Shivnagar Co-operative Hosg. Society Ltd. Vs. State of Gujarat and 4 ors. - Court Judgment

Akil Kureshi, J.

1. In the present petition, the petitioner Shivnagar Co-operative Housing Society has challenged an order dated 14-05-2004 passed by the Chief Officer, Halol Nagarpalika. The case has longish history. Recording only the relevant events, it would appear that in the petitioner-society there are four plots 48, 49, 50 and 51 held by the respondents No. 4 and 5 herein. It is not in dispute that a school has been constructed by the said respondents in the plots owned by them. Though the assertion of the petitioner is that such construction is situated in all four plots, respondents No. 4 and 5 contended that school building is situated only in plot No. 48 and 49 whereas on plot No. 50 and 51, their residential house is existing.

1.1 The case of the petitioner is that society is a Co-operative Housing Society and SNA Permission was granted by Collector with a condition that only residential unit can be constructed on the land in the society, despite which the respondents No. 4 and 5 constructed a school on the plot belonging to the society which was alloted to them.

1.2 The petitioner had earlier approached this Court by filing Special Civil Application No. 10372/2003 challenging the order of the Collector granting change of user of the land in question. Learned Single Judge of this Court disposed of the petition by order dated 06-08-2003. By the said order learned Judge was pleased to quash and set aside the order passed by the Collector permitting the change of user of the land. The Collector was further directed to rehear the petitioner-society and decide the issue after giving opportunity of being heard. This was to be done within a period of three months from the date of receipt of writ of this Court. The respondents No. 4 and 5 who were not present before the Court when the order dated 06-08-2003 was passed, sought review of the said order. Misc. Civil Application No. 1662/2003 seeking review was however, rejected by an order dated 14-11-2003. Letters Patent Appeal filed by the respondents No. 4 and 5 also failed, same was withdrawn on 15-07-2004.

1.3 While the remand proceedings for change of user were pending before the Collector, the question of regularisation of certain portion of construction of the school constructed by respondents No. 4 and 5 came up before Halol Nagarpalika. It appears that respondents No. 4 and 5 had already constructed ground floor and two other floors with the permission of the authorities. To this existing structure the fourth floor was added. This was without obtaining permission. The question of removal of such construction or its regularisation therefore, arose before the authorities. It appears that on 04-03-2004, the Collector Panchmahal addressed a letter to the Chief Officer of Halol Nagarpalika requesting him to regularise the fourth floor constructed by respondents No. 4 and 5. Director of Municipalities also appears to have made such a recommendation vide his letter dated 23-09-2003.

1.4 The Chief Officer of Halol Nagarpalika vide his impugned order dated 14-05-2004 regularised the construction of fourth floor of plot No. 48 and 49 put up by respondents No. 4 and 5 in exercise of power under Section 155(7) of the Gujarat Municipalities Act(here-in-after referred to as the said Act). He also ordered collection of fine from the said respondents. In the order it is clearly recorded that the Chief Officer has referred to a letter dated 04-03-2004 written by Collector, Panchmahal as well as a communication dated 24-02-2004 from the Director of Municipalities.

2. On the basis of above factual aspects, learned advocate Shri N.V. Solanki for the petitioner submitted that the order passed by the Chief Officer is illegal and unlawful. That the same was passed at the behest of the Collector which is not permissible under the law. It was contended that the Collector had yet not decided the question of change of user of land in question. He however, recommended the regularisation of the additional construction which could not have been legally done. The learned advocate Shri Solanki further contended that entire exercise is thus mala fide and perverse. He contended that the Chief Officer had no power under Section 155(7) of the said Act to regularise the construction. Reliance was placed on the decision of this Court in the case of Municipal Corporation, Rajkot v. State of Gujarat and Ors. reported in 1979(2) GLR 595 to urge that when there is no power the order of the authority must fail.

3. Appearing on behalf of the Chief Officer of Halol Nagarpalika, learned advocate Shri Paresh Upadhyay submitted that on the basis of letters, reply and the plans submitted by the respondents No. 4 and 5, Chief Officer has passed the said order. He pointed out that earlier construction of ground floor plus two floors was already existing since long and that the same was with appropriate permission. He submitted that under Sub-section (7) of Section 155, Chief Officer has discretionary power to regularise construction if found confirming to building rules and regulations.

