Decided on December 05,1966



N.M.MIABHOY, N.K.VAKIL - (1.) This is a group of twenty-three writ petitions each of which is filed by a landholder in the city of Ahmedabad challenging in each the validity on the ground that a few sections of the Bombay Provincial Municipal Corporations Act 1949 Bombay Act No. 59 of 1949 (hereafter called the Corporations Act) are ultra vires of a notice or notices issued by the Commissioner the Municipal Corporation of the City of Ahmedabad (hereafter called the Municipal Commissioner) under sec. 212 of the Corporations Act requiring each property-holder to show cause why his building or buildings or a part or parts thereof which were within the regular line of a public street should not be pulled down and the land within the said line acquired by him. The facts giving rise to these petitions are the same in a majority of cases and are similar in others and a majority of the questions of law raised in each of the petitions is the same and the other questions of law are similar. Therefore all the twenty-three petitions were called and heard together with the consent of the learned advocates appearing on both sides and we are delivering this common judgment to dispose of all the petitions.
(2.) The Corporations Act was passed by the Bombay Provincial Legislature on 29th December 1949 and though it came into force in July 1951 it was deemed by virtue of the provisions contained in Bombay Act 10 of 1953 to have come into force on 20th of November 1951. The Municipal Corporation of the City of Ahmedabad (hereafter called the Municipal Corporation) came to be established under the Corporations Act for the City of Ahmedabad. Before the Corporation was so established the city of Ahmedabad was governed by the Bombay Municipal Boroughs Act 1925 Bombay Act No. 18 of 1925 (hereafter called the Boroughs Act). In the year 1942 under sec. 118 of the Boroughs Act lines called the regular lines of the public street (hereafter called road lines) were prescribed over certain areas abutting on public streets of certain localities situated in the area known as Pankor Naka in the city of Ahmedabad. Petitioners whilst admitting that such road lines were prescribed challenge the validity of such lines on certain grounds to be mentioned at the proper place. According to the Corporation these road lines were in existence when the city of Ahmedabad became a Municipal Corporation. Respondents are the Municipal Corporation its Municipal Commissioner and two ex-Municipal Commissioners and the State of Gujarat. Respondents contend that under the proviso to clause (a) of sub-sec. (1) of sec. 210 of the Corporations Act the road lines prescribed whilst the city of Ahmedabad was a Municipal Borough were deemed to be street lines for the purposes of the Corporations Act until a street line is prescribed by the Commissioner under this clause. In the case of petitioner of Special Civil Application No. 1454 of 1965 the road line so deemed to have been prescribed was varied by an order passed by the Municipal Commissioner under the proviso aforesaid. After this variation the Municipal Commissioner issued a notice to that petitioner under sec. 212 sub-sec. (1) clause (b) of the Corporations Act. That petitioner filed objections which were overruled. The Deputy Municipal Commissioner then issued another notice under sub-sec. (2) of sec. 212 calling upon that petitioner to remove his structure within seven days of the receipt of the notice and to create open space. The above two notices under sec 212 were challenged by the above petitioner in this Court in Special Civil Application No. 329 of 1960 The challenge was grounded mainly on the basis that the variation of the road line by the Municipal Commissioner under the proviso to clause (a) of sub-sec. (1) of sec. 210 was bad and that the variations could have been made by the Municipal Commissioner only after undergoing the procedure prescribed by clause (b) of the above sub-section. That contention was upheld by a Division Bench of this Court in the above case since reported in I G. L. R. (1960) page 223Girdharlal Ganpatram v. The Ahmedabad Municipal Corporation. It appears that the Municipal Commissioner thereafter in a majority of the cases in these petitions published notices prescribing what is described in clause (b) of sub-sec. (1) of sec 210 as a fresh line in substitution of the old lines and invited objections to such fresh lines. The Standing Committee of the Corporation considered the objections and overruled the same and fresh road lines came to be prescribed under clause (b) aforesaid in respect of properties covered by a majority of the petitions. In regard to all these properties and also in regard to the properties covered in certain other petitions in which old road lines subsisted the Municipal Commissioner issued notices under sec. 212 sub-sec. (1) clause (b) calling upon the landholders to show cause why their building or buildings or part or parts thereof within the road lines should not be pulled down and the lands within the road lines acquired by the Municipal Commissioner Petitioners filed objections but the