http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: THE MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD

       Vs.

RESPONDENT: BEN HIRABEN MANILAL

DATE OF JUDGMENT05/04/1983

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) MADON, D.P.

CITATION:  1983 AIR  537            1983 SCR  (2) 676  1983 SCC  (2) 422        1983 SCALE  (1)327  CITATOR INFO :  E          1985 SC1416  (126)

ACT:      Bombay  Provincial   Municipal  Corporation   Act,1949- sections 260  and 478-scope  of-No reference made to section 478 in  notice-Notice, if  invalid-Wrong reference  in  show cause notice, if would vitiate the notice      Interpretation-language of  a provision  falls short of object of  legislature-Court,  if  could  give  an  extended meaning to words.

HEADNOTE:      In response  to the  notice issued to her under section 260 (1)  (a) of  the Bombay Provincial Municipal Corporation Act,  1949   the  respondent  contended  that  the  impugned construction of  walls without the sanction of the municipal corporation was  in existence  when she  had  purchased  the premises. She  then filed a suit in the City Civil Court and obtained permanent  injection  restraining  the  corporation from removing  the impugned  unauthorised construction.  The decree of  the lower court was affirmed by a single Judge of the High  Court in  appeal and  in further appeal a Division Bench held that the impugned notice was beyond the powers of the Corporation  in that  a notice  under the  section could only be  issued against  the person  who had constructed the building or who was constructing the building.      On further  appeal to  this Court  it was  contended on behalf of  the appellant  that section  260(1) (a)  read  in conjunction with  the latter  part of  section 478 empowered the Corporation  to take action for demolition or removal of unauthorised construction  both against  the person  who had commenced or  was constructing  the building  as well as the person who  was the  owner of  the building  which had  been constructed or  erected without  permission in  violation of the laws.      Allowing the appeal, ^      HELD: Although the impugned notice was not issued under section  478,   it  cannot  be  said  that  the  notice  was unauthorised or illegal. The question in this case being one of  construction   of  a   provision  of   a  statute   that construction must  be made  as to  be in conformity with its

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

other provisions and the provisions must be read as a whole. Section 478  can be  relied upon  in support  of the  notice under section 260(1) (a). [680 H; 681 A-B] 677      It is  well settled that a wrong reference to the power under which  action was  taken by  the Government  would not perse vitiate  that action  if it  could be  Justified under some other power under which government can lawfully do that act. [681 D-E]      L. Hazari  Mal Kuthiala  v. Income Tax officer, Special Circle, Ambala  Cantt. &  Anr. [1961]  41 I.T.R.  12  @  16, Hukumchand Mills  Ltd. v.  State of  Madhya Pradesh and Anr. [1964]  52   I.T.R.  583;  and  Nani  Gopal  Biswas  v.  The Municipality of Howrah, [1958] S.C.R. 774 @ 779 relied on.      Pitamber Vajirshet v. Dhondu Navalapa, [1888] I.L.R. 12 Bombay, 486 @ 489, approved.      It is  equally well  settled that  even where the usual meaning of a language falls short of the whole object of the legislature, a  more extended  meaning may  be given  to the words if  these  are  fairly  susceptible  of  it.  But  the construction must  not be  strained to include cases plainly omitted from the natural meaning of the words. [682 C]      In the  instant case  if the  provisions of section 260 (1) (a)  are read  in cojunction with the latter part of the provisions of section 478 which stipulates specifically that if the person carrying out such work or doing such things is not the  owner at  the time of such notice, the owner at the time of giving such notice shall also be liable for carrying out the  requisition of  the Commissioner,  it is clear that the action  for demolition  or removal  can be  taken by the Corporation exercising power under the provisions of the Act against persons  who had  not themselves  built the impugned portion.  These  provisions  are  devised  to  regulate  the building construction  for the safety, health and well-being of  the   inhabitants  of  the  municipality.  It  would  be anomalous  to  hold  that  if  a  building  was  constructed illegally or  in an unauthorised manner action could only be taken against  the person  who did  the illegal act but that after  the  construction  was  passed  over  to  others  the building would  enjoy immunity from any action in respect of the same. [681 F-H; 682 A & E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 744 of 1978.      Appeal by  Special leave  from the  Judgment and  order dated the  18th February,  1976 of the Gujarat High Court in C.A. No. 188 of 1974.      D.V. Patel and R.H.Dhebar for the Appellant.      Memo for the Respondent      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI, J. This appeal raises the question as to  the scope  and ambit  of the  power of  the Municipal authorities under 678 section 260  read with  Section 478 of the Bombay Provincial Municipal Corporation  Act, 1949.  There were four suits out of which  gradually four  Letters Patent  appeals came to be decided by  the High  Court of  Gujarat. Out  of these  four letters patent  appeals, the  Municipal Corporation has come up in  one of  the appeals before us, i.e. Appeal No. 188 of 1974 which  arose out  of first  appeal No. 10 of 1968 which again arose out of the Civil Suit No. 311 of 1966.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

