Gujarat High Court
Anilkumar Radheshyam Tulsian vs Surat Municipal Corporation on 19 March, 1998
Equivalent citations: (1998)2GLR1664
JUDGMENT R. Balia, J.
1. The appellants have filed Special Civil Suit No. 22 of 1998 in the Court of Second Joint Civil Judge (S.D.), Surat District, for permanent injunction against the respondent Surat-Municipal Corporation restraining them from interfering with the construction which is being carried out by the plaintiffs in the property in question, and to restrain from demolishing the construction on the suit property. According to the plaintiff the land in question which is situated within the municipal limits of Surat Municipal Corporation is covered by draft town planning scheme published under the Gujarat Town Planning and Urban Development Act, 1976. For the development of the area of which the land in question is a part, State Government has constituted Surat Urban Development Authority under Section 22 of the Gujarat Town Planning and Urban Development Act, 1976. As the permission of appropriate authority before carrying out any development of the area was a condition precedent under Section 26 of the Town Planning Act, the plaintiffs applied under Section 27 of the Act and they are carrying out the construction as per the plans approved by the Surat Urban Development Authority under the Act. It is pointed out by the plaintiffs that under the Government Resolution dated 1-2-1978 power to control the developmental activities in accordance with the development plan has been entrusted to the Municipal Corporation whereunder the land covered by the scheme is situated within the local limits of Municipal Corporation concerned. Thus, the plan in the case of the plaintiffs' land also came to be approved by the Municipal Corporation, Surat, as a delegate of S.U.D.A., exercising power under Town Planning Act. While the plaintiffs were carrying out construction in accordance with approved plan, the officers of the respondent-Corporation, without the permission of the plaintiffs entered the premises where the construction of shops was going on has sealed ten shops constructed on ground floor number 18 to 22 and 68 to 72.
2. Aggrieved with this action of the respondent-Corporation the suit had been filed for permanent injunction for restraining the defendants from demolishing any part of the construction raised in the land in question and from causing any damage in the said property. Injunction was also sought for restraining the respondent Corporation from interfering with and obstructing the construction. An injunction was also sought for removing the lock and seals placed by the defendant Corporation on the aforesaid shops. An application for temporary injunction to that extent was also filed along with the suit.
3. In response to the application, defendants contended that unless notice in writing about completion of the work in progress has been given to the Commissioner as required under Section 263 of the Bombay Provincial Municipal Corporations Act, 1949 and his permission is obtained, no person is entitled to occupy or use the newly erected building and it is an exercise of that power the defendant locked and sealed 10 shops as noticed above. They also prayed for injunction against the plaintiffs restraining them from occupying or using building erected by them in any manner until notice is given in terms of Section 263 of the Act of 1949 and permission is received or deemed to have been received under the said provision.
4. The trial Court by its order under appeal dated 16-2-1998, allowed the injunction application filed by the plaintiffs by preventing the defendants from demolishing the construction of suit property and directing to open the lock of sealed shops Nos. 18 to 22 and 68 to 72 and not to restrain the plaintiffs from making the construction in suit property as per sanctioned plan till final disposal of the suit. Further, it also allowed the interim injunction application filed by the defendant and directed the plaintiffs not to use and occupy incomplete constructed suit property without obtaining permission from the defendant Corporation to use and occupy the suit property as per the provision of Section 263 of the B.P.M.C. Act.
5. Aggrieved with this part of the order dated 16-2-1998 by which the injunction application of the defendant has been allowed and order as aforesaid has been made, the plaintiffs have filed this appeal.
6. From the reading of the order as well as contentions raised before me, the plaintiffs' contention has been that construction in suit premises are being carried out as per the raja chitthi and plan sanctioned by the Surat Municipal Corporation under the provisions of the Town Planning Act and the plaintiffs are making construction in accordance with such sanctioned plans, under the Town Planning Act, therefore, no provision of B.P.M.C. Act including Section 263 applies in connection with construction or any alleged breach of sanctioned plan, but the same is exclusively governed by the Town Planning Act. Under Town Planning Act, there is no provision for seeking prior permission of the local authority before occupying the construction in the suit premises. On the other hand, it has been the case of the defendant Corporation that the sanction plan for construction in the suit premises was under the B.P.M.C. Act and the defendant Corporation has granted the permission for making a construction in the suit premises as per the B.P.M.C. Act, therefore, Section 263 of the B.P.M.C. Act is also applicable and the plaintiffs are required to obtain permission from defendant Corporation to occupy the suit property.
