{"id":156425,"date":"2005-08-05T00:00:00","date_gmt":"2005-08-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indian-city-properties-ltd-anr-vs-the-municipal-commissioner-of-on-5-august-2005"},"modified":"2018-01-16T17:59:39","modified_gmt":"2018-01-16T12:29:39","slug":"indian-city-properties-ltd-anr-vs-the-municipal-commissioner-of-on-5-august-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indian-city-properties-ltd-anr-vs-the-municipal-commissioner-of-on-5-august-2005","title":{"rendered":"Indian City Properties Ltd. & Anr vs The Municipal Commissioner Of … on 5 August, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Indian City Properties Ltd. & Anr vs The Municipal Commissioner Of … on 5 August, 2005<\/div>\n
Author: R Pal<\/div>\n
Bench: Ruma Pal, Dr. Ar Lakshmanan<\/div>\n
           CASE NO.:\nAppeal (civil)  4801 of 2005\n\nPETITIONER:\nIndian City Properties Ltd. & Anr.\t\t\n\nRESPONDENT:\nThe Municipal Commissioner of Greater Bombay, & Anr.\t\t\t\n\nDATE OF JUDGMENT: 05\/08\/2005\n\nBENCH:\nRuma Pal & Dr. AR Lakshmanan\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n( Arising out of  Special Leave Petition (Civil) No..13573 of 2001)<\/p>\n
RUMA PAL, J.\n<\/p>\n
Leave granted.\n<\/p>\n
\tThe appellant is the owner of Plot No. 2M\/748 situated at
\nM.L. Dhanukar Marg, Mumbai.  On the plot, there is a
\nbungalow, an out-house, cooling towers, a pump room,
\nservants quarters and a watchman’s room.   The first appellant
\nhas let out the bungalow and the outhouse to the appellant
\nNo.2 for use as a guest house. On 16th November, 1999 a
\nnotice was issued to the appellants under Section 299 of the
\nMumbai Municipal Corporation Act, 1888, (hereinafter referred
\nto as “the Act”) to the effect that  the Corporation would take
\npossession of “certain land not occupied by a building” forming
\npart of the premises within the regular line of public  street as
\nprescribed by the Commissioner, under Section 299 of the
\nAct.. together with its enclosing wall, hedge, or fence, if any,
\nand any platform, verandah, step or other structure, which may
\nbe found upon the said land”.  Notice was also given that if
\nnecessary the authority issuing the notice namely, the Deputy
\nMunicipal Commissioner (Zone-I), Greater Bombay, would
\n“proceed to clear the building”.\n<\/p>\n
Section 299 in so far as it is relevant is extracted
\nverbatim below:-\n<\/p>\n
“299. Acquisition of open land or of
\nland occupied by platforms, etc, within the
\nregular line of a street.\n<\/p>\n
(1)\tIf any land not vesting in the corporation,
\nwhether open or enclosed, lies within the
\nregular line of a public street, and is not
\noccupied by a building, or if a platform,
\nverandah, step or some other structure
\nexternal to a building abutting on a public
\nstreet, or a portion of a platform,
\nverandah, step or other such structure, is
\nwithin the regular line of such street,  the
\nCommissioner may, after giving to the
\nowner of the land or building not less than
\nseven clear days’ written notice of his
\nintention so to do, take possession on
\nbehalf  of the corporation of the said land
\nwith its enclosing wall, hedge or fence, if
\nany, or of the said platform, verandah,
\nstep or other such structure as aforesaid,
\nor of the portion of the said platform,
\nverandah, step or other such structure
\naforesaid which is within the regular line
\nof the street, and, if necessary, clear the
\nsame and the land so acquired shall
\nthenceforward be deemed a part of the
\npublic street”.\n<\/p>\n
The question is whether the land in the appellant’s
\npremises which is sought to be affected by the notice is “not
\noccupied by any building” or occupied by “some other structure
\nexternal to a building”? In terms of the Section, if the land is
\noccupied by a building it is outside the scope of Section 299;
\nbut if there are only structures external to a building, action may
\nbe taken under Section 299 by the respondent to take
\npossession of the land and demolish the structure. The notice
\nwas challenged by the appellants under Article 226 of the
\nConstitution contending that the former was true in its case.
