Bombay High Court
Gajanan Ramraoji Ambagovind And Ors. vs Corporation Of The City Of Nagpur And ... on 23 June, 2006
Equivalent citations: 2006(6)BOMCR413, 2006(4)MHLJ789
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar, S.R. Dongaonkar
JUDGMENT R.M.S. Khandeparkar, J.
1. Admit. By consent heard forthwith.
2. The appellants challenge the order dated 1-2-2006 passed by the learned Single Judge in Writ Petition No. 439 of 2006 whereby the learned Single Judge has dismissed the said writ petition which was filed by the appellants against the order passed by the Commissioner on 24-1-2006. The Commissioner, by the said order had dismissed the revision applications filed by the appellants against the order dated 25-10-2005 passed by the Deputy Municipal Commissioner in the appeals filed by the appellants challenging the order/notice issued Under Section 289(1) of the City of Nagpur Corporation Act, 1948.
3. Few facts relevant for the decision are that; a notice-cum-order dated 12-8-2005 hereinafter called as "said notice" came to be issued to 31 occupants of a building situated in City Survey No. 3231 along with owner of building the respondent No. 8. By the said notice, in exercise of the powers Under Section 289(1) of the said Act, the addressees of the notice were required to demolish the building on the ground that the same had become old and the walls and roofs of the building were in dilapidated condition and could collapse at any time during the rainy season and that in order to avoid the probable danger to the human life, it was necessary to demolish the said building and that the notice for demolition of the building was already issued to the owner of the building. Being aggrieved by the said notice, the appellants who were 10 addressees of the said notice filed appeals against the said order before the Deputy Municipal Commissioner, who after hearing the parties dismissed the said appeals while holding that demolition could be carried out of the portion of the building which is in dilapidated condition. The matter was carried in revision by the appellants and while confirming the order of the Deputy Commissioner, the Additional Commissioner directed to dismantle the dilapidated portion of the building in order to protect the life of the occupants. Being aggrieved, the appellants preferred the writ petition which came to be dismissed after hearing the parties. Hence, the present Letters Patent Appeal.
4. Drawing attention to Sections 289(1) and 288 of the said Act, the learned advocate for the appellants submitted that the said notice issued Under Section 289(1) was without any basis for arriving at the conclusion about the building being in a dangerous state and that thereafter, being required to be demolished and without considering the aspect of retaining the building by causing necessary repairs. According to the learned advocate for the appellants the said fact apparently discloses that there was no bona fide exercise of jurisdiction or power by the concerned authority while issuing the said notice and he further submitted that the facts and circumstances which had occurred prior to issuance of the said notice, also lend support the contention of the appellants that the exercise of power lacked bona fide.
5. Drawing attention to the fact that even similar notices were issued earlier in the year 1982, learned advocate for the appellants further submitted that the present action was initiated consequent to the complaint by one Anil Mandavgade and not on the basis of the proper information collected as regards the condition of the building by the competent authorities of the Municipal Corporation.
6. Learned advocate appearing for respondents No. 1 to 7, on the other hand, submitted that the said notice was issued after proper inspection of the building by the engineering staff of the Corporation and taking into consideration the dilapidated condition of the building as well as the threat to the human life of the occupants and passers by of the building. He further submitted that both the fact finding authorities have considered this aspect as well as considered the report of the A.D.T.P. which is an independent agency and based on the report of the experts in the field has opined that the dilapidated portion of the building should be demolished. Being so, there is no scope to allege that the authorities did not exercise powers bona fide or honestly in issuing the said notice for demolition of the building.
7. Learned Advocate for respondent No. 8 drawing our attention to the order passed by this Court earlier in Writ Petition No. 1267 of 1984 on 26-6-1984, submitted that the issue as to whether the building is reparable or not stands concluded finally by the said order of this Court. The said order was passed after calling for the report regarding condition of the building and had refused to interfere in the earlier order issued Under Section 289(1) in the year 1982. He further submitted that the efforts on the part of the appellants to get the stay of the said order proved futile as the Special Leave Petition filed against the same was rejected. He further submitted that taking into consideration the fact that the authorities entrusted with the statutory duties have to ensure that the buildings which are hazardous are required to be removed from the city limits, the authorities, after inspection of the building by the concerned experts had decided to issue order of demolition of the building. It is not permissible for the Court to substitute its opinion for the opinion arrived at by the statutory bodies. Reliance is sought to be placed in that regard in the decision of the Division Bench of this Court in the case of Diwanchand Gupta v. N.M. Shah 1972 Mh.L.J. 524 while specifically drawing attention to para Nos. 7 and 8 thereof.
8. Learned Single Judge in the impugned order has observed that, the authorities below after considering the report of the A.D.T.P. who is an expert in the said field have come to the conclusion that the request of the petitioners for permission to repair the dilapidated portion of the building was liable to be rejected. Besides that the notices Under Section 289(1) of the said Act were issued in the public interest and the said A.D.T.P's report shows that a part of the building needs demolition. With these findings the learned Single Judge has refused to interfere in the matter, and therefore, dismissed the petition.
