Sabyasachi Mukharji, J. - (1.) This appeal raises the question as to the scope and ambit of the powers of the Municipal authorities under Section 260 read with Sec. 478 of the Bombay Provincial Municipal Corporation Act, 1949. There were four suits out of which gradually four Letters Patent appeals came to be decided by the High Court of Gujarat. Out of these four letters patent appeals, the Municipal Corporation has come up in one of the appeals before us, i.e. Appeal No. 188 of 1974 which arose out of first Appeal No. 10 of 1968 which again arose out of the Civil Suit No. 311 of 1966.
(2.) The short facts are that on the 26th March, 1960, the plaintiff-respondent therein purchased a built-up house. In 1965, there was construction of some walls without the sanction of the Municipal Corporation. On the 21st July, 1965 notice was issued by the Estate Officer of the Municipal Corporation under Section 260 (1) (a) of the Bombay Provincial Municipal Corporation Act, 1949. In reply to this notice, the plaintiff-respondent contended that the impugned construction was not made by the plaintiff but was in existence when she had purchased the premises. On 6th Sept. 1965, a suit was instituted before the City Civil Judge, Ahmedabad, claiming permanent injunction restraining the defendant the appellant herein from removing the impugned unauthorised construction and for other incidental reliefs. The learned Judge decreed the suit. There was a first appeal in which the decree was affirmed. Thereafter there was Letters Patent Appeal in which two points were urged namely; (i) whether the notice, in the facts and circumstances of this case, was valid, and (ii) whether the Commissioner of the Municipal Corporation had delegated the power of issuing notice to the Estate Officer. On the second point of the Letters Patent Appeal, it was held in favour of the appellant and this point is not pressed before us. On the first point, it was held that the notice impugned was beyond, in the facts and circumstances of the case the power of the Municipal Corporation, Ahmedabad because it was held that the notice under the section could only be issued against the person who had constructed the building or who was constructing the building.
(3.) Inasmuch as the notice was issued under Section 260 of the Act, it would be material to set out the relevant provisions of the Act i.e. Section 260 (1) (a). It provides: "Proceedings to be taken in respect of building work commenced, contrary to rules or by-laws:- (1) If the erection of any building or the execution of any such work as is described in Sec. 254 is commenced or carried out contrary to the provisions of the rules or by-laws, the Commissioner, unless he deems it necessary to take proceeding in respect of such building or work under Sec. 264 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 authorised by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down." Clause (b) of Sec. 260 provides that in the contingency specified in sub-sec. (1) set out hereinbefore, in the alternative the Commissioner shall require the person to show cause why such building and work shall not be removed, altered or pulled down. Sub-section (2) of Sec. 260 provides that if the person concerned fails to show sufficient cause to the satisfaction of the Commissioner or the building is not altered or removed, Commissioner may remove, alter or pull down the building, the expenses of which shall be paid by the said person. Before us, learned advocate for the appellant, drew our attention to Sec. 478 of the Act in support of the action taken by the Corporation. Section 260 speaks of erection of any building or the execution of any such work as is described in S. 254 "is commenced or carried out contrary to the provisions of the rules or by-laws." Then it further provides that Commissioner shall require the person "who is erecting such building or executing such work or has executed such building or executed such work" to show cause why the infringing portion shall not be demolished or altered, or pulled down. Now Section 254 stipulates that notice is to be given to the Commissioner for addition, alteration etc. in the building.;