Indian Kanoon - Search engine for Indian Law

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:--

(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.

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.

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.