4. The learned advocate Shri Sunil Joshi appearing for respondents No. 4 and 5 opposed the petition. He submitted that Chief Officer has exercised his discretionary power. This Court therefore, should not interfere with the order passed. He relied on the decision of this Court in the case of Surat Borough Municipality v. Ishvarlal Manchharam Bachkaniwala reported in 13 GLR 946 wherein in pari materia provisions of Bombay Municipal Boroughs Act, power to regularise the construction was read into the statute. He submitted that conjoint reading of subsections (1), (7) and (8) of Section 155, would establish that Chief Officer of Nagarpalika has power to grant regularisation in a given case. 4.1 He further submitted that school constructed by respondents No. 4 and 5 has been in existence since many years. He submitted that as far back in the year 1989 on the basis of permission granted by authority, initial construction was put up. Neither the petitioner-society nor its members raised any objection to the school for years together. It was only in the year 1999 and thereabouts that objections started being received from the petitioner. He further submitted that Chief Officer has perused the plans submitted by the respondents No. 4 and 5 which are in conformity with building by-laws and regulations. Therefore, order is just and proper. He further submitted that the Collector by his order dated 19-04-2005 granted change of user on the remanded proceedings and such order passed by the Collector has not been stayed by the State Government even if the petitioner has preferred any revision application against the said order. He therefore, submitted that the petition should be rejected.

5. First question that needs to be decided is with respect to the nature of power exercised by the Chief Officer of the Municipality under Section 155 of the said Act. As noted the contention of the learned advocate for the petitioner is that under Section 155 of the said Act and in particular Sub-section (7) thereof, the Municipality has no power to regularise any construction which is not made as per the provisions contained in Sub-section (1) of Section 155 and the only choice with the authorities would be that of demolition of such construction. In short, the contention is that the Municipality completely lacks power to regularise any construction which has been made without prior permission.

6. Chapter XI of the said Act deals with Municipal powers and offences. Part (2) of Chapter XI pertains to powers to regulate buildings etc. Section 151 of the said Act pertains to power of the authorities to set back the projecting buildings. Section 152 of the said Act permits the authorities to set forward any building on certain terms and conditions for improving the line of any public street in which such building is situated.

7. Section 155 of the said Act pertains to notice of new buildings to be given. Sub-section (1) of Section 155 requires that before beginning to construct any building or to alter externally or add to any existing building, or to construct or reconstruct any projecting portion of a building in respect of which the executive committee is empowered by Section 151 to enforce a removal or set back, or to construct or reconstruct which the chief officer is empowered by Section 150 to give permission, the person intending to so construct, alter, add or reconstruct shall give to the chief officer notice thereof in writing with the plan certified by a qualified person, recognised by the municipality for the said purpose. Such a notice is to be accompanied by all information required by by-laws or demanded by the Chief Officer regarding the limits, design, ventilation, etc., of the building.

Sub-section(2) of Section 155 empowers the Chief Officer to pass an order, either giving permission to construct, alter, add or reconstruct, according to the plan or to direct that the work shall not be proceeded with unless and until all questions connected with the respective location of the building and any such street have been decided to his satisfaction or may for reasons to be recorded in writing reject the notice given under Sub-section(1). Sub-section (4) of Section 155 empowers the Chief Officer to pass an order either in the nature of a provisional order directing that for a period, which shall not be longer than one month from the date of such order, the intended work shall not be proceeded with, or demand further particulars.

As per Sub-section(5) of Section 155, the work proposed in a notice given under Sub-section(1) is permitted to be proceeded with as specified in such notice, provided that same is not inconsistent with any provision of the Act or of any by-law for the time being in force, in case within one month from the receipt of the notice under Sub-section(1), the chief officer has neither passed orders under Sub-section(2)or issued any provisional order or demanded further particulars under Sub-section(4) or in case the chief officer having issued such demand and having received such further particulars, has issued no further orders within one month from the receipt of such particulars. Sub-section (6) of Section 155 provides for a limit of one year for commencing the work by a person who has become entitled under Sub-section (1) of Section 155 to proceed with any such intended work.

