of such deposit and its forfeiture in the event of change of use would show that there cannot be any proceedings initiated under Section 260(1) of the said Act for the very change of use for which the deposit is proposed to be forfeited. It was also argued that mere putting up of partition walls in the cellar did not require any permission and cannot be said to be impermissible use of the cellar. The learned Counsel further contended that the appointment of a Commissioner by the Court and production of files by the respondent Corporation would clearly show that no action was being taken against many such high-rise buildings where cellars earmarked for parking purpose were converted into other uses. It was finally contended that 3 days' time given in the notice for removal of the unauthorised construction was unreasonable and there was no urgency for such a short time to be given in view of the respondent authorities' own inaction in other similar cases.
5. There is no dispute about the fact that when the plans were sanctioned and permission to occupy the building was granted, the cellar portion was earmarked for parking purpose. There is also no dispute about the fact that partition walls were put up in the said cellar as shown in the show cause notice dated 30-4-1995. Under Section 260(1) of the said Act, the Municipal Commissioner is empowered to issue notice in cases where work is carried out contrary to the provisions of Rules or Bye-laws, to show sufficient cause why such building or work shall not be removed, altered or pulled down. The Municipal Commissioner is also expected to give personal hearing as provided under Section 260(l)(b) of the said Act. If sufficient cause is not shown, an order can be made by the Commissioner under Section 260(2) of the said Act. The Commissioner may in that event proceed to remove, alter or pull down the unauthorised construction.
6. The respondent has its own building Bye-laws, which were referred to by both the sides. There are also Regulations controlling the development of the area under the Town Planning Scheme, to which reference was made. The conditions on which cellars may be permitted in a building unit are contained in paragraph III (11) titled "Cellar" in the building Bye-laws which provides for height, number of stairs, ventilation etc. and prohibits any water connection or drainage connection, domestic uses such as bed room, living room, kitchen etc., and storage of inflammable materials therein. As regards parking, it is provided in paragraph III (6) of the said Act that off street parking space for vehicles shall be provided on every new building constructed for the uses mentioned in the table as prescribed. Accordignly, parking space is to be provided for in respect of cars, scooters and cycles. For residential hotels, minimum off street parking is prescribed at item No. 4 of the table. There is a provision in the Regulations controlling development of the area (published in Manual I, Part II, Chapter III) in Regulation 22 providing that a basement or cellar shall not be counted towards the computation of floor space index. These Regulations also contain conditions on which cellar may be permitted in a building unit and they are the same as the conditions contained in paragraph III (11) of the building Bye-laws. The Standing Committee is given very limited powers of granting exemption from the operation of the Bye-laws as provided in Chapter VII of the Bye-laws and this does not include exemption from the provisions regarding parking and cellars as is sought to be claimed by the petitioner. As regards parking, as provided in Chapter HI (6) the Municipal Commissioner can grant exemption if the conditions laid down in Clause (iv) of paragraph III (6) are fulfilled and this does not include the type of buildings for which the petitioner has been proceeded against.
7. The above provisions from the Bye-laws and Regulations of the respondent Corporation made it necessary for the petitioner to provide for parking space in the plan of the building and which admittedly was shown in the cellar of the building as noted above. It is clear while putting up the partition walls in the said cellar, the space intended for parking purpose was converted by such construction into other use to which the said area is now being put to by the petitioner. Provisions of Section 254(1)(d)(ii) of the said Act require that every person who shall intend to make alteration in a building involving conversion of any passage or space in the building into a room or rooms shall give notice to the Commissioner, in the form prescribed in the Bye-laws, containing the information required to be furnished under the Bye-laws. Therefore, if the conversion of any space such as parking space is made into a room or rooms by erecting partition walls contrary to the provisions of the Rules or Bye-laws, provisions of Section 260 would be attracted and proceedings can be taken by the Municipal Commissioner in respect of such conversion of parking space into rooms. Therefore, the Municipal Commissioner was authorised to take proceedings against the petitioner under Section 260 of the said Act and the impugned order falls within the powers conferred on the Municipal Commissioner under the said Act. The expression "Commissioner may remove" appearing in Section 260(2) of the said Act does not authorise the Commissioner not to take action in cases where no sufficient cause is shown and the contravention of provisions of the Rules or Bye-laws is established. In other words, it would not be open for the Commissioner to arbitrarily decide as to against whom action should be taken and against whom it should not be taken. The discretion, if any, under Sub-section (2) of Section 260 cannot be arbitrarily exercised and the Commissioner is required to function keeping in view the purpose underlying the said provision, namely, removal of building or work which is found to be in contravention of the Rules or Bye-laws. From inaction, if any, in cases similar to that of the petitioner's building, it cannot be inferred that the Municipal Commissioner has taken any decision not to proceed against other similar breaches of Rules or Bye-laws.
