2005 (8) TMI 745 - SC - Indian Laws

Summary

Issues Involved:
1. Interpretation of Section 299 of the Mumbai Municipal Corporation Act, 1888.
2. Definition of "building" under Section 3(s) of the Act.
3. Applicability of Section 299 to various structures within the appellant's property.
4. Relevance of Floor Space Index (FSI) in determining the applicability of Section 299.

Issue-wise Detailed Analysis:

1. Interpretation of Section 299 of the Mumbai Municipal Corporation Act, 1888:
The central issue is whether the land in the appellant's premises, which is sought to be affected by the notice, is "not occupied by any building" or occupied by "some other structure external to a building." Section 299 allows the Commissioner to take possession of land within the regular line of a public street if it is not occupied by a building but by structures external to a building. The High Court initially upheld the notice under Section 299, interpreting the six structures as "other structures" external to the main building.

2. Definition of "building" under Section 3(s) of the Act:
The appellants argued that each structure was a 'building' within the meaning of Section 3(s) of the Act, which includes a house, outhouse, stable, shed, hut, tank, and every other such structure. The definition is inclusive and should be widely construed. The respondents contended that the definition should be read in a more restrictive manner in the context of Section 299, arguing that temporary and ancillary structures do not qualify as buildings under this section.

3. Applicability of Section 299 to various structures within the appellant's property:
The High Court's Commissioner found that the proposed acquisition affected several permanent structures. The Supreme Court noted that Section 299 does not distinguish between main and ancillary buildings or between permanent and temporary buildings. The term "temporary building" is separately defined under Section 3(sb) of the Act, indicating that a temporary building is not meant to remain permanently. The Court concluded that each of the six items listed by the Commissioner fell within the definition of 'building' in Section 3(s) and thus outside the purview of Section 299.

4. Relevance of Floor Space Index (FSI) in determining the applicability of Section 299:
The respondents argued that the structures did not exhaust the FSI and thus should be considered external structures under Section 299. The Court rejected this argument, stating that FSI relates to permission to build and is calculated in a different context from the one in which the word "building" is used in Section 299. The Court emphasized that the power to take possession under Section 299 is a summary power and should not be extended to independent structures defined as buildings under the Act.

Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's judgment and the impugned notice dated 16th November 1999. The Court held that the structures in question were buildings within the meaning of Section 3(s) and thus could not be taken over under Section 299. The Court also noted that the municipal authority could acquire any land or building under Section 296 of the Act, subject to its provisions. There was no order as to costs.