    The short  facts are  that on the 26th March, 1960, the plaintiff respondent  herein purchased  a built-up house. In 1965, there  was construction  of  some  walls  without  the sanction of  the Municipal  Corporation. On  the 21st  July, 1965, notice  was  issued  by  the  Estate  officer  of  the Municipal Corporation  under Section 260(1)(a) of the Bombay Provincial Municipal Corporation Act, 1949. In reply to this notice, the plaintiff-respondent contended that the impugned construction was  not made  by  the  plaintiff  but  was  in existence when  she  had  purchased  the  premises.  On  6th September, 1965, a suit was instituted before the City Civil Judge, Ahmedabad,  claiming permanent injunction restraining the  defendant   the  appellant  herein  from  removing  the impugned unauthorised  construction and for other incidental reliefs. The  learned Judge  decreed the  suit. There  was a first appeal  in which  the decree  was affirmed. Thereafter there was  Letters Patent  Appeal in  which two  points were urged namely:  (i) whether  the notice,  in  the  facts  and circumstances of  this case, was valid, and (ii) whether the Commissioner of  the Municipal Corporation had delegated the power of issuing notice to the Estate officer. On the second point of the Letters Patent Appeal, it was held in favour of the appellant  and this  point is  not pressed before us. On the first  point, it  was held  that the notice impugned was beyond, in  the facts  and circumstances  of the  case,  the powers of  the Municipal  Corporation, Ahmedabad  because it was held  that the  notice under  the section  could only be issued against  the person  who had constructed the building or who was constructing the building.      In as  much as  the notice was issued under Section 260 of the  Act, it  would be  material to  set out the relevant provisions of the Act i.e. section 260(1)(a). It provides:           "Proceedings to  be taken  in respect  of building      work commenced contrary to rules or by laws:-      (1) If the erection of any building or the execution of      any such  work  as  is  described  in  section  254  is      commenced or 679      carried out  contrary to the provisions of the rules or      byelaws, the Commissioner, unless he deems it necessary      to take  proceeding in respect of such building or work      under section 264, shall-      (a)   by written  notice, require  the  person  who  is           erecting such  building or  executing such work or           has erected such building or executed such work on           or before  such day  as shall be specified in such           notice, by  a statement  in writing  subscribed by           him or  by an agent duly authorised by him in that           behalf and  addressed to the Commissioner, to show           sufficient cause  why such  building or work shall           not be removed, altered or pulled down."      Clause  (b)   of  Section  260  provides  that  in  the contingency specified  in sub-section  (1)  set  out  herein before, in  the alternative  the Commissioner  shall require the person  to show  cause why  such building and work shall not be  removed, altered  or pulled down. Sub-section (2) of Section 260  provides that  if the person concerned fails to show  sufficient   cause  to   the   satisfaction   of   the Commissioner Or  the building  is not  altered  or  removed, Commissioner may remove, alter or pull down the building the expenses of  which shall  be paid by the said person. Before us, learned  advocate for  the appellant, drew our attention to Section  478 of the Act in support of the action taken by the Corporation.  Section 260  speaks  of  erection  of  any building or  the execution  of any such work as is described

