Indian Kanoon - Search engine for Indian Law

3. The property is stated to have been in need of structural repair and, under the provisions of the Bombay Building Repairs and Reconstruction Board Act, 1969, a certificate under Section 33(3) was issued on 2nd March, 1972. Plans and estimates were prepared in May 1972 under which the estimated cost of repair was determined at Rs. 78,871/- at the rate of Rs. 92.24 per sq. meters. Under the then applicable provisions of law, the budgetary limit for carrying out repairs was Rs. 75/- per sq. mtr. Since the petitioners and the tenants did not collect or pay the excess amount, a certificate under Section 33(3) came to be issued. Subsequently, the prescribed limit was enhanced from Rs. 75/- per sq. mtr. to Rs. 120/- per sq. mtr. and in 1975, upon the tenants offering to pay the excess amount, the certificate was withdrawn by the Board under a Resolution dated 29th September, 1975. The plans and estimates were thereafter modified by the Architect and the cost of repair was computed at the rate of Rs. 117,30 per sq. mtr. An amount of Rs. 28,000/- was communicated to the tenants as being the excess liable to be paid by them and it has been stated that the tenants paid the aforesaid amount on 21st April, 1976. In its affidavit in reply, the authority has stated in these proceedings that by the lime the property was inspected, its condition had become dilapidated and the revised estimate was 'now computed at Rs. 241.40 per sq. mtr. for carrying out repairs. According to the authorities, the tenants were thereupon called to pay an amount of Rs. 1,04,117/- which they failed to pay. Accordingly, the Board passed a resolution to cancel the withdrawal of the certificate issued under Section 33(3), in a meeting on 31st December, 1976 and a demolition order was also issued under Section 34(4).

13. In order to complete the narration of statutory provisions, regard also must be had to Section 88 of the Act. Under Sub-section (1) of Section 88, the Board is required, subject to the provisions of Sub-section (3) to undertake repairs to a building where on information furnished by the Municipal Commissioner, a report of an authorised officer or on the basis of other information, the Board is satisfied that any building which is occupied by any person is in such a ruinous or dangerous condition that it is imminently likely to fall unless structural repairs which will render it fit and safe for habitation, are urgently done. Sub-section (3) of Section 88 creates an exception wherein the Board is granted the discretion not to consider a building or buildings for repairs. A case for the exercise of the discretion under Sub-section (3) arises if the Board is of the opinion that the cost of structural repairs to a building will exceed Rs. 1000/- per sq. mtr. or, where the cost of structural repairs exceeds that amount but the size of the land on which such building is standing is such that for some reason or the other it is not possible or economical to erect any new building thereon and there is an adjoining building in the case of which the cost of structural repairs does not exceed Rs. 1000/- per sq. mtr. Under the first proviso to Sub-section (3), the Board is still empowered in cases of special hardship and subject to such terms and conditions as it may impose to consider a building for structural repair even if the cost of such repair is likely to exceed the limit set out by the substantive part of Sub-section (3). Under the second proviso to Sub-section (3), the Board may carry out structural repairs to a building where the cost of repair is in excess of the statutory limit if the occupiers of the building undertake to bear that part of the cost of repair which is in excess of Rs. 1000/- per sq. meter. The statutory limit which has been prescribed under Sub-section (3) of Section 88 has been revised by amendments from time to time, the last of them being by Amending Act No. 16 of 1998 by which the figure of Rs. 750/- was replaced by the present limit of Rs. 1000/- per square meter. Prior thereto by Maharashtra Act 12 of 1992 the earlier limit of Rs. 500/- came to be increased to Rs. 750/- per sq. meter. Be that as it may, if the Board comes to the conclusion that the cost of structural repair is in excess of the statutory limit which has been prescribed, it is duly empowered to issue a certificate to that effect. Upon the issuance of a certificate, the Board is then empowered under Sub-section (1) of Section 92 to submit a proposal for acquisition of the land to the State Government. The contingencies in which the Board can move the State Government to acquire the land are delineated in various provisions of the Act. Under Section 41 of the Act, the State Government is empowered to acquire the land so as to enable the authority to discharge any of its functions, to exercise any of its powers or to carry out any of its proposals, plans or projects. Section 41 forms part of Chapter V of the Act which is entitled, "Acquisition of Land and Disposal of Property of the Authority". Chapter VIII of the Act in which a statutory power to acquire land is conferred, deals with "Repairs and Reconstruction of dilapidated buildings." The power of acquisition, which is conferred upon the State Government by the sections falling within the purview of Chapter VIII is, therefore, designed to achieve the public purpose underlying the provisions of the Chapter. Under Sub-section (3) of Section 91, the Board is empowered to move the State Government to acquire the property where the whole building collapses or is rendered uninhabitable or in a case where the Board is of the opinion that the building is not capable of being repaired and rendered fit for habitation at reasonable expense. The contingencies where the Board may move the State Government for acquisition under Sub-section (1) of Section 92 are those in which (i) the Board has issued a certificate under Sub-section (3) of Section 88, (ii) the Commissioner of the Municipal Corporation has issued a written notice under Section 354 of the Municipal Corporation Act, 1888 to pull down the building with a view to preventing all cause of danger and the Board is of the opinion that the building is not capable of being repaired and rendered fit for habitation at reasonable expense and is dangerous or injurious to the health and safety of the inhabitants or (iii) where the Municipal Corporation under Section 354R of the Corporation Act has passed a resolution declaring the area as the clearance area. A reading of these sections would make it abundantly clear that while the issuance of a certificate under Section 88(3) is one of the contingencies prescribed by Sub-section (1) of Section 92 for the initiation of a proposal for acquisition by the Board, that is not a requirement which conditions the exercise of power under Sub-section (3) of Section 91. The Learned counsel appearing on behalf of the petitioners submitted that the expression "reasonable expense" which is used by Sub-section (3) of Section 91 must necessarily be implied to mean an expense in excess of the statutory limit which is prescribed by Section 88(3) and hence even if the Board exercises the power of moving a proposal on the ground that the building is not capable of being repaired and rendered fit for habitation at reasonable expense, there has to be a certificate under Section 88(3). The question as to how the expression "reasonable expense" should be construed will be dealt with shortly hereafter and is a separate matter. But, it is impossible to accept the submission that the power under Sub-section (3) of Section 91 cannot be exercised unless a certificate under Section 88(3) is issued. The Legislature has advisedly refrained from conditioning the discretion of the Board under Sub-section (3) of Section 91 by the requirement that a certificate under Section 88(3) should have been issued. Indeed, if regard be had to the provisions of Sub-section (1) of Section 92, it would be apparent that there too, a second contingency under which the Board can move the State Government for acquisition is where a notice under Section 354 of the Municipal Corporation Act, 1888 requiring the pulling down the building has been issued. In the case of this contingency also, before moving the State Government, the Board has to be of the opinion that the building is not capable of being repaired or rendered fit for habitation at reasonable expense. Therefore, even within the same section, Section 92, the State Legislature has provided for one contingency viz, the issuance of a certificate under Section 88(3) and another distinct contingency where after the issuance of a notice under Section 354 of the Bombay Municipal corporation Act, 1888, the Board comes to the conclusion that the building cannot be repaired at reasonable expense. There is, therefore, intrinsic statutory material to demonstrate the fallacy in the construction which has been urged oh behalf of the petitioners. Having regard to the public purpose underlying the provisions of the Act, it would also not be appropriate to restrict the power which is conferred upon the Board and the State Government by introducing a restriction into Sub-section (3) of Section 91 which is not present in it.