Sub-section(7) of Section 155 makes certain carrying on of construction punishable. It provides inter-alia that whoever begins any construction, alteration, addition or reconstruction without giving the notice required by Sub-section (1) or without furnishing any plan, information or particulars required under the said section or except as provided in Sub-section (5), without awaiting or in any manner contrary to such legal orders of the Chief Officer as may be issued under the said section or contrary to the provisions of Sub-section (5) or (6) or in any other respect contrary to the provisions of the Act or by-law in force shall be punished with fine specified therein and the Chief Officer may (a) direct that the construction, alteration, addition or reconstruction be stopped, and (b) upon a conviction being obtained under Sub-section(7), by written notice require such construction, alteration, addition or reconstruction to be altered or demolished in accordance with the provisions of such notice.

Sub-section(8) of Section 155 empowers the Chief Officer of the Municipality to inspect any work of which notice is required by Sub-section(1) at any time during the execution of work without a notice and by written notice, specify, any matter in respect of which the execution of such works is in contravention of any provision of this Act or of any by-law made under the Act and further require the person executing such work to cause anything done contrary to any such provision or bye-law or order to be amended or to do anything which by any such provision or by-law or order, is required to do but which has been omitted.

8. Section 155 of the said Act reads as under:

155.(1) Before beginning to construct any building or to alter externally or add to any existing building, or to construct or reconstruct any projecting portion of a building in respect of which the executive committee is empowered by Section 151 to enforce a removal or set back, or to construct or reconstruct which the chief officer is empowered by Section 150 to give permission, the person intending so to construct, alter, add or reconstruct shall give to the chief officer notice thereof in writing and shall furnish to him at the same time, if required by a by-law or by special order of the State Government to do so, a plan certified by a qualified person recognised by the municipality for the purpose and showing the levels, at which the foundation and lowest floor of such building are proposed to be laid, by reference to some level known to the chief officer, and all information required by the by-laws or demanded by the chief officer regarding the limits, design, ventilation and materials of the proposed building, and the intended situation and construction of the drains, sewers, privies,water-closets, and cesspools, if any, to be used in connection therewith, and the location of the building with reference to any existing or projected streets, and the purpose for which the building will be used.

(2) Save as otherwise provided in this Act or the rules and by-laws thereunder, the chief officer may either give permission to construct, alter, add or reconstruct, according to the plan and information furnished or may impose in writing conditions, in accordance with this Act and the rules and by-laws made thereunder, as to level, drainage, sanitation, materials or to the dimensions and cubical contents of rooms, doors, windows and apertures for ventilation or to the number of storeys to be erected, or with reference to the location of the building in relation to any street existing or projected, or the purpose for which the building is to be used, or may direct that the work shall not be proceeded with unless and until all questions connected with the respective location of the building and any such street have been decided to his satisfaction or may for reasons recorded in writing reject the notice given under Sub-section(1).

(3) The municipality may, before any work has been commenced in pursuance of any permission granted by the chief officer under Sub-section(2), revoke such permission and may give fresh permission in lieu thereof on such conditions, in accordance with this Act and th rules and by-laws made there under, with reference to the matter mentioned in the said sub-section, as it thinks proper, and may direct that the work shall not be proceeded with unless and until all questions connected with the respective location of the building and any such street have been decided to its satisfaction.

(4) Before issuing any orders under Sub-section(2), the chief officer may, within one month from the receipt of such notice, either issue-

(a) a provisional order directing that for a period, which shall not be longer than one month from the date of such order, the intended work shall not be proceeded with, or

(b) may demand further particulars.

(5) A work proposed in a notice given under Sub-section(1)may be proceeded with in the manner specified in such notice, provided such manner is not inconsistent with any provision of this Act or of any by-law for the time being in force thereunder in the following cases, namely:-

(a) in case the chief officer within one month from the receipt of the notice given under Sub-section(1) has neither-

(i) passed orders under Sub-section(2) and served notice thereof in respect of the intended work; nor

(ii) issued under Sub-section(4) any provisional order or any demand for further particulars;

(b) in case the chief officer having issued such demand for and having received such further particulars, has issued no further orders within one month from the receipt of such particulars.

