Gujarat High Court
Killol vs Municipal on 14 November, 2008
Author: K.S.Radhakrishnan
Bench: K.S.Radhakrishnan
Gujarat High Court Case Information System
Print
SCA/7207/2008 33/ 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)
=========================================================
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) 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.
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.
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 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.
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.
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 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.
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.
On the basis of above factual aspects, Counsel appearing for the parties have made detailed submissions before us.
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 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.
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.
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.
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.
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.
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 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 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.
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.
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 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.
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,
(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 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 notice to remove any work carried out in pursuance of such permission or any portion thereof and to pay the expenses of such removal if, in default, such removal is carried out by the Commissioner.
(b) The Commissioner may before granting such permission require the owner to deposit in the municipal office an amount sufficient in his opinion to cover the cost of removal and such compensation, if any, as may be payable to any successor in title or transferee of such building.
12.11 Sub-section(1) of Section 211 of the BPMC Act reads as under:
211.
Setting back buildings to the regular line of the street.
(1)If any building or any part of a building abutting on a public street is within the regular line of the street, the Commissioner may, whenever it is proposed -
(a) to rebuild such building or to take down such building to an extent exceeding one-half thereof above the ground level, such half to be measured in cubic feet; or
(b) to remove, reconstruct or make any addition to or structural alteration in any portion of such building which is within the regular line of the street, in any order which he issues concerning the rebuilding, alteration or repair of such building, require such building to be set back tot he regular line of the street......
12.12 Section 212 of the BPMC Act provides for additional power of Commissioner to order setting back of buildings to regular line of street.
Sub-section(1) of Section 212 of the BPMC Act authorises the Commissioner to require the owner of any building or any part thereof which is within the regular line of a public street which is necessary to set back the building to the regular line of street to show cause why such building or part thereof which is within the regular line of the street should not be pulled down and the land within the said line be acquired by the Commissioner.
Sub-section (2) of Section 212 of the BPMC Act permits the Commissioner with approval of the Standing Committee to require such owner by a written notice to pull down the building or part thereon , if the owner fails to show sufficient cause to the satisfaction of the Commissioner.
Sub-sections(3) and (4) of Section 212 of the BPMC Act permit the Commissioner to pull down such building or part thereof, if the owner fails to do so and take possession of the part of the land within the line so occupied by the said building.
12.13 Section 213 of the BPMC Act empowers the Commissioner after giving the owner notice of not less than seven days to take possession of any open land which is not occupied by a building or a platform, verandah, step, compound wall, hedge or fence or some other structure external to a building which is within the regular line of a public street.
12.14 Section 216 of the BPMC Act provides for compensation to be paid and betterment charges to be levied.
Sub-section(1) of Section 216 provides inter-alia that compensation shall be paid by the Commissioner to the owner of a building or land required for a public street under Sections 211, 212, 213 or 214 for any loss which such owner may sustain in consequence of his building or land being so acquired and for any expense incurred by such owner in consequence of the order made by the Commissioner.
From the above statutory provisions it may be seen that all public streets except those which vest in the Government or other authorities, vest in the Corporation and such public streets are levelled, paved and maintained by the Corporation from public funds.
13.1 Clause(a) of Sub-section(1) of Section 210 empowers the Commissioner to prescribe a line on one or both sides of any public street referred to as regular line of a public street. Until such prescription every regular line of a public street operative on the day immediately preceding the appointed day is deemed to be a street line. Clause(b) of Sub-section(1) of Section 210 authorises the Commissioner subject to previous approval of the Standing Committee to prescribe a fresh line in substitution of any line so prescribed or for any part thereof. Proviso to said clause(b) requires issuance of advertisement in the local newspaper and special notice and consideration of all objections to the proposal by the Standing Committee.
13.2 Under Sections 211, 212, 213 and 214 of the BPMC Act, the Commissioner has power to take the possession of the land which falls within the regular line of the street after removing any structure existing thereon. Section 216 of the BPMC Act provides for payment of compensation by the Commissioner to the owner of any building or land required for a public street under Section 211, 212, 213 or 214 for any loss which may be sustained in consequence of his building or land being so acquired.