I am in respectful agreement with the view which has been taken by the Learned Single Judge in the aforesaid case.

15. The Learned Counsel appearing for the petitioners submitted that if the requirement of issuing a certificate under Sub-section (3) of Section 88 is not read into the provisions of Sub-section (3) of Section 91, then the question as to whether the expense required to repair a building in a given case is reasonable would depend upon the whims and fancies of an officer of the Board or of the Board itself from case to case. In dealing with this argument regard must be had to the fact that under the third contingency provided in Section 91(3), the Board has to form the opinion that the building is not capable of being repaired and rendered fit for habitation at reasonable expense. When the statute uses the expression "reasonable" it is implicit that the opinion which has to be formed by the Board cannot be formed arbitrarily. The opinion has to be based upon the material before the Board on the basis of which it forms the opinion that the expense is not reasonable. The statute has given one indicator in Sub-section (3) of Section 88 of what constitutes an expense which is reasonable atleast for the Board to undertake the work of repair. Ordinarily speaking and save in cases of special hardship which are covered by the first proviso to Section 88(3), the Board is under the mandatory obligation to carry out structural repairs to a building which is in a ruinous or dangerous condition which is imminently likely to fall unless structural repairs which will render it fit for habitation are urgently done. The obligation of the Board is, however, conditioned by the cost of the repair being within the statutory limit which is prescribed by Sub-section (3) of Section 88. If the cost of repair exceeds the statutory limit, the Board may still consider it proper to undertake the repairs in a case of special hardship falling under the first proviso. Alternately the work of repair can be undertaken if the occupiers agree to pay the cost of repair in excess of the statutory limit. Section 88(3), therefore, provides a limit of what constitutes a reasonable outlay for the Board to make, for carrying out the work of repair. Under subsection (3) of Section 91, the Board can move the State Government for acquisition if it is of the opinion that the building is not capable of being repaired and rendered fit for habitation at reasonable expense, or where the whole building having collapsed is rendered uninhabitable. In construing what is reasonable expense, therefore, for the purposes of Sub-section (3) of Section 91, the statutory guideline which is laid down and prescribed by subsection (3) of Section 88 will have to be necessarily borne in mind by the . Board. So construed, the provisions of Sub-section (3) of Section 91 contain a sufficient measure of guidance to condition the exercise of discretion by the Board. The discretion is, therefore, clearly structured by the language of the Statute itself. However, the exercise of the power under Section 91(3) does riot require a certificate under Section 88(3).