The Municipal Corporation of City of Ahmedabad vs Patel Prabhudas Dhanjibhal

J.M. Shelat, J.—This appeal raises a point of construction of Section 260 of the Bombay Provincial Municipal Corporations Act 1949.

2 The plaintiff filed a suit against the Municipal Corporation of Ahmedabad for a declaration that the notice issued by the Corporation dated the

30th April 1952 u/s 260 of the Bombay Provincial Municipal Corporations Act 1949 was vague illegal and ultra vires and for an injunction

restraining a shed and a pan-galla constructed by the plaintiff and in respect of which the notice was issued.

The plaintiff has been running a hotel in Survey No. 163 in Saraspur Ward Ahmedabad for the last several years. It was the case of the plaintiff

that he had made no additions or alterations in his shop and yet the State and the City Improvement Officer of the Corporation sent him the said

notice u/s 260 to the effect that he had made constructions contrary to buildings byelaws 5-A and 23. It was also his case that he had constructed

the shop prior to the coming into force of the Act of 1949 and that therefore Section 260 of the 1949 Act would not apply and that the notice

issued thereunder would be misconceived. He contended that the notice was in any event vague unauthorised and inoperative.

The case of the Defendant Corporation was that as the plaintiff had constructed a shed and a pan-galla without a prior permission and in

contravention of bye-laws 5-A and 23 the Estate and City Improvement Officer called upon the plaintiff to show cause and they by a further notice

dated the 2nd of June 1952 called upon the plaintiff remove the construction. It may be mentioned that prior to the issue of these two notices, the

plaintiff had already been prosecuted by the Ahmedabad Municipality u/s 123 of the Bombay Municipal Boroughs Act of 1925 which was then in

force on the ground that the shed and the pan-galla had been constructed by him contrary to the provisions of that section without having obtained

prior permission of the Chief Officer of the Municipality. It was in connection with that construction that the defendant Corporation issued these

two notices calling upon the plaintiff to remove the said construction.

The question that arises for determination is whether the notice dated the 30th of April 1952 Ex. 31 is a valid notice. Both the courts below held

that the notice was invalid and inoperative and decreed the suit as prayed for by the plaintiff. This appeal has been preferred by the defendant

Corporation against the judgment and decree passed by the learned Trial Judge and confirmed by the learned Assistant Judge Ahmedabad.

Now it is not in dispute that the construction of the shed and the pangalla in respect of which the plaintiff had been prosecuted by the

Ahmedabad Municipality u/s 123 of the Bombay Municipal Boroughs Act of 1925 and in respect of which the notice Ex. 31 was issued by the

defendant Corporation on the 30th of April 1952 was commenced and completed prior to the 1st of July 1950 when the Act of 1949 came into

operation. The question is whether in view of the fact that the construction complained of was completed prior to the 1st of July 1950 and the

prosecution in respect thereof having been launched by the Municipality under the old Act a notice in respect of the same construction could be

validly issued u/s 260 of the 1949 Act. As I have said before both the courts below held that such a notice was misconceived and therefore was

not valid.

Mr. R.M. Shah who appears for the defendant Corporation first argued that Section 260 of the Act of 1949 was of a retrospective nature and

therefore any act contrary to the provisions of Section 254 of the Act of 1949 would fall under the scope of Section 260 and therefore a notice u/s

260 would be a valid notice. In order to appreciate the contention of Mr. R.M. Shah it is necessary to turn to Section 260. The relevant portion of

that section is as follows:

If the erection of any building or the execution of any such work as is described in Section 254 is commenced or carried out contrary to the

provisions of the rules or byelaws the Commissioner 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 authorized by him in that

behalf to show sufficient cause why such building or work shall not be removed altered or pulled down or

(b) shall require the said person to attend personally or by an agent duly authorized by him in that behalf and show sufficient cause why such

building shall not be removed altered or pulled down.

(2) If such person shall fail to show sufficient cause...why such building or work shall not be removed altered or pulled down the Commissioner

may remove alter of pull down the building or work and the expenses thereof shall be paid by the said person.

It will be noticed that Sub-section (1) of Section 260 uses the words is commenced or carried out contrary to the provisions of the rules or

byelaws. These words would clearly mean that if the erection of a building or the execution of any work is commenced or is carried out after this

Act came into operation and which erection of the building or execution of such work is contrary to the rules or bye-laws made under this Act then

the Commissioner would be entitled to issue the notice u/s 260.

