Holding

Section 260(1)(a) read in conjunction with Section 478 empowers the municipal corporation to issue a valid notice and to take demolition action against both the builder and the owner of unauthorised construction.

Summary

The respondent purchased a house in 1960, but in 1965 unauthorised walls were added without municipal permission. The Ahmedabad Municipal Corporation issued a notice under Section 260(1)(a) of the Bombay Provincial Municipal Corporation Act, 1949, requiring the respondent to show cause why the unauthorised work should not be removed. The respondent contended that she was not the builder and obtained a permanent injunction restraining demolition; the lower courts upheld the injunction. On appeal, the High Court held the notice was beyond the corporation’s power because it could be issued only against the actual builder. The Supreme Court examined whether Section 260(1)(a), read with Section 478, authorises action against the owner of unauthorised construction. It held that the notice was valid, as the two sections must be read together, allowing the corporation to act against both the builder and the owner. Consequently, the High Court’s decision was set aside and the respondent’s suit dismissed.

Issues considered

Whether a notice issued under Section 260(1)(a) of the Bombay Provincial Municipal Corporation Act, 1949, is valid when the corporation relies on Section 478 to support it.
Whether the corporation may order demolition or removal of unauthorised construction against the owner who did not personally construct the work.

Legislation cited

Bombay Provincial Municipal Corporation Act, 1949s. 260(1)(a), s. 478

Subjects

municipal corporationunauthorised constructionnotice validitystatutory interpretationdemolition orderbuilding regulationsowner liability

Judgment

676

THB MUNICIPAL CORPORATION OF THE CITY OF
A AHMED ABAD

v.

BEN HIRABEN MANILAL
-B April 5, 1983.

[D.P. MADON AND SABYASACHl MUKITARJI, JJ.]

c Bombay Provincial Municipal Co1poratiori Act, 1949-sections 260 anu 478-
scope oi-No reference made to. section 478 in notice-Notice, if invalid-Wrong
reference in show cause notice, if would vitiate the notice

lntetp;·etation -language of a p/ovision· falls s/;o,-t of object of legislature-
Court, if could give an extended 1neaning to words.

D
In fesponse to- the notice issued to ht>r under section 260 (1) (a) of the
Bombay Provincial Municipal Corporation Act, 1949 the respondent contended
that the impugned conStruction of walls without the sanction of the mQ.nicipal
corporation was in existence \1/hen she had purchased the pren1ises. She then
filed a suit in the Cily Civil Court and obtained permanent injuction restraining
the corporation from removing the_in1pugnt.'.d unauthorised construction. The
E decree of the lower court was affinned by a single Judge of the High Court in
appeal and in further appeal a Division Bench held that the impugned notice'
was beyond the powers of the Corporation in that a notice under the section
could only be issued against the pei;son who had constructed the building or
who was constructing the building.

F On. further appeal to this Court it was contended on behalf of the
appeliant ·that section 260(1) (a) read in cOnjunction with the latter part of
section 478 en1powered the Corporation to take action for demolition or
removal of unauthorised constr_uction both against the person who had '
commenced or wa~ constructing the building as well as the person who wa~
the owner of the building which had been constructed or erected without
permission in violation of the laws.
G
Allowing the appeal,

HELD : Although the impugned notice was not issued unde_r section 478,
it cannot be said that the notice was unauthorised or illegal. The question in
H this case being one of construction of a provision of a statute that construction
must be made as to be in conformity with its other provisions and the provisions
must be read as a whole. Section 478 can be relied upon in support of the
notice under section 260(1) (a). (680 H; 681 A-BJ
MUNICIPAL CORPN. v. HIRABEN.(S. Mukharji. J.) 677

lt is well settled that a wrong reference to the power under which action
was taken by the Government would not per se vitiate that action if it could be A
justified under some other power under which government can lawfully do that
act. [6Jl D-E]

L. Hazari Mal Kuthiala v. Income Tax Officer, Special Circle, Ambala
Gantt. & Anr. (1961] 41 I.T.R. 12@ 16, Hukumchand Mills Ltd. v. State of
Madhya Pradesh and Anr. (1964] 521.T.R. 583 ; and Nani Gopal Biswas v. The
Municipalitv of Howrah, [1958] S.C.R. 774@ 779 relied on.
B

Pitamber Vajirshet v. Dhondu Navalapa, [1888] l.L.R. 12 Bombay, 486@
489, approved.

It is equally well settled that even where the usual meaning of a language
falls short of the whole object of the legislature, a more extended meaning may c
be given to the words if these are fairly susceptib!e of it. But the construction
.) must' not be strained to include cases plainly omitted from the natural meaning
of the words. [682 CJ

In the instant case if the prov1s1ons of section 260 {1) (a) are read in
conjunction with the latter part of the provisions of section 478 which stipulates D
specifically that if tte person carrying out such work or doing such things is
not tfie owner at the tiine of such notice, the ?wner at the tirr.e of giving sue�
notice shall also be liable for carrying ou,t the requisition of the Commissioner,
it is clear that the action for demolition or removal Can be taken by the
Corporation exercising pow�r under the provisions of the Act against persons
who had not themselves built the impugned portion. These provisions are
devised to regulate the building construction fOr the safety, health and well E
being of the inhabitants of the 1nunicipality. It would be anomalous to hold
that if a building was constructed illegally or in an unauthorised manner action
could only be taken against the person who did the illegal act· but that after the
construction was passed over to others the building would enjoy imn1unity
from any action in respect of the same. [681 F�H; 682 A & E]

CIVIL APPELLA.TE JURISDICTION : Civil Appeal No. 744 of
F
1978.
•
Appeal by Special leave from· the Judgment and Order dated
the 18th February, 1976 of the Gujarat High Court in C.A. No. 188
of 1974.
G
D.V. Patel and R.H. Dhebar for the Appellant.

