1991 Supreme(Bom) 589

IN THE HIGH COURT OF BOMBAY
M. L. Pendse N.D. Vyas, JJ.
Property Owners’ Association and others ..... Petitioners.
Versus
State of Maharashtra and others ..... Respondents.
Writ Petition No. 2673 of 1986, decided on 13-12-1991.
Advocates appeared :
Atul Satalved,Navroz Seervai, Jimmy Awasie, Sudhir Sethna, Pankaj Sawant, E.D. Petit and Miss Gitanjali Prabhu instruted by Gagrat Compay, for the petitioners.
J.I. Mehta with Miss P.D. Ankaleaaria and N.S. Manudhane, for respondent No. 1
M.V. Pranjape with Miss P.D. Ankalearia, for respondent No. 2
Millind Sathe with Prashant G. Karande and K.R. Dhanukar, for respondents Nos. 3 to 7.
R.V. Desai with P.K. Menon, for Attorney General.

Headnote:Article 14.

       See Maharashtra Housing and Area Development Act, 1976, Chapter VIII-A.

       Articles 31 (a) and 39 (b).

       See Maharashtra Housing and Area Development Act, 1976, Chapter VIII-A.

       MAHARASHTRA HOUSING AND AREA DEVELOPMENT ACT, 1976, CHAPTER VIIIA (SECOND AMENDMENT ACT OF 1980.

       Constitution of India-Article 14-Constitutional validity of Chapter VIII-A-(Classification-Provisions if unreal and unreasonable-Held- Classification passing tests of permissible classification -Having rational basis and nexus with object sought to be achieved by statute in question-Classification not unreal and unreasonable-Chapter VIII-A valid.

       Before examining the relevant sections of Chapter VIII-A a reference is required to be mane to some of the decisions to indicate as to what principles must be followed to determine whether the provisions of the statute are violative of Article 14 of the Constitution. The principles are well settled and it is un necessarily to set out the observations in various judgments cited like AIR 1958 SC 538. AIR 1962 SC 552, AIR 1964 SC 1633 and AIR 1980 SC 1637 save and except setting out the well established principles. In order to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical or according to the objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is well settled that the legislature understands and correctly appreciates the need of its own people and the laws are directed problems mane manifest by experience and that its discriminations are based on adequate grounds. In order to sustain the presumption of constitutionality the Court can take into consideration matters of common knowledge, matters of common report, the history of the times and can assume every state of facts which can be conceived existing at the time of legislation.

       

       Chapter VIIIA (Second Amendment Act-1986-Constitution of India, Article 31 (a) and 39 (b)-Constitutional validity of Chapter VIII A-Neither classification of buildings discriminatory nor any of provision of Chapter VIII A discriminatory of unreasonable- Provisions of Chapter VIII-A not dehorns of object for which Act was enacted I e. for securing principles specified in clause (b) or Article 39-Challenge to Constitutional validity of provisions of Chapter VIIIA without any substance apart from fact that challenge is not open In view of protection of Article 31-C.

       A judicial notice can be taken that in congested areas in city, the old buildings which were constructed prior to September 1, 1940 are in extremely dilapidated condition and still are occupied by scores of people at the risk of their lives only because of their inability to secure any alternate accommodation. It is a bounden duty of the democratically elected Government to ensure that steps are taken to protect the shelter over the heads of unfortunate citizens. The buildings which are constructed for occupation of limited number of people are now occupied by desperately large number only due to scarcity of accommodation. The landlord of such buildings are not inclined to effect structural repairs or to undertake repairs due to exorbitant prices of the material and because of freezing of the rent prevalent in year 1940. The cumulative effect of all these factors in regular collapse of buildings resulting into loss of valuable human life. It was, therefore, incumbent upon the Government to take steps to ensure that structural repairs are carried out or dilapidated buildings are pulled down and reconstructed. Due to inability of the Government to generate sufficient financial resources and to persuade the owners to undertake the task, it was decided by the legislature to find out a solution by securing participation of the occupiers in stupendous task of the work of structural repairs or reconstruction. The advantage of the occupiers could he secured by requiring the occupiers to contribute towards the expenses of repairs or reconstruction and on an assurance that the occupiers would be owners of the premises on formation of Co-operative Housing Society. The Government rightly felt that the burden upon each of the occupier would not be so heavy in contribution of expenses in repairs compared to the advantage which would be secured by the occupier being the purchaser of the tenement. The submission that the object of enactment of provisions of Chapter VIII-A is merely to carry out the work of structural repairs or reconstruction and had no nexus whatsoever to the object of distribution of material resources to observe the common good cannot be accepted. The availability of the land in the City of Bombay is extremely limited and it is not possible to increase the available quantity of land and if the citizens are to be assured of a reasonable shelter, then it is necessary to distribute this meagre asset as equitably as possible to subserve the common good. The provisions of Chapter VIII-A confers right upon the Housing Society of the occupiers to enjoy additional F. S. I. then available to the owner of the premises and the additional F. S. I. is mane available with an object that additional tenements would be constructed and some dis housed people can he provided with the shelter.