8. Much emphasis was laid on the fact that there was failure on the part of the Municipal Commissioner to take action against other similarly situated persons. Failure to perform a statutory duty against some cannot create a right in anyone of not being proceeded against in exercise of such statutory duty. Inaction in the exercise of statutory powers cannot create an estoppel against their exercise. The continued operation of statutory provisions cannot be made to cease because in the past the repositories of power have chosen for one reason or the other not to exercise it. If this is not so, indolent or conniving officers will arrest the functioning of those who would perform their duties under the law.
9. The concept of equality enshrined in Article 14 of the Constitution of India does not warrant claiming of a right against application of a valid law on the ground that it was not applied in certain cases. The Rules and Bye-laws as they stand do not create any discrimination and not enforcing the statutory provisions under Section 260 of the said Act simultaneously against all the errants cannot create any immunity in favour of anyone who has committed breach of Rules and Bye-laws and therefore, can lawfully be proceeded against under Section 260 of the said Act. The contention that the petitioner is singled out can be raised by anyone against whom the process of taking action under the law is first started, and, if accepted, would render it impossible to exercise the power statutorily conferred on the authority. Mandamus would lie against an officer or authority to enforce performance of duty and not for perpetuating inaction and non-exercise of statuory powers. For obvious reason the petitioner would not seek mandamus for taking similar action against others, for, it will remove the very foundation of inaction of the officials on which the petitioner seeks to thrive. The mandamus can be sought for directing a public authority to abstain from violating the law or for compelling it to set right its violation of the law. It would not lie to restrain the statutory authority from discharging its statutory functions. As observed in J.G. Vyas v. Vijay Housing Development reported in 1994 (1) XXXV (1) GLR 377 if the officers have, by connivance, not taken action for some time against some unauthorised construction, that would not debar the statutory authority from exercising its power. There is no decision of the Municipal Commissioner that other similar defaulters will not be proceeded against and no right accrues in favour of the petitioner of not being proceeded against for its defaults. Even if there may be some inaction in not proceeding against others for violation of the provision, Article 14 of the Constitution of India does not confer on any person a right to which he is not entitled under a valid law. To permit invoking the writ jurisdiction of the Court for allowing continuance of breach of law would be a retrograde step which cannot be justified on a spacious plea of equality based on the reasoning that if the authorities have not proceeded against some others for violation of the law, the petitioner also cannot be proceeded against. Therefore, there is no conflict in the exercise of power by the Municipal Commissioner by passing the impugned order under Section 260 of the said Act and any right to equality to which the petitioner is entitled under Article 14 of the Constitution of India.
10. Even on the factual aspect of the allegation that the Municipal Commissioner has not proceeded against other similar defaulters, it is not possible to accept such asssertion of the petitioner in view of the respondent Municipal Corporation having brought on record in the affidavit-in-reply the fact that the respondent Corporation had taken action under the said Act against Hotel Classic Gold, Hotel Midland and Ashish Building in Navrangpura locality and J.K. Plaza building in Maninagar. It is also stated on oath that these parties having failed in the legal proceedings initiated by them have to face demolition executed by the respondent Corporation. It is also stated that in the case of actions taken against Hotel Nalanda, Hotel Nest, Hotel President and Hotel Kanak since the matter is sub-judice and in view of the pending litigations before the Courts, the respondents are unable to proceed further. As regards Hotel Rock Regency in C.G. Road area, admittedly action was initiated by the respondent Corporation. It is stated that security personnel was posted at the hotel and in pursuance of an undertaking given by the owner to ensure compliance with the approved building norms, they were recalled. It is stated that the respondent Corporation has initiated and will be initiating appropriate action in such cases after proper enquiry and inspection. It is also stated that no exemption from parking has been given by the respondent Corporation in the case of Hotel West End and that in none of the hotels any exemption from parking by charging fees or otherwise has been given by the respondent Corporation.