13.3 From the provisions contained in Section 210(1) it is clear that Clause(a) of Sub-section(1) applies when the Commissioner is for the first time prescribing a line of a public street whereas when such line having already been prescribed by the Commissioner earlier under clause(a) of Sub-section(1) is being substituted by a fresh line, the Commissioner has to resort to the procedure prescribed in clause(b) of Sub-section(1) of Section 210. This has also been held in case of Premjibhai D. Karane alias Babubhai v. Ahmedabad Municipal Corporation(supra).
The said decision has been upheld by the Division Bench of this Court in Letters Patent Appeal No. 799/1996. Similar observations have also been made by Learned Single Judge of this Court in case of 2002( 1) GLR 633.
When the Commissioner for the first time in exercise of power under clause(a) of Sub-section(1) of Section 210 prescribes a street line, it may also happen that the line so prescribed be different from one already existing and deemed to be street line for the purpose of the Act. Such prescription of the street line may also result into widening the existing street. There is nothing in the provisions contained in Section 210 to suggest otherwise. In such an eventuality, it is possible that the owners of immovable properties on either side of the street may lose part of their land with or without building thereon. In such a case, the Commissioner after following procedure laid down in Sections 211, 212 or 213 as the case may be, would be authorised to take possession of such land to the extent the same is within the regular line of public street. In such a case, owner of land with or without building would have to be compensated for the loss he may suffer on account of his building or land being acquired. Such compensation is provided under Section 216 of the BPMC Act. It is true that Sub-section(1) of Section 209 while authorising the Commissioner to acquire any land for the purpose of opening, widening, extending, diverting or otherwise improving any public street makes it subject to provisions of Sections 77, 78 and 79 of the Act. To our mind, however, when the Commissioner while prescribing a line of a public street requires any private land with or without building thereon by virtue of street widening on account of such prescription may acquire such land by exercising powers under Sections 211, 212 or 213 as the case may be for which specific provision for payment of compensation is made in Section 216 of the BPMC Act. Incidentally, in a given case, if such acquisition is also authorised under Sub-section(1) of Section 209, it may be open for the Commissioner to resort to acquisition of land as provided under Sections 77 and 78 of the Act. However, this in no manner limits powers of the Commissioner to take possession of the required land falling within the regular line of the street after following procedure under Sections 211 to 213 and subject to payment of compensation as provided under Section 216 of the BPMC Act. It is significant to note that in case of Girdharpark Co-op. Housing Society Limited versus Surat Municipal Corporation(supra), the Commissioner had exercised powers for laying down of new public street under Section 205 of the BPMC Act . It was not a case where the Commissioner was exercising powers under Section 210(1)(a) of the BPMC Act, prescribing the street line for the first time. Observations made by Learned Single Judge in case of Girdharpark Co-op. Housing Society Limited (supra), therefore, would not apply in the present case.
As noted, heavy reliance was placed on the decision of Girdharlal Ganpatram (supra) to contend that the Commissioner could not have prescribed line of the street under Section 210(1)(a) for part of the street. Such prescription had to be for the entire length of the street.
From the affidavit filed by the Corporation, we have noticed that by notification dated 10.5.2007, the Commissioner prescribed regular line of the street for the road leading from Hotel Inder Residency, near Madalpur Garnala to Ambawadi circle, and thereafter, issued another notification prescribing regular line of the street on the other side of Madalpur Railway underpass. This was so done considering the time consumption in getting necessary permission from the Railway authorities. We do not find that action of the Commissioner of separately prescribing the road line offends the provisions of Section 210(1)(a) or is opposed to the ratio laid down by the Division Bench in case of Girdharlal Ganpatram (supra). In the said decision, Division Bench of this Court observed that there is nothing in the language of the substantive part of clause(a) to authorise or permit the Commissioner to prescribe the regular line of the street in parts or sections for this regular line can only be for the whole street.
Neither Section 2(63) defining term street nor Section 2(52) defining term public street throw any light on what are the terminal points of a street. In facts of the present case, when the Commissioner considering the possibility of delay in obtaining permission of the Railway Authority, prescribed regular line of the street between Hotel Inder Residency (Madalpur Underpass) to Ambawadi circle and thereafter, prescribed regular line for the street between Madalpur underpass and Town-hall, we do not find that the Commissioner was prescribing regular line of street in parts. The Corporation in its wisdom and requirements treated roads between Ambawadi circle and Madalpur Railway underpass; and between Madalpur Railway underpass and town hall as two separate roads. There was a clear terminal point of Madalpur Railway underpass dividing the two roads. There is no material on record to suggest that the road between Hotel Inder Residency(Madalpur Railway underpass) and Ambawadi could not be treated as a separate public street. It is an administrative decision best left to the administrator and cannot be upset unless shown to be wholly arbitrary or mala fide.
