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Part-2

03/12/2016

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11307 OF 2016
[Arising out of SLP [C] No.30998 of 2010]
Ravindra Ramchandra Waghmare …. Appellant
Vs.
Indore Municipal Corporation & Ors. ….Respondents
WITH
Civil Appeal No. 11308 of 2016 (Arising out of SLP [C] No. 31541/2011), Civil Appeal Nos.11309-11316 of 2016 (Arising out of SLP [C] Nos. 469-476/2016), Civil Appeal Nos. 11317-11318 of 2016 (Arising out of SLP [C] Nos. 416-417/2016), Civil Appeal Nos.11319-11324/2016(Arising out of SLP [C] Nos. 14502-14507/2016), Civil Appeal No.11325 of 2016 (Arising out of SLP [C] No. 15380/2016), Civil Appeal No. 11326 of 2016 (Arising out of SLP [C] No. 14531/2016), Civil Appeal Nos.11327-330 of 2016(Arising out of SLP [C] Nos.14493-14496/2016), Civil Appeal No. 11331 of 2016 (Arising out of SLP [C] No. 15421/2016), Civil Appeal No. 11332 of 2016 (Arising out of SLP [C] No. 16750/2016), Civil Appeal No. 11333 of 2016 (Arising out of SLP [C] No. 16827/2016), Civil Appeal No. 11334 of 2016 (Arising out of SLP [C] No. 19012/2016), Civil Appeal No. 11335 of 2016 (Arising out of SLP [C] No. 16891/2016), and Civil Appeal No. 11336 of 2016 (Arising out of SLP [C] No. 16742/2016).
JUDGMENT
(Continued from previous issue)……
The Corporation can only remove the projecting part which is external to the main building as verandah, step or some other structure. The acquisition proceedings have to be necessarily resorted to under the provisions contained in sections 78 and 79 of the Act of 1956. Corporation has no right to enter forcibly to remove the structure. It was also submitted that without preparation of a town development scheme as envisaged under section 49 read with section 50 of the Act of 1973, it is not permissible to carry out the provisions contained in the development plan.
10. On the other hand it was submitted by learned senior counsel for the respondents that the action taken is in accordance with the development plan which is binding. The provisions under section 305 cannot be said to be ultra vires. The same provide for reasonable compensation. On proper interpretation of section 305 of the Act of 1956 the action of the Corporation is within its ken. It is not necessary to acquire the land. Corporation has power to remove structure which projects beyond the regular line of public street. The maxims Generalia specialibus non derogant and Generalibus specialia derogant have been pressed into service to contend that if a special provision is made on a certain matter, that matter is excluded from the general provision. The scheme of the Act of 1973 has been pointed out so as to explain the procedure how regional plan, development plan and town development schemes are prepared. It is not necessary to have recourse to section 56 of the Act of 1973 or sections 78 and 79 of the Act of 1956 for acquisition of land.
11. Before dilating upon the rival contentions it is necessary to take note of the various statutory provisions.
In re: Provisions of the Act of 1956:
12. Section 5(45) of the Act of 1956 defines ‘private street’; section 5(49) defines ‘public street’; section 5(55) defines ‘street’. The provisions contained in sections 5(45), 5(49) and 5(55) are extracted below:
“Section 5(45) “private street” means a street which is not a public street;
Section 5(49) “public street” means any street –
(a)Over which the public have a right of way; or
(b)Which have been heretofore leveled, paved, metalled, asphalted, channeled, sewered or repaired out of municipal or other public funds; or
(c) Which under the provisions of this Act becomes a public street;
And includes –
(i) The roadway over any public bridge or causeway;
(ii) The footway attached to any such street;
(iii) Public bridge or causeway, and the drains attached to any such street, public bridge or causeway;
Section 5(55) “street” means any road, foot-way, square, court alley or passage, accessible, whether permanently or temporarily to the public, whether a thoroughfare or not;
and shall include every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post chain or other barrier, if houses, shops or other buildings about thereon, and if it is used by any persons as means of access to or from any public place or thoroughfare, whether such persons be occupiers of such buildings or not; but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid;
and shall include also the drains on either side and the land whether covered or not by any pavement, verandah or other erection, which lies on either side of the roadway up to the boundaries of the adjacent property, whether that property be private property or property reserved by Government or by the Corporation for any purpose other than a street;”
Section 330 of the Act of 1956 deals with conversion of streets into public streets. Section 330(1) requires the Commissioner to declare the same to be public streets in exigencies specified therein. Section 330(2) empowers the Commissioner to declare street or part of a street not maintained by Corporation to declare the same to be a public street. The decision has to be taken after inviting objections and appeal can be preferred against such a decision as provided in section 330(3).
Section 330 is extracted hereunder:
“330. Power to declare streets, when metalled, etc. public streets –
(1) When any street has been levelled, metalled, tarred or asphalted, paved, made good, lighted, drained, chanelled and flagged to the satisfaction of the Commissioner, he shall, if so required by the persons liable for the greater part of the expenditure on such street by notice put up in any part of such street, declare the same to be a public street. The said street shall thereupon become a public street.
