Bombay High Court
M/S. Earth Builders, Bombay vs State Of Maharashtra And Others on 6 January, 1997
Equivalent citations: AIR1997BOM148, 1996(3)BOMCR390, (1997)2BOMLR137, AIR 1997 BOMBAY 148, (1997) 1 ALLMR 487 (BOM), 1997 (1) ALL MR 487, (1997) 3 BOM CR 390, 1997 (100) BOM LR 137, 1997 BOM LR 100 137
Author: A. P. Shah
Bench: A. P. Shah
ORDER
1. The petitioners seek a writ of mandamus to direct the State Government and the municipal authorities to enforce their powers under Rule 22(5) of the Development Control Rules, 1991 read with Section 291 of the Bombay Municipal Corporation Act, 1888 and the Circular dated 18th January, 1996 of the Bombay Municipal Corporation (BMC) and to provide petitioners' property an access through the adjoining property of respondent No. 4 viz. the Consulate General of Islamic to State of Afghanistan over the portion of the land shown yellow hatched lines in the plan annexed as Ex. A to the writ petition by declaring that portion to be a public street.
2. An advertence, though brief, to the factual antecedents leading to this petitions is necessary to appreciate the controversy between the parties in proper perspective. The petitioners are a partnership firm carrying on business as builders and developers. Under a conveyance dated 6th September, 1994 the petitioners have purchased the property known as "Dani Chawl" bearing City Survey No.278 situates at Malabar Hill, Mumbai. There is a 125 year old structure standing on the said property which consists of ground plus three storeys occupied by tenants. There are approximately three hundred persons residing in this building. The property in question is situated at a level of almost sixty feet below the level of the main road being Walkeshar Road and the only access to the building is through a pathway of five feet in width through the adjoining property of Parsi Tooty Agyari Trust situate on the eastern side. The pathway comprises of about forty naturally carved steps which lead to the petitioners' property. It seems that in cases of emergency, the occupants of the building were in a position to have an access through the property bearing CTS No.281 lying to the easter side of the petitioner's property. However, it transpires that CTS No. 281 had been fully developed about ten years back and a twenty-eight storeyed building has been constructed on the said property. As a result, there is no motorable access now available for the petitioners' property. On the southern side of the petitioners' Property is the property bearing CTS No. 278 belonging to the respondent No. 4, the Consulate General of Islamic State of Afghanistan. It is an admitted position that the structure standing on the respondent No. 4's properly had been demolished about three years back and the plot is lying vacant. The respondent No. 4 has applied to the municipal authorities for sanctioning plans for constructing a building.
3. It is the case of the petitioner that their property is a landlocked property.
The petitioners through their architect made a representation dated 22nd September, 1994, to the Municipal Commissioner for providing access under the provisions of Rule 22(5) of the Development Control Rules, 1991 (DC Rules). The DC Rules of 1991 are framed under Section 22(m) of the Maharashtra Regional and Town Planning Act, 1966. Under Rule 22(5), Municipal Commissioner is empowered to provide access to the land-locked property at the cost of the owner of the land-locked property. Rule 22(5) reads as follows:--
"2(5) In the case of a plot, surrounded on all sides by other plots i.e. a land-locked plot which has no access to any street or road, the Commissioner may require access through an adjoining plot or plots which shall, as far as possible be nearest to the street or road to the land locked plot, at the cost of the owner of the land-locked plot and such other conditions as the Commissioner may specify."
4. It seems that initially no time-frame was stipulated for providing an access under Rule 22(5). Hence the State Government was pleased to issue guidelines for implementation of the regulations. Those guidelines have been adpted by the Bombay Municipal Corporation under Circular dated 18th January, 1996. Salient features of the guidelines and the fulfilment of the norms may be noted at this stage. The guidelines provide for an application to be made to the Municipal Commissioner for providing access to the land-locked property. The Municipal Commissioner is thereafter required to find out how access can be provided to the land-locked property within the stipulated period of ninety days. Once the Commissioner is satisfied that the property is land-locked and it is necessary to provide an alternative access, he is required to give notice to the owner of the adjoining plot holder to give access to the land-locked land within fifteen days of the notice. The rules as well as guidelines provide for compensation to be paid to the owner of the property for such alternative access. The owner of the land-locked land is required to pay compensation for such access. If the owner of the adjoining property is not prepared to accept the proposed access, the Municipal Commissioner is required to declare the access as a public street under Section 291 of the Bombay Municipal Corporation Act (BMC Act). The minimum width of access provided under the rules and guildelines is six meters and the guidelines even provide that the owner of the land from which access is granted is entitled to reduction in compulsory open space without charging premium.