As noted earlier one of the contentions of the petitioners was that the Town Planning Scheme having been finalized and existing road of 60 ft. width having been provided under the Town Planning Scheme, its widening can be done only through variation in the Town Planning Scheme. We are afraid such a contention cannot be accepted. Under the BPMC Act and in particular Section 210 thereof, the Commissioner while prescribing a regular line of the street or substituting an existing street line has the power to effect road widening of-course after following the procedure prescribed. Variation in Town Planning scheme can be one of the modes of road widening, but not the only mode in which existing road can be widened. By prescribing a regular line of the street which results in widening the existing road under Section 210 of the BPMC Act, the Corporation is in no way varying the Town Planning scheme.
This brings us to the question of Constitutional validity of Section 210(1)(a) of the BPMC Act.
Clause(a) of Sub-section(1) of Section 210 as already noticed empowers the Commissioner to prescribe the line on one or both sides of any public street and until such line is so prescribed, regular line of a public street operative on the appointed day is deemed to be a street line for the purpose of the BPMC Act.
On the other hand, clause(b) of Sub-Clause(1) of Section 210 empowers the Commissioner to prescribe fresh line in substitution of any line already prescribed. However, such prescription can be only with the previous approval of the Standing Committee which in turn has to consider objections and suggestions to such a proposal.
Following important features of Section 210(1) therefore emerge :
Under Clause(a) till the Commissioner prescribes a line on one or both sides of any public street, every regular line of a public street on the appointed day is deemed to be a street line for the purpose of the BPMC Act.
Under Clause(a),the Commissioner while prescribing a line of public street for the first time may do so without seeking approval of the Standing Committee.
However, once such a line has been prescribed by the Commissioner in exercise of power under clause(a), any change in the form of a substation of the prescribed line of the street can be made only with the previous approval of the Standing Committee and before granting such approval, objections have to be invited and Standing Committee has to consider objections received in writing.
Clause(a) and (b) of Sub-section(1) of Section 210 thus operate in different fields.
Clause(a) pertains to the powers of Commissioner to prescribe a street line for the first time after coming into force of the BPMC Act. Once such description is made by the Commissioner any substitution thereof must be with the previous approval of he Standing Committee which in turn is required to call for and consider the objections from the members of the public.
It is well settled that Article 14 prohibits class legislation but not reasonable classification. Such classification however, must satisfy the twin test of distinguishing persons or things grouped together from those left out of the group and that such differentia must bear just and rational relation to the object sought to be achieved.
Since we find that clauses(a) and (b) of Sub-section(1) of Section 210 operate in entirely different fields, no parity can be claimed by the petitioners. The procedure required to be followed in clause(b) cannot be imported while the Commissioner is exercising power under clause(a) of Section 210 nor can clause(a) fail the test of Constitutionality being opposed to Article 14 of the Constitution on this count. To our mind powers under Clause(a) Sub-section(1) of Section 210 of the BPMC Act are predominantly meant for regularizing the street line existing on the appointed day and in a given case to straighten the street line which may he irregular or curved. It is perhaps because of this that Legislature while entrusting such powers with the highest Executive Officer of the Corporation did not insist on requirement of previous approval of the Standing Committee. However, once such a street line is prescribed, any change in such a street line can be made only by following procedure prescribed in clause(b) of Sub-section(1) of Section 210 which requires previous approval of the Standing Committee and considering the objections received to such a proposal. While considering the vires of the provisions challenged before us, we cannot lose sight of the consistent judicial trend that there is a strong presumption of Constitutionality of a statutory provision and burden heavily lies on one who asserts that such a provision is ultra vires. In case of The State of Jammu & Kashmir v. Triloki Nath Khosa and others reported in AIR 1974 SC 1, the Apex Court observed that unless the classification is unjust on the face of it, the burden is on the petitioners to set out facts necessary to sustain the plea of discrimination and to adduce cogent and convincing evidence to prove those facts, for there is a presumption that every factor which is relevant or material has been taken into account in formulating the classification. Thus, it is not burden on the State to justify the classification or to establish its constitutionality. In order to establish that the protection of the equal opportunity clause has been denied to them, it is not enough for the petitioners to say that they have been treated differently from others. Discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis. It was therefore, incumbent on the petitioners to plead and show that the classification is unreasonable and bears no rational nexus with its purported object. It was further observed that judicial scrutiny can therefore, extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It cannot extend to embarking upon a nice or mathematical evaluation of the basis of classification, for were such an inquiry permissible it would be open to the Courts to substitute their own judgement for that of the legislature or the rule making authority on the need to classify or the desirability of achieving a particular object.
