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CASE NO.: Appeal (civil)  4801 of 2005

PETITIONER: Indian City Properties Ltd. & Anr.               

RESPONDENT: The Municipal Commissioner of Greater Bombay, & Anr.                     

DATE OF JUDGMENT: 05/08/2005

BENCH: Ruma Pal & Dr. AR Lakshmanan

JUDGMENT: J U D G M E N T ( Arising out of  Special Leave Petition (Civil) No..13573 of 2001)

RUMA PAL, J.

Leave granted.

       The appellant is the owner of Plot No. 2M/748 situated at  M.L. Dhanukar Marg, Mumbai.  On the plot, there is a  bungalow, an out-house, cooling towers, a pump room,  servants quarters and a watchman’s room.   The first appellant   has let out the bungalow and the outhouse to the appellant  No.2 for use as a guest house. On 16th November, 1999 a  notice was issued to the appellants under Section 299 of the  Mumbai Municipal Corporation Act, 1888, (hereinafter referred  to as "the Act") to the effect that  the Corporation would take  possession of "certain land not occupied by a building" forming  part of the premises within the regular line of public  street as  prescribed by the Commissioner, under Section 299 of the  Act\005.. together with its enclosing wall, hedge, or fence, if any,  and any platform, verandah, step or other structure, which may  be found upon the said land".  Notice was also given that if  necessary the authority issuing the notice namely, the Deputy  Municipal Commissioner (Zone-I), Greater Bombay, would  "proceed to clear the building". Section 299 in so far as it is relevant is extracted   verbatim below:- "299. Acquisition of open land or of  land occupied by platforms, etc, within the  regular line of a street.

(1)     If any land not vesting in the corporation,  whether open or enclosed, lies within the  regular line of a public street, and is not  occupied by a building, or if a platform,  verandah, step or some other structure  external to a building abutting on a public  street, or a portion of a platform,  verandah, step or other such structure, is  within the regular line of such street,  the  Commissioner may, after giving to the  owner of the land or building not less than  seven clear days’ written notice of his  intention so to do, take possession on  behalf  of the corporation of the said land  with its enclosing wall, hedge or fence, if  any, or of the said platform, verandah,  step or other such structure as aforesaid,

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or of the portion of the said platform,  verandah, step or other such structure  aforesaid which is within the regular line  of the street, and, if necessary, clear the  same and the land so acquired shall  thenceforward be deemed a part of the  public street".          The question is whether the land in the appellant’s  premises which is sought to be affected by the notice is "not  occupied by any building" or occupied by "some other structure  external to a building"? In terms of the Section, if the land is  occupied by a building it is outside the scope of Section 299;  but if there are only structures external to a building, action may  be taken under Section 299 by the respondent to take  possession of the land and demolish the structure. The notice  was challenged by the appellants under Article 226 of the  Constitution contending that the former was true in its case.   By an order dated 2nd May, 2001, the High Court directed  the Prothonotary and Senior Master of the High Court to  appoint an Officer of the Court to visit the property and verify  whether the proposed acquisition affected any of the structures  of the appellant. Pursuant to the order, the Commissioner was  appointed.  The Commissioner visited the premises upon notice  to the parties and submitted a report.  According to the report,  the proposed acquisition affected the following permanent  existing structures in the premises to the extent indicated: 1.  Servants Room in two parts              a)13’-6"x 9’-6" 128.25      (Gr. Floor structure)                               b) 12’-6"x20’-6  256.25 2.  Security Cabin(Gr.Floor Structure)            6’-6x6’-6’   42.25 3.  Pump Room with Compressor                   9’-0"x6’-0" 54.00       (Gr.Floor Structure)

4.      Under ground RCC tank with  Cylinder shape pre-cast tank                 14’-6"x11’-6"  166.75 on Top                                           

       5.    A.C. Plant                                              12’-6x 10’-6"  131.25

6.  Part portion of Main Structure in         a) 2x13’.6"x10’-0"  270      two parts viz. Ground and First           b) 2x9’-0"x2’-6"   22.50      Floors, staircase, part bed room      Part bed room and balcony.                2

The writ petition was ultimately dismissed on 15th July 2001  by the High Court which held Section 299 of the Act permitted  such action against the six structures which were held to be  "other structures" external to the main building within the  meaning of the phrase in Section 299. The High Court however  noted the respondents’ submission that "the petitioners will be  entitled either for compensation or permissible FSI in accordance  with the relevant provisions and rules". The appellants contend that the High Court misconstrued  Section 299 of the Act and erred in treating the six items  mentioned in the Commissioner’s report as structures external  to a building.  According to the appellants each structure was a  ’building’ within the definition of the word in Section 3(s) of the  Act of which possession could not be taken under Section 299  of the Act.  Our attention was also drawn to several  photographs in support of the submission. Learned counsel appearing on behalf of the respondents  has submitted that the definition of the word "building" in  Section 3(s) was subject to the context to the contrary and that  in the context of the language of Section 299, it was clear that