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

in section  254 "is commenced or carried out contrary to the provisions of  the  rules  or  bye-laws."  Then  it  further provides that  Commissioner shall require the person "who is erecting  such  building  or  executing  such  work  or  has executed such  building or executed such work" to show cause why the  infringing  portion  shall  not  be  demolished  or altered or  pulled down.  Now section  254  stipulates  that notice is  to be  given to  the Commissioner  for  addition, alteration etc. in the building.      There was  no dispute  in the  instant  case  that  the portion of  the building  mentioned in  the  notice  of  the Corporation was done without the sanction of the Corporation or notice  to  the  Corporation.  The  expressions  used  in section 260 by themselves are not quite clear, as to whether it is  directed against  the person  who  has  commenced  or carried out  the construction  contrary to the provisions of the bye-laws or the rules or whether in view of the language used 680 in sub-clause  (a) of  sub-section (1) of section 260 namely "has erected  such building"  notice could also be issued to any  person   other  than   who  has   actually  built   the unauthorised building.  But it  is submitted that if section 260 is  read in  conjunction with section 478 of the Act and if so  read then  it contemplates  action both  against  the person who  has commenced or is constructing the building as well as  the person  who is  the owner of the building which has been  constructed or  erected without the permission and in violation  of the  laws or  the rules.  Section 478 is as follows:           "Works or thing done without written permission of      the Commissioner to be deemed unauthorised:-      (1)  If   any  work  or  thing  requiring  the  written      permission of  the Commissioner  under any provision of      this Act, or any rule, regulation or bye-law is done by      any person without obtaining such written permission or      if such written permission is subsequently suspended or      revoked   for any reason by the Commissioner, such work      or thing   shall  be deemed  to  be  unauthorised  and,      subject  to  any  other  provision  of  this  Act,  the      Commissioner  may  at  any  time,  by  written  notice,      require that  the same shall be removed, pulled down or      undone, as  the case  may be, by the person so carrying      out or  doing. If  the person carrying out such work or      doing such  thing is  not the owner at the time of such      notice then the owner at the time of giving such notice      shall be liable for carrying out the requisition of the      Commissioner.      (2) If  within the  period specified  in  such  written      notice the  requisitions contained  there  in  are  not      carried out by the person or owner, as the case may be,      the Commissioner  may remove or alter such work or undo      such thing  and the  expenses thereof  shall be paid by      such person or owner, as the case may be."      It is  true that  the notice  impugned in this case was not issued   under  section 478.  This section  was also not placed for  consideration by  the learned Trial Judge or the First Appellate Court or in the Letters Patent Appeal before the High  Court. But  the question being one of construction of  a   provision  of   a  statute,  in  our  opinion,  that construction must be so made as to be in conformity with the other  provisions   of  that   particular  statute  and  the provisions must be read 681 as a  whole. This  being a question of law, this section can

