SURAT BOROUGH MUNICIPALITY Vs. ISHVARLAL MANCHHARAM BACHKANIWALA

JUDGEMENT

(1.) This appeal raises an important question as to the nature of the power exercised by the Chief Officer of a Borough Municipality while exercising powers under clauses (a) and (b) of sub-sec. (7) of sec. 123 of the Bombay Municipal Boroughs Act 1925 (Bombay Act No. XVIII of 1925) (which will hereinafter be referred to as 44the Act).

(2.) The appellant is Surat Borough Municipality as it was then constituted and the respondent is a citizen of Surat who owned an open land within the municipal limits on which he made some constructions without the requisite permission of the Chief Officer. Two complaints were filed against the respondent for such unauthorized constructions which in one case was of a stable and in the other of two rooms. He was convicted under sub-sec. (7) of sec. 123 of the Act in both these cases. The building Superintendent of the Municipality then issued two notices Ex. 51 and 52 for demolition of the unauthorized constructions and two other notices Ex. 53 and 54 intimating that the Municipality would demolish the offending constructions as the respondent had not complied with the requisitions made in the notices. The respondent being aggrieved had filed Regular Civil Suit No. 813 of 1960 in the Court of the learned 3rd Joint Civil Judge Surat in which he contended that the notices were illegal in so far as they were issued in violation of the principle of natural justice meaning that the respondent was not heard and was not given an opportunity to meet the case before the issuance of such notices. It was contended that the Building Superintendent had no powers to issue such notices. The learned trial Judge negatived the second contention and upheld the first one. In defendants Regular Civil Appeal No. 260 of 1964 the learned Assistant Judge Surat has by his decision dated May 5 1966 upheld the judgment of the trial Court on the ground that no opportunity was given to the plaintiff before issuance of the four notices. The learned Judge has thereby confirmed the decree of the trial Court which had declared that the four notices in question were illegal and against principles of natural justice. It is against this decision that this second appeal is directed.

(3.) Now sub-sec. (7) of sec. 123 which occurs in Chapter X of the Bombay Municipal Boroughs Act 1925 falls under the second head dealing with powers to regulate buildings etc. Sec. 119 deals with setting back of projecting buildings. Sub-sec. (2) thereof deals with acquisition of land which is within the regular line of a street and open or occupied only by platforms etc. Sub-sec. (3) provides for compensation payable by the Municipality to the owner of any land added to a street under sub-sec. (1) or acquired under sub-sec. (2). Sec. 120 deals with setting forward of a building to regular line of street. Sec. 121 prescribes the nature of the construction to be made qua the external roofs and walls of buildings and also provides for the power of the Chief Officer to require removal of roof and wall if inflammable and provides for the penalty for noncompliance etc. Sec. 122 prescribes the level of the buildings. Sec. 123 which is material for the present purpose in sub-sec. (1) requires the permission of the Chief Officer for new construction alteration addition or reconstruction etc. to be made. Sub-sec. (2) gives powers to the Chief Officer to pass orders granting permission with or without appropriate conditions. Sub-sec. (3) gives power to the Chief Officer to revoke the permission or give fresh permission before any work has commenced. Sub-sec. (4) gives powers to the Chief Officer to suspend the work or require further particulars. Sub-sec. (5) gives right to the applicant to proceed with the work in certain cases. Sub-sec. (6) deals with the limit of time of commencement of the work. Sub-sec. (7) provides for a penal action in the shape of a prosecution against a person making construction alteration addition or reconstruction without giving the notice required by sub-sec. (1) or without furnishing any plan information or particular required by or under that section or except as provided in sub-sec. (5) without awaiting or in any manner contrary to such legal orders of the Chief Officer as may be issued under the section or contrary to the provisions of sub-secs. (5) or (6) or in any other respect contrary to the provisions of the Act or of any bye-law in force thereunder. Sub-sec. (73) in the first para provides that such offender shall be punished with fine which may extend to Rs. 1 0 and in the case of a continuing contravention of any of the aforesaid provisions to an additional fine which may extend to ten rupees for each day during which such contravention continues after conviction for the first such contravention. It provides 16 second part that Chief Officer may:-