       Article 39 (b) is a futuristic mandate to the State with a message of transformation of the economic and social orders, expansive meaning to the pregnant words used with hopeful foresight should be given by the courts to bring social and economic justice in the context of material want and utter inequalities on a massive scale. Hence the provisions of Chapter VIII-A are not dehors of the object for which the Act was enacted i.e. for securing the principles specified in clause (b) of Article 39 of the Constitution. The provisions are in furtherance of the object which the law desired to achieve by enacting Chapter V and Chapter VIII of the Act. Apart from the declaration contained in Section 14 of the Act, the provisions of the Act including provisions of Chapter VIII-A are entitled to protection of Article 31-C of the Constitution as each of the provisions have a direct bearing or nexus to the object of distribution of material resources of the community at best to subserve the common good, Court is unable to accede to the submission that either of the classification of the buildings is discriminatory or any of the provisions of Chapter VIII-A are discriminatory or unreasonable. The steps taken by the Legislature to ameliorate the hardships suffered by the occupiers of the dilapidated buildings in Bombay are laudable and we hope and trust that the occupiers will be in a position to reap the benefit of the legislation and the instances of house collapses leaning to loss of human life will be avoided hereafter. The challenge to the Constitutional validity of the provisions of Chapter VIII-A of the Act is without any substances apart from the fact that challenge is not open in view of the protection of Article 31-C of the Constitution.

       

       Section 2 (25) (c) and 103B (Second Amendment Act 1986) Occupier-Definition of expression occupier in Section 2(25) is inclusive and clause (c) covers a person who is liable to pay to owner damages for use and occupation of any land or building-This clause does not Include trespasser.

       

       Sections 2 (36) and 103 (b) (Second Amendment Act 1986)- Expression structural repairs-In Section 103-B meaning of expression structural repairs is defined under Section 2 (36) and that definition can certainly be Imported while considering expression structural repairs in Section 103-B.

       Chapter VIII-A-Section 103-A (Second Amendment Act 1986) Vires -Provision of Chapter limiting application to buildings in Bombay City to buildings constructed prior to September 1940-Legislature bas ultimately to draw a line and not possible with limited recources available to attend to all dilapidated buildings in city at same time-Challenge to provisions of Section 103-A as being violative of Act Dot maintainable.

       Court is unable to accede to the submission of the petitioners that limiting the application of the provisions of the Chapter to buildings in the City of Bombay and to the buildings which were constructed prior to September, 1, 1940 results into vice of discrimination. In the first instance, it must be remembered that it is not necessary for the Legislature to commence work of improvement of buildings all over the State at the same time and it is perfectly permissible to adopt new methods initially to a certain area The implementation of the provisions of Chapter requires performance of several functions by the Board as well as the State Government and the machinery and the manpower available with the Board cannot attend to dilapidated buildings all over the State at the same time and, therefore, it was perfectly open for the Legislature to initially select an area where there is greater need to effect structural repairs or reconstruction of dilapidated buildings. It also cannot be overlooked that number of dilapidated buildings in City of Bombay are far large in number that those outside the City of Bombay and situated in districts. The pressure on the buildings and the amenities available in the buildings situated in City of Bombay is very heavy. The saline atmospheric conditions prevalent in the City and nearness to the sea and heavy monsoon contributes to rapid deterioration of the structures and, more so, where precautions are not taken to maintain them from time to time. The number of dilapidated buildings in the city and the available data about the rate of collapse of such buildings was available with the Legislature and it must be presumed that the Legislature must have decided to implement a new scheme of participation of occupiers in the structural repairs or reconstruction initially in the city in view of greater need to provide safely measures and the shelter to occupiers of buildings in the city. The contention that there are large number of buildings even in the City of Bombay which are constructed subsequent to September 1, 1940 and are in need of structural repairs and, therefore, grouping together of only those buildings which were constructed prior to September 1, 1940 is erroneous cannot be accepted. The Legislature has ultimately to draw a line and it is not possible with the limited resources available to attend to all the dilapidated buildings in the city at the same time. In our judgment, the complaint that the restriction of application of the provisions only to buildings constructed prior to September 1, 1940 and that too in the City of Bombay is discriminatory cannot be accepted. The State legislature can always extend the application of the provisions of the Chapter to other areas by taking into consideration how the scheme functions in the City of Bombay. In our judgment, the challenge to provisions of Section 103-A as being violative of Article 14 cannot be accepted.