(6) No person who becomes entitled under Sub-section(2) or (5) to proceed with any intended work of which notice is required by Sub-section(1) shall commence such work after the expiry of the period of one year from the date on which he first became entitled so to proceed therewith, unless he shall have again become so entitled by a fresh compliance with the provisions of Sub-sections (1) to (5). And no person to whom permission to erect or alter or add to any building has been granted by the Municipality under Section 96 of the Bombay District Municipal Act, 1901, or of that Act as adapted and applied to the Saurashtra area or under Section 123 of the Bombay Municipal Boroughs Act, 1925 or of that Act as adapted and applied to the Saurashtra area or that Act as extended to the Kutch area shall be entitled to commence such work after the expiry of one year from the date on which this Act comes into force.

(7) Whoever begins any construction, alteration, addition or reconstruction without giving the notice required by Sub-section (1) or without furnishing any plan, information or particulars required by or under this section or except as provided in Sub-section(5), without awaiting or in any manner contrary to such legal orders of the chief officer as may be issued under this section or contrary to the provisions of Sub-section (5) or (6) or in any other respect contrary to the provisions of this Act or of any by-law in force thereunder, shall be punished with fine which may extent to an amount to fifty percent of the cost of the construction, alteration, addition, or reconstruction, as the case may be, or one thousand rupees, whichever is greater and in the case of a continuing contravention of any of the aforesaid provisions, he shall be liable to an additional fine which may extent to an amount upto one percent of the cost or ten rupees, whichever is greater, for each day during which such contravention continues after conviction for the first such contravention; and the chief officer may-

(a) direct that the construction, alteration, addition or reconstruction be stopped, and

(b) upon a conviction being obtained under Sub-section(7), by written notice require such construction, alteration, addition or reconstruction to be altered or demolished in accordance with the provisions of such notice.

(8) The Chief Officer may at any time inspect any work of which notice is required by Sub-section(1) without giving notice of his intention to do so; and at any time during the execution of any such work as aforesaid, may, by written notice, specify, any matter in respect of which the execution of such works in contravention of any provision of this Act or of any by-law made under this Act at the time in force or of any order passed under this section; and require the person executing such work to cause anything done contrary to any such provision or bye-law or order to be amended or to do anything which by any such provision or bye-law or order he is required to do but which has been omitted. Explanation: The expressionto construct a building throughout this Chapter includes-

(a) any material alteration, enlargement or reconstruction of any building, or of any wall including compound wall and fencing, verandah, fixed plath-form, plinth, doorstep or the like, whether constituting part of a building or not,

(b) the conversion into a place for human habitation of any building not originally constructed for human habitation,

(c) the conversion into more than one place for human habitation of a building originally constructed as one such place,

(d) the conversion of two or more places of human habitation into a greater number of such places,

(e) such alterations of the internal arrangements of a building, as affect its drainage, ventilation or other sanitary arrangement or its security or stability, and

(f) the addition of any rooms, buildings, or other structures to any building and a building so altered, enlarged, reconstructed, converted or added to is throughout this Chapter included under the expression Sa new building.