5. Section 291 of the BMC Act confers powers on the Commissioner to make new streets and roads as follows:--
"291. The Commissioner, when authorised by the corporation in this behalf, may at any time.
(i) lay out and make a new public street;
(ii) agree with any person for the making of a street for public use through the land of such person, either entirely at the expense of such person or partly at the expense of such person and partly at the expense of the Corporation and that such street shall become, on completion, a public street:
(iii) declare any street made under an improvement scheme duly executed in pursuance of the provision of the City of Bombay Improvement Act, 1898, or the City of Bombay Improvement Trust Transfer Act, 1925, to be a public street."
6. We have noted that the petitioners through their architect made a request to the Municipal Commissioner on 22nd September, 1994 to provide access to their property through adjoining plot of respondent No. 4 under Rule 22(5) of the DC Rules. It appears that on 22nd October, 1994 and again on 10th February, 1995, the petitioners' property as well as the adjoining property were inspected by the officers of the Municipal Corporation. By letter dated 16th March, 1995, the Chief Engineer (D.P.) of the BMC wrote to the petitioners' architect that the authorities are taking up the matter with the respondent No. 4 who is the owner of the adjoining plot for giving right of way to the petitioners' land-locked property. Thereafter by letter dated 30th March, 1995, the Chief Engineer informed the architect of the respondent No. 4 to give a right of way to the land-locked property bearing City Survey No. 280 of Malabar Hill Division. The Chief Engineer also recorded in the letter that till such time the right of way is given, development permission of the property of the respondent No. 4 would be withheld.
7. It seems that joint meetings thereafter took place between the architects of the petitioners and the respondent No. 4 and the concerned Municipal officers. Initially, the respondent No. 4's architect raised an objection to carving out a way through their property on the ground that it is consular premises and, therefore, the Municipal authorities have no right to direct the respondent No. 4 to give access through their property or to declare any part of the property as public street under Section 291. It seems that the petitioners took up a stand that the respondent No. 4 is not entitled to absolute immunity as the Vienna Convention of 1963 which deals with consular relations makes an exception that expropriation of such property or any part thereof in permissible for the purpose of public utility. It seems that this position was conceded by the architect of the respondent No. 4 in the joint meeting. However, subsequently the respondent N o. 4 took up a stance that their property is absolutely inviolable and therefore neigher the State Government nor the municipal authorities have any right to claim the right of way through their property. The municipal authorities appear to have been impressed by the plea of inviolability and decided to issue a commencement certificate to the respondent No. 4 and this has promoted the petitioners to file the present petition under Article 226 claiming various reliefs.
8. In contesting the petition, the Acting Consul General for the Consulate General of the Islamic State of Afghanistan has filed his affidavit in replay. A preliminary objection to the jurisdiction of this Court is raised by maintaining that under Articles 22 and 31 of the Vienna Convention of 1961, the respondent No. 4 has a diplomatic immunity from the criminal, civil and administrative jurisdiction of the receiving State i.e. Union of India. It is contended that respondent No. 4 is holding the premises for the purpose of the mission i.e. the premises are being used as a consulate office and therefore there is also a diplomatic immunity enjoyed by the respondent No. 4 from the Civil and administrative jurisdiction and as well as criminal jurisdiction of the Union of India. Then reliance is placed on Article 22 of Convention of 1961 which provides that the premises of the mission shall be inviolable. It is contended that the State Government and municipal authorities have no power to expropriate or requisition the property of the respondent No. 4. It is further contended that Vienna Convention of 1963 is not applicable to the respondent No. 4's property and in any event even under the relevant articles of Convention of 1963 the purpose for which the access has been sought cannot be called a public utility and, therefore, exception to the rule of inviolabiltiy has no application to the present case. It is contended that the petitioners want access for their own private use and such access can never be treated as for the sake of public utility. It is also suggested that the property is not actually land-locked as there exists an access of five feet through the property of Parsi Tooty Agyari Trust. It is suggested that the petitioners might be able to get access through the property of Vikas Tower which is located on the rear side through their basement car parking. It is contended that if an access is given to the extent of 4.6 metres width, it will automatically reduce the area of the respondent No. 4's property and as a result the respondent No. 4 will not be able to comply with the requirement of minimum open space. It is also pointed out that the BEST had requested an area of 4x9 metres for their sub-station. It is, therefore, contended that carving out of access through the property of the respondent No. 4 is likely to severely hamper their proposed construction on the property. Lastly, it is contended that the sole object of the petitioners in filing this petition is to have motorable access to the property because the petitioners are builders and intend to develop the said property and sell flats for an astronomical sum.