7. The trial Court was of the opinion that the construction made by the plaintiffs was not in breach of sanctioned plan which is reflected in its finding that prima facie the plaintiffs have made construction and are making construction in the suit premises as per the raja chitthi and sanctioned plan. However, it has also come to the conclusion that it prima facie appears that the defendant Corporation has sanctioned plan for the construction in the suit premises under the B.P.M.C. Act and the defendant Corporation had granted the permission for making the construction in the suit premises as per the B.P.M.C. Act, so the plaintiffs are required to obtain permission from the defendant Corporation to occupy the suit property as per Section 263 of the B.P.M.C. Act.
8. It is in view of the aforesaid conclusion, and that the Municipal Corporation has occupied 10 shops by putting lock and seal over the said shops without giving notice to the plaintiffs, in breach of principles of natural justice had granted the injunction prayed for by both the respective parties.
9. It is to be seen that the contention which is now being raised before me was not before the trial Court, namely, in spite of the fact that permission was required under Town Planning Act, Section 263 of the B.P.M.C. Act applies for the purpose of seeking prior permission before its occupation and use by the owner or his agent or assignees after the completion of construction. In order to consider the question whether sanctioning of plan and permission to construct was given under B.P.M.C. Act or Town Planning Act, it would be appropriate to have a brief scan through the provisions of the Gujarat Town Planning and Urban Development Act, before examining the relevant provisions of B.P.M.C. Act in that regard.
Section 26 provides that on or after the date on which a draft development plan is published in the Official Gazette under Section 13 in respect of any development area, no person shall carry on any development in any building or in or over any land, within the limits of the said area without the permission in writing of the appropriate authority and without obtaining certificate from the appropriate authority to the effect that development charge and scrutiny fees as leviable under the Act has been paid or that no such charge and scrutiny fees is leviable.
Section 27 envisages that an application for permission to appropriate authority by any person intending to carry out any development in any building or over any land within the limits of development area other than being a Central Government or State Government.
Section 29 deals with grant or refusal of permission by appropriate authority on such application.
Section 32 provides that permission granted or deemed to have been granted under Section 29 to remain in force for a period of one year from the date of such grant and shall lapse thereafter provided appropriate authority on an application being made in this behalf may extend from time to time the period for such construction, not exceeding three years in aggregate.
Section 35 makes any construction made without a permission or construction which is not in accordance with such permission or is in contravention of any condition subject to which such permission has been granted is an offence punishable with fine which may extend to five thousand rupees.
Section 36 empowers, apart from imposition of fine on conviction, the appropriate authority in case a development work has been carried out without permission, to restore the land or building to its condition existing before the said development took place; or in case the development undertaken or carried out is not in accordance with permission granted or is in contravention of such conditions of such permission, as the case may be.
Section 117 of the Act which has an important bearing on the present controversy reads as under:
Section 117. Effect of other laws: Notwithstanding anything contained in any other law for the time-being in force-
(a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained;
(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained.
10. From the aforesaid provisions, it is clear that so far as the lands which fall within the scheme published under Section 13 of the Act of 1976, its development is governed by the provisions of the Act. The norms of development, the sanctions required to be granted all are to be under the Town Planning Act. No other authority can, once a land falls in the limit of the development scheme, which exercised jurisdiction over such land before its coverage under the scheme, continue to be authority to grant any lawful authority for construction over that area. That is clear purport of Section 117. If the permission has been granted under the Act, the fact that permission required under other laws has not been granted or obtained will not render the construction in accordance with the permission granted under the Act to be unlawful. Simultaneously, it is also declared that if permission which is required to be obtained under the Act is missing, no amount of authorisation by authorities competent to grant such permission under other laws will render the construction to be under lawful authority. This envisages, atleast to the extent of sanctioning the development of the area concerned, other authorities having jurisdiction in respect of that area prior to its coverage under the scheme under the Act.