9. From the above statutory provisions, it can be seen that before commencing construction of any building or to alter externally or add to any existing building, or to construct or reconstruct any projecting portion of a building in respect of which the executive committee is empowered under Section 151 to enforce a removal or set back, or to construct or reconstruct which the chief officer is empowered by Section 150 to give permission, the person intending to construct, alter, add or reconstruct has to give a notice thereof in writing to the Chief Officer along with the plan and other necessary details. Upon such a notice as required under Sub-section(1) of Section 155, the Chief officer is empowered to pass an appropriate order under Sub-section(2) of Section 155. The additional powers are given under Sub-section(4) of Section 155 for demanding further particulars. Thus appropriate order under Sub-section(1) read with Sub-section(2)and Sub-section(4) would include either giving permission as indicated in the notice or call for further information or simply reject the request altogether. Such rejection however has to be for the reasons to be recorded in writing. Sub-section(5) of Section 155 gives certain rights to the person intending to carry on construction, alteration etc, when within time specified notice has not been responded to. Such right is however circumscribed by providing that such construction, alteration, etc is not in any manner inconsistent with any provision of the Act or of any by-law for the time being in force. Sub-section(6) of Section 155 puts a time limit for the currency of right of the intending person to commence the construction. Sub-section(7) of Section 155 provides for certain penal action that can be taken against erring person. If the construction, alteration, addition or reconstruction has been commenced without giving the notice required by Sub-section(1) or without furnishing any plan, information or particulars as required under the said Section or except as provided in Sub-section(5),construction etc. is commenced without awaiting or in any manner contrary to legal orders as the chief officer may have passed, the erring citisen exposes himself to penal liability of fine at the rate prescribed therein. Sub-section(7) of Section 155 further empowers the Chief Officer to direct that the construction, alteration, addition or reconstruction be stopped, and upon a conviction being obtained, by written notice require that such construction, alteration, addition or reconstruction to be altered or demolished in accordance with the provisions of such notice. 9.1 It can thus be seen that order of demolition of the construction already put up is one of the options available with the Chief Officer to be exercised upon conviction being obtained. The terminology used by the Legislature is that the Chief Officer may by written notice require such construction, alteration, addition or reconstruction to be altered or demolished. The use of word Smay and indication of choice to require either alteration or demolition of the construction makes it amply clear that whenever construction is found to be offending any of the provisions contained in Section 155 of the said Act, demolition thereof is not the only choice that can be exercised by the Chief Officer. The demolition may be ordered in a given case particularly when it is found that construction breaches any of the provisions of the said Act or the by-laws for the time being in force. In a given case, construction may be ordered to be altered to bring in tune with the provisions of the said Act and by-laws made thereunder. Sub-section(8) of the Section 155 though applies in somewhat different situation, the same further highlights the intention of the Legislature in this regard. Sub-section(8) of Section 155 empowers the Chief Officer to inspect any work without giving notice of his intention to do so; of which notice is required by Sub-section(1). The Chief Officer may during the execution of any such work by written notice require the person executing such work to cause anything done contrary to any such provision or bye-law or order to do anything which by any such provision or bye-law or order, is required to do but which he has omitted. Here the group of words Sof which notice is required by Sub-section(1), is significant. The legislature has advisedly not used the words Sof which notice is given under Sub-section(1). The power of the Chief Officer is kept wide enough to inspect any work of which notice is required by Sub-section(1) to be given whether such notice has been given or not. Meaning thereby in case of an on going execution of any construction work, notice of which is other-wise required to be given under Sub-section(1) of Section 155, but not so given, the Chief Officer may inspect such work without any notice and may by an order require the person executing such work to bring the same in tune with the provisions contained in the said Act and by-laws made thereunder. In essence, it means that when any work is being executed without a notice under Sub-section(1) of Section 155, during the currency of such execution, the Chief Officer would have the power to inspect the site, put a halt to such continuation of illegal construction and to direct that person executing such work brings the same in tune with legal provisions. Thus in any such work which is in execution, such corrective measures can be taken by the Chief Officer, it would be an extremely rigid and impermissible interpretation of Sub-section(7) of Section 155, to construe that once the work is completed, the only choice available with the officer would be that of demolition. In a given case, construction, alteration, addition or reconstruction carried out by a citisen may not be offending any of the legal requirements under the said Act or the by-laws made thereunder for the time being in force except that such construction, alteration, addition or reconstruction as the case may be was carried out without a prior notice to the Chief Officer as required under Sub-section(1) of Section 155. Surely it is not the intention of the legislature to pull down such construction insisting that the property holder gives a fresh notice and carry out the very same construction once the Chief Officer approves the plans. This is however, not meant to convey that construction should be carried out without notice or approval or that such tendency should be encouraged. At all costs, such tendency deserves to be deprecated and discouraged. However, in every single case of default, demolition is not necessarily the only cure. Collection of fine as provided under Sub-section(7) of Section 155 can be one mode of ensuring compliance of the provisions of the said Section and to discourage such breach of legal requirements. Keeping due vigil and ordering stoppage of construction at an early stage which construction is not with proper permission would also prevent number of complications. It is however, not meant to suggest for a moment that construction which does not confirm to the provision of the said Act and the bye-laws in force should be regularised. Discretionary powers of the Chief Officer would not authorise him to ignore breach of legal requirements. It is only when the construction already put up otherwise confirms to all legal requirements or can be brought in conformity with the same with suitable modifications that exercise of such powers can be justified.