9. The Municipal Corporation has filed two affidavits dated 15th April,1996 and 22nd October, 1996. In their affidavit, the Municipal Corporation made it clear that at present the existing tenants of the property are using 5 ft. strip pathway which belong to the adjoining Parsi Tooty Agyari Trust. It is stated that the said stepped pathway is not a motorable access and cannot be considered as an adequate access under the Development Control Regulations. It is pointed out that the minimum access required under the Development Control Regulations is a six metre access with a view to enable access to fire fighting and emergency vehicles.
It is also pointed out that presently there is no motorable access to the property of the petitioners and it would be impossible to carry out any rescue operations in the event of mishap and hence the said property has to be considered as a landlocked property requiring the provision of access under the DC regulations. The plot in question of the petitioners is surrounded on all sides by other plots and has no access to any street or road within the meaning of DC Regulation No. 22(5). It is stated that after receiving the application from the petitioners' architect, the property was inspected by the staff of the Municipal Corporation and it was observed that the residents of the plot in question were using five feet stepped pathway and the same cannot be widened since it is abutting the property of Parsi Tooty Agyari Trust. It is stated that after examining the adjoining property is was found that only access that was possible was through the property of the respondent No. 4. It is stated that the Corporation entered into extensive correspondence with the petitioner and the respondent No. 4 to provide access to the land-locked property of the petitioners under Rule 22(5). However in view of respondent No. 4 raising an objection based on Article 22 of the 1961 Vienna convention, the Municipal Corporation had been unable to pursue the representation of the petitioners for providing a right to way through the property of the respondent.
10. Dr. Chandrachud, learned Counsel for the petitioner, submitted that the respondents Nos. 1 to 3 are duty bound to comply with the provision contained in SC Rules more particularly Rule 22(5) for making provision of an access to the land-locked property of the petitioners. Dr. Chandrachud submitted that the purpose and object underlying the provisions of DC Rule 22(5) is that the user and enjoyment of the landlocked property should be preserved and ensured to the owners, occupiers and occupants. The object is also to ensure that the absence of access should not become a source of obstruction to the legitimate and proper use and enjoyment of the property in the context of overall development of the city. Dr.Chandrachud pointed out that DC Rules are framed under Section 22(m) of the Maharashtra Regional and Town planning Act and have a statutory character. The obligation conferred on the Municipal Commissioner to provide access to the land-locked property must be fairly exercised to effectuate the purpose behind the entrustment of that obligation. Dr. Chandrachud contended that the action of the respondents Nos. 2 and 3 in deliberately ignoring the requests of the petitioners and the tenants amounts to total breach of duties imposed on the municipal authorities under the law. This also amounts to violation of Article 14 of the Constitution as observing fairness is an essential component of Article 14. Dr. Chandrachud strongly refuted the claim of the respondent No.4 that they have got absolute immunity under Vienna Convention of 1961. The Counsel urged that Vienna Convention of 1961 deals with Diplomatic Mission and not Consulates. He pointed out that the respondent No. 4 being a Consulate is governed by the Convention of 1963 which deals with consular relations. The Counsel brought to my notice Article 31 of Convention of 1963 in order to show that expropriation of the property of Consulate or any part thereof is permissible provided all steps are taken to avoid impeding the consular functions and prompt, adequate and effective compensation is paid to the sending State. Dr. Chandrachud submitted that public utility is an exception recognised by Article 31 which is more or less akin to a public purpose and considering the fact that access is going to be declared as a public street, case of the petitioner clearly falls under recognized exceptions to the principle of inviolability. Dr Chandrachud, therefore prayed that an appropriate writ should be issued against respondent Nos. 1 to 3 provide the access in accordance with the provisions of law.