same were overruled Thereafter with the approval of the Standing Committee the Municipal Commissioner acting under sub-sec. (2) of sec. 212 of the Corporations Act issued final notices against all the property holders requiring them to pull down the buildings or parts thereof within seven days of the receipt of the notices. Petitioners of all the present petitions except petitioners in Special Civil Applications Nos. 1568 of 1965 1569 of 1965 11 of 1966 and 14 of 1966 filed writ petitions in this Court challenging the above two notices issued by the Municipal Commissioner These petitions were filed in 1962 and they came up for hearing at the fag end of 1965. Petitioners withdrew those petitions after they had been heard for some time. The above petitioners say that they withdrew those petitions because they had erroneously not made the Municipal Commissioners and the State parties thereto and that they had equally erroneously failed to make certain averments in those petitions which were necessary for a fair and just decision of the various contentions arising out of the issue of the above notices. Those petitioners thereafter filed the present petitions on 8th December 1965. Special Civil Applications Nos. 1568 and 1569 both of 1965 were also filed on the same date. The other two petitions were filed in January 1966. In these petitions all petitioners challenge the validity of the two notices issued against them under sec. 212 on the ground that sec. 212 and some other allied sections of the Corporations Act are ultra vires and a few other grounds.
(3.) In order to understand and appreciate the various submissions made by learned counsel for petitioners in support of this group of petitions it is necessary in the first instance to read a few sections of the Corporations Act. The preamble says that it is expedient to provide for the establishment of municipal corporations in the city of Ahmedabad and certain other cities with a view to ensure a better municipal government of those cities. Sub-sec. (3) of sec. 1 brings sec. 1 into force at once. It also brings into operation the other provisions of the Act in the city of Ahmedabad on such date as the State Government may by notification in the Official Gazette specify. Sec. 2 clause (2) defines the expression appointed day with reference to the city of Ahmedabad as meaning the day on which any local area is constituted the city of Ahmedabad. Sec. 3 confers power on the State Government to specify which local areas shall constitute the city of Ahmedabad. Clauses (5) (30) (65) (52) and (47) of sec. 2 respectively define building land street public street and private street. Clause (29) defines the Judge as meaning in the city of Ahmedabad the Judge of the Court of Small Causes. Clause (38) defines the expression municipal tax as meaning any impost levied under the provisions of the Act. Sec. 4 enumerates three municipal authorities who are charged with carrying out the provisions of the Act. They are (1) a Corporation (2) a Standing Committee and (3) a Municipal Commissioner. Sec. 5 enacts that a Municipal Corporation shall be a corporate body shall have perpetual succession and a common seal and may sue and be sued by such name. Sec. 63 enumerates the obligatory duties of the Corporation. Amongst these duties are the duties to make reasonable and adequate provisions by lawful means or measures for the following matters: (1) the watering scavenging and cleansing of all public streets and places in the city and the removal of all sweepings therefrom (2) the lighting of public streets (3) the construction maintenance alteration and improvement of public streets and (4) the removal of obstructions and projections in or upon streets. Sec. 67 prescribes the functions of the municipal authorities. Firstly it says that each of the municipal authorities shall perform such of the functions as are prescribed for it by or under the Act. That section after providing that the municipal government of the city shall vest in the Corporation except as otherwise expressly provided in the Act proceeds to state that the entire executive power for the purpose of carrying out the provisions of the Act or of any other enactment for the time being in force shall vest in the Commissioner subject to such restrictions limitations or conditions as may be mentioned in the Act or any other law for the time being in force. This power is to be exercised by the Municipal Commissioner subject wherever it is in the Act expressly so directed to the approval or sanction of the Corporation or the Standing Committee. In addition to this sec. 67 confers certain more powers on Commissioner in regard to certain other matters which it is not necessary to reproduce. Sec. 69 empowers the Municipal Commissioner to delegate his powers duties or functions to any municipal officer by a general or special order in writing but requires him to obtain prior approval of the Standing Committee when delegating his powers duties or functions under certain specified sections sub-sections or clauses mentioned in sub-sec. (2) of sec. 69.;

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