\nBy an order dated 2nd May, 2001, the High Court directed
\nthe Prothonotary and Senior Master of the High Court to
\nappoint an Officer of the Court to visit the property and verify
\nwhether the proposed acquisition affected any of the structures
\nof the appellant. Pursuant to the order, the Commissioner was
\nappointed.  The Commissioner visited the premises upon notice
\nto the parties and submitted a report.  According to the report,
\nthe proposed acquisition affected the following permanent
\nexisting structures in the premises to the extent indicated:\n<\/p>\n
1.  Servants Room in two parts              a)13′-6″x 9′-6″ 128.25
\n     (Gr. Floor structure)\t\t                 b) 12′-6″x20′-6  256.25\n<\/p>\n
2.  Security Cabin(Gr.Floor Structure)            6′-6×6′-6′   42.25\n<\/p>\n
3.  Pump Room with Compressor\t                9′-0″x6′-0″ 54.00
\n      (Gr.Floor Structure)<\/p>\n
4.\tUnder ground RCC tank with
\nCylinder shape pre-cast tank \t             14′-6″x11′-6″  166.75
\non Top\t\t\t\t\t\t<\/p>\n
\t5.    A.C. Plant\t\t\t                      12′-6x 10′-6″  131.25<\/p>\n
6.  Part portion of Main Structure in         a) 2×13′.6″x10′-0″  270
\n     two parts viz. Ground and First           b) 2×9′-0″x2′-6″   22.50
\n     Floors, staircase, part bed room
\n     Part bed room and balcony.\t               2<\/span><\/p>\n
The writ petition was ultimately dismissed on 15th July 2001
\nby the High Court which held Section 299 of the Act permitted
\nsuch action against the six structures which were held to be
\n“other structures” external to the main building within the
\nmeaning of the phrase in Section 299. The High Court however
\nnoted the respondents’ submission that “the petitioners will be
\nentitled either for compensation or permissible FSI in accordance
\nwith the relevant provisions and rules”.
\nThe appellants contend that the High Court misconstrued
\nSection 299 of the Act and erred in treating the six items
\nmentioned in the Commissioner’s report as structures external
\nto a building.  According to the appellants each structure was a
\n‘building’ within the definition of the word in Section 3(s) of the
\nAct of which possession could not be taken under Section 299
\nof the Act.  Our attention was also drawn to several
\nphotographs in support of the submission.
\nLearned counsel appearing on behalf of the respondents
\nhas submitted that the definition of the word “building” in
\nSection 3(s) was subject to the context to the contrary and that
\nin the context of the language of Section 299, it was clear that
\nat least items 1-5 in the Commissioner’s report were structures
\nin respect of which proceedings could be taken under Section\n<\/p>\n
299.  It is contended that the expression “other structure
\nexternal to a building” in Section 299 means such other
\nstructures as are not part of the main building.  It is said that an
\nimportant test to determine what structure can be considered as
\npart of a building is whether the FSI is exhausted by “such other
\nstructure”.  In reckoning the FSI of constructed structures, water
\ntanks, pump rooms, security canopy or make-shift servant
\nquarters with temporary construction are not counted.  It is the
\nrespondent’s case that in the present case no FSI is exhausted
\nby the structures proposed to be taken away. Reference has
\nbeen made to Regulations 3(42), 30 and 35 of the Development
\nControl Regulations for Greater Bombay, 1991 (referred to as
\n“the Regulations”).  It is said that the land beneath the disputed
\nstructures was considered to be vacant.  According to the
\nrespondent the legislative intent is to provide for acquisition of
\nsuch external structures of buildings as are required in public
\ninterest to widen the road. It was also submitted that the need
\nfor taking over the portion of the premises in question was
\nadmittedly to widen the existing road  on which the premises
\nabutted and to bring it in within the regular line of the public
\nstreet which had been determined by the Commissioner under
\nSection 297.  According to the respondents, the adjacent
\nproperties falling on the prescribed regular line had given or not
\ncontested the area needed for road expansionand that the
\nappellants were really interested in the grant of a greater Floor
\nSpace Index (FSI) under the Regulations in lieu of the portion of
\nthe premises sought to be taken over by the Corporation.
\nHowever it was said that the Corporation was not interested in
\nitem six of the Commissioner’s report and it was conceded that
\nthe said item fell outside the purview of the Commissioner’s
\npower under Section 299.  As far as the remaining part of the
\npremises was concerned, the Corporation was willing either to
\ngrant FSI in terms of the Regulations or pay compensation to
\nthe appellants in respect of the loss or damage which may be
\nsuffered by reason of the widening of the street.