11. It would thus appear that it is not as if the respondent Corporation has proceeded only against the petitioner and not against anyone else. As observed in J.G. Vyas's case (supra) if the owners succeed in thwarting the process of demolition by litigating against the Corporation, the fault cannot be found with the Corporation. In the case of the petitioner, the Corporation had within a few months of its plans being sanctioned initiated action in November 1991 for removing the unathorised construction which was put up in the cellar. The petitioner has been resisting the proceedings initiated by the Corporation ever since then. The petitioner cannot require the Court to embark on an inquiry into all other cases and to check up as to what action was taken by the Corporation. By diverting the attention to other areas in this manner, the petitioner cannot shield the illegality committed by it which warranted the passing of the impugned order under Section 260(2) of the said Act. If the respondent authority has committed failure of its duty in respect of some other persons it cannot be directed to repeat such failure in case of the petitioner. As held by the Supreme Court in Chandigarh Administration v. Jagjitsingh JT 1995 (1) SC 445, extraordinary and discretionary power of the High Court does not enable the High Court to compel the authority to repeat the illegality over again and again merely because it has passed one illegal or unwarranted order. It would be more appropriate and convenient to examine the entitlement of the petitioner to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of action taken in another person's case which is not before the Court. Therefore, the petitioner cannot make any legitimate complaint of discrimination on the basis of failure of duty on the part of the respondents in taking action against some other persons for similar defaults. As held in the case of Bharatkumar Manjarwala v. G.E.B. reported in 1986 (1) XXVII (1) GLR 291, Article 14 does not give right to claim equal benefits from unlawful and illegal actions. It does not guarantee equality for the wrongful benefits or extension of equal protection granted illegally. No one can claim fundamental right to be benefitted wrongly and in any unlawful manner and even if such claim is put forth the Court will not exercise its powers under Article 226 of the Constitution to extend a helping hand in favour of illegalities.
12. The Mysore High Court in T.V. Setty v. Bangalore Municipality AIR 1968 Mysore 251 has held that Article 14 of the Constitution cannot be understood as requiring the authorities to act illegally in one case because they have acted illegally in another cases. In context of the provisions of Section 169 of the said Act, the Division Bench of the Bombay High Court in Hirabhai Ashabhai v. State of Bombay reported in AIR 1955 Bom. 185 had observed that if the ultimate object of the said provision was to make every landlord or every property owner in the city of Bombay to pay for water charges by measurement, then it is not open to the petitioners to complain that today they along with a few others are affected by this exercise of power and others are not affected. The short and simple answer to this was that others will also be affected in due course, that they are not being picked out arbitrarily or capriciously, but that, they have had the misfortune of being taken up first because the Municipal Commissioner has to start somewhere.
13. Reliance was placed on behalf of the petitioner on the decision of Supreme Court in M. Poonam Manshani v. Union of India and Ors. 1992 Supp. (3) SCC 97 in which it was held that differentiation of the petitioner from other similarly placed persons was not justified as regards taking of action under Chapter XXC of the Income-Tax Act read with Rule 48 of the Rules in regard to her flat. It will be noticed from the said decision that the proceedings against those persons who had purchased flats in the same building were dropped because the apparent consideration was upto Rs. 10 lakhs. The apparent consideration in the case of the petitioner was Rs. 11,45,874/-. After hearing the parties the Supreme Court having regard to the facts and circumstances of the case found no good justification to differentiate the petitioner's case with regard to those against whom proceedings were dropped because both the petitioner and the aforesaid class of persons who had purchased flats in the same building were placed similarly and constituted one class. The ratio of this decision can in no way come to the rescue of the petitioner who claims a right not to be proceeded against under the provisions of Section 260 of the said Act for violation of the Rules and Regulations of the Corporation. The learned Counsel for the petitioner referred to an article in Indian Express, Ahmedabad Edition, on 31-5-1993 entitled "Illegal structres in the dock" to bring home the point that double standard cannot be adopted by a Municipal Corporation on illegal constructions. In that case, the High Court had directed the Corporation that it should either seal off the premises in which the commercial activity was being run without licence or none of them should be sealed pending the reappraisal of its policy. It was found that from over a hundred such premises, only the petitioner's premises had been sealed. In the present case, there is no question of sealing any premises in which business is run. Moreover, it cannot be said in the present case that no action is being taken against others by the Municipal Corporation or that the respondents are adopting double standards on illegal construction. Therefore, the said decision as reflected from the said article does not support the petitioner.