11. If viewed in this light, question arises whether permission granted in the present case by the Corporation can be treated to be a permission under Section 263 of the B.P.M.C. Act or it is in fact a permission under the Town Planning Act. The-'appropriate authority' has been defined under the Act of 1976 as an Area Development Authority (A.D.A.) constituted under Section 5 of the Act or Urban Development Authority (U.D.A.) constituted under Section 22. Area Development Authority or Urban Development Authority by itself is a separate juristic entity different from the Municipal Corporation. In ordinary course, a permission granted by Corporation in exercise of its own authority would not cure defect of lack of a permission under the Act. But as noticed above, the State Government vide its resolution dated 1-2-1978 have authorised delegation of power of the respective Area Development Authority or Urban Development Authority in respect of controlling the developmental activities in accordance with development plan in the development area, lo the Municipal Corporation to the extent any part of land falls also within local limits of concerned Municipal authority. The area in question is such area which is situated within Municipal limits of Surat and is also declared as Urban Development Area for development of which Surat Urban Development Authority (S.U.D.A.) has been constituted under Section 22 of the Act. Thus, Municipal Corporation is not only exercising power conferred on it under the B.P.M.C. Act on its own within the local limits of its jurisdiction but is also exercising the power of the Urban Development Authority as delegated to it in respect of lands covered under the scheme published under Section 13 of the Act but falling within the local limits of its jurisdiction. Whether, the permission was required under Town Planning Act or under the B.P.M.C. Act, an intending developer had to approach the local authority or the Corporation. In the present case, Corporation had to deal with such application depending upon the nature of the area in respect of which such permission was sought. If the area fell under the town development scheme, the Corporation had jurisdiction to deal with that area only as delegate of Urban Development Authority and its sanction notwithstanding flowing from the Corporation will be a sanction under the Town Planning Act. On the other hand, if the land in respect of which such permission is sought fell outside the development area it would be under the provision of B.P.M.C. Act. Therefore, the label on the application as well as its dealing by the Corporation would not be any guideline to determine the question whether the sanction was granted under the B.P.M.C. Act or Town Planning Act.
12. Undisputed facts before me are that the land in question fell within the limits of development plan published under Section 13 read with Section 22 of the Act and permission of its development was required to be from S.U.D.A. and to be considered in accordance with provisions of Town Planning Act. The sanction in these circumstances, though emanated from the Corporation, in my opinion, must be deemed to be a sanction for development by the Corporation only as delegate of S.U.D.A. under Gujarat Town Planning Act and not under the B.P.M.C. Act. Else the sanction itself would be infertile and not confer any right of construction on the area. It is not the case of any of the parties that the construction was being carried on without lawful authority or lawful permission as required by law. Moreover, when any act by a statutory authority is referable to any existing law under which it could be exercised, failure to refer to such provision or incorrect or wrong reference to provision under which such authority has been exercised will not render the action to be unlawful or infructuous, but the legality of action shall be upheld with reference to law under which such authority could exercise the power.
13. Thus, in my opinion, though the learned trial Judge was not right in coming to conclusion that application by the petitioner was sought under the provisions of B.P.M.C. Act and it was granted by the Corporation under B.P.M.C. Act and therefore, provisions of B.P.M.C. Act are applicable, nothing turns on the fact that forms published for such permission refers to both provisions and applicant has not chosen to indicate under which he applies or mentions a wrong provision. Yet, it must be held that Municipal Corporation as delegate of S.U.D.A. has sanctioned the plan for development and such sanction was lawfully granted by it under Town Planning Act. However, this change in perspective would not alter so far as the question of grant of injunction in favour of the plaintiff is concerned.
