GULAMHUSAIN RAMZANHUSAIN MHAWLA Vs. DAMAN MUNICIPAL COUNCIL

JUDGEMENT

(1.) IT has been straneously urged by Mr. Vashi, learned Counsel, appearing on behalf of the Appellant that the approach of the Appeal Court is erroneous in law insofar as the vital documents namely the copy of the Gazettee as also Exhibit-58 which was the Resolution whereby the building bye-laws had been adopted were not proved in evidence and were erroneously relied upon. Towards this end, Mr. Vashi has demonstrated to me that nobody on behalf of the Municipal Council stepped into the witness-box, that the appellant who was appearing ia person had raised this point before the Appeal Court and that the learned appellate Judge has not taken cognizance of it. Mr. Vashi's whole contention is that the rejection of the building permission which is the subject-matter of the dispute and which is alleged to have been based on the provisions of the building bye-laws is not only illegal but null and void for the simple reason that the appellant had presented a challenge to the very validity of those bye-law. He, therefore, submits that this appeal raises a substantial question of law, quite-apart from the fact that the bye-laws if they have no legal status cannot be pressed into operation in this or other cases but more importantly, that they cannot prescribe any limitations to the building permission sought by his client.

(2.) AS against this position, Mr. Cama, learned Counsel, representina the Council points out to me that the learned Appellate Judge has relied on a Division Bench judgment of this High Court wherein these very bye-laws had been challenged. That decision pertains to the Writ Petition no. 32/b/1979 and the Appeal Court has extracted the relevant paragraphs from the judgment whereby the Division Bench has gone into the question of the validity of these bye-laws as also in passing made a reference to the fact that the procedure prescribed by law has been complied with under these circumstances, Mr. Cama, submits that it is no longer open for the Appellant to challenge the legal status of those by-laws.

(3.) HE further sumbits that in a dispute of the present type where there was no question of any disputed facts or issues being resolved that it was wholly unnecessary for any officer on behalf of the Council to step into the witness-box and that it was sufficient for the Council to produce the relevant documents alongwith the pleadings.