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

be relied  upon in  support  of  the  notice  under  section 260(1)(a). If  indeed section 478 comprehends both the owner or the  occupier who has actually constructed and as well as the owner  or  occupier  of  the  building  which  has  been unauthorisedly  constructed,   then  the   action   of   the Corporation can  be supported.  It is  well settled that the exercise of  a power,  if there  is indeed  a power, will be referable to  a  jurisdiction,  when  the  validity  of  the exercise of  that power  is in issue, which confers validity upon it  and not  to a  jurisdiction under which it would be nugatory,  though  the  section  was  not  referred,  and  a different or  a wrong  section of  different provisions  was mentioned.  See  in  this  connection  the  observations  in Pitamber  Vajirshet  v.  Dhondu  Navalapa.(1)  See  in  this connection also  the observations  of this Court in the case of L.  Hazari Mal  Kuthiala v.  Income-tax Officer,  Special Circle, Ambala Contt. & Another(2) This point has again been reiterated by  this Court  in the  case of  Hukumchand Mills Ltd. v.  State of Madhya Pradesh and another(3) where it was observed that  it was well settled that a wrong reference to the power  under which  action was  taken by  the Government would per  se vitiate  that action  if it could be justified under some other power under which Government could lawfully do that  act. See also the observations of the Supreme Court in the  case of  Nani Gopal  Biswas v.  The Municipality  of Howrah.(4)      The question  that, therefore,  falls for consideration is, whether section 260(1)(a) of the Act read in conjunction with section  478 of  the Act of 1949 empowers the Municipal Corporation to  take action  for demolition  or  removal  of unauthorised construction.  Even though  the expressions  in section 260 are not quite explicit, but if the provisions of section 260(1)(a)  are read  in conjunction  with the latter part of  the provisions  of  section  478  which  stipulates specifically that  if the  person carrying  out such work or doing such  things is  not the  owner at  the time  of  such notice, the  owner at  the time  of giving such notice shall also be  liable for  carrying out  the  requisition  of  the Commissioner, makes  it clear that the action for demolition or removal  can be  taken by  the Corporation  or  Municipal authorities exercising  power under  provisions of  the said Act  against  persons  who  had  not  themselves  built  the infringing portion. 682      Chapter  XV   of  the   Bombay   Provincial   Municipal Corporation Act,  1949 as  applicable to the area concerned, deals with the building regulations and includes section 260 of the  Act. These  provisions are  to regulate the building construction for  the safety,  health and  well-being of the inhabitants of  the particular  municipality or corporation. Therefore the  provisions should  be read broadly which will effectuate the  intention of the Legislature and prevent the mischief which was intended to be remedied or avoided by the provisions. It  is  well-settled  that  when  a  problem  of construction comes  before a  court, the  intention  of  the legislature must  be given  effect to  as expressed  in  the language of  the provisions. Where the language is explicit, no problem  arises.  Even  where  the  usual  meaning  of  a language falls short of the whole object of the legislature, a more  extended meaning  may be  given to the words if they are fairly  susceptible of  it. The  construction must  not, however, be  strained to  include cases plainly omitted from the natural  meaning of  the words.  It has  been said  very often  that  it  is  the  duty  of  a  judge  to  make  such construction of a statute as shall suppress the mischief and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

advance the remedy. (See in this connection the observations of Maxwell  on The  Interpretation of Statutes, 10th Edition p. 68,  under the  heading "Beneficial Construction.") If we keep in  mind purpose of these regulations and the object of these regulations, i.e. regulating the building construction in a municipal statute, it appears that it will be anomalous result if  it be  said that  if a  building  is  constructed illegally or  in an  unauthorised manner, action can only be taken against  the person  who is doing the unauthorised act or illegal act but after the construction of the building is passed over  to others,  the construction  of  the  building enjoys immunity from any action in respect of the same. That it appears,  could not be a proper construction particularly in this  case in  view of  the specific language used in the latter part of sub-section (1) of section 478 of the Act set out herein  before. Keeping  in background the facts of this case and  the said  provisions, in  our opinion,  the action taken by  the Corporation was warranted by the provisions of the Act.  Therefore it cannot be said that the notice issued by the Municipal Corporation was unauthorised or illegal. In that view  of the matter, the judgment and order of the High Court of  Gujarat impugned in this case must be set aside on this aspect of the matter and the appeal is thus allowed and the respondent’s  suit dismissed.  We express  no opinion on the other point of delegation. The parties will bear, in the facts  and  circumstances  of  the  case,  their  own  costs throughout. 683      We have  proceeded on the construction of the powers of the Municipality  in the  situation mentioned herein before. We must,  however, observe  that learned  Advocate  for  the appellant assured  us that  in view  of the  fact  that  the infringement in  question was  not  of  a  very  significant nature, i.e. building certain railings or walls, if it could be regularised  on a  proper application  by the respondent, the Corporation  or the Municipality concerned will see that the same  is done  and the  railings or  the  walls  on  the infringing part are not removed or demolished. P.B.R.                                       Appeal allowed. 684