14. Faced with this situation, Mr. Desai had argued that notwithstanding that the permission under which the plaintiffs were carrying out construction be treated under the Gujarat Town Planning and Urban Development Act. Section 263 of the B.P.M.C. Act would still operate as the same is not repealed by the Act of 1976 in respect of the area covered by it but still falling within the local limits of the jurisdiction of the Corporation, as no provision about the occupancy on completion of development has been made in the Act of 1976 nor Section 117 on which reliance has been placed by plaintiffs-appellants excludes the operation of Section 263. In support of his contention, he also placed reliance on an unreported decision of This Court in Special Civil Application No. 1274 of 1998 with Special Civil Application No. 1673 of 1998 decided on 12th March 1998. On the other hand, learned Counsel for the appellants Mr. Mehta urged that in view of the clear provisions of Sections 35 and 36 of the Town Planning Act, the operation of Section 263 where the sanction development is in progress under the Town Planning Act, operation of Section 263 of the B.P.M.C. Act must be excluded by necessary intendment. He also relies on two decisions of This Court in this connection 1996 (1) GLR 659 Karimbhai Kalubhai Belim v. State of Gujarat and 1996 (2) GLR 286 Motiben Somaji v. State of Gujarat.
15. The first question that arises for consideration is whether the provisions of B.P.M.C. Act as a whole or to any extent are repealed or made inapplicable in respect of the area placed under A.D.A. or U.D.A. as the case may be and if so what is its effect on the controversy raised in this case.
16. The Gujarat Town Planning and Urban Development Act, 1976 is a special Act in the field of carrying out planned development of the area covered under the Act. Section 3 of the Act states that for the purpose of securing planned development of areas within the State, the State Government by notification may declare that any area in the State be a development area. In order to attain this objective, the Act envisages constitution of Area Development Authority under Section 5 of the Act. Section 6 provides that in a given case, the State Government may instead of constituting an Area Development Authority for a development area designate any local authority functioning in the development area or part thereof as the Area Development Authority for that development area. Once an area has been declared as a development area and Area Development Authority has been constituted, it becomes the obligation of the Area Development Authority to prepare and submit to State Government for its sanction a draft development plan for whole or part of the development area in respect of which it exercises authority. While these are general provisions, under Section 22 where the State Government is of the opinion that the object of proper development of area or development of any urban area or group of urban areas together with such adjacent areas as may be considered necessary, whether already covered under a development area declared under Section 3 or not, will be best served by entrusting the work of development or redevelopment thereof to a special authority, it may constitute an Urban Development Authority for that area and on constitution of such Urban Development Authority all the powers and functions of an Area Development Authority relating to the development or redevelopment of a 'development area' under the Act shall in relation to such Urban Development Area be exercised and performed by such Urban Development Authority and not by any other authority. Section 22, therefore, in express terms excludes exercise by any authority other than Urban Development Authority in respect of Urban Development Area, of all powers and functions relating to the development or redevelopment of the area under its jurisdiction. As we are concerned in this case, with a land which is part of an Urban Development Area and for the development of which Surat Urban Development Authority has been constituted, the question whether on such constitution, the exercise of powers relating to development by any authority are also implicitly excluded need not be examined. But the fact remains that in respect of powers relating to development or redevelopment of a development area under U.D.A. exercise of power by any authority other than the U.D.A. concerned are excluded specifically and it must be held that all powers relating to development or redevelopment of the Urban Development Area are exercisable by the concerned Urban Development Authority alone and not by any other authority including Municipal Corporation.
17. However, it is noticed that exclusion of exercise of power by other authorities is only to the extent the power and functions of the other authority are related to the development or redevelopment of the area. The development has been defined under Section 28 of the Act of 1976 as under:
28. Permission for retention or continuance of use of any building or work or any use of land:
(1) Any person not being the Central Government or a State Government, intending to retain any use of building or work constructed or carried out on any land, or to continue any use of land made, before the date on which a final development plan in respect of any development area in which such building or land is situated comes into force, which use is not in conformity with the provisions of the regulations of the final development plan shall make an application in writing to the appropriate authority for permission to retain or continue such use, containing such particulars and accompanied by such documents, as may be prescribed, and by such scrutiny fees as may be prescribed by regulations within six months from the date on which the final development plan in respect of such development area comes into force.