We are also unable to uphold that Section 210(1)(a) of the BPMC Act vests arbitrary powers on the Commissioner. Powers under clause(a) of Sub-section(1) of Section 210 of the BPMC Act is for prescription of street lines referred to as a regular line of street. Such powers are vested in the highest executive authority of the Corporation and are required to be exercised bona fide in public interest. With rapid pace of urbanization, ever expanding cities and unprecedented increase in the vehicular traffic, it is necessary that Corporation would have adequate powers for maintaining the public streets and for affecting road widening, when necessary, to de-congest the streets which experience heavy vehicular traffic. Predominantly, power under Section 210(1)(a) is meant for prescribing regular line of the street and incidental road widening is a fall out in a given case. In the case of Municipal Corporation of the City of Ahmedabad v. State of Gujarat, AIR 1972 SC 1730 (supra), the Apex Court observed that with the enormous increase in traffic in the more congested parts of growing city, Municipal Authorities are constantly under pressure to widen the streets and one of the several methods prescribed in Chapter XIV is contained in section
212.
One thing however, cannot be lost sight of namely that under clause(a) of Sub-section(1) of Section 210 of the BPMC Act, it is also open for the Commissioner to provide for a street line in such a manner that the existing width of the street gets extended. In such a case citizens are liable to lose their immovable properties namely land with or without construction standing thereon. Once the Commissioner prescribes such a line under clause(a) of Sub-section(1) of Section 210 of the BPMC Act, adverse consequence thereof to the affected land owner or occupier would follow. Once such a street line is prescribed by the Commissioner, the person adversely affected would have no right whatsoever to question such prescription. Provisions contained in subsequent sections namely Sections 211 to 216 only pertain to eviction of the owner or occupant and removal of construction of such land falling within the extended street line and for payment of compensation for damage suffered. No right however, is available to a citizen to oppose the prescription of street line. For example under Section 211 or 213,the owner or occupant of the land/building would only have a right to oppose eviction. His right however, would be limited to pointing out that despite the prescription of the street line by the Commissioner under clause(a) of Sub-section(1) of Section 210, his land or building covered under the eviction notice is not liable to be acquired since it does not fall within such street line or some such similar reason. It is entirely different from suggesting that property owner can oppose such prescription of a street line. Under Section 216 of the BPMC Act, the owner may have some say in computation of the compensation payable, but not to oppose acquisition of his property.
It can thus be seen that outside of Clause(a) of Sub-section(1) of Section 210, persons likely to be affected by prescription of street line by the Commissioner have no right of hearing. In case of Lala Shri Bhagwan and another v. Ram Chand and another reported in AIR 1965 Supreme Court 1767, the Apex Court observed that power to determine the questions affecting the rights of citizens would impose the limitation that power should be exercised in conformity with the principles of natural justice. In case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others reported in 1991 Supp (1) Supreme Court Cases 600, the Apex Court observed that it is now well settled that 'audi alteram partem' rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule.
It goes without saying that a citizen who is being deprived of his valuable right to property which though may not be fundamental right continuous to be a Constitutional right and which, is by now recognized as a human right has at-least the minimum right of hearing before such a result is brought about. In a given case, he may be able to point out to the authority that proposed prescription of the street line is either arbitrary or unjust or wholly mala fide. Depriving the citizen of his right to property without even the minimum right of hearing cannot be countenanced. In case of P.T. Munichikkanna Reddy and others v. Revamma and others reported in (2007) 6 Supreme Court Cases 59, the Apex Court observed that the right of property is now considered to be not only a Constitutional or statutory right but also a human right. Similar observations were also made in case of Lachhman Dass v. Jagar Ram and others reported in (2007) 10 Supreme Court Cases 448.