11. Ms. Savla, learned Counsel for municipal auithorities, supported the petitioners. She submitted that the property is land-locked and, therefore, unless as access is provided for the property cannot be developed. She brought to my notice that the structure standing on petitioners' property is very old and in dilapidated condition. She submitted that the Commissioner has a right to declare the street as a public street and in doing so he is not violating the provisions of the 1963 Convention. She also pointed out that the respondent No. 4 has submitted plans for development of the property. While sanctioning the plans, it is open for the municipal authorities to lay down conditions including a condition to provide access to the adjoining property particularly when the property is a land-locked property. Ms. Savla submitted that the municipal authorities are within their right in asking the Consulate to surrender a portion of the property for providing access to the property of the petitioners. She also brought to my notice various provisions of the DC Rules and guidelines which provide for payment of compensation and also for exemption from keeping compulsory open space where the part of the property is required to be surrendered in providing access to the neighbouring land-locked property.
Mr. Adik appearing for intervenors-tenants also supported the petitioners. Mr. Adik submitted that besides the temporary 5 feet access no other access is available to the occupants of Dani Chawl and this is causing great hardship and incovenience to them. Since last several years the residents of Dani Chawl have been making representations to various authorities for the purpose of obtaining a proper access to the property. The Counsel said that in case of any mishap on account of fire or collapse of the chawl which is nearly 100 years old, there would be no way to rescue any occupant. It is, therefore, imperative that access should be made available to their property.
12. Mr. Dharmadhikari, learned Counsel for the respondent No. 4 who is practically the only contesting respondent, raised mainly three submissions. Firstly, Mr. Dharmadhikari contended that the property of the petitioners is not a landlocked property of the petitioners is not a landlocked property as it is admittedly having a 5 ft. access through the adjoining property belonging of Parsi Tooty Agyari Trust. Secondly, Mr. Dharmadhikari contended that the Afghanistan Consulate in Mumbai is also discharging diplomatic functions and, therefore, by the extended meaning of the displomatic premises as provided in clause (i) of Article 1 of the Convention of 1961 the premises of the respondent No. 4 are absolutely inviolable accepting no exception on any ground. Thirdly, Mr. Dharmadhikari contended that assuming that the office of the respondent No. 4 is a Consulate Office and not Diplomatic Mission, it is still inviolable under the provisions of Article 31 of the 1963 Convention relating to Consular Relations which recognises only two exceptions viz. defence and public utility and since providing an access to private property cannot be treated as a public utility, neither the State Govenrment nor the municipal authorities have any right to provide access to the petitioners' property from out of the property of the respondent No. 4. The Counsel, therefore, contended that the petition is liable to e dismissed.
13. The first submission of Mr. Dharmadhikari is required to be stated only to be rejected. it is an admitted position that there is no access to the property except 5 ft. pathway through the property of parsi Tooty Agyari Trust which is situate on the eastern side of the petitioners 'property. This pathway consists of naturally carved steps and naturally, therefore, is not a motorable access. On the rear side is the property of Om Vikas Tower. In the affidavit of the respondent No. 4 it was suggested that the petitioners can have access through the property of Om Vikas Tower, but at the bar Mr. Dharnadhikari conceded that this suggestion is not practicable as the property of Om Vikas Tower is fully developed and in order to have an access through that property one would have to go down six storeys to the basement, then channel out tunnel to the petitioners property and then come up a few storys to reach the plot. Thus, there is no access on the rear side. The Municipal Corporation in its affidavit clearly stated that the present access of 5 fit. cannot be regarded as an access at all. It is rightly pointed out that in cases of emergency, the inmates of the building of the petitioners' property will be without any facility like fire fighting and emergency vehicles. But that part, the question whether any property is a land-locked property is essentially a question to be decided by the muniicpal authorities. This cannot be gone into writ jurisdiction under Article 226.I have, therefore, no hesitation in accepting the submission of the petitioners that this property is a land-locked property and needs a proper access.