Nemo for the Respondent

The Judgment of the Court was delivered by .H

SABYASACHI MuKHARJI, J. This appeal raises the question as to
�he scope and ambit of the power of the Muncipal. authorittes under
_
678 SUPREME COURT REPORTS [1983] 2 s.c.R.

section 260 read with Section 478 of the Bombay Provincial
A MUficipal 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. O\lt 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
B No. 10 of 1968 which again arose out of the Civil Suit No. 311
of 1966.

The short facts are that on the 26th March, 1960, the plaintiff-
respondent herein purchased a built-up house. In 1965, there was
. construction of some walls without the sanction of the Municipal
c 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
tliis 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 September, 1965, a
D 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
E 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
F us. On the first point, it was held that the notice impugned was
beyond, in the facts and circumstances of the case, the powers 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.
G 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(l)(a). It provides :

"Proceedings to be taken in respect of building work
H commenced contrary to rules or by laws :- (
•
(!) If the erection of any building or the execution of any
such work as is described in section 254 is commenced or
MUNICIPAL CORPN. v. HIRABEN (S. Mukharji, J.) 679

.carried out contrary to the provisions of the rules or bye-
laws, the Commissioner, unless he deems it necessary to A
take proceeding in respect of such building or work under
section 264, shall -

(a) by written notice, require .the person who is erecting
such building or executing such work or has erected B
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 c
or pulled down.''

Clause (b) of Section 260 ·provides that in the ·contingency
specified in sub-section (I) set out herein before, in the alternative
the Commissioner shall require the person to show cause why such D
building and work shall not be removed, altered or pulled down.
. Sub-section (2) of Section 260 provides that if the person concerned
fails to show sufficient cause to thG 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, E
. drew our attention to Sec~ion 478 of the Act in support of the action
taken by the Corporation. Section 260 speaks of er~ion of any
building or the execution of any such work as is described in section
254 "is commenced or carried out contrary to the provisions of the
rules or bye-laws." Then it further provides that Commissioner shall
require the person "who is erecting such building or executing such F
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
~~ G
• There;was no disput~ in the instant case that the portion of
the building mentioned in the notice of the Corporation was done
without the sanction of the Corporation or notice to the Corpora-
tion. The expressions used in section 260 by themselves are not H
quite clear, as to whether-it is directed against" the· person who has
commenced or carried out the construction contrary to the provisions
Qf the bye· laws or the rules or whether in view of the language used
680 SUPREME COURT REPORTS [1983) 2 s.c.R.

in sub-clause (a) of sub-section {I) of section 260 namely. "has
A erected such building" notice could also be issued to any person
other than who has actually built the. unauthorised building. But it
is snbmitted that if section 260 is read in conjunction with section
478 of the Act and if so read then it contemplates action both against
the person who has commenced or is constructing the building as
well as the person who is the owner of the building which has been
B
constructed or erected without the permission and in violation of the
laws or the rules. Section 478 is as follows :

c
"Works or thing done "'.ithout written permissi~n of
the Commissioner to be deemed unauthorised :- ••
{I) If any work or thing requiring the written permission
of the Commissioner under any provision of this Act, or
any rule, regulation or bye-law is done by any person
without obtaining such written permission or if such
written permission is subsequently suspended or revoked
D for any reason by the Commissioner, such work or thing
shall be deemed to be unauthorised and, subject to any
other provision of this Act, the Commissioner may at any
time, by written notice, require that the same shall be
removed, pulled down or undone, as the case may be, by
E the person so carrying out or doing. If the person carry·.
ing out such work or doing such thing is not the owner
at the time of iuch notice then the owner at the time of
giving•such notice shall be liable for carrying out the
requisition of the Commissioner.

F (2) If within the period specified in such written notice
the requisitions contained therein are not carried out by
the person or owner, as the case may be, the Commis-
sioner may remove or alter such work or undo such thing
and the expenses thereof shall be paid by such person or
G owner, as the case may be."

