Document Fragment View

Matching Fragments

9. In 2009, the appellant along with his Advocate met the officers of the Corporation to apprise them about further deterioration in the condition of the flat and the constant threat under which his family was living. On 10.9.2009, Deputy Municipal Commissioner (Zone-VII) and Assistant Engineer visited the flat and found that its condition had worsened.

10. On 5.2.2010, the Assistant Engineer issued another notice under Section 354 to the Chairman/Secretary of respondent No.3 requiring it to carry out the structural repairs to the east side of the columns of the society building at the ground, first, second and third floors and the damaged portions in flat Nos.001 and 002. That notice contained stipulations similar to those specified in notice dated 12.12.2007.

“Having heard the Ld. counsel for the parties we are unable to accept the petitioner's contention that for the structural repairs to be carried out in the petitioner's flat the Municipal commissioner should be directed to spend from the public funds and thereafter, to recover the same from the Respondent no.3 society. We do not find any such provision in section 489 or 499 of the Act which would justify this court to direct the Municipal Commissioner to spend for repairs in a private flat from out of the public funds. At the highest the petitioner is entitled to carry out repairs in his flat and to recover the same from the respondent no.3 society as per the decisions of the co-operative appellate court. We, therefore, leave it open to the petitioner to approach the Co-operative Court which will allow the petitioner to withdraw the amount of approximate Rs.40,000/- deposited during the pendency of the proceedings before the Cooperative Court. The Petitioner will also be at liberty to carry out repairs in his flat and recover the amount from respondent no.3 society by taking out appropriate execution proceedings for execution of the orders of the Cooperative Appellate Court. If the petitioner moves the Cooperative Court with an application for withdrawal of the aforesaid amount, the Cooperative Court shall pass appropriate order so as to enable the petitioner to withdraw the amount within one week from the date of filing the application.”
“3(gg). “premises” includes messuages, buildings and lands of any tenure, whether open or enclosed, whether built on or not and whether public or private.
354. Removal of structures, etc., which are in ruins or likely to fall.
(1) If it shall at any time appear to the Commissioner that any structure (including under this expression any building, wall or other structure and anything affixed to or projecting from, any building, wall or other structure) is in a ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to pull down, secure or repair such structure, subject to the provisions of section 342 and to prevent all cause of danger therefrom.
Provided further that, the total amount so deducted or recoverable shall not exceed the amount of expenses incurred for such work.”
18. An analysis of the above reproduced provisions makes it clear that the term “premises” includes public as well private messuages, buildings and lands. Section 354 (1) provides for issuance of notice to the owner or occupier of any structure to pull down the same or secure or repair such structure, subject to the provisions of Section 342 and to prevent every possible cause of danger therefrom. Section 354(2) empowers the Commissioner to issue direction for urgent implementation of the notice for pulling down of the structure or repair of the same. Section 489(1) deals with a situation in which the person to whom a notice is issued either under Section 354 or any other section enumerated in Section 489(2) has failed to comply with the same. In such an eventuality, the Commissioner is empowered to take such measures or cause such works to be executed or such things to be done which, in his opinion, may be necessary for giving effect to the requisition or order made under the particular section. This section also lays down that unless otherwise provided in the 1888 Act, the expenses of such work etc. shall be paid by the person to whom such requisition or order was addressed. Section 489 (3) empowers the Commissioner to take any measure, execute any work or cause anything to be done under that section irrespective of the fact that the wrongdoer is liable to be punished or has been prosecuted or sentenced to any punishment. Section 490(1) provides for recovery of expenses incurred by the Commissioner in effecting any removal under Section 314 or 322(3) or 354A(2) or (3). This section lays down that in the event the written notice issued under Section 315(1) or 354 or 380 is not complied with under Section 489, then the expenses shall be recoverable by sale of the materials removed. Section 490(2) and (3) contain provisions ancillary to Section 490(1). Section 491 lays down that expenses of any work executed or of any measure taken or thing done by or under the order of the Commissioner etc. shall be payable on demand. If the demand is not satisfied, proceedings can be taken against the defaulter for recovery by distress and sale of goods and chattels. Section 499(1) is an enabling provision. It empowers the occupier of any building or land to execute the work which the owner of any building or land has failed to execute in accordance with the provisions of the Act or regulation or bye-laws made thereunder. Section 499(2) lays down that before executing the work referred to in Section 499(1), the occupier or occupiers of the building or land, as the case may be, may seek approval of the Commissioner, who, in turn, has to grant such approval unless he has taken other measures for execution of such work. Once the approval is granted, the occupier is entitled to execute the work and deduct the expenses incurred for such work from the rent payable to the owner.