At this stage, I may also deal with a contention raised in the affidavit in reply of the respondent No. 4 that if access is given through their property, it will not be possivble for the respondent No. 4 to construct a new building as per the plans submitted to the Municipal Corporation. Under the guidelines of January, 1996, it has been clearly provided that when the owner of the purpose of providing access to the adjoining property, he will be exemted from the requirement of minimum open space. In view of this, the apprehension expressed by the respondent No. 4 tht grant of access through their property would hamper their plants of constructing a new building is without any foundation.
14. Turning then to thesubmission of Mr. Dharmadhikari based on the immunity conferred by the Vienna Convention, it will be necessary to examine the provision of the Convention. Vienna Convention on Diplomatic Relations was accepted at Vienna on 18th April 1961. It came into force on 24th April, 1964 in accordance with Article 51 of the Convention. Both India and Afghanistan have ratified and acceded to the Convention of 1961. Clause (i) of Article 1 defines the "premises of the mission" to mean the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of thre mission including the residence of the head of the mission. Article 3 lays down the functions of a diplomatic mission as follws:--
(a) representing the sending State in the receiving State;
(b) protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
(c) negotiating with the Government of the receiving State;
(d) ascertainig by all lawful means, conditions and developments in the receiving State and reporting thereon to the Governmnt of the sending State."
Article 4 then provides that the sending State must make certain that the agreement of the receiving State has been given for the person it proposes of accredit as head of the mission to that State. Article 14 classifies heads of mission into three classes namely (a) that of ambasadors or nuncio accredited to Heads of State, and other heads of mission of equivalent rank, (b) tat of envoys ministers and internuncios accredited to Heads of State (c) that of charges of d'affairs accredited to Ministeres for Foreign Affairs.
15. Article 22 of the 1961 convention recognises absolute inviolability of the mission premises and reads as follows:--
1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to prevent the premises of the mission against any intrusion or damages and to prevent any disturbance of the peace of themission or impairment of its dignity.
3. The premises of the mission, their furnishings and ther property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution."
16. There is a separate convention on consular relations which was accepted on 24th April,1963 at Vienna. The Vienna Convention on Consular Relations came into force on 19th March 1967 in accordance with Article 77. The preamble of the Convention clearly makes a distinction between "displomatic relations" and "consular relations". It recalls that consulr relations have been established between peoples since ancient times. it refers to the Vienna Convention on Diplomatic Relations. It further proceeds to state that an international convention on consular relations, privileges and immunities would also contribute to the developments of friendly relations among natins, irrespective of their differeing constitutional and social system. Article 5 of the Convention deals with consular relations, privilegs and immunities would also contribute to the developments of friendly relations among nations, irrespective of their differing constitutional and social system. Article 5 of the Convention deals with consular functions. Some of the consular functions are overlapping with diplomaic functions under Article 3 of the 1961 Convention, there is one important distinction. Under Article 3 of the 1961 Convention, only the diplomatic mission has right to represent the sending State in the receiving State and negotiate with the Government of the receving State. These are sovering function, which can be performe ony by the the diplomactie massinnot ont by the conulate A ancillary consular funations like issing of passports, vias, trade activities and other activites like safeguarding national invidulas, bodies and corporation of the sending State asertaining conditions of the sending State ascetaining conditions and developments in the commercial and devolopments in commercial econmic culttrualandseicentific lfe of the receiving State. Merely because some of the funcations of a sulate, it cannot get the status of a diplomation mission Article 9 defines classes of healds of consular posts as (a) consuls -general (b) consuls, (C), vice consuls and consular agentsUnder Article 10 heads of consular posts are appointed by the sending State and are admitted to the exercise of their functions by the receiving State,.HOweverthere is toancredition given tothe consular posts as in the cse the heands of the mission.
17. Article 31 deals with inviolability of are consular premises.Both the sides ave pretatinof this articles and there it willbe usefultor eporduce the same;--
1.Consular premises shallbe invibitable to the extent provided in this Article.
2. The authority of the receiving State shal not entre that pat of the consular premises wihch is used exclusiely for the purpsoe ofthe work of the consular post except with the consent of the head of te consuar post or of this designee of tehenad of displomitic mission of the sending State.The consent of the head oftheconsluar post mayhowever be assumed in case of the fire or other dissater requiring prompt protective action.
3. Subject tothe provision of paragraph 2 of this Article,. the receiving State of under a specialduty to take all appropriate steps of protect the consular premises against any intrusion of demange and the prevent any disturbance of the pease of consular post or impariment of its dignity.