It is true that the notice impugned in this case was not issued
under section 478. This section was also not placed for considera-
tion by the learned Trial Judge or the First Appellate Court or in the
H Letters Pa tent Appeal before the High Court. But the question being
one of constructiOn of a provision of a statute, in our opinion, that
construction must be so made as to be in conformity with the other
provisions of that particular statute and the provisions must be read
MUNICIPAL CORPN. v. HIRABBN (S. Mukharji,J.) 681

as a whole. This being a question of law' t.hls s ecfi611 �d11 be relied
upon in support of the notice under section 260(1)(a). If indeed A
section 478 comprehends both the owner or the occupier who has
actually constructed and as well as the owner or occupier of the
buildihg which has been unauthorisedly constructed, then the action
of the Corporation can be supported. It is well settled that the
exercise of a power, if there is indeed a power, will be referable to a B
ju ris di ct ion, when the validity of the exercise of that power is in jssue,
which confers validity upon it and not to a jurisdiction under which
it would be nugatory, though the section was not referred, and a
different or a wrong section of different provisions was mentioned.
See in this connection the observations in Pitamber Vajirshel v:
Dhondu Navalapa.(1) See in this connection also the observations of C
this Court in the case of L. Hazari Mal Kuthiala v. Income-tax
Officer, Special Circle, Amba/a Contt. & Another(') This point has
again been reiterated by this Court in the case of Hukumchand Mills
Ltd. v. State of Madhya Pradesh and another(•) where it was observed
that it was well settled that a wrong reference to the power under
n
which action was taken by the Government would per se vitiate
that action if it could be justified under some other power under
which Government could lawfull� do that act. See also the obser
vations of the Supreme Court in the case of Nani Gopa/ Biswas v.
The Municipality of Howrah.(4)
E
The question that, therefore, falls for consideration is, whether
section 260(l)(a) of the Act read in conjunction with section 478 of
the Act of 1949 empowers the Municipal Corporation to take action
for demolition or removal of unauthorised construction. Even though
the expressions in section 260 are not quite explicit, but if the pro-
visions of section 260(l)(a) are read in conjunction with the latter F
part of the provisions of section 478 which stipulares specifically that
if the person carrying out such work or doing such things is not the
owner at the time of such notice, the owner at the time of giving
such notice shall also be liable for carrying out the requisition of the
Commissioner, makes it clear that the action for demolition or G
removal can be taken by the Corporation or Municipal authorities
exercising power under provisions of the said Act against persons
who had not themselves built the infringing portion.

(l) (18881 I.L.R. 12 Bombay p, 486 at p: 489. · H
(2J [1961] 41 I.T.R. p. 12 at p. 16.
(3) [1964] 52 I.T.R. p. 583.
(4) [1958] S.C.Ro 774 at 779,
SUPREME COURT REPORTS. I 1983] 2 s.c.R.

Chapter XV of the Bombay Provincial Municipal Corporation
'A Act; 1949 as applicable to the area concerned, deals with the building
regulations and includes section 260 of the Act. These provisions
are to regulate the building construction for the safety, health and
well-being of the inhabitants of the particular municipality or
corporation. Therefore the provisions should be r~ad broadly which
·B will effectuate the intention of the Legislature and prevent the
mischief which was intended to be remedied or avoided by the
provisions. It is well-settled that when a problem of construction
comes before a court, the intention of the legislature must be given
effect to as expressed in the language of the provisions. Where the
·ianguage is explicit;·no problem arises. Even where the usual mean-
C ing of a language falls short of the whole object of the legislature, a
more extended meaning may be given to the words if they are fairly
- susceptible of it. The construction must not, however, be strained to
include cases plainly omitted from the natural meaning of the words.
- It has been said very often that it is the duty of a judge to make such
.··o construction of a statute as shall suppress the mischief and advance
the remedy. (See in this connection the observations of Maxwell on
The Interpretation of Statutes, 10th Edition p. 68, under the heading
"Beneficial Construction.") If we keep in mind purpose of these
regulations and the object of these regulations, i.e. regulating the
building construction in a municipal statute, it appears that it will
E be anomalous result if it be said that if a building is constructed
illegally or in an unauthorised manner, action can only be t:aken
agai'nst the person who is doing the unauthorised act or illegal act
but after the cc:tstruction of the building is passed over to others,
the construction of the· building enjoys immunity ·from any action
'F in respect of the same. That it appears, could not be a proper
construction particularly in this case in view of the specific language
,used in the latter part of sub-section (l) of section 478 of the Act
set out hereinbefore. Keeping in background the facts of this case
·!ind the said provisions, in our opinion, the action taken by the
Corporation was warranted by the provisions of the Act. Therefore
jt cannot be said that the notice issued by the Municipal Corporation '
was unauthorised or illegal. In that view of the matter, the judgment
and order of the High Court of Gujarat impugned in this case must
be set aside on this aspect of the matter and the appeal is thus
allowed and the respondent's suit dismissed. We express no opinion
on the other point of delegation. The parties will bear, in the facts
;md circumstances of the case, their own costs throughout.
,

MUNICIPAL CORPN. v. HIRABEN (S. Mukharji, J.) 683

We have proceeded on the con'struction of the powers of A
the Municipality in the situation mentioned herebefore. We must
.
however, observe that learned Advocate for the appellant assured'
us that in view of the fact that the infringement in question was not
of a very significant nature, i.e. building certain railings or walls
, if it could be regularised on a proper application by the respondent,' .-.
the Corporation or the Munidipality concerned will see that the same B·
is done and the railings or the walls. on the infringing part are not
removed or demolished.

P.B.R. Appeal allowed•

•

,'