14. The contention that double action is being taken against the petitioner because "Khatri" deposit of Rs. 3,67,000/- was paid in 1991 at the time of obtaining building permission is without merit. The purpose for giving "Khatri" deposit is to ensure that construction or work would be carried out as per the plans sanctioned. It is not a payment which can be adjusted in lieu of permitting violation of Rules and Regulations. Forfeiture of such assurance deposit which was made to ensure enforcement of Rules and Regulations in constructing the building was a matter not connected with taking of action under Section 260 which is required to be taken on violation of Rules and Regulations. If what the petitioner contends is accepted then by making such deposits one can get Rules and Regulations waived, thereby making mockery of the very purpose underlying the provisions of Section 260. In short, taking of action under Section 260 of the said Act stands on altogether a different footing and cannot be linked up with "Khatri" deposit made by the petitioner. Forfeiture of such deposit will have no effect of regularising the unauthorised construction which was made by the petitioner in the cellar which was meant for parking space under the sanctioned plans. Even the argument that partition wall does not require permission cannot save the petitioner because the objection is against making construction which changes parking space into a room or rooms and as noted, above notice is required to be given to the Commissioner of such alteration in a building involving conversion of any passage or space into a room or rooms. The petitioner having carried out such conversion of the parking space into rooms by partition walls without any permission of the authority or without even sending notice thereof to the authority, clearly contravened the provisions of the Rules and Bye-laws, justifying the action under Section 260 of the said Act by the Municipal Commissioner.
15. The Municipal Commissioner has given adequate opportunity of hearing to the petitioner and has considered the contentions raised by the petitioner by a reasoned order. He has acted within lawful exercise of his powers holding that no other hotel was given any exemption from providing parking space and there was no scope for allegation of discrimination against anyone. He found that minimum parking space as contemplated in the Bye-laws and sanctioned in the building plan was an absolute must in view of the location of the hotel, its size, and number of persons visiting it and no exemption from parking or regularisation of parking was possible. He held that if at all misuse of parking space is done by others in violation of Bye-laws that would constitute no defence for committing breach in the present case. On going through the impugned order, I am satisfied that the Municipal Commissioner has exercised powers in this case validly and in accordance with law, warranting no interference with the impugned order.
16. The learned Counsel for the petitioner submitted that the impugned order gives only 3 days' time for removing the construction held to be unauthorised and such a short time did not even permit making of alternative arrangement, particularly in view of the air-conditioning plant having been installed in the cellar. The proceedings against the petitioner were initiated from November 1991 and the petitioner all along knew that the cellar was shown as parking space in the sanctioned plan. In this context, the observations of the Supreme Court in the case of Pratima Co-operative Housing Society Ltd. v. State of Maharashtra reported in AIR 1991 SC 1454 may be noted:
We are also of the view that tendency of raising unlawful constructions and unauthorised encroachment is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of Multi - storeyed buildings.... Before parting with the case we should like to observe that this case should be a pointer to all the builders that making of unauthorised constructions never pays and is against the interest of Society at large. The Rules, Regulations and Bye-laws are made by the Corporations or Development Authorities taking in view the larger public interest of the Society and it is bounden duty of the citizen to obey and follow such rules which are made for their own benefits.
17. In view of the above position, the contentions raised on behalf of the petitioner cannot be accepted and the petition deserves to be rejected. The petition is, therefore, rejected.
The learned Counsel for the petitioner submitted that the implementation of the impugned order which was stayed till today may be stayed further for a period of four weeks to enable the petitioner to approach the Appellate forum against this decision. Having regard to the facts and circumstances of the case, it would be appropriate to stay the implementation of the impugned order for two weeks from today to enable the petitioner to approach the Appellate forum against this decision, on the same terms as have been hitherto applicable for such stay.