JUDGMENT :

(A.S. Chandurkar, J.)

1. The issue that arises for determination in these writ petitions is whether a statutory notice proposing an action of demolition becomes unexecutable if the said notice remains unimplemented for an unreasonable period despite there being no legal impediment for its execution.

2. RULE. Rule made returnable forthwith and heard the learned counsel for the parties. Since a similar challenge has been raised in these writ petitions, they are being decided together by this common judgment. For sake of convenience, the facts in Writ Petition No. 5123 of 2023 are being referred to.

The petitioner claims to be inducted as a tenant in the premises located at Khasra Number 317, Mouza Sitabuldi, Nagpur. On 15.10.2010, the Nagpur Improvement Trust – NIT constituted under the Nagpur Improvement Trust Act, 1936 (for short, ‘the Act of 1936’) issued a notice under Section 286(2) of the City of Nagpur Corporation Act, 1948 (for short, ‘the Act of 1948’) read with Section 52 of the Act of 1936 to the owner of the premises as well as its occupier, the petitioner. In the said notice it was stated that a tin-shed constructed at the site was without obtaining permission of the NIT and hence the same was required to be removed within a period of twenty eight days from receipt of the said notice. The notice was issued by the Divisional Officer (West) on behalf of the Chairman, NIT. Neither the owner of the premises nor the petitioner raised any challenge to the said notice nor did they take any steps to comply with the same. The NIT also did not take steps to execute the said notice. In the meanwhile, on 21.08.2012 the Act of 1948 was repealed and the field was thereafter occupied by the provisions of the Maharashtra Municipal Corporations Act, 1949. Even thereafter no steps were taken to implement the notice dated 15.10.2010. On 17.07.2023 the NIT through its Divisional Officer (West) issued a communication to the owner of the premises and the petitioner stating therein that despite issuance of the notice dated 15.10.2010, the unauthorized construction had not been removed. It was directed that within a period of seven days from receipt of the said communication the offending construction be removed failing which the NIT would take steps to remove the same. Being aggrieved, the petitioner has challenged the said communication dated 17.07.2023 alongwith the initial notice dated 15.10.2010 issued by the NIT in this writ petition filed under Article 226 of the Constitution of India.

3. Shri S.V. Bhutada, learned counsel for the petitioner raised threefold contentions:-

(a) The provisions of Section 52 of the Act of 1936 had been mentioned in the said notice alongwith the provisions of Section 286(2) of the Act of 1948. With the repeal of the Act of 1948, the notice as issued on 15.10.2010 was not saved since Section 8(f) of the Bombay Provincial Municipal Corporations (Amendment) and the City of Nagpur Corporation (Repeal) Act, 2011 (for short, ‘the Repeal Act’) did not save the statutory notice issued under the Act of 1948. Since the said statutory notice was not saved, it was not permissible to execute the same after Repeal Act under which it was issued. In that regard, the learned counsel placed reliance on the decision in Shree Bhagwati Steel Rolling Mills Versus Commissioner of Central Excise & Another [(2016) 3 SCC 643].

(b) The Divisional Officer of the NIT had no jurisdiction to take any steps to implement and execute the notice issued on 15.10.2010. Under Section 52(1) of the Act of 1936 resort can be taken to the provisions of the Act of 1948 as indicated. As per the proviso to Section 52(1) the NIT is empowered to delegate to the Chairman or any Officer of the Trust all or any of the powers conferred by Section 52(1) of the Act of 1936. Under Section 24(1) of the Act of 1936 it is open for the Chairman by general or special order in writing to delegate to any Officer of the Trust the Chairman’s powers, duties or fu