(2) On and after the date on which the said period of six months expires, no person shall retain or continue any such use of building or work or land, without such permission having been obtained or contrary to the terms thereof.
Provided that where such person has applied under Sub-section (1) within the period of six months and no order under Section 29 has been made within that period, he shall retain or continue such use until the date of such order.
The above definition clearly indicates that carrying out any construction activity within the development area so declared under Section 3 or 22 is a work of development and all powers relating thereto, viz., construction, its supervision and control are to be exercised by authority constituted under Section 22 of the Act and not by local authority. In this connection it may also be relevant to refer to Section 23 which delineates the power and functions of Urban Development Authority. Under Clause (iv) of Sub-section (1) the function has been assigned to Urban Development Authority to guide and assist the local authority or authorities and other statutory authorities functioning in the Urban Development Area in matters pertaining to the planning, development and use of urban land, and it empowers the Urban Development Authority to control the development activities in accordance with development plan in the Urban Development Area, and Clause (x) empowers the Urban Development Authority to exercise such other powers and perform such other functions as are supplemental, incidental or consequential to any of the foregoing powers and functions or as may be directed by the State Government. From reading of these provisions it is further abundantly clear that the erection of buildings within the development area or material change in any existing building or land, or in the house of any building or land, are activities pertaining to development of the particular area and power to control such activities and to keep such activities within the limits of the development plan is power relating to development or redevelopment of development area vested in the Urban Development Authority. Under Section 25 of the Act of the provisions of the Act relating to preparation, publication, sanction, variation and revision of development plan and all other matters connected from and or incidental thereto and the powers and duties of a Area Development Authority relating all to development or redevelopment of a development area applies to an Urban Development Authority as a whole. While Sections 26,27,28,29 and 30 directly relate to control the sanctioning of new development activity within the development area, Sections 33, 35, 36, 37 and 38 are all incidental powers. In the context of present controversy it may be seen that under Section 35, any carrying out of development without the permission as required under Section 27 or which is not in accordance with any permission granted or is in contravention of permission is an offence which is punishable with a fine extending to Rs. 5,000/-. Section 36 empowers the Urban Development Authority where a development work has been undertaken or carried out without permission as required under Section 27 to restore the land or building to its condition existing before the said development took place and in case where such development work undertaken or carried out is not in accordance with the permission granted or is in contravention of terms of permission that has been granted, the authority has power to secure compliance with the condition or with the permission as modified, as the case may be and to discontinue such use of building, land or work; where the authority requires the discontinuance of use of land or building, it is required to serve a notice on the occupier. This is to point out that power to sanction development within the area and incidental power to deal with appropriately under the provisions of the Act, where any development work within the area has come in existence in contravention of the provisions of the Act or the sanction plan vest in the Urban Development Authority and to that extent, the local authority or any Other authority otherwise having power to deal with such cases shall have to give way to the exercise of such power by U.D.A. in view of clearer provisions of Section 22. This is also apparent from the provisions under Section 117, which, as noticed above, makes the sanction or permission for development within the area under its limits granted by 'appropriate authority' under the Act as supreme and paramount and only authority capable of conferring lawful authority for development work within the area and negates the suggestion of vesting of such power in any other authority notwithstanding such authority emanating from other sources and want of any other permission required under any other law does not affect it. Be that as it may, that is the extent and purport of exclusion of jurisdiction of local authority in the matter of exercise of power relating to development or redevelopment within the area over which the Urban Development Authority exercises its jurisdiction.
18. In this connection it may also be profitable to refer to General Development Control Regulations, 1981 framed as part of the Draft Development Plan. Regulations 6and 7 which are relevant for the present purpose reads as under:
6. Inspection:
6.1 Generally all development work for which a permission is required shall be subject to inspection by the authority, and certain types of development involving unusual or requiring constant inspections shall have continuous inspection by special inspectors appointed by the authority.