(2) The Commissioner may, at any time by a notice exhibited in any street or part of a street not maintained by the Corporation, give intimation of his intention to declare the same a public street, and, unless within one month next after such notice is first exhibited the owner or the majority of owners of such street or such part of street, lodges or lodge objections thereto with the Corporation, the Commissioner may by a notice exhibited in such street or part, declare the same to be a public street vested in the Corporation.
(3) Any person aggrieved by a notice under sub-section (2) may appeal within thirty days from the date of notice is first exhibited, to the District Court who shall give a reasonable opportunity of being heard to the appellant and the Corporation.
(4) The provisions of Parts II and III of the Indian Limitation Act, 1908 relating to appeals shall apply to every appeal preferred under this section.”
13. Section 78 deals with acquisition of immovable property or easement by agreement. Section 79 deals with the procedure when it is not possible to acquire property or easement by agreement. A Corporation has the power under Part V with respect to public health, safety and convenience. Chapter XIII deals with public convenience, Chapter XIV - conservancy, Chapter XV – sanitary provisions, Chapter XVI - water-supply, Chapter XVII – general provisions with reference to drainage, water supply and water and other mains, Chapter XVIII with public health and safety, Chapter XIX with markets and slaughter places, Chapter XX – food, drink, drug and dangerous articles, Chapter XXI - restraint of infection;
Chapter XXII - disposal of the dead. Part VI relates to lands, buildings and streets. Chapter XXIII deals with town planning. Section 291 mandates for town planning scheme. Section 292 contains the restriction on Corporation’s power to undertake town planning scheme when any scheme under the Town Improvement Act has been formed for the area in question. Colonisation is dealt with in Chapter XXIII-A. Chapter XXIV deals with building control under the provisions of section 293. There is restriction on construction without permission. Under section 295 Commissioner has the power to refuse erection or re-erection of buildings. Section 296 contains the provision as to grounds on which site of proposed building may be disapproved. Section 297 deals with the grounds on which permission to erect or re-erect building may be refused. Section 299 confers the power upon the Commissioner to direct modification of a sanctioned plan of a building before its completion. Under section 299A State Government has the power to cancel or revise permission for construction of a building. Section 300 mandates for lapse of sanction after one year from the date of such sanction. Section 302 confers power upon the Commissioner to stop construction unlawfully commenced. Section 303 confers power upon the Commissioner to direct removal of person from a building in which works are unlawfully carried on or which are unlawfully occupied. Erection and use of temporary building is to be approved by Commissioner as provided under section 304. Under Section 305, Corporation has the power to regulate line of buildings. Section 306 deals with compensation to be paid. With respect to dangerous and insanitary buildings, the Corporation has the power from sections 309 to 316. With respect to public streets, Corporation has the power under Chapter XXVI contained in sections 317 to 331. Section 322 prohibits all obstruction in streets. Section 323 ensures streets not to be opened or broken up. Section 318 provides for prohibition of projection upon streets. It is apparent that ample and widest power has been conferred under the Act of 1956 upon the local authorities in such matters in public interest.
In re : Provisions of the Act of 1973 :
14. Provisions contained in the Act of 1973 are also required to be taken note of along with the provisions contained in the Town Improvement Act which has a reference in the Act of 1956 in section 292 thereof.
Under the Act of 1973, section 2(g) defines development plan includes a zoning plan. It defines ‘local authority’ to mean a Municipal Corporation constituted by the Act of 1956, Municipal Council or Nagar Panchayat constituted by or under the M.P. Municipalities Act, 1961 etc. Planning area, regional plan, town development scheme and zone have been defined in section 2(o), 2(q), 2(u) and 2(w) of Act of 1973 respectively. Same are extracted hereunder:
“Section 2(o) “planning area” means any area declared to be a planning area under this Act and [non-planning area shall be construed accordingly];
Section 2(q) “regional plan” means a plan for the region prepared under this Act, and approved by the State Government;
Section 2(u) “town development scheme” means a scheme prepared for the implementation of the provisions of a development plan by the Town and Country Development Authority and includes “scheme”;
Section 2(w) “zone” means any section of a planning area for which, under the development plan, a detailed zoning plan is prepared;”
15. Regional planning is dealt with in Chapter III. State Government has the power to declare any area in the State to be a region for the purposes of the Act. Director is empowered to prepare regional plan under section 5. Section 7 provides for contents thereof. Section 8 provides for preparation of the same. Under section 8, objections and suggestions are invited then Director has to consider them as per section 8(2), afford a reasonable opportunity to all the persons affected thereby of being heard then the State Government may finalise the regional plan with or without modifications. Proviso to sub-section (2) of section 9 mandates that in case the State Government modifies the draft regional plan in that case State Government has to publish the same in the Gazette, invite objections and suggestions on the modifications proposed and after giving reasonable opportunity of being heard, has to finalise it.

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