       

       Section 103-B (Second Amendment Act, 1986)-Character of possession of occupier-Validation by Legislature despite courts order-Validity of Ample powers to legislature to validate or regularise character of possession of au occupier of tenement in a building inspite of fact that court ban passed judgment or decree for eviction against such occupation.

       

       Section 103-B (Second Amendment Act, 1986)-Vires-Vagueness ill nature of provision-Number of 70 per cent to be determined with reference to tenements and not to actual number of persons in occupation-Act valid.

       Section 103-B (2) (Second Amendment Act, 1986)-Provisions- Violation of principles of natural justiee-No opportunity to owner of being heard-Approval by Board of State Government does not automatically lean to acquisition of properties-Hence provision for taking up such proceedings without any opportunity to owner of being beard not violative of principles of natural justice.

       In the first instance, approval either by the Board or the State Government does not defeat or deprive any right of the landlord in the building. The approval by the Board or the State Government does not automatically lean to acquisition of the properties and sub-section (5) demands that on receipt of Government approval, the Board shall forward acquisition proposal to the Land Acquisition Officer for initiating land acquisition proceedings in accordance with sub-sections (3), (4) and (5) of Section 93 of the Act. It is, therefore, clear that mere grant of approval by the Board or the State Government does not affect the rights of the landlord in the building and consequently there is no requirement whatsoever of going an opportunity of the landlord to show cause as to why the approval should not be given, Secondly, it must be remembered that the right conferred on the occupiers to make an application and the approval thereof by the Board and the State Government is because of the failure of the landlord to take effective steps to carry out structural repairs or reconstruction of the buildings. The occasion to make application arises because the dilapidated building needs immediate structural repairs or reconstruction and any delay in carrying out that exercise would lean to loss of human life as well as valuable property. In case, the contention of the petitioners is accepted, then the proceedings for grant of approval to the proposal either by the Board or the State Government would take years and the proposal can be successfully defeated by passage of time. Sub-section (2) also provides that after the amount of 30% of the approximate compensation is deposited by the applicants, then the intimation in that respect would be given to the owner and that makes it clear that the owner is mane aware of the fact that a proposal has been received and approved by the Board. It is always open to the landlord to communicate his objections, if any, to the State Government, but for whose approval, the proposal cannot move, but to accept existence of a right in favour of the landlord to be heard before grant of an approval would make mockery of the provisions of the Chapter which require immediate attention to the proposal.

       It was submitted that though it is undoubtedly true that sub-sections (3), (4) and (5) of Section 93 provide for a reasonable opportunity to the owner of the building to be heard before the Land Acquisition Officer, the opportunity is futile because the Land Acquisition Officer is a subordinate officer and could not be expected to take a decision which is different from the Board or the State Government. Court is not prepared to accede to the submission of the Counsel that the Land Acquisition Officer who is required to perform a statutory duty would surrender his judgment only because the State Government had taken a decision to approve the proposal mane by the occupiers. Indeed, in every land acquisition proceeding under the Land Acquisition Act, the Officer commences proceedings only after the State Government or the Commissioner of the Division approves the proposal that the lands are required for a public purpose. It is futile to suggest that the Land Acquisition Officer will always surrender his statutory duties and straightway proceed to acquire the buildings only because the Board and the State Government has given prior approval. The Land Acquisition Officer is required to ascertain as to whether the proposal mane is viable and also whether the area sought to be acquired is required for reconstruction of the building. The Land Acquisition Officer has also to determine what is the extent of the land which can be described appurtenant to the building. It is open for the owner to establish before the Land Acquisition Officer that none of the conditions precedent for attracting provisions of Chapter VIII-A are fulfilled viz., the building is not constructed before September 1, 1940, and does not fall under Category A or the requisite number of occupiers have not filed application, or the building does not require structural alternations or reconstruction etc. then the Land Acquisition Officer cannot exercise powers to acquire by publication of notification under sub-section (5) of Section 93 of the Act. All these functions are required to be performed by the Land Acquisition Officer as a statutory duty and it is impossible to accede to the submission that reasonable opportunity provided to the owner of the building under Section 93 is imaginary and not real.

       Occupier-Meaning of,

       See Maharashtra Housing and Area Development Act, 1976, Sections 2 (25) (c) and 103-B.

       Structural repairs -Meaning of.

       See Maharashtra Housing and Area Development Act, 1976, Sections 2 (36) and 103-B.