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Part-6

07/12/2016

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)……
33. Learned counsel for the appellant/s has placed reliance on the provisions contained in sections 307(3), 309(2), 309(5), 309(6), 310 and 313 so as to contend that statutory power has been conferred under those provisions and Commissioner has been statutorily authorized on the failure of the owner to remove the construction after notice to remove the same. Therefore, it was submitted that accordingly the provisions of section 305 should be construed by us so as to negate the power of removal with the Corporation.
34. In our opinion, the provision contained in section 307 is totally different. Where an adjudicatory process is involved, person can show sufficient cause why the building or work shall not be removed, altered or pulled down but in the cases falling within the purview of section 305, there is no such adjudicatory process or discretion provided. The expression used in section 307(2) is that show-cause has to be made why the work shall not be removed, altered or pulled down, and a person is required to show-cause and on his own failure to show “sufficient cause” why such building or work should not be removed, Commissioner is authorized to remove, alter or pull down the building or work under section 307(3). Since the notice which is contemplated under section 305 does not involve such a case showing sufficiency of cause in case building is falling within the regular line of public street, the building is necessarily to be removed. The expression used is that require by notice removal of the building, the legislative mandate for removal is addressed to the Corporation also to remove the same. As such it was not necessary to repeat it once over again in the provisions contained in section 305.
35. Section 309 deals with the provisions regarding building unfit for human habitation. In that eventuality certain procedure is specified. We find absolutely no ground to accept the submission that the procedure prescribed under section 309 or the provisions thereof should guide the interpretation of section 305 and for similar reason the provisions contained in sections 310 and 313 relating to dangerous building and removal of building material from any places in certain cases which may be considered harming or breeding places for riot or other source of danger or nuisance to the occupier, then a notice shall be required to be issued; and on failure the Commissioner is empowered to remove; whereas the provisions of section 305 cast a mandate upon the Corporation to remove whatever is projecting beyond the regular line of public street. The intendment of the aforesaid provisions is different, hence render no help or guide so as to interpret the provisions of section 305. In fact when all the provisions are considered, the interpretation of section 305 is fortified that it primarily mandates the Corporation to take action of removal on satisfaction of exigencies specified therein.
In re : Possession/deemed to be part of public street and vesting under section 305 of the Act of 1956:
36. Coming to question as to when vesting takes place. As soon as the building or the projecting part has been removed or when the Corporation has issued a notice when such re-building shall be set back or to the front line, the line added by such action by setting back or removal, shall henceforth without any further formalities, be deemed to be a part of public street and shall vest in the Corporation. Vesting does not depend upon the volition of the owner. Otherwise no public street can ever be brought in regular line. The Corporation has the power to remove, as discussed hereinabove. As deemed vesting is provided under Section 305, as such there is no requirement of separate provision for taking possession. For removal there is specific provision and adequate safeguards have been provided for fixing the regular line of a public street while preparing the development plan or the town development scheme, as the case may be.
37. In The Municipal Corporation, Indore v. K.N. Palsikar AIR 1969 SC 579, a question arose whether it was open to the Corporation to withdraw from the acquisition. This Court has laid down that there is automatic vesting of land in the Corporation under section 305 once the requisite conditions are satisfied. This Court has observed as under:
“14. Regarding point No. 1, we agree with the High Court that there is no provision in the Act for enabling the Corporation to withdraw from the acquisition proceedings. In fact, it seems to us that there is automatic vesting of the land in the Corporation under Sec. 305 once the requisite conditions are satisfied.…..”
(emphasis supplied)
As to the third question framed by this Court in Palsikar’s case (supra) to the effect that when the Act provides only for compensation and not any solatium whether it could be paid. This Court laid down that once the Land Acquisition Act is applicable under section 387 solatium can be claimed.
