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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
A.S.Chandurkar, Vrushali V. Joshi, JJ.
Western Refrigeration Engineering & Ors. – Appellants
Versus
State of Maharashtra & Ors. – Respondents
Writ Petition No. 2544 of 2021
Decided On : 17-03-2023
Section 433A - Challenge to notice under Section 264(1) of Maharashtra Municipal Corporations Act, 1949 - [Section 264(1)] - The court considered the challenge to the notice dated 05.03.2021 issued by the Nagpur Municipal Corporation under Section 264(1) of the Maharashtra Municipal Corporations Act, 1949. The constitutionality of Section 433A of the Act of 1949 was also challenged. The court discussed the provisions of Section 433A and its interpretation, highlighting that while a notice issued under Section 264 of the Act of 1949 cannot be questioned in any suit or legal proceeding, such bar is not absolute. The court referred to previous judgments to establish that if a notice is a nullity in the eyes of the law or if there is an abuse in the exercise of power while issuing such notice, recourse to a civil remedy is not barred. The court concluded that the invocation of a civil remedy is not totally barred by Section 433A and jurisdiction of the Civil Court could be invoked in a given case. The court also discussed the challenge to the notice dated 05.03.2021 and found that the Designated Officer had duly satisfied that the structure in question was in a ruinous condition, justifying the action as directed by the impugned notice dated 05.03.2021. The court emphasized that it does not possess the requisite expertise to examine the technical and finer details of such reports of the Structural Auditors, and the scope for interference with such reports is limited. The court dismissed the writ petition with no order as to costs.
Fact of the Case:
The writ petition was filed to challenge the notice dated 05.03.2021 issued by the Nagpur Municipal Corporation under Section 264(1) of the Maharashtra Municipal Corporations Act, 1949. The petitioners claimed ownership rights in the premises and argued that the structure was not in a ruinous condition and could be made habitable by repairing it. They also challenged the constitutionality of Section 433A of the Act of 1949.
Finding of the Court:
The court found that the challenge to the constitutionality of Section 433A was not upheld, as the invocation of a civil remedy is not totally barred by Section 433A and jurisdiction of the Civil Court could be invoked in a given case. The court also found that the Designated Officer had duly satisfied that the structure in question was in a ruinous condition, justifying the action as directed by the impugned notice dated 05.03.2021. The court emphasized that it does not possess the requisite expertise to examine the technical and finer details of such reports of the Structural Auditors, and the scope for interference with such reports is limited. The court dismissed the writ petition with no order as to costs.
Issues: The issues involved in the case were the challenge to the notice dated 05.03.2021 issued under Section 264(1) of the Act of 1949, the constitutionality of Section 433A, and the question of whether the structure in question was in a ruinous condition justifying the action as directed by the impugned notice.
Ratio Decidendi: The court established that the invocation of a civil remedy is not totally barred by Section 433A and jurisdiction of the Civil Court could be invoked in a given case. The court also emphasized that it does not possess the requisite expertise to examine the technical and finer details of such reports of the Structural Auditors, and the scope for interference with such reports is limited.
Final Decision: The court dismissed the writ petition with no order as to costs.
JUDGMENT
A.S. Chandurkar, J. - RULE. Rule made returnable forthwith and heard the learned counsel for the parties.
2. The challenge raised in this writ petition filed under Article 226 of the Constitution of India is to the notice dated 05.03.2021 issued by the Nagpur Municipal Corporation under the provisions of Section 264(1) of the Maharashtra Municipal Corporations Act, 1949 (for short, 'the Act of 1949'). A further challenge has been raised to the constitutionality of Section 433A of the Act of 1949 since it bars the questioning of a notice issued under Section 264 of the Act of 1949 in any suit or legal proceedings.
3. The facts giving rise to the present proceedings are that the respondent nos.3A, 3B and 4 claim ownership rights in the premises standing on Plot No. 29, Municipal House No. 36, Great Nag Road, Nagpur which is in occupation of the petitioners as tenants. For the reason that the structure in question was quite dilapidated requiring the same to be pulled down, the owners on 01.11.2020 made a complaint to the Municipal Authorities requesting it to pull down the same in accordance with law. On receiving the aforesaid complaint, the Municipal Corporation on 22.01.2021 called upon the owners to submit a Structural Audit Report from a recognized Auditor from the panel of Structural Auditors maintained by the Municipal Corporation to enable it to consider the complaint of the owners. The owners on 10.02.2021 obtained a Structural Audit Report of the premises in question from 4th D Design Structural Designer, a Structural Consultant. Under the said report, it was recommended that the structure ought to be demolished at the earliest in the interest of property and human life. The owners on 16.02.2021 forwarded this report to the concerned department of the Municipal Corporation. The Municipal Authorities after considering the said report and after inspecting the premises issued the notice dated 05.03.2021 under Section 264(1) of the Act of 1949 to the owners as well as the petitioners-occupants stating therein that within a period of seven days of receiving the said notice, the structure should be pulled down. Since no further action was taken in the matter, the Municipal Corporation on 30.06.2021 made a request for grant of police protection to undertake demolition of the structure. A similar request was also made by the owners on 16.09.2021. On 27.10.2021 the Municipal Authorities issued another communication to the owners as well as the occupiers stating therein that when the site was inspected on 26.10.2021 it was noticed that half of the said structure had been pulled down while the remaining half structure which was in a dilapidated condition was found standing. The remaining structure was also directed to be pulled down. Some of the petitioners on 21.12.2021 issued a communication to the Mayor of the Municipal Corporation stating therein that another Structural Audit Report dated 08.03.2021 submitted by M.R. Shelote and Associates had been obtained by them which did not require the entire structure to be pulled down. A request was made to take necessary action in that regard and prevent the pulling down of the said structure. The Mayor accordingly called for necessary reports in that regard from the concerned department. On there being two contradictory reports with it, the Municipal Authorities called for another Structural Audit Report from the Visvesvaraya National Institute of Technology, Nagpur (for short, 'VNIT') being an independent authority. After the expenses towards such report were paid by the owners, the VNIT submitted its report dated 28.07.2022. As per the said report, it was opined that the premises were in a dilapidated condition having been constructed about sixty five years ago and hence, it was recommended that the same be demolished at the earliest. It is in this backdrop that the challenge to the notice dated 05.03.2021 has been considered.
4. Shri Sudheer Voditel, learned counsel for the pe
The invocation of a civil remedy is not totally barred by Section 433A, and jurisdiction of the Civil Court could be invoked in a given case.
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