4. The consular premises their furnishing the property of the consular post and its menas of transport shall be immune the any form of requisitonofpurpose ofte national defence or public utility If expropiation of necesary for such purpose, at the possibles steis shallbe taken to aviod impeding the performance of consuar functions and promit adeqateand effective comensatinshallbe paid to the sending State."
18. The Vienna Convention of 1963wasretified of India on 28 the Novermber 19877. However, Afghanistanis not a singnature to this convention Even prior to retifying the said Conventionthe Protocal Handbook of te Government Of India provied a summmary of privillages andimmunities of diplomatic missions consular corps ectwher in was provided that foreign consuar posts would be transted such immuties as are granted under International Law and in Government of Indian would be gernerally by the provisionof the Vienna Convention 1963, There is hardly any dispute that the promises of the respondent and not Diplomatic Mission Afghanistan has get of diplomtic missinof Delhi. A Diplomatic Missinif required State if India at New Delhi This is even form the circular dated 4th August 1953 and 18th February 1954 issed by the Ministry of External Affaris The cirucular dated 11th Novermber 1954 and 21st October 1957 issued by the Minsiter of External Affaris of the eent of the Heads of Misin seeking tovisit and place outside New Delhi. But that apart the affidavit of the respondents NO 4 is made by Adula Waddod Ahabxad Acting Consul General for the Consulate General of the Islamic State of Afghanistan having their office at 115, Walkeshwar RoadBombay-6This is itself cnfims tha the respondents NO4 is property at Walkeshwar is a Consulate property andnot the property of Displomatice MissionMr Dharmadhikar's Missionlike issing of pasportsandvisa and therefor the Consulare officer should be treated as a Diplomatie Missionis contary of the established paracive in the International Law The Consulate at Bombay performing some commen functions cannot acquire the status of a diplomtice Mission Therefore while examinatinthe plea in invilability immunity we ave a consider the provisionteh contained in the 1963 Convention relaing to Consular Relatios and not the 1961 Convention which deals with the Diplomatice Relations.
19. It is undoubtedly true that uderArt. 31 of the Convetion relating to Consular Relations, theConsular premises are inviolable,. But there is marked difference. The inviolabliltiy conferred by Article 31 is not abposulte immunity as the Clause 1 of Article 31 makes it clear that the Consular premises shall be iniolable to the extentprovided in that Article. Under Clause 4 the consular premises, their furnishings, the property of the consular-post and its means of transport are made immunde from any form of requisition of the purpose of national defece or public utillity. But the same clause further provided that if expropriation is necesszry for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions and prmot, adequate and effective compensation shall be paid to the sending State. We are not concerned with the exception is whether the acquisition of the property for the purposes of providing an acess to the land-locked property and declaring such access as a public steeet can be said to be a public utility.
20. Mr. Dharmadhikari strenusly urged the words " public utility" denotes a business or service which is engaged in regularly supplying the public with some commdity or servcice such as electricity, gas, water, transportation, telephoneor telegraph service. The counsel took me through the scheme underlying the Dcrules in order to show that the objet o introducing Rule 22(5) is essnetially to enable property owners to develop property. The counsel urged that meter of a publicantility. He pointed out that even though the Commissioner has power to declare the access as a public street, such facility is essentially meant for a handful of person who are occupying the buildig. Mr. Dharmadhikari urged that if such broae meaning is given to the words " pulic utility", it will defeat the very bobject of granting immunity to the premises of the Consulate, Dr. Chandrachud on the other hand submitted that the Court should not give such a narrow meaning to the words "public utilityHe submitted that a strait-jacket formula cannot be applied to the words"public utility" appearin in Art. 22 The object behind making an exception to the rule of iniolablility is that such immunityshould not hamper the power of the State to acquire property for public purposes. Dr. Chandrachud submitted that the Municipal Corporation is essentially a statutor by body established under the Act for conferring public services to the poeple. The Corporation is also a planning authority under the Maharashtra Reginal and Town Planning Act. It is concerned with planned growth of the city. Therefore, it has go a statutoty obligation to implement DC Rules which are framed under S. 22(m). While acting in exerciseof such power, the municipal authorities are guided by public use and service with public use and service with public in mind. Therefore, according to the counsel, when the Municipal Commissioner decides to declare a part of the property of the Consulate as a public street, it amounts to expropriation or acquisition of the property for the purpose of public utility.
