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High Court of Judicature at Bombay
A.M. KHANWILKAR & K.K. TATED, JJ.
The Tadeshwar Wadi Co-operative Housing Society Ltd.
Versus
The State of Maharashtra & Others
Writ Petition No.2403 of 2012
Decided on: 08-02-2013
Even though primary obligation is on owner and occupier of building to act upon requisition of corporation issued under Section 354 of Act in respect to structure in ruins but that not extricates corporation from its duty to remove such structure in public interest. - Even though the primary obligation is on the owner and occupier to act upon the requisition of the Corporation issued under Section 354 of the Act in relation to the structure in ruins or likely to fall, but that does not extricate the Corporation from its duty to remove such. structure in public interest at the earliest. In doing so, the Corporation may have to resort to eviction of the occupants but that drastic action would be of a far lesser degree than the loss or damage to be caused in the neighbourhood on account of sudden collapse of the dilapidated and dangerous building. It cannot be said that Section 354, by itself, does not provide for any further power to the Corporation to forcibly evict the occupants of the building and demolish the building merely because it has become dilapidated and dangerous, unlike the provisions contained in Section 488-A of the Act, which provision is limited to notices under Section 354-RE, 378-C or 378-F of the Act.
In the instant case Section 488-A of the Act (1888) came into force after the amendment inserted by Bom 34 of 1954. It is a separate provision under the heading "power of eviction" contained in Chapter XIX of the said Act, which deals with procedure. Relying on this provision, it was contended that this is a special provision enacted by the Legislature to give limited power to the Commissioner of the Corporation to proceed to evict the occupant and get the building or part thereof vacated for effectuating the action under Section 354-RE, 378-C and 378-F and in no other situation. No such power has been invested in the Commissioner with regard to the action under Section 354 of the Act simplicitor. The argument, though attractive, at the first blush, will have to be stated to be rejected.
In the instant case situation is covered by Section 354. The corresponding provision about the duties and powers of the Municipal Authorities amongst others, of removal of structures, which are in ruins or likely to fall can be traced to Section 61(1) in Chapter III, Chapter III deals with duties and powers of municipal authorities. The obligatory and discretionary duties of the Corporation have been spelt out in this Chapter. Section 61 of the Act envisages that it shall be incumbent of the Corporation to make adequate provision, by any means or measures which it is lawfully competent to them to use or to take, inter alia, for securing or removal of dangerous buildings and places, as referred to in clause (1).
On conjoint reading of Section 61(1) with Section 354, there is hardly any doubt that the Commissioner has complete power to make adequate provision by any means or measures which it is lawfully competent for removal of dangerous buildings and places. To buttress the proposition that the Corporation has ample powers to initiate action of evicting occupants and demolishing the structure, which is in ruins or likely to fall, can be traced even to Section 489 of the said Act, which finds place in Chapter XIX dealing with the procedure. Section 489 is found in sub- heading enforcement of orders to execute work.
On a bare perusal of this provision, it is noticed that the Commissioner after waiting for a reasonable period after giving written notice, has power to take such measures to ensure that the requisition issued by him is complied with by taking such measures or cause such work to be executed or required to be done at the expenses of the person, who was obliged to comply with the requisition. Sub-section (2) of Section 489 refers to requisition issued, inter alia, under Section 354 by the Commissioner.
The expenses to be incurred by the Commissioner to discharge the obligation under Section 489 read with 61(1) of the said Act is to be recovered in the manner prescribed in Section 491. For discharging the said duty, the Municipal Commissioner is free to take cooperation of police as per Section 522 of the said Act. Section 522 predicates that the Police Commissioner on receipt of such request must provide logistical support to the officials of the Corporation.
Consequently, petitioner Housing Society is justified in seeking direction against the Corporation for its inaction to take successive notices issued under Section 354 of the said Act to its logical end by removing the dilapidated and dangerous structure referred to therein. For facilitating the officials of the Corporation to discharge this duty, it was directed that the police authorities would extend adequate logistical support to them, if so demanded and as may be warranted, which is the obligation of the police authorities under Section 522 of the Act.
A.M. Khanwilkar, J.
1. Heard Counsel for the parties.
2. Rule. Rule made returnable forthwith, by consent. Respondents waive notice through their respective Counsel.
3. This petition under Article 226 of the Constitution of India, in substance, is for issuance of directions to the officials of the Corporation to take follow-up action on the basis of notices issued u/s 354 of the Mumbai Municipal Corporation Act, 1888 (for short, hereinafter referred to as the 'said Act') and to facilitate the officials of the Corporation to do so, the police authorities be directed to provide necessary logistical support.
4. Briefly stated, the petitioner – Society has been formed by the occupants of the tenaments in the building. There are 62 members in the petitioner – Society out of which 51 members were residing in a building having four wings marked as A, B, C and D. The rest of the members of the petitioner – Society were in chawl structures of ground floor in 11 rooms on land bearing C.S. Nos.781 (part) situated at Mogal Lane, Mahim (West), Mumbai. It is not in dispute that the Corporation has repeatedly issued notices u/s 354 of the said Act to remove the structure occupied by the members of the petitioner – Society having become dilapidated and dangerous. In the context of the said action taken by the Corporation, it is not necessary to highlight other factual matrix referred to in the Writ Petition or the reply affidavit except to observe that the building in question is part of the larger redevelopment project which according to the petitioner – Society and the Developer has been sanctioned by the Appropriate Authority.
5. The first notice issued by the Corporation u/s 354 is dated 7.8.2007 to carry out extensive and structural repairs / replacements. The second notice u/s 354 of the said Act was issued by the Corporation in respect of the said structure, as served on the petitioner, is dated 1.3.2008, requiring the petitioner to pull down the dilapidated structure referred to therein. Lastly, a fresh notice was issued to the petitioner – Society by the Corporation u/s 354 of the Act on 21.3.2012 to remove the building referred to in the notice which was found to be in dilapidated and dangerous condition. Later on, the Corporation requested the police authorities to extend necessary support, who in turn, were of the view that since some of the occupants of the respective tenaments in the building were not willing to vacate the same, it may not be advisable to forcibly remove them to facilitate the demolition of the building inspite of its dangerous condition. The Corporation eventually gave individual notices dated 11.6.2012 u/s 354 of the said Act to all the occupants of the building including Respondent Nos.10 to 17, who were unwilling to vacate the tenaments in the said building occupied by them. Inspite of the individual notices, respondent Nos.10 to 17 did not vacate the respective premises occupied by them. As a result, the petitioner – Society could not proceed with the demolition of the building inspite of the successive notices received from the Corporation u/s 354 of the Act. At the same time, the Corporation as well as the police authorities did not take notices issued u/s 354 to its logical end on an erroneous understanding that they have no power to demolish the structure referred to in the notice u/s 354 of the said Act. Because of this stalemate situation, the petitioner – Society has approached this Court by way of Writ Petition filed on 1.10.2012. It is noticed that during the pendency of this petition, some portion of the building has collapsed. On account of this development, even the remaining building has become vulnerable and likely to collapse at any point of time. For this reason, the hearing of the petition was required to be expedited.
6. We have heard Counsel for the parties. It is not in dispute that the validity of the notices issued u/s 354 of the said Act have not been challenged by the private
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