Bombay High Court

Ashok Laxman Vallakatti And ... vs The Commissioner Ahmednagar ... on 23 February, 2021

Bench: R. G. Avachat

                                                Writ Petition No.12168/2018

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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                     WRIT PETITION NO.12168 OF 2018


 1)       Ashok Laxman Vallakatti
          Age 72 years, Occu. Business,
          R/o 869, Bagadpatti, Ahmednagar

 2)       Kumar Asudomal Goplani,
          Age 57 years, Occu. Business,
          R/o Miskin Mala, Savedi Road,
          Ahmednagar

 3)       Pratibha Anand Bogawat,
          Age 55 years, Occu. Business Audit,

 4)       Anand Chhaganlal Bogawat,
          Age 63 years, Occu. Business Audit,

          Nos.3 and 4 R/o Sweet Home,
          M.G. Road, Ahmednagar.

 5)       Kiran Chhaganlal Bogawat,
          Since deceased, through L.Rs.

 5A)      Chhaya Kiran Bogawat,
          Age 52 years, Occu. Household

 5B)      Vinay Kiran Bogawat,
          Age 37 years, Occu. Business

 5C)      Amruta Kiran Bogawat,
          Age 31 years, Occu. Household

          Nos.5A to 5C R/o Sattha Colony,
          Ahmednagar

 5D)      Vinita Ajay Singavi,
          Age 34 years, Occu. Household,
          R/o Building No.136, Road No.1,
          Sindh Society, Aundh, Pune




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                                            Writ Petition No.12168/2018

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 6)       Dhanesh Chhaganlal Bogawat,
          Age 56 years, Occu. Business,
          R/o Sweet Home, Premdan Chowk,
          Ahmednagar.
                                ...     ... PETITIONERS
                                      (Orig. Plaintiffs -
                                      Appellants in Misc. C.A.)
               VERSUS


 1)       The Commissioner,
          Ahmednagar Municipal Corporation,
          Ahmednagar

 2)       Omprakash Modalal Bayad,
          Age 54 years, Occu. Business,

 3)       Pushpa Omprakash Bayad,
          Age 47 years, Occu. Household,

 4)       Subhash Modalal Bayad,
          Age 56 years, Occu. Business

 5)       Leela Subhash Bayad,
          Age 53 years, Occu. Business

 6)       Popatlal Modalal Bayad
          Deceased, through his L.Rs.

 6a)      Sandip Popatlal Bayad,
          Age 35 years, Occu. Business

 6b)      Vishal Popatlal Bayad,
          Age 30 years, Occu. Business

 6c)      Vinit Popatlal Bayad,
          Age 30 years, Occu. Business

 7)       Shobha Popatlal Bayad,
          Age 53 years, Occu. Household,

 8)       Jagannath Hansraj Bayad,
          Age 79 years, Occu. Business




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                                                       Writ Petition No.12168/2018

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 9)       Dilip Jagannath Bayad,
          Age 43 years, Occu. Business,

          Nos.2 to 9 R/o 865,
          Bagadpatti, Ahmednagar                ... RESPONDENTS
                                                (Orig. Defendants
                                                Respdts. in Mis. C.A.)


                                .......
 Shri   S.P. Shah, Advocate for petitioners
 Shri   K.N. Lokhande, Advocate for respondent No.1.
 Shri   P.R. Katneshwarkar, Advocate holding for
 Shri   S.P. Katneshwarkar, Advocate for respondents No.2 to 9
                                .......


                                 CORAM :        R. G. AVACHAT, J.

                                 DATED :        23rd FEBRUARY, 2021.



 JUDGMENT:

This writ petition is directed against the judgment

and order dated 24/8/2018, passed by 11th Jt. Civil Judge,

Senior Division (C.J.S.D.), Ahmednagar below application

Exh.5 in a suit, being Regular Civil Suit (R.C.S.) No.313/2018

and the judgment and order dated 11/10/2018, passed by

District Judge-5, Ahmednagar in Misc. Civil Appeal

No.95/2018, affirming the order dated 24/8/2018.