9. Upon hearing the learned Advocates for the parties and on perusal of the record, the points which arise for consideration are that, whether the authorities of the Corporation had issued the said notice Under Section 289(1) of the said Act in bona fide exercise of power under the said provision of law and that the same was based on materials available on record before issuing the same and that whether these aspects have been considered by the learned Single Judge while rejecting the petition?
10. Perusal of the impugned order passed by the learned Single Judge discloses that the petition was rejected solely on the ground that the report of the A.D.T.P. was of an expert in the field and the same disclosed need for demolition of the part of the building. In fact it is the only point which has been considered by the authorities below while dealing with the appeal as well as revision application filed by the appellants. The impugned orders nowhere disclose the consideration of the point as to whether the exercise by the authorities while issuing the said notice Under Section 289(1) was bona fide or not. Undisputedly, the report of A.D.T.P. was procured subsequent to the issuance of the said notice. The clear observation in that regard in the order of the Deputy Commissioner reads thus, "a third party inspection from the competent authority was asked for by him and in that regard the report was called for either from the A.D.T.P.'s office or from Executive Engineers who are superior in rank stationed at the head quarter and in pursuance of the said requirement, the report from A.D.T.P. was received". Apparently, therefore, the report of A.D.T.P. was not available at the time of issuance of the said notice.
11. There is no doubt that the report of the engineering staff of the Corporation was available before the authorities at the time of issuance of the said notice. However, both the authorities below have chosen to rely entirely on the A.D.T.P.'s report ignoring the report by the engineering staff of the Corporation. The orders passed by these authorities nowhere disclose consideration of the report by the engineering staff of the Corporation to justify the action Under Section 289(1) of the said Act. The order of the Deputy Commissioner merely makes a mention of the fact that notices were issued after inspection carried out by the zonal engineering staff and nowhere refers to any part of any report made by the zonal engineering staff as regards the factual condition of the buildings in question. Certainly, it reproduces certain portion of the A.D.T.P's report which relates to the area in occupation of the appellants. Similar is the case in relation to the order passed by the Additional Commissioner. However, perusal of reproduction of the report of A.D.T.P in both the orders discloses that the same deals with the visual description of some of parts of the building. The report, however, neither suggests nor recommends demolition of the entire building or even those parts of the building referred to the report. Both the iauthorities, however, merely referring to the said report which describes those parts of the building have proceeded to hold that the part of the building, needs to be demolished. While holding so, there is also an observation made about precaution to be taken while demolishing the dilapidated portion of the building, so as to avoid any damage to the remaining portion of the building.
12. Section 289(1) of the said Act provides that; "If in the opinion of the Commissioner any building, wall structure, or anything affixed thereto is in a dangerous state, the Commissioner may, by a notice in writing, require the occupier or owner thereof forthwith either to demolish or remove the building, wall structure or anything affixed thereto or to cause such repairs to be made thereto as the Commissioner considers necessary for the public safety...." The latter portion of the said provisions of law provides that; "...if the danger appears to him to be imminent, he may forthwith take such steps as may be required to avert such danger including the forcible removal without notice from such building of all the occupiers thereof and their property". We are not concerned with the latter portion of Section 289 as admittedly there was no imminent danger nor such steps were required to be taken. We are concerned with the first part of Section 289(1) of the said Act.
13. Obviously, therefore, before exercising the powers under the first part of Section 289(1) of the said Act, the authorities must get satisfied as to whether the entire building needs to be demolished or whether any particular portion of the building need to be demolished and that the building or part thereof cannot be allowed to be occupied by merely causing repairs to the same. The provision of law clearly states that only when the authority is satisfied that such building or part thereof is in dangerous state, that he can direct either demolition or removal or order of repairs to be made thereto. In other words, before ordering demolition, it is necessary for the authority to consider whether the building can be allowed to be repaired instead of demolition thereof without any danger to the public safety. Merely because a building appears to be in dilapidated condition that itself cannot be a justification to order of demolition. To arrive at an appropriate finding in that regard, the authorities must have proper materials before them in relation to the factual situation pertaining to the building in question. It is needless to state that such material will have to be furnished by the officers of the Corporation having expertise in the field and further the opinion be formed on the basis of such materials which would be available before issuing the notice/order Under Section 289(1) of the Act.
14. Undoubtedly, the order was sought to be justified on the basis of the additional material placed before the Deputy Commissioner in the proceedings in the representation made by the addressees on receipt of such notices. However, to ascertain whether there was bona fide exercise of power and there was no mala fide intention in issuing notice, it is always necessary for such authority dealing with such representation to ascertain all the relevant materials which were on record and which were available before the concerned authority before issuing the said notice Under Section 289(1). The exercise of power under the said provision of law cannot be justified solely on the basis of the materials produced subsequent to the issuance of the said notice. A plain reading of the impugned order of the learned Single Judge discloses that no such exercise was made by the learned Single Judge to ascertain whether the authorities had before them any relevant material before issuing notice/order Under Section 289(1) and whether any such material was considered by those authorities.