21. At the outset, it is necessary to state that there is no definition of " public utility" in the context of any Indian statute that may be relevant for the present purpose. There is a definition of "public utility service" in S. 2(n) of the Indistrial Dispute Act, 1947 which inter alia covers "any industry which suplies power, light or water to the public" and certain other indstries. But the dfinition is of no assistance to ascertain the meaning of "public utility" appearing in the convetion. Literally the word "utility" means usefulness, but it is often sued to refer to a corporation that performs a public service and so is a public utility. Hence rail roads, airlines, buslines gas and electricity corporations are known as public utilities. Webster defines a public utility as a business organisation performing some public service and, hence subject os pecial governmental regualtion ushc as fixing or rates and requirements of incidnetal facilities. The Shorter Oxford Dictionary defines "public utility" as the service or supplies commonly avialable in large towns such as omnibuses, electricity water etc.
22. "Public utility" is defined in Black's Law Dictionary (Sixth Edition) as -
" A privately onwed and operated business whose services are spo esential to the general public as to justify the grant of special franchise for the use of public property or of the rigfht of eminent domain, in consideration of which the onwers must sere persons who apply without discrimination. It is always a virtual monopoly.
A business or service which is engaged in regularly supplying the public with some commodity or service which is of public consequence and need such as electricity, gas, water, transportation or telephone or telegraph service. Gulf States Utilities Co. v. State Tex Civ. App 46 S.W. 2d. 1018,1021. Any agendy instrumentality, bsiness, industry or service which is used or conducted in such manner as to affect the community at large, that is, which is not limited or restricted to any particular class of the community. Tghe test for determining if a concern is a public utility is whether it has held itself out as ready, able and willing to serve the public. The term imples a public use of an article, product, or services, carrying with it the duty of the producer or manufacturer one attempting to furnish the service, to serve the public and treat all person alike, without discrimination. It is synonymous with "public use" and refers to person or corporation chasrged with the duty to supply the public with the use of propertyu of facilities onwed or furnished by them. Buder v. First, Nat., Bank in St. Louis C.C.A.Mokj. 16F 2ds 990,992. To constitute a true "publicutility" the devotion to public use must be of such character that the public fgenerally or that part of it, which has been served and which has accepted the service, has the legal right to demand that that service shall be conducted so long as it is continued with reasonable effiency under reasonable charges. The devotionof public use must be of such character that the product and service is available to the public generally and indiscriminately, or there must be the acceptance by the utility of public franchise or ceiling to its aid the police power of the State."
23. It is true that the words "public utilities" are used in the context of services such as electricity, gas, water, transportation etc. But it is well settled that public utilities also mean public purpose depending upon the context in which it is used in a statute, rules or regulations. This legal position can be seen from a passage from Corpus Juris Secundum Volume 73 Page 990:-
"A" public utility" has been described as abusiness organisation whicbregularly supplies the public with some comodity or service, such as electricity, gas, water, transportation or telephone or telegraph serviced, While the term has not been exactly defined, and, as has been said, it would be difficult to construct a definition that would fit every conceivable case the distinguishing characteristic of a public utility is the devotion of privateproperty by the onwer or person in control thereof to such a use that the public generally, or that part of the public which has been served and has accepted the service, has the right to demand that the use or service, as long as it is continued shall be conducted with reasonable efficiency and under proper charges. The term is sometimes used in an extended sense to include a great many matters of general welafare to the State and its communities."
A reference may also be made to Volume IV of Stroud's Judicial Dictionary Fifth Edition wherein "public utility: has been defined as follows:-
"A bequest for undertakings of "public utility" is void unless made definite by being confined to a spcefified locality (per Lord Divety, Hunter v. A.,G,., (1909) AC 323; Langham v. peterson, (1903) 61 JP 75, see further Genral Utility, it is very similar to one for a public purpose. But, on the other hand, Kekewich J. held that a figt for "such public tiltiies and institutions or for such charitable purposes for the public advanctage or benefit" as the trustees should think worthy, was good ......"