38. It was also submitted that possession can be taken only after compensation has been paid as held in State of Uttar Pradesh v. Hari Ram (2013) 4 SCC 280. It was submitted that there is a difference between de jure possession and de facto possession. It was also submitted that mere vesting in the absence of specific substantive provision providing for taking over of possession forcibly, does not authorize any authority to take over the physical possession of any property. The decision in State of U.P. v. Hari Ram (supra) is quite distinguishable and is based upon the provisions contained in section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 (in short, “the Act of 1976”). Section 10(5) whereof provides after the land has vested to take possession by a notice. On failure to comply with the notice to hand-over possession Competent Authority may take possession under section 10(6) of the Act of 1976. Legal fiction of vesting has been taken into consideration and discussed by this Court in the said decision. This Court has laid down that while the meaning of the legal fiction has to be ascertained for what purpose it is created and should be carried as far as necessary to achieve the legislative purpose, the word ‘vest’ in a statute has different meaning in different contexts. This Court has also held that “vest/vested” therefore may or may not include transfer of possession, the meaning of which depends on the context in which it has been used and the interpretation of various other related provisions. This Court in Hari Ram (supra) has discussed the meaning of such legal fiction thus:
“18. The legislature is competent to create a legal fiction, for the purpose of assuming existence of a fact which does not really exist. Sub-section (3) of Section 10 contained two deeming provisions such as “deemed to have been acquired” and “deemed to have been vested absolutely”. Let us first examine the legal consequences of a “deeming provision”. In interpreting the provision creating a legal fiction, the court is to ascertain for what purpose the fiction is created and after ascertaining this, the court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. This Court in Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan (1996) 2 SCC 449 held that what can be deemed to exist under a legal fiction are facts and not legal consequences which do not flow from the law as it stands.
19. James, L.J. in Levy, In re, ex p Walton (1881) 17 Ch D 746 speaks on deeming fiction as: (Ch D p. 756)
“… When a statute enacts that something shall be deemed to have been done, which in fact and [in] truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.”
24. The expression “deemed to have been acquired” used as a deeming fiction under sub-section (3) of Section 10 can only mean acquisition of title or acquisition of interests because till that time the land may be either in the ownership of the person who held that vacant land or to possess such land as owner or as a tenant or as mortgagee and so on as defined under Section 2(1) of the Act. The word “vested” has not been defined in the Act, so also the word “absolutely”. What is vested absolutely is only the land which is deemed to have acquired and nothing more. The word “vest” has different meaning in different context; especially when we examine the meaning of “vesting” on the basis of a statutory hypothesis of a deeming provision which Lord Hoffmann in Customs and Excise Commissioners v. Zielinski Baker and Partners Ltd. (2004) 2 All ER 141 (HL) at para 11 described as “heroic piece of deeming”.
28. “Vest”/“vested”, therefore, may or may not include “transfer of possession”, the meaning of which depends on the context in which it has been placed and the interpretation of various other related provisions.”
Though in the context of section 10 of the Urban Ceiling Act and provision of taking possession, this Court in Hari Ram (supra) has laid down that “vesting” under section 10 takes in every interest in the property including de jure possession and not de facto but it is always open to a person to voluntarily surrender and give possession under section 10(3) of the Act, which is not the position in the instant case as held by us in removal of the building under section 305 of the Act of 1956, it is implicit that once removal is made, vesting follows and possession stands transferred as part of public street. When we consider the deeming fiction in section 305 and vesting provision, de jure and de facto possession automatically vested in the Corporation on the happening of the exigencies as provided in section 305.
39. It was submitted on behalf of appellants that there is a conscious omission in the provision contained in section 305 with respect to the power of entry, removal or to take possession. The appellants have relied upon the decision of this Court in The Commissioner of Sales Tax, U.P. Lucknow v. M/s. Parson Tools & Plants, Kanpur (1975) 4 SCC 22, thus:
“16. If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so “would be entrenching upon the preserves of Legislature”, the primary function of a court of law being jus dicere and not jus dare.”

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