The main legal point established is that the NMC's decision must be based on a structural stability report, and every attempt should be made to retain the structure with necessary repairs.

JUDGMENT :

Rohit B. Deo, J.

Petitioner is questioning the notice dated 16.11.2022, issued by the first respondent – Nagpur Municipal Corporation (“NMC”) in exercise of power under Section 264 of the Maharashtra Municipal Corporations Act, 1949 (“Act”), directing the petitioner to repair the front portion of the subject property consistent with Option-I suggested in the structural stability report dated 27.10.2022 submitted by Shri Ramdeobaba College of Engineering and Management, Nagpur.

2. BROAD FACTS:

2.1 Petitioner claims to be the absolute and exclusive owner of property assigned Sheet Number 223 and City Survey Number 179 of Mouza – Nagpur and the construction assigned Corporation House Number 13, situated at Tilak Putla, Mahal, Nagpur (“subject property”).

2.2 Petitioner claims to have acquired the subject property by virtue of registered gift deed dated 23.12.2019 from recorded owners Mr. Ramprakash Sharma, Mr. Krishnakumar Sharma and Mrs. Latadevi Sharma.

2.3 Petitioner asserts that the fifth respondent and the six respondents, who are the uncle and the cousin brother of the petitioner, respectively, do not have any ownership right in the subject property. Petitioner relies on the property card and the corporation tax receipt which are annexed as annexure A-1 to substantiate the claim of absolute ownership.

2.4 The petitioner asserts that the construction of the subject property is more than 90 years old and is in dilapidated condition. The risk of the construction collapsing any time is real, and the danger to the occupants, neighbours and passers by, is potent.

2.5 Petitioner states that in view of the grave and emergent situation due to the condition of the structure, he submitted complaints dated 2.1.2020 and 21.9.2020 to the first respondent and its officers. The officers of the first respondent visited the site on 13.1.2021 and asked the petitioner to obtain structure stability report from an architect empanelled with the NMC.

2.6 The structural consultant Mr. Sagar Balani inspected the structure and submitted report dated 18.1.2022 that the structure is in dilapidated condition and recommended demolition.

2.7 The third respondent issued notice dated 22.2.2021 in exercise of power under Section 264 of the Act, directing the petitioner to demolish the entire structure within seven days.

2.8 Petitioner states that the fifth and the sixth respondents are occupying portion of the structure and are carrying on business under the name and style “R&B Menswear”. Petitioner claims that while the fifth and sixth respondents are permitted to carry on business from the subject property due to the relationship, the fifth and the sixth respondents have instituted Special Civil Suit 266/2022 seeking decree of partition, separate possession, declaration and permanent injunction, in which suit, there is no interim order operating.

2.9 Petitioner preferred an application to the office of the first respondent on 1.4.2022, seeking action pursuant to the notice issued which was followed up by reminder communication dated 29.4.2022.

2.10 In view of the inaction of the NMC, the petitioner approached the High Court in Writ Petition 3230/2022, while the fifth and sixth respondents challenged the notice dated 22.2.2021 in Writ Petition 4011/2022. Petitioner states that in both the petitions, the third respondent filed affidavit admitting that the subject property is in dilapidated condition.

2.11 The High Court, vide order dated 29.9.2022, disposed of Writ Petition 3230/2022 and Writ Petition 4011/2022 in terms infra.

“3. Shri Anand Jaiswal, learned Senior Advocate, appearing for the petitioner in Writ Petition No.3230 of 2022, submits that the impugned notice of demolition dated 22-2-2021 is very clear and it is based not only on the report of the Structural Auditor, but also on the report of the Inspection Officer of the Nagpur Municipal Corporation and, therefore, the said notice is required to be implemented, and in any case, once the subjective sat