It is by now sell settled that without affording opportunity of being heard, no order adverse to a person can be passed. Principles of natural justice require that before taking action against the citizen, he must have a right to be heard. Such requirement of principles of natural justice can be abridged or even totally shut out. However, same can be done only by specific statutory provisions or by necessary implications. In other words, when the statute is silent, principles of natural justice can be read into it and unless a statutory provision specifically or by necessary implications dispenses with the principles of natural justice, hearing must be given before passing any adverse orders. In case of State Govt. Houseless Harijan Employees' Association v. State of Karnataka and others reported in (2001) 1 Supreme Court Cases 610, the Apex Court observed that the requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication.
Nothing in Clause(a) of Sub-section(1) of section 210 would suggest that such a requirement of hearing was meant to be shut out or even curtailed by the legislation. By very nature of power that the Commissioner exercises under the said clause, requirement of natural justice are inherent and therefore, must be read into clause(a) of Sub-section(1) of Section 210 of the BPMC Act.
We therefore, find that though clause(a) of Sub-section(1) of Section 210 of the BPMC Act is not Constitutionally invalid, principles of natural justice are inbuilt and inherent in the said provision and before the Commissioner can prescribe a street line which is likely to adversely affect any citizen i.e. land owner or occupier with or without building thereon, the Commissioner must give a fair hearing to such persons.
In the present case, we find that Commissioner prescribed the street line which resulted into road widening without following principles of natural justice, without inviting and considering the objections of persons likely to be adversely affected by such road widening. The action of the Commissioner therefore, is not in consonance with the provisions contained in clause(a) of Sub-section(1) of Section 210 as interpreted by us here-in-above. The principles of natural justice and requirement of hearing however, can be waived by a citizen and those who have raised no objections to the prescription of the street line, shall be deemed to have waived such a right. The final directions therefore, shall confine to the present petitioners alone and not to any other persons.
We cannot uphold the contention of the Counsel for the Corporation that since the street line prescribed by the Commissioner coincides with the proposed road under the Development Plan and before making such a proposal, objections from the members of the public were invited and considered, there should be no requirement of fresh hearing. The Town Planning Act operates in a different field. The Development Plan as envisaged in the Town Planning Act may envisage certain development road. However, before such a road can be laid down, a procedure is prescribed under the Town Planning Act. When the Commissioner is relying on powers under clause(a) of Sub-section(1) of Section 210 of the BPMC Act for prescribing line of the street and is seeking to take possession of the required land in terms of provisions contained in Sections 211 to 214 of the BPMC Act, he cannot fall back on Development Plan proposal for road widening. Notably, the compensation which the Commissioner proposes to pay to the land losers is also required to be worked out under Section 216 of the BPMC Act and not under the Town Planning Act which would require the entire gamut of acquiring the land under the Land Acquisition Act after payment of compensation to the affected persons. Opportunity of hearing granted to the citizen while preparing Development Plan therefore, cannot be imported for the purpose of satisfying the requirement of hearing before prescribing regular line of street under clause(a) of Sub-section(1) of Section 210 of the BPMC Act.
The petitions are therefore, disposed of with following directions :
In the conclusion we hold that clause(a) of Sub-section(1) of Section 210 of the BPMC Act is Constitutionally valid.
Requirement of hearing is however inherent and inbuilt in clause(a) of Sub-section(1) of Section 210 of the BPMC Act and if the proposed prescription of a regular line of street results into widening of the existing street or is in any manner likely to adversely affect any owner or occupier of land with or without construction thereon on either side of the street, it would be necessary for the Commissioner to issue either public or special notice calling upon such persons to raise objections and suggestions to such proposal and to dispose of such objections and suggestions before prescribing a regular line of the street as envisaged in clause(a) of Sub-section(1) of Section 210 of the BPMC Act.
In the present case, the prescription of the street line by the Commissioner was without following above procedure and therefore, illegal. The same qua the petitioners is hereby quashed and set aside. Consequentially eviction notices issued by the Commissioner to the petitioners are also quashed.
It would however, be open for the Commissioner to take appropriate steps in accordance with law in exercise of powers under clause(a) of Sub-section(1) of Section 210 of the BPMC Act after granting opportunity of hearing to the petitioners as provided here-in-above.
We clarify that the directions contained in the present order will apply only qua the present petitioners and not in favour of any other person who has not approached this Court.
36. With these directions the petitions are disposed of.
(K.S.Radhakrishnan,C.J.) (Akil Kureshi,J.) (raghu) Top