6.2 The applicant shall:
(a)permit authorised officers of the concerned authority to enter the plot for which the development permission has been granted for carrying out development at any reasonable time for the purpose of enforcing these regulations;
(b)keep during carrying out of development a copy of the approved plans on the premises where the development is permitted to be carried out;
(c)give written notice to the concerned authority regarding completion of the development in the form enclosed in Appendix 'F' duly signed by the Licensed Architect, Engineer or Surveyors (Licence No. also to be mentioned) along with the last approved plan and a copy of the plinth checking certificate in case of ground floor; and a certificate regarding drainage and plumbing works from a licensed plumber;
(d) obtain occupancy certificate from the concerned authority prior to any occupancy or use of development so completed.
6.3. The final inspection of the work shall be made by the concerned authority within 21 days from the date of receipt of notice of completion certificate.
7. OCCUPANCY CERTIFICATE:
The concerned authority shall within thirty days from the date of receipt of the completion certificate required under Regulation 6.2(c) communicate its decision after necessary inspection about grant of occupancy certificate indicated in Regulation 6.2(d).
19. The perusal of the aforesaid Regulations further clearly indicate that all development works for which a permission is required are subject to continuous inspection by the personnel of Urban Development Authority to keep in check the development activity within the framework of sanctioned development. Clause (c) of Regulation 6.2 requires of a person carrying out development activity within the area to give written notice to the concerned authority regarding completion of the development in the form prescribed under the Regulations, along with requisite documents and information. Clause (d) of the said Regulations enjoins a duty on the person intending to occupy the development so completed to obtain an occupancy certificate from the concerned authority prior to such occupancy. Regulation 6.3 empowers and enjoins upon the concerned authority to make an inspection of the work within 21 days of the receipt of notice of completion certificate and Regulation 7 requires the concerned authority to communicate its decision after necessary inspection about grant of occupancy certificate indicated in Regulation 6.2(d) within 30 days from the date of receipt of the completion certificate. Thus, from the stage of seeking permission to develop any area to its occupancy the entire gamut is within the ambit of development activity and activities incidental and supplemental to development of area falling within exclusive jurisdiction of S.U.D.A.
20. As compared to this, Section 263 around which the contour exists reads as under:
263. Completion certificates, permission to occupy or use:- (1) Every person shall, within one month after the completion of the erection of a building or the execution of any such work as is described in Section 254, deliver or send or cause to be delivered or sent to the Commissioner at his office, notice in writing of such completion, accompanied by a certificate in the form prescribed in the bye-laws signed and subscribed in the manner so prescribed, and shall give to the Commissioner all necessary facilities for the inspection of such building or of such work and shall apply for permission to occupy the building.
(2) No person shall occupy or permit to be occupied any such buildings, or use or permit to be used the building or part thereof affected by any work, until-
(a) permission has been received from the Commissioner in this behalf, or
(b) the Commissioner has failed for twenty-one days after receipt of the notice of completion to intimate his refusal of the said permission.
Section 263 too requires a person after completion of the erection of building or execution of any such work as is described in Section 264 to notify the Commissioner in writing about such completion accompanied by certificate in the prescribed form with requisite details. Sub-section (2) of Section 263 prohibits any person to occupy any such building or use any building or part thereof until permission has been received from the Commissioner in this behalf or the Commissioner has failed for 21 days after receipt of the notice of completion to intimate his refusal of the said permission.
21. From the reading of the two provisions they appear to be operating in the same field of exercise of power relating to development of the area. A person who has undertaken 'development work' within the phraseology used in the Town Planning Act or 'erection work', phraseology used in the B.P.M.C. Act within the area over which the concerned authority exercises jurisdiction, has to inform about completion of such work to the concerned authority before occupying or using the completed building, and there is prohibition under both the provisions from occupying or using the completed property without permission to that effect from the competent authority. To the extent the exercise of the operation of this provision in respect of area served by the Urban Development Authority is concerned, is relatable to power of concerned authority of the area, in my opinion, the only authority to which notice is required to be given and authority to permit occupancy is conferred, is the 'appropriate authority' in the present case S.U.D.A., constituted under the Act of 1976 or its delegate. As has been noticed above in the present case, the power in relation to sanction or control the development of area within its limits by the Surat Urban Development Authority has been delegated to Municipal Corporation, the authority to whom notice is required to be given and who is to confer permission to occupy completed building vest in the Corporation exercising power under Act of 1976. Mere reference to a provision of B.P.M.C. Act referring to corresponding provisions will not affect the requirement of giving notice of occupancy and seeking permission to occupy or procure certificate to occupy by the development from the delegated authority and exercise of jurisdiction by such authority in that regard is under Town Planning Act and such necessary authority for such exercise or power does vest in the Corporation under the law.