Mr. Shah however argued that in Clause (a) of Sub-section (1) of Section 260 the Legislature has also used the words has erected such building

or executed such work and these words would mean that a notice can be validly issued u/s 260 even though the erection of a building or the

execution of a work was already commenced and completed before the date of the coming into force of this Act. In my view the construction

suggested by Mr. Shah cannot be sustained. What is provided for by Sub-clause (a) of Section 260 is that if a building had been commenced or a

work has been carried out contrary to the provisions of the rules or bye-laws framed under this Act and such erection or execution of work has

been completed prior to the date of the notice the Commissioner would still have the power to issue such a notice provided that such erection or

execution of work is contrary to the rules and bye-laws framed under the Act. Though Mr. Shah submitted that Section 260 is of a retrospective

character he has not been able to point out anything in this section or any other section of the Act whereby the Legislature made this Act

retrospective either by express words or by necessary implication. There is in fact intrinsic evidence in Section 260 it self to show that the

Legislature did not intend that section to be retrospective but meant it to be prospective. The words quoted above afford sufficient indication of the

intention of the Legislature to make this section prospective. There is therefore no validity in the submission made by Mr. Shah that Section 260 is

of retrospective character and that therefore a notice issued under that section in respect of a construction made prior to the Act came into

operation would be a valid notice.

The notice Exh. 31 dated the 30th of April 1952 is in fact factually incorrect. It is clear from the notice itself that the Officer who issued that

notice had not applied his mind to the facts of this case and also to the questions as to under which Act the notice had to be issued. As is admitted

by Mr. Shah the alleged construction of the shed and the pan-galla was completed long prior to the 1st of July 1950 and it was in connection with

that construction that the Ahmedabad Municipality as it then was had launched prosecution against the plaintiff and for which he was duly

convicted yet in the first para of the notice a complaint is made as regards that very construction as being in breach of Rule 6 of Chapter XII of the

Building Regulations framed under the Act of 1949. It is true that in that very para building bye-laws Nos. 5-A and 23 are referred to Mr. Shah

informs me that those rules were framed under the Bombay Municipal Boroughs Act of 1925. Nevertheless it is quite clear that the notice was

issued not under the Bombay Municipal Boroughs Act 1925 but under the Act of 1949. If there was any breach of bye-laws 5-A and 23 framed

under the Act of 1925 then prima-facie the offence would be not under the Act of 1949 but under the 1925 Act. The very fact that the notice was

however issued u/s 260 of the 1949 Act shows that the defendant Corporation considered the 1949 Act and not the 1925 Act. Therefore the

notice should have been issued not u/s 260 of the Act but u/s 123 of the 1925 Act.

Mr. Shah however relied upon Section 493 of the Bombay Provincial Municipal Corporation Act 1949 under which in Appendix IV of that

Act certain provisions of the previous Act and certain things commenced or remaining pending under that Act have been saved. Appendix IV deals

with certain transitory provisions. The clause with which I am concerned in the Appendix for the purpose of this appeal is Clause 4(2). Clause 4(2)

provides that all proceedings pending before any authority of the said Municipality or local authority on the said day which under the provisions of

this Act are required to be instituted before or undertaken by the Commissioner shall be transferred to and continued by him and all other such

proceedings shall so far as may be transferred to and continued by such authority before or by whom they have to be instituted or undertaken

under the provisions of this Act. In order that this clause may apply it would be necessary for the defendant Corporation to establish that a

proceeding was pending before an authority of the Ahmedabad Municipality on and prior to 1st of July 1950 and such a proceeding was

transferred to and continued by the Commissioner of the defendant Corporation under the new Act. Mr. Shah contended that the prosecution

launched by the Ahmedabad Municipality prior to the 1st of July 1950 was such a proceeding as contemplated by Clause 4(2) of Appendix IV

that proceeding was continued on and after the 1st of July 1950 that proceeding was thereafter transferred to the Municipal Commissioner and that

being so the defendant Corporation was in right in issuing the notice u/s 260. Consequently the notice Exh. 31 was a valid and binding notice. A

prosecution launched however by the Ex-Municipality u/s 123 of the 1925 Act was a proceeding before the Magistrate who tried that prosecution.

That prosecution cannot by any stretch of imagination be considered to be a proceeding pending before any authority of the said Municipality nor

can such a proceeding be said to have seen continued on and after the 1st of July 1950 or which can be said to have been transferred to the

Commissioner of the defendant Corporation.