\nThe word ‘building’ occurs in different statutes and has
\nbeen construed  according to the context in which the word has
\nbeen used. It is not necessary to consider those judgments
\ngiven the fact that the  word “building” has been defined in sub-
\nsection(s) of Section 3 of the Act as follows:-\n<\/p>\n
(s) “building” includes a house,
\nouthouse, stable, shed, hut, tank
\n(except tank for storage of drinking
\nwater in a building or part of a building)
\nand every other such structure, whether
\nof masonry, bricks, wood, mud, metal or
\nany other material whatsoever.”\n<\/p>\n
The body of the Section however qualifies the definition
\nwith the words “unless there be something repugnant in the
\nsubject or context”. The phrase in Section 3 means precisely
\nwhat it saysnamely, that the definition will apply unless
\nexcluded expressly or by necessary implication.  The onus is on
\nthe person alleging such exclusion.  It is not the respondent’s
\ncase that the items found to be permanent existing structures
\nby the Commission of the High Court, would  not fall within the
\ngeneral definition of building. The submission is that the word
\nshould be read in a more restrictive manner in the context of
\nSection 299.The question then is – has, the onus been
\ndischarged by the respondent?\n<\/p>\n
The definition itself is in terms an inclusive one and is
\ntherefore to be widely construed. It seems to indicate that a
\nstructure would be a building if it has been erected by the use
\nof whatever material, which may or may not be used by human
\nbeings since it specifies stables and tanks as buildings. The
\nrespondent’s submission is that the servant quarters, security
\ncabin, the pump room, underground RCC Tank with Cylinder
\nshape pre-cast tank and the AC Plant are  temporary building
\nand are ancillary to the main residential building and not
\nbuildings for the purposes of exclusion from Section 299.
\n  Section 299 itself does not draw a distinction between a
\nmain building and an ancillary building, or between a
\npermanent building and a temporary building. But the phrase
\n‘temporary buildings’ has been defined  in Section 3(sb) of the
\nAct which says that:-\n<\/p>\n
“temporary building”  means any
\nbuilding which is constructed principally
\nof mud, leaves, grass, cloth, thatch,
\nwood, corrugated iron or asbestos
\ncement sheets or such other material
\nand includes a building of whatever size
\nconstructed of whatever material which
\nthe Commissioner has allowed to be
\nbuilt as  a temporary measure”.\n<\/p>\n
In other words a temporary building is that which is not
\npermitted to remain permanently. When the Act  separately
\ndefines a temporary building as opposed to a “building” it
\nindicates that, in the absence of the word ‘temporary’ in a
\nparticular section what is meant is a permanent building.
\nThis Court in Municipal Corporation of Greater
\nBombay Vs. Indian Oil Corporation Limited 1991 (Suppl.) 2
\nSCC 18, construed the words “every other such structure” in
\nSection 3(s)  in the context of Section 143 (a) of the Act (which
\nauthorizes a levy of general tax on building and land) and  held
\nthat – a petrol storage tank although not fixed to the earth was
\nsuch a structure, holding that permanency is the test.
\nThe context of Section 299 is Chapter 11 of the Act which
\ndeals with the regulation of streets.  The chapter contains inter
\nalia (a) provisions relating to the construction, maintenance and
\nimprovement of public streets and (b) preservation of the
\n“regular line” in public streets. Section 296  of  the  Act  falls
\nwithin  the  first set of provisions and provides:-
\n“(1) The Commissioner may, subject to the
\nprovisions of Sections 90,91 and 92<\/p>\n
(a)\tacquire any land required for the
\npurpose of opening, widening,
\nextending or otherwise improving any
\npublic street or of making any new
\npublic street, and the buildings, if any,
\nstanding  upon such land;\n<\/p>\n
(b)\tacquire in addition to the said land and
\nthe buildings, if any, standing
\nthereupon, all such land with the
\nbuildings, if any, standing thereupon,
\nas it shall seem expedient for the
\ncorporation to acquire outside of the
\nregular line, or of the intended regular
\nline, of such street;\n<\/p>\n
(c)\tlease, sell or otherwise dispose of any
\nland or building purchased under
\nclause (b).\n<\/p>\n
(2)  Any conveyance of land or of a building
\nunder clause (c) may comprise such
\nconditions as the Commissioner thinks fit, as
\nto the removal of the existing building, the
\ndescription of new building to be erected, the
\nperiod within which such new building shall
\nbe completed and other such matters.”\n<\/p>\n
The power of acquisition under  Section 296 is to be
\nexercised by the Commissioner under the provisions of the
\nLand Acquisition Act 1894 [See: Sections 87,91 (i)]
\nSections 297 to 311 are grouped together under the sub-
\ntitle “Preservation of Regular Line in Public Streets”.   Section
\n297 prescribes the method by which the Commissioner may
\nprescribe a line on each side of any public street which is called
\nthe “regular line” of the street.  Section 298 allows the
\nCommissioner to dispose of proposals relating to re-building or
\nremoval or re-construction or additions in respect of any part of
\na building abutting on a public street which is within the regular
\nline of such street.  In passing an order on the proposals under
\nSection 345 or 346, the Commissioner may require such
\nbuilding to be set back to the regular line of the street. Section
\n301 mandates payment of compensation to be paid by the
\nCommissioner to the owner of any building or land acquired for
\na public street under Sections 298 or 299 for any loss which
\nsuch owner may sustain in consequence of his building or land
\nbeing so acquired and for any expenses incurred by such
\nowner in consequence of an order made by the Commissioner
\nunder either of the Sections.\n<\/p>\n
It needs to be noted that  in all these sections the word
\nused is ‘building’ in contradistinction with Section 299 which
\nspeaks of ‘structures’ and ‘buildings’.