15. Perusal of the order of the Deputy Commissioner as well as Additional Commissioner apparently discloses that the authorities who had issued notice Under Section 289(1) mainly relied upon the report of A.D.T.P. rather than the report of their engineering staff to justify the action. This is evident from the fact that both the authorities have nowhere analysed or appreciated any such material if at all was available before the concerned authorities before issuing the notice/order Under Section 289(1) of the Act.
16. The contention on behalf of respondent No. 8 that the issue as to whether the building in question is repairable or not stands concluded by the decision of this Court in Writ Petition No. 1267 of 1984 and the subsequent order in S.L.P. No. 7229 of 1984 is totally devoid of any substance. The order dated 26-6-1984 passed by the Division Bench of this Court in Writ Petition No. 1267 of 1984 reads thus :
We had asked respondent Corporation to inspect the building and submit report about their condition including repairs, if any carried out. Such a report is filed today which shows the buildings are in very bad shape and dangerous. In view of the condition of the buildings and in view of the safety of the residents and Ors. we are not inclined in this matter to interfere merely on technical grounds urged by the learned Counsel for the petitioner. Hence the petition is summarily rejected.
17. Evidently, it was a mere order dismissing the petition. It was not a judgment dealing with the rival contentions of all the parties. This Court had merely refused to interfere in the matter taking into consideration the reports submitted regarding the building condition without deciding the issue as to whether the building was in repairable condition or not.
18. The Apex Court while rejecting the Special Leave Petition had ordered thus;
The Special Leave Petition is dismissed.
It will be open to the petitioners to take such steps as they are advised to establish their rights under the law.
Dismissal of the S.L.P. does not amount to a merger of the order of the High Court in the order of the Apex Court. The law on this point is well settled. The dismissal of the S.L.P. does not amount to confirmation of the order passed by the High Court.
19. In Diwanchand v. N.M. Shah's case, the Division Bench of this Court had referred to an earlier decision of the Division Bench of this Court in Nathubhai v. Municipal Corporation Bombay reported in (1957) 60 Bombay Law Reporter at page 515 wherein referring to Section 354 of the Bombay Municipal Corporation Act, 1888 which is similar to Section 289(1) of the said Act had observed that; "It is quite clear, therefore, that the authority issuing notice Under Section 354 has to ascertain certain facts objectively and then to satisfy himself. Need for objective appreciation of the facts would obviously disclose that the exercise of power cannot be made arbitrarily. On the contrary, such a exercise has to be based on cogent material sufficient to arrive at the finding which is required to be arrived at before issuing the notice Under Section 289(1) of the Act. As already stated above, the exercise of powers Under Section 289(1) can be made only in case where a building is in dangerous condition and it requires either demolition or immediate repairs in order to avoid any harm or injury to the occupants as well as passersby, in other words, for the public safety.
20. The Division Bench of this Court in Diwanchand v. N. M, Shah (supra) has also held that the authority exercising power under such provision of law has to consider the facts objectively and has to come to a definite conclusion and then his satisfaction would not be open to challenge, provided such conclusion is found to have been arrived at honestly and bona fide. In order to ascertain whether the authority has arrived at the conclusion honestly and bona fide, undoubtedly, the decision must be supported by cogent materials and such materials must be those which were available before the authority at the time of passing the order in question and this must be revealed from the records. Any material collected thereafter can be of no help to contend the exercise of power being honest and bona fide. The concept of honest and bona fide exercise of power requires the authority to conclude on an issue on the basis of cogent materials available before the authority prior to arriving at, the, conclusion. It was, therefore, necessary for the learned Single Judge to ascertain as to whether the exercise of power for issuing of the notice/order Under Section 289(1) was bona fide or not and having failed to do so, the impugned judgment cannot be sustained.
21. The Division Bench in Diwanchand v. N. M. Shah has also held in para 8 that; "It was not even argued before us that the impugned notice was issued mala fide by the Assistant Engineer". This apparently discloses that the facts before the Division Bench in Diwanchand's case were different from the facts of the case in hand. Perusal of the record in the instant matter shows that right from the beginning it was the contention of the appellants that the exercise of power by the authority lacked bona fide.
22. For the reasons stated above, therefore, the decision of the learned Single Judge cannot be sustained along with the decisions arrived at by the authorities namely; the Deputy Commissioner as well as the Additional Commissioner.
23. Needless to say that this cannot preclude the authorities from taking appropriate fresh action even at this stage in case the building in question warrants action in terms of the provision of law.
24. In the result, therefore, the appeal succeeds and is allowed. The impugned orders are hereby quashed and set aside leaving open to the Corporation to take appropriate decision in the facts and circumstances of the case and as warranted and required in accordance with the provisions of law. There shall be no order as to the costs.