By the impugned order, the claim of the

petitioners (plaintiffs) in R.C.S. No.313/2018 for grant of

Writ Petition No.12168/2018

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temporary injunction restraining the respondent No.1

Ahmednagar Municipal Corporation (AMC) - defendant No.1

from demolishing the suit property pursuant to the notice

dated 7/6/2018, came to be rejected.

2. The subject matter of the suit is a three storey

premises (suit premises) bearing City Survey Nos.3565 and

3566/2/2, situated at Mahatma Gandhi Road (M.G. Road),

Ahmednagar. On the ground floor of the suit premises, there

are three shop blocks in possession of the petitioners as

tenants-cum-owners thereof. The suit premises are 80 year

old. It was originally owned by one Bohari family. The

respondents No.2 to 9 (defendants in the suit) purchased

major portion of the suit premises under three different sale

deeds. The plaintiffs too purchased a small portion of the suit

premises in the year 2011.

3. The AMC, vide its notice dated 7/6/2018 published

in daily newspaper "Nava Maratha", called upon the owners

and occupiers of the suit premises to vacate and pull down

the same as the premises are said to have become dangerous

for occupation. The AMC also issued a personal notice to the

petitioners herein, calling upon them to vacate the suit

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premises on the very ground. According to the petitioners,

although the suit premises have been old one, the same

simply required some repairs. The respondents No.2 to 9

being the owners of major portion of the suit premises, have

joined hands with the AMC authorities. They wanted the

petitioners to be evicted from the suit premises without

following due process of law. The petitioners, therefore, filed

the suit for declaration that the notice dated 7/6/2018 is

illegal one. A relief of perpetual injunction restraining the

respondents from taking any steps in the direction of

demolition of the suit premises has also been sought for.

4. The trial Court rejected the application for

temporary injunction. The Court found the suit premises to

have been very old. The premises have been constructed in

mud, stones and wooden material. According to the trial

Court, the suit premises have become dangerous for

occupation. The appellate Court, as well, reiterated the

reasons given by the trial Court.

5. Shri S.P. Shah, learned counsel for the petitioners

would submit that, although the suit premises have been very

old, the same have not become dangerous for occupation.

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The notice issued by the AMC would itself demonstrate that it

called upon the petitioner to effect necessary repairs.

According to learned counsel, this Court, vide order dated

21/6/2019, directed the respondents No.2 to 9 to carry out

the repairs to the suit premises as were suggested by the

experts. In the event of their failure to carry out repairs,

petitioners were permitted to do so. Pursuant to the said

order, the repairs have been effected to the ground floor of

the suit premises. The learned counsel took me through the

three reports regarding structural audit of the suit premises.

He would further submit that, the report given by the expert

from the office of College of Engineering, Pune does indicate

the ground floor of the suit premises to have been fit for

occupation. The learned counsel, therefore, urged for setting

aside the impugned order an grant of application Exh.5.

6. Shri P.R. Katneshwarkar, learned counsel for

respondents No.2 to 9 would, on the other hand, submit that,

admittedly the suit premises have been 80 plus. Even before

the suit premises were purchased by the respondents No.2 to

9, the AMC had issued the notice to the erstwhile owners of

the suit premises, calling upon them to pull down the same as

having been dangerous for inhabitation. The learned counsel

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also took me through certain documents to submit, way back

in the year 1983 the nearby inhabitants had complained to

the AMC that the suit premises developed cracks as major

portion thereof may come down at any time. The neighbours

had also complained that the existence of the suit premises

posed danger to the occupants of the vicinity and the passers

by as well. The learned counsel meant to say that the

respondents No.2 to 9 have no role in issuing the notice

impugned in the suit. He took me through the report of Shri

Sanjay Pawar to submit that the suit premises have become

dangerous for occupation. Western portion of the suit

premises has already given in. The first and second floor of

the suit premises have already been vacated by respondents

No.2 to 9. The photographs of these two floors would

undoubtedly suggest the suit premises to have become

dilapidated and it may come down any time. According to

learned counsel, both the Courts below have prima facie

observed the suit premises to have been unfit for occupation.