24. Coming to the Indian scene, there are two judgements of the Supreme Court where the observations of the Surpreme Court indicate that a public utilioty in the sense of purpose is almost synonymous to a public purpose In Babu Bankya Thakur v. State of Bombay, , the Supreme Court was considering the question of validity dealing with acquisition of Land Acquisition Act dealing with acquisition of land for commpanies. The Supreme Court held that acquisition ofland for company under the Land for company under the Land Acquisition Act is for a public purpose. Inpara 10, the Supreme Court after examining the provision of Article 31(2) of the Constitution observed that these requirement indicate that the acquisition for a Company also is in substance for a public purpose inasmuch as it cannot be seriously contended that constructing dwelling houses and providing amenities for the benefit of the workmen employed by it and construction of some work of public utility, donot serve apublic Ppurpose. In the same paragaph the Supreme Court referred to its earlier decision in the case of State of Bombay v. Bhanji Muniji, , Where it was held that providing housing accommodation to the homeless is a public purpose. The view taken by the Sukpreme Court in Jhandu Lal v. State of Punjab.
25. The words "public utility" are not capable of giving a precise meaning. The question whether a service is apublic utiltiy or not will have to be decided in the context of defferent situations. As far as the fascts in the instant case are concerned, it cannot be dsenied that the Municipal Corporation is astatutoty body which undertakses to provide services to the public at large. Under the provision of the MRTP Act is also functions as a Planning Authority. One of the functions of theCorporation is to provide streets in the municipasl area. Section 291 confers powers on the Municipal Corporation to decale any road as a public street. Upon such decalation, the property vests in the municapl Corporation and such raod is open for the use of the genral public. Rule 22(5) also confers power on the Municipal Commissioner to require the owner of the adkjoining plot to surrender a part of his property for the purpose of access to the land-locked property. Therefore in the larger sense the action of the Municipal Commissioner is refgerable to public utility. Under Articke 31 of the Vienna Convetion relating to consular relations expropriation of the consulate property is permissible for public utility provided all possible steps are taken to avoid imedping the performance of consular function and prompt, adequate and effective compensation is paid to the sending State. We have already.seen that under Rule 22(5) read with the circular of 18th January 1996 and S. 291 of the B.MC Act, the owner of the property is entilted to proportionate reduction in compulsory open sapce. Consequently, the question of impeding the consular functiuons does not arise. Therefore, the defence of the respondent No.4 based on Article 31 of the Convention of 1963 us laiable to be refected.
26. Lastly, the argument of Mr. Dharma dhikari that such a public street will be essentially for the purpose of occupants of the petitioners' property cannot be acepted., It has been aid down by theCourts i8n India that an acquisition can be for a public purpose even though all the members of public do not taken benefit. :Public purpose in acquistion may be served even though acquisitionis for the benefit of particular memeber of the public provieded the object of acquisition is a public plurpose (vide Kamalamma v. State, and N. Vajrapuri Naidu v. New Theatres Carnatic Talkies Ltd., ). Even though these decisions are under the Land Acquisition Act,m the principle underlying the same will be clearly applicable.
27.The next question is whether the petitioner are entitled to a writ of mandamus directing the municipal authorities to exercise their powers under Rule 22(5) read with S.291 of the BMS Act. Under these porovisions discretionary power is given to the Municipal Commissioner to provide an access to the land-looked property and if necessary to declare such access as a public street. Whether to exercise this power is a question within the sole discretion of the Municipal Commissioner. It is well settled that thwere the statute vests a discretaionary power upon an admisnstrative authority, the Court should not interfere with the exericse of such discretion unless it is made with the oblique motives or extraneous consideration (see M/s. Chingleput Bottlers v. M/s. Majestic Bottling Col and State of M.P.V. Nandlal, ). therefore, the petitioners' prayer for issuance of wirt of mandamus cannot be granted for it is for the Commissioner to decide whether it is a fit case for exercising power under Rule 22(5) read with S.291 of the BMC Act Needless to mention that neither the Vienna Convention relating to diplomatic mission 1961 nor the Venna Convetion relating to conslular relations 1963 create any impediment in exercise of the power of the Commissioner under Rule 22(5) of theDC Ruules read with S.291 of the BMC Act. The Municipal Commissioner is directed to decide the petitioner's application for acces within two months in accordance with law. Writ petition is disposed of accordingly.
On the oral request made by Mr. Dharma dhikari, operation of this judgment is stayed for a period of four weeks.
Order accordingly.