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at least items 1-5 in the Commissioner’s report were structures  in respect of which proceedings could be taken under Section  299.  It is contended that the expression "other structure  external to a building" in Section 299 means such other  structures as are not part of the main building.  It is said that an  important test to determine what structure can be considered as  part of a building is whether the FSI is exhausted by "such other  structure".  In reckoning the FSI of constructed structures, water  tanks, pump rooms, security canopy or make-shift servant  quarters with temporary construction are not counted.  It is the  respondent’s case that in the present case no FSI is exhausted  by the structures proposed to be taken away. Reference has  been made to Regulations 3(42), 30 and 35 of the Development  Control Regulations for Greater Bombay, 1991 (referred to as           "the Regulations").  It is said that the land beneath the disputed  structures was considered to be vacant.  According to the  respondent the legislative intent is to provide for acquisition of  such external structures of buildings as are required in public  interest to widen the road. It was also submitted that the need  for taking over the portion of the premises in question was  admittedly to widen the existing road  on which the premises  abutted and to bring it in within the regular line of the public  street which had been determined by the Commissioner under  Section 297.  According to the respondents, the adjacent  properties falling on the prescribed regular line had given or not  contested the area needed for road expansion\027and that the  appellants were really interested in the grant of a greater Floor  Space Index (FSI) under the Regulations in lieu of the portion of  the premises sought to be taken over by the Corporation.  However it was said that the Corporation was not interested in  item six of the Commissioner’s report and it was conceded that  the said item fell outside the purview of the Commissioner’s  power under Section 299.  As far as the remaining part of the  premises was concerned, the Corporation was willing either to  grant FSI in terms of the Regulations or pay compensation to  the appellants in respect of the loss or damage which may be  suffered by reason of the widening of the street. The word ’building’ occurs in different statutes and has  been construed  according to the context in which the word has  been used. It is not necessary to consider those judgments  given the fact that the  word "building" has been defined in sub- section(s) of Section 3 of the Act as follows:- (s) "building" includes a house,  outhouse, stable, shed, hut, tank  (except tank for storage of drinking  water in a building or part of a building)  and every other such structure, whether  of masonry, bricks, wood, mud, metal or  any other material whatsoever."

The body of the Section however qualifies the definition  with the words "unless there be something repugnant in the  subject or context". The phrase in Section 3 means precisely  what it says\027namely, that the definition will apply unless  excluded expressly or by necessary implication.  The onus is on  the person alleging such exclusion.  It is not the respondent’s  case that the items found to be permanent existing structures  by the Commission of the High Court, would  not fall within the   general definition of building. The submission is that the word  should be read in a more restrictive manner in the context of  Section 299.The question then is - has, the onus been  discharged by the respondent?  The definition itself is in terms an inclusive one and is  therefore to be widely construed. It seems to indicate that a  structure would be a building if it has been erected by the use

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of whatever material, which may or may not be used by human  beings since it specifies stables and tanks as buildings. The  respondent’s submission is that the servant quarters, security  cabin, the pump room, underground RCC Tank with Cylinder  shape pre-cast tank and the AC Plant are  temporary building  and are ancillary to the main residential building and not  buildings for the purposes of exclusion from Section 299.   Section 299 itself does not draw a distinction between a  main building and an ancillary building, or between a  permanent building and a temporary building. But the phrase  ’temporary buildings’ has been defined  in Section 3(sb) of the  Act which says that:- "temporary building"  means any  building which is constructed principally  of mud, leaves, grass, cloth, thatch,  wood, corrugated iron or asbestos  cement sheets or such other material  and includes a building of whatever size  constructed of whatever material which  the Commissioner has allowed to be  built as  a temporary measure".