The proceeding contemplated under Clause 4(2) of Appendix IV is something different from the prosecution which was launched by the Ex-

Municipality against the plaintiff. It can perhaps be argued however that prior to the launching of that prosecution by the Ex-Municipality against the

plaintiff the Municipality had taken cognizance of the construction made by the plaintiff contrary to the provisions of Section 123 of the 1925 Act

that although a prosecution was launched by the Municipality against the plaintiff that did not preclude the Municipality from taking other steps

permissible under the 1925 Act and that therefore that proceeding which was commenced by the Ex-Municipality can be said to be pending on the

1st of July 1950 and was transferred to the Municipal Commissioner of the defendant Corporation. There is however considerable difficulty in the

way of Mr. Shah in maintaining that the notice Ex. 31 was a valid notice. Clause 5 of Appendix IV lays down that save as expressly provided by

the provisions of this Appendix any appointment notification notice tax order rule bye-law or form made issued imposed or granted under...the

Bombay Municipal Boroughs Act 1925 shall in so far as it is not inconsistent with the provisions of this Act continue in force until it is superseded

by any appointment notification notice rule bye-law etc.... Under Clause 5 therefore a rule or a bye-law made under the Act of 1925 can be said

to have been saved notwithstanding the repeal of the 1925 Act and therefore if a default was committed by a person under such a rule or bye-law

framed under the provisions of the 1925 Act and if that default continued even after the plaintiff was convicted then a proceeding pending before

the authority of the Ex-Municipality can be said to have continued on and after the 1st of July 1950 and must be transferred or be deemed to have

been transferred to the Municipal Commissioner appointed under the Act of 1949. But then upon that footing a notice u/s 260 of the Act of 1949

cannot be considered to be a valid notice. If the default is by reason of a breach of a rule or bye-law saved under Clause 5 of Appendix IV the

default or the offence would be by reason of and under such a rule and bye-law. Likewise if there is a proceeding pending before an authority of

the Ex Municipality and that proceeding was continuing on and after the 1st of July 1950 such a proceeding would be under the provisions of the

Act of 1925 and not under the Act of 1949. If such a proceeding is in respect of Some default or offence it could obviously be under the Act of

1925 and not under the Act of 1949 and therefore if such a proceeding is transferred to the Municipal Commissioner by virtue of Clause 4(2) then

a notice to be issued in respect of such a proceeding or such a default or offence must necessarily be under the Act of 1925 and not under the Act

of 1949.

In the present case the prosecution launched by the Municipality against the plaintiff and in respect of which he was convicted was in respect of

a breach of the provisions of Section 123(7) of the Bombay Municipal Boroughs Act 1925 Assuming that besides that prosecution there was a

proceeding pending before any authority of the Ex-Municipality that proceeding would against u/s 123 viz a construction alteration addition or

reconstruction without giving the notice required by Sub-section (1) of that section or without furnishing a plan information or particulars as

required under Sub-section (5) or without awaiting or in any manner contrary to such legal orders of the Chief Officer as may be issued etc.

Assuming that such proceeding u/s 123(7) was instituted and was pending on the 1st of July 1950 before any authority of the Ex-Municipality then

again a notice issued by the defendant Corporation must be u/s 123 of the 1925 Act and not u/s 260 of the Act of 1949. Sub-section (7)(b) of

Section 123 of the 1925 Act in fact provides that upon a conviction being obtained the Municipality can require the construction etc. complained

of to be altered or demolished in accordance with the provisions of such a notice such Section 260 is not retrospective any proceeding in respect

of a default under any of the provisions of the 1925 Act would have to be continued under the provisions of that Act provided that such provisions

of the Act fall within the scope of Appendix IV of the Act of 1949 and are saved u/s 493 of Appendix IV. Therefore even if it is assumed that

there was a proceeding pending before any authority of the Ex-Municipality on the 1st of July 1950 when this Act come into operation and

assuming that such a proceeding under the provisions of the 1949 Act is required to be instituted before or undertaken by the Commission of the

defendant Corporation and is therefore transferred or continued by him that proceeding is liable to be continued not under the Act of 1949 but

under the Act of 1925.

In my view the courts below for the reasons aforesaid were right in the conclusion arrived at by them that the notice was invalid and

inoperative. The appeal therefore fails and is dismissed with costs.