GIRDHARLAL GANPATRAM Vs. MUNICIPAL CORPORATION AHMEDABAD
HIGH COURT OF GUJARAT
AHMEDABAD MUNICIPAL CORPORATION
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(1.)This is a rule taken out at the instance of the petitioner against the respondent the Ahmedabad Municipal Corporation for an appropriate writ order or direction under Article 226 of the Constitution quashing and setting aside several notices issued by the respondent calling upon the petitioner to demolish and remove that portion of his property coming within the roadline within seven days of the receipt of the notices and to keep the land underneath open. The petition gives rise to a contention which lies in a narrow compass but our decision we are informed and verily believe will affect some other cases of the same nature. The petitioner is the owner of property bearing survey numbers 4225 4225 4224 4224 4224 4222 and 4223 situate in Jamalpur Ward of the city of Ahmedabad. The property is a four-storied building and the petitioner and the members of his family reside in the same. There are four shops on the ground floor of the building. On 22/06/1956 the respondent Corporation issued a notice under sec. 212(1)(b) of the Provincial Municipal Corporations Act 1949 to be referred to by us hereafter as the Act calling upon the petitioner to show cause why the land bearing the stated survey numbers should not be acquired and removing the structure thereon as the said structure was within the roadline demarcated by the respondent. The petitioner filed his objections to the same challenging inter alia the legality of the notice and the legality of the position of the alleged roadline. Nothing appears to have been done by the Corporation till 20/06/1960 when it issued notices calling upon the petitioner to remove the structure within seven days of the receipt of the same and to clear the space. These latter are the notices which are challenged on this petition. Various contentions have been raised by the petitioner in his petition. His principal contention and one which has been passed before us is that the Commissioner of the respondent Corporation has imposed and demarcated the roadline relied on by the respondent without following the proper procedure laid down in section 210(1)(b) of the Act. The contention is that the proper procedure required the Commissioner to obtain approval of the Standing Committee of the Corporation before making any change in the existing roadline. It is said that no public notice of the proposal to impose the change in the roadline was issued by the Commissioner by advertising in local newspaper nor was any notice of the proposed change in the roadline put in the street or part of street for which the change in the roadline was proposed to be prescribed. It is further said that no objections were invited to the proposed change in the roadline as required by section 210. Succinctly stated the case of the petitioner is that the Commissioner had no power to impose the change in the roadline complained of by the petitioner and as he admittedly failed to obtain the previous approval of the Standing Committee to the proposed change the notices served on the petitioner are void and inoperative in law and should therefore be quashed by an appropriate writ or order of this Court. It is also the case of the petitioner in the petition that sections 211 and 212 of the Act are ultra vires Articles 19 and 31 of the Constitution. It is unnecessary to give a resume of the petitioner's case on this aspect since Mr. A. H. Mehta learned Advocate for the petitioner has not pressed the same before us.
(2.)In opposition to the rule the Commissioner of the respondent Corporation has filed an affidavit in which he has denied the correctness of the contention raised in the petition. According to him the notices issued under section 212 were legal. He has stated in his affidavit that there was and is a roadline upon the building of the petitioner and that the same is legal. To his affidavit he has annexed a sketch to which we shall turn a little latter. Another affidavit has been put in on behalf of the respondent Corporation for the purpose of giving the Court a clear and complete idea of the roadline of the Gandhi Road formerly known as Richey Road. That road it is common ground proceeds from Panchkuva Gate to Bhadra. To the latter affidavit is annexed a plan of the roadline to use the terminology of the Act itself the regular line of the street. The plan relates to the entire roadline demarcated under the Act of 1925 and is in four sections. There was a roadline for Gandhi Road (Richey Road) prescribed under section 111 of the Bombay Municipal Boroughs Act 1925 and as we shall presently point out section 210 has the effect of laying down that that roadline is to be deemed to be a street line for the purpose of the Act of 1959. In his affidavit the Commissioner has stated that there was roadline already prescribed it was not necessary to inform the petitioner or to give a notice to him or any opportunity to him of filing any objections when the change or alteration in the roadline was made. In paragraph 5 of his affidavit he has stated I state that a roadline was formerly prescribed...............The said roadline have been shown in red in the Ferrow Plan No. 234 annexed to the order No. E.R. L. 234 passed by the former Municipal Commissioner of the respondent to hereinafter stated. He has also stated in affidavit that is was found that on account of heavy traffic it was necessary to widen the traffic circles or islands and for that purpose to revise the roadline crossing inter alia the survey numbers of the petitioner. There is not doubt and in course of arguments before us it has not been disputed that the purpose of the change made by the Commissioner was to widen me traffic circle for the purpose of helping and controlling traffic at the crossing of Gandhi Road and Danapith Road which proceeds from Danapith towards Delhi Gate. A look at the map before us clearly shows the necessity for the proposed changes in the roadline since it is clear that the proposed changes if effect be given to them will open up the bottle-necks mentioned in the affidavit of the Commissioner. But we are not concerned on this petition with the necessity and propriety of effecting changes in the roadline. What we are concerned with is whether the Commissioner in prescribing the change in the roadline challenged on this petition was acting within the scope and ambit of his powers. It is of significance to mention that in his affidavit the Commissioner has accepted that he did not obtain the approval of the Standing Committee before prescribing the changes in the roadline which is of the crux of the matter. His case however is that in demarcating that change or alteration in the roadline he was acting within the scope of his authority and that he was not bound under the Act to obtain the previous approval of the Standing Committee before doing so.
(3.)In order to appreciate the arguments advanced before us it will be convenient to set out here the material and relevant part of section 210:-
210 (1) The Commissioner may a) prescribe a line on one both sides of any public street; provided that every regular line of a public street operative under any law for the time being in force in any part of the City on the day immediately preceding the appointed day shall be deemed to be a street line for the purpose of this Act until a street line is prescribed by the Commissioner under this clause; b) from time to time but subject in each case to the previous approval of the Standing Committee prescribe a fresh line substitution for any line so prescribed or for any part thereof Provided that such approval shall not be accorded unless at least one month before the meeting of the Standing Committee at which the matter is decided public notice of the proposal has been given by the Commissioner by advertisement in the local newspapers and special notice thereof signed by the Commissioner has also been put up in the street or part of the street for which such fresh line is proposed to be prescribed and until the Standing Committee has considered all objections to the said proposal made in writing and delivered at the office of the Municipal Secretary not less than three clear days before the day of such meeting. (2) The line for the time being prescribed shall be called the regular line of the street. 3) A register with plans attached shall be kept by the Commissioner showing all public streets in respect of which a regular line of the street has been prescribed and such register shall contain such particulars as to the Commissioner may appear to be necessary and shall be open to inspection by any person upon payment of such fee as may from time to time be prescribed by the Standing Committee. 4) (a) Subject to the provisions of sub-section (5) no person shall construct or reconstruct any portion of any building on land within the regular line of the street except with the written permission of the Commissioner and in accordance with the conditions imposed therein and the Commissioner shall in every case in which he gives such permission at the same time report his reasons in writing to the Standing Committee. (b) No person shall construct or reconstruct any boundary all or a portion of a boundary wall within the regular line of the street except with the written permission of the Commissioner:- Provided that if within sixty days after the receipt of an application from any person for permission to construct or reconstruct a boundary wall or a portion thereof the commissioner fails to acquire the land within the regular line of the street under section 213 the said person may subject to any other provision of this Act or the rules or bye-laws proceed with the work of construction or reconstruction of such boundary wall or a portion thereof as the case may be.
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