22. Section 263 envisages a prior permission before occupancy. In the process it envisages that where Commissioner has failed for twenty-one days after receipt of the notice of completion to intimate his refusal of the said permission, namely, the determination of question whether permission to occupy the completed building is to be granted, by the Commissioner. The object and purpose for which this exercise is to be taken by Commissioner is to be discerned from provisions made in Chapter XII of the Schedule appended to the Act. Clause (9) of Chapter XII which is relevant for the present purposes unfolds that three contingencies have been envisaged under which the Commissioner is empowered to refuse permission for occupancy envisaged under Section 263. The first contingency is where the building has been constructed or work has been executed in contravention of any provisions of B.P.M.C. Act or the Rules and Bye-laws framed thereunder. The second contingency is that until Commissioner is satisfied that a private street or other means of access to such building fixed and determined under Section 220 has been properly constructed he can refuse to give occupancy certificate. Both these contingencies, in my opinion, are directly referable to planned development of the area in question and therefore, such power ought to be exercised by the authority under the Town Planning Act in accordance with the provisions of the Act and Regulations made thereunder. The validity of the construction or the identification of construction with the sanctioned plan must conform to the norms set up and approved under the Town Planning Act and not as have been set out under the B.P.M.C. Act for that purposes. The third contingency relates to power of the Municipal Commissioner to refuse permission to occupy unless the site of the building or adjacent sites are properly cleansed by the removal of all surplus building material, debris, earth, rubbish and the tools used for building purposes. This is also in the context it has been set relates to supplemental control or development activity without its jurisdiction for removing debris, rubbish and waste material before the development work is occupied and put to use.
23. If the two provisions of the Act, namely, Section 263 and the provisions of Schedule are read together, it must be held that the scope of Section 263 is also incidental to exercise of power by the Corporation in relation to control of erection of development, and to the extent it being part of general law vis-a-vis Gujarat Town Planning and Urban Development Act, 1976 which is a Special Legislation in the field emanating from same legislature, it must give way to latter.
24. However, again notwithstanding that development within area is controlled by the authorities under the Urban Development Area and all powers relating to or exercisable by authorities under the Town Planning Act it is exercisable by authorities under the Municipalities Act as delegate of S.U.D.A. There being provision for obtaining certificate from Urban Development Authority before occupying completed building and Municipal Corporation is exercising power of S.U.D.A. in that regard. If that be so, there cannot be any justification to interfere with the direction given by the trial Judge that before occupying the completed building, the plaintiff must obtain permission from the defendant Corporation, for use and occupy the suit property though it is required as per the provisions of Act of 1976. It may be clarified that though power to issue certificate of occupancy relates to exercise of power relating to control of development activity, it does not take away the power of Municipal Corporation to take necessary action in respect of removal of construction waste and debris from the site of construction in exercise of its general power relating to maintaining cleanliness within its local limits, though all powers in relation to control and supervision of development work are to be in terms of the provision of the Act of 1976.
25. As none of the decisions referred to above deals with the controversy raised before me about the exclusion of the operation of Section 263 of the B.P.M.C. Act with reference to provisions of Town Planning Act was before the Court in any of the cases, I do not deem it necessary to consider them in detail, as the same do not render any assistance, to decide the controversy.
26. Appeal accordingly fails subject to the aforesaid observations. There shall be no order as to costs.
Civil Application also stand disposed of accordingly.