10. In the view that I have taken above, I am fortified by the decision of the Learned Single Judge of this Court in the case of Surat Borough Municipality v. Ishvarlal Manchharam Bachkaniwala reported in 1972 (13) GLR 946. While interpreting para-materia provisions of Bombay Municipal Boroughs Act and in particular those contained in Section 123 of Bombay Municipal Boroughs Act, the Learned Single Judge came to the conclusion that:

6. Now power to requires person to alter or demolish the offending construction has been given to the Chief Officer under clause(b) of Sub-section(7) of Section 123 of the Act. The power can be exercised only upon a conviction of the person under first part of Sub-section (7) of Section 123 of the Act being obtained. Even then, the power to be exercised in the matter is a discretionary power and the consequences ensuing from the exercise of such power are serious. It is not necessary that in every case, the offending construction be ordered to be altered or demolished. It may be that, in a given case, the Chief Officer might find that the construction etc. although made without the necessary permission, may be allowed to stand and a post-facto permission may be granted and the construction may thus be regularized or legalized. The exercise of the powers under clause (b) requires the Chief Officer to act justly and fairly and not arbitrarily or capriciously. The Chief Officer has to discharge his functions in a fair and just manner. Having regard to the frame work of the law conferring this power and the consequences ensuing from the exercise of the power, in my opinion, the power is expected to be exercised only after giving a show cause notice to the person who is alleged to have contravened the provisions of Sub-section (1) of Section 123 of the Act for making construction, alteration etc. without the requisite permission, for which a conviction has been obtained against him and after hearing him.

7.1 The above decision in the case of Surat Borough Municipality v. Ishvarlal Manchharam Bachkaniwala (Supra) was followed by this Court in the case of Nafisabanu Gulambhai Memon v. Collector reported in 40(2) GLR 1438, however, in a slightly different context.

11. In the result, I find that the Chief Officer of the Nagarpalika has power under Section 155 of the said Act to consider regularisation of any construction, alteration, etc. made, of course as long as the same is such which can be legally permissible under the said Act or the by-laws made thereunder which are time being in force or any order passed by the authority which has legal basis. I am unable to countenance the contention of the petitioner that under Section 155 of the said Act, Chief Officer had no power altogether to consider regularisation of the construction in question.

12. Reverting back to the facts of the present case as noted earlier, Learned Single Judge of this Court had set aside an order passed by the Collector granting change of user of land for fresh consideration and disposal in accordance with law. The remanded proceedings were yet not disposed of when the question of regularisation of construction put up by the respondents No. 4 and 5 came up for consideration before the Chief Officer. Unfortunately and without any authority, the Collector requested the Chief Officer to approve the regularisation. Surely it is the statutory power of the Chief Officer under Section 155 of the said Act to consider regularisation. The Chief Officer has to be guided by the provisions made in the said Act and to examine whether the construction already put up deserves regularisation or not. Such discretionary powers were required to be exercised by the Chief Officer himself. The Collector neither had legal authority nor could have issued any such communication in the present case especially when question of change of user was yet to be decided by him. There is yet another aspect of the matter which will call for interference in the order passed by the Chief Officer. Perusing the impugned order passed by the Chief Officer, it becomes clear that he has been mainly guided by the communication of the Collector and Director of Municipality. Whether the construction in question is in conflict with the rules and regulations governing the construction or not has not been examined by the Chief Officer at all. Mechanically only upon recommendation of the Collector and Director of the Municipalities, he accepted the application of respondents No. 4 an 5. This in my view could not have been done. Additionally, the Chief Officer regularised the construction when the Collector had not even allowed change of user of the land in question.

13. Situation however is somewhat altered since the Chief Officer passed his order on 14-05-2004. The application of change of user has been allowed by the Collector in the remanded proceedings. Though submitted by the learned advocate for the petitioner that revision application has been filed by the petitioner against such an order passed by the Collector, admittedly as of now there is no stay granted against the order of the Collector.

14. Sum total of the above legal and factual conclusions that I have reached would be that the order passed by the Chief Officer dated 14-05-2005 is required to be and is hereby quashed. The Chief Officer shall take a fresh decision in accordance with law after considering all the aspects of the matter and in particular the question whether the construction in question is other-wise in conformity with all provisions contained in the said Act and by-laws made thereunder which are in force for the time being and thereafter pass order as may be found appropriate in exercise of his discretionary power. If the petitioner raises any written objection to any regularisation being granted, same shall also be taken into account before passing the final order by the Chief Officer.

15. In view of the above directions, the petition is disposed of. Rule is made absolute to the above limited extent with no order as to costs.