\nThe word ‘structure’ is used as a generic term so that
\nwhile all buildings may be structures, all structures are not
\nbuildings. That structure which is not a building and is a
\nplatform, verandah, step, or some other such structure external
\nto a building may be taken over by the Commissioner under
\nSection 299(1) if it is within the regular line of the street. The
\nwords “some other such”  must be construed as structures
\nsimilar or like platform, verandah and step.  The words must be
\nread ejusdem generis with the preceding words since the word
\n‘such’ means “of the type previously mentioned” . The word
\n“other” has also been held to indicate that it must be construed
\nejusdem generis .  The underlying characteristic of platforms,
\nverandahs and steps is that they are not independent structures
\nand are external to a building, that is they are attached to the
\noutside and form an inessential part of a building. In our
\nopinion, therefore in order to be a building for the purpose of
\nSection 299 the structure would have to be an independent,
\npermanent structure. Thus there is no repugnancy if one were
\nto read the definition of building and Section 299 and in our
\nopinion  the word ‘building’ has been used in Section 299 in the
\nsense defined in Section 3(s).\n<\/p>\n
 Of the six items listed by the Commissioner in his report,
\nlearned counsel appearing on behalf of the respondents has, as
\nwe have noted earlier, already conceded that the part of the
\nmain structure described against serial No. 6 would be
\nexcluded from the purview of the action proposed in the
\nimpugned notice under Section 299.  Even without the
\nconcession in our view, applying the test of independence and
\npermanence each of the items fall within the definition of
\n‘building’ in Section 3(s) of the Act, and therefore, fall outside
\nthe purview of Section 299.\n<\/p>\n
The next argument put forth by the respondent is that the
\nword ‘building’ in Section 299 must be understood in the
\ncontext of  floor space index (FSI) as provided under the
\nDevelopment Control Regulation of Greater Bombay 1991. The
\nargument  is unacceptable.\n<\/p>\n
FSI merely relates to the permission to build having
\nregard to various features such as height of the building,
\ntenement density, object with which the building is to be erected
\netc. The computation of the FSI is in a context which is wholly
\ndifferent from the context in which the word has been used in
\nSection 299. In any event it is in dispute which structures are
\ntaken into account for the purposes of calculating FSI.
\nApart from the language of Section 299, and the
\nimmediate context in which the Section appears the power to
\ntake over possession conferred on the Commissioner under
\nSection 299 in respect of certain structures is a summary
\npower.  Having regard to the nature of the power, it is unlikely
\nthat the legislature intended that the Commissioner would
\nexercise such summary powers in respect of independent
\nstructures which have been defined as ‘building’ under the Act.
\nNeedless to say it is always open to the municipal authority
\nsubject to the provisions of the Act, to acquire any land or
\nbuilding under Section 296 of the Act.\n<\/p>\n
In the circumstances of the case, we allow the appeal by
\nsetting aside the impugned judgment as well as the impugned
\nnotice dated 16th November, 1999.  There will be no order as to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Indian City Properties Ltd. & Anr vs The Municipal Commissioner Of … on 5 August, 2005 Author: R Pal Bench: Ruma Pal, Dr. Ar Lakshmanan CASE NO.: Appeal (civil) 4801 of 2005 PETITIONER: Indian City Properties Ltd. & Anr. RESPONDENT: The Municipal Commissioner of Greater Bombay, & Anr. DATE OF JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-156425","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nIndian City Properties Ltd. & Anr vs The Municipal Commissioner Of ... on 5 August, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/indian-city-properties-ltd-anr-vs-the-municipal-commissioner-of-on-5-august-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indian City Properties Ltd. & Anr vs The Municipal Commissioner Of ... on 5 August, 2005 - 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