In other words a temporary building is that which is not  permitted to remain permanently. When the Act  separately  defines a temporary building as opposed to a "building" it  indicates that, in the absence of the word ’temporary’ in a  particular section what is meant is a permanent building.  This Court in Municipal Corporation of Greater  Bombay Vs. Indian Oil Corporation Limited 1991 (Suppl.) 2  SCC 18, construed the words "every other such structure" in  Section 3(s)  in the context of Section 143 (a) of the Act (which  authorizes a levy of general tax on building and land) and  held  that - a petrol storage tank although not fixed to the earth was  such a structure, holding that permanency is the test.  The context of Section 299 is Chapter 11 of the Act which  deals with the regulation of streets.  The chapter contains inter  alia (a) provisions relating to the construction, maintenance and  improvement of public streets and (b) preservation of the  "regular line" in public streets. Section 296  of  the  Act  falls   within  the  first set of provisions and provides:- "(1) The Commissioner may, subject to the  provisions of Sections 90,91 and 92\027

(a)     acquire any land required for the  purpose of opening, widening,  extending or otherwise improving any  public street or of making any new  public street, 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).

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(2)  Any conveyance of land or of a building  under clause (c) may comprise such  conditions as the Commissioner thinks fit, as  to the removal of the existing building, the  description of new building to be erected, the  period within which such new building shall  be completed and other such matters."

The power of acquisition under  Section 296 is to be  exercised by the Commissioner under the provisions of the  Land Acquisition Act 1894 [See: Sections 87,91 (i)]  Sections 297 to 311 are grouped together under the sub- title "Preservation of Regular Line in Public Streets".   Section  297 prescribes the method by which the Commissioner may  prescribe a line on each side of any public street which is called  the "regular line" of the street.  Section 298 allows the  Commissioner to dispose of proposals relating to re-building or  removal or re-construction or additions in respect of any part of  a building abutting on a public street which is within the regular  line of such street.  In passing an order on the proposals under  Section 345 or 346, the Commissioner may require such  building to be set back to the regular line of the street. Section  301 mandates payment of compensation to be paid by the  Commissioner to the owner of any building or land acquired for  a public street under Sections 298 or 299 for any loss which  such owner may sustain in consequence of his building or land  being so acquired and for any expenses incurred by such  owner in consequence of an order made by the Commissioner  under either of the Sections.  It needs to be noted that  in all these sections the word  used is ’building’ in contradistinction with Section 299 which  speaks of ’structures’ and ’buildings’. The word ’structure’ is used as a generic term so that  while all buildings may be structures, all structures are not  buildings. That structure which is not a building and is a  platform, verandah, step, or some other such structure external  to a building may be taken over by the Commissioner under  Section 299(1) if it is within the regular line of the street. The  words "some other such"  must be construed as structures  similar or like platform, verandah and step.  The words must be  read ejusdem generis with the preceding words since the word  ’such’ means "of the type previously mentioned" . The word  "other" has also been held to indicate that it must be construed  ejusdem generis .  The underlying characteristic of platforms,  verandahs and steps is that they are not independent structures  and are external to a building, that is they are attached to the  outside and form an inessential part of a building. In our  opinion, therefore in order to be a building for the purpose of  Section 299 the structure would have to be an independent,  permanent structure. Thus there is no repugnancy if one were  to read the definition of building and Section 299 and in our  opinion  the word ’building’ has been used in Section 299 in the  sense defined in Section 3(s).    Of the six items listed by the Commissioner in his report,  learned counsel appearing on behalf of the respondents has, as  we have noted earlier, already conceded that the part of the  main structure described against serial No. 6 would be  excluded from the purview of the action proposed in the  impugned notice under Section 299.  Even without the  concession in our view, applying the test of independence and  permanence each of the items fall within the definition of  ’building’ in Section 3(s) of the Act, and therefore, fall outside  the purview of Section 299. The next argument put forth by the respondent is that the  word ’building’ in Section 299 must be understood in the

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context of  floor space index (FSI) as provided under the  Development Control Regulation of Greater Bombay 1991. The  argument  is unacceptable.   FSI merely relates to the permission to build having  regard to various features such as height of the building,  tenement density, object with which the building is to be erected  etc. The computation of the FSI is in a context which is wholly  different from the context in which the word has been used in  Section 299. In any event it is in dispute which structures are  taken into account for the purposes of calculating FSI.  Apart from the language of Section 299, and the  immediate context in which the Section appears the power to  take over possession conferred on the Commissioner under  Section 299 in respect of certain structures is a summary  power.  Having regard to the nature of the power, it is unlikely  that the legislature intended that the Commissioner would  exercise such summary powers in respect of independent  structures which have been defined as ’building’ under the Act.  Needless to say it is always open to the municipal authority  subject to the provisions of the Act, to acquire any land or  building under Section 296 of the Act. In the circumstances of the case, we allow the appeal by  setting aside the impugned judgment as well as the impugned  notice dated 16th November, 1999.  There will be no order as to  costs.