TMI Blog2005 (8) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... building forming part of the premises within the regular line of public street as prescribed by the Commissioner, under Section 299 of the Act... together with its enclosing wall, hedge, or fence, if any, and any platform, verandah, step or other structure, which may be found upon the said land . Notice was also given that if necessary the authority issuing the notice namely, the Deputy Municipal Commissioner (Zone-i), Greater Bombay, would proceed to clear the building . 3. Section 299 in so far as it is relevant is extracted verbatim below:- 299. Acquisition of open land or of land occupied by platforms, etc, within the regular line of a street (1) If any land not vesting in the corporation, whether open or enclosed, lies within the regular line of a public street, and is not occupied by a building, or if a platform, verandah, step or some other structure external to a building abutting on a public street, or a portion of a platform, verandah, step or other such structure, is within the regular line of such street, the Commissioner may, after giving to the owner of the land or building not less than seven clear days' written notice of his intention so to do, tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word in Section 3(s) of the Act of which possession could not be taken under Section 299 of the Act. Our attention was also drawn to several photographs in support of the submission. 8. Learned counsel appearing on behalf of the respondents has submitted that the definition of the word building in Section 3(s) was subject to the context to the contrary and that in the context of the language of Section 299, it was clear that at least items 1-5 in the Commissioner's report were structures in respect of which proceedings could be taken under Section 299. It is contended that the expression other structure external to a building in Section 299 means such other structures as are not part of the main building. It is said that an important test to determine what structure can be considered as part of a building is whether the FSI is exhausted by such other structure . In reckoning the FSI of constructed structures, water tanks, pump rooms, security canopy or make-shift servant quarters with temporary construction are not counted. It is the respondent's case that in the present case no FSI is exhausted by the structures proposed to be taken away. Reference has been mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onus is on the person alleging such exclusion. It is not the respondent's case that the items found to be permanent existing structures by the Commission of the High Court, would not fall within the general definition of building. The submission is that the word should be read in a more restrictive manner in the context of Section 299. The question then is - has, the onus been discharged by the respondent? 11. The definition itself is in terms an inclusive one and is therefore to be widely construed. It seems to indicate that a structure would be a building if it has been erected by the use of whatever material, which may or may not be used by human beings since it specifies stables and tanks as buildings. The respondent's submission is that the servant quarters, security cabin, the pump room, underground RCC Tank with Cylinder shape pre-cast tank and the AC Plant are temporary building and are ancillary to the main residential building and not buildings for the purposes of exclusion from Section 299. 12. Section 299 itself does not draw a distinction between a main building and an ancillary building, or between a permanent building and a temporary building. But the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be erected, the period within which such new building shall be completed and other such matters. 16. The power of acquisition under Section 296 is to be exercised by the Commissioner under the provisions of the Land Acquisition Act 1894 [See: Sections 87, 91(i)] 17. Sections 297 to 311 are grouped together under the sub-title Preservation of Regular Line in Public Streets : Section 297 prescribes the method by which the Commissioner may prescribe a line on each side of any public street which is called the regular line of the street Section 298 allows the Commissioner to dispose of proposals relating to re-building or removal or re-construction or additions in respect of any part of a building abutting on a public street which is within the regular line of such street. In passing an order on the proposals under Section 345 or 346, the Commissioner may require such building to be set back to the regular line of the street. Section 301 mandates payment of compensation to be paid by the Commissioner to the owner of any building or land acquired for a public street under Sections 298 or 299 for any loss which such owner may sustain in consequence of his building or land bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (s) of the Act, and therefore, fall outside the purview of Section 299. 21. The next argument put forth by the respondent is that the word 'building' in Section 299 must be understood In the context of floor space index (FSI) as provided under the Development Control Regulation of Greater Bombay 1991. The argument is unacceptable. 22. FSI merely relates to the permission to build having regard to various features such as height of the building, tenement density, object with which the building is to be erected etc. The computation of the FSI is in a context which is wholly different from the context in which the word has been used in Section 299. In any event it is in dispute which structures are taken into account for the purposes of calculating FSI. 23. Apart from the language of Section 299, and the immediate context in which the Section appears the power to take over possession conferred on the Commissioner under Section 299 in respect of certain structures is a summary power. Having regard to the nature of the power, it is unlikely that the legislature intended that the Commissioner would exercise such summary powers in respect of independent structures which h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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