They have, therefore, refused to grant interim relief. This

Court, in exercise of discretionary jurisdiction under Article

227 of the Constitution of India, should not interfere with the

orders passed. He would, further submit that, the suit was

not maintainable in view of bar of Section 433-A of the

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Maharashtra Municipal Corporations Act (for short the Act).

7. Shri K.N. Lokhande, learned counsel for the AMC

reiterated most of the submissions made by learned counsel

for respondents No.2 to 9.

8. True, the premises have been very old. The

premises have been constructed in mud, stones and wooden

material. Western side portion of the suit premises gave in

long back. The first and second floor of the suit premises

have been vacated on account of those having been unfit for

habitation. The photographs of the suit premises would

undoubtedly indicate the first and second floor thereof have

really become unfit for habitation. The major portion of these

two floors may come down any time. There is on record

documentary evidence to indicate that way back on

13/7/1983, Ahmednagar Municipal Council had issued notice

to the erstwhile owner of the suit premises informing that

western corner thereof had fallen down. The western wall of

the suit premises also gave in. The owner of the suit

premises was, therefore, called upon to immediately pull

down major portion of the suit premises that had become

dangerous for occupation. Again in February 2009, the AMC

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issued notice under Section 264 of the Act to the occupants of

the suit premises, calling upon them to pull down the western

portion of the suit premises as it has become dilapidated and

might give in any time. Similar notice was given in February

2010 as well. It may, therefore, prima facie appear that the

respondents No.2 to 9 have no role in the AMC issuing the

impugned notice.

9. The maintainability of the suit has been taken

exception to relying on Section 433-A of the Maharashtra

Municipal Corporations Act. The Section reads thus :

"433-A) Bar of Jurisdiction :-

(1) Save as otherwise provided in this Act, any notice issued, order passed or direction issued by the Designated Officer, under Section 260, 261, 264, 267 or 478 shall not be questioned in any suit or other legal proceedings."

The notice challenged in this suit has been issued

under Section 264 of the Act. It may, therefore, appear that

the suit is barred by Section 433-A. In case of Commissioner,

Akola Municipal Corporation Vs. Bhalchandra Govind

Mahashabde reported in [ 2013(4) Mh.L.J. 45 ], it has been

observed :-

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"Undoubtedly, if the plaintiff comes before the Civil Court alleging that a notice issued under Section 260 of the said Act is illegal in any manner and seeks a declaration to that effect, then the bar of jurisdiction to try such a suit under Section 433-A of the said Act shall operate. However, nonetheless, the inherent jurisdiction of a Civil Court in a suit challenging the notice under Section 260 of the said Act, on the limited grounds, viz. that the act of issuance of such notice is nullity, or that while issuing such notice, the mandatory provisions of the said Act have not been complied with, or that the Authority issuing such a notice has not acted in conformity with the fundamental judicial procedure, or that it is an abuse of exercise of power, or that the offending act has not been done in good faith, remains intact, in view of the aforestated law laid down in judicial pronouncement. The Civil Court is not precluded of its inherent jurisdiction to entertain and decide such challenge to a notice under Section 260 of the said Act, on such limited grounds, particularly when there is no forum available under the said Act to ventilate such grievances in respect of it."

10. It has been averred in the plaint that the

impugned notice is illegal one. It has been issued by the AMC

at the behest of the respondents No.2 to 9. This factual

aspect has to be gone into during the suit. The averments in

the plaint are sufficient to prima facie observe that Section

433-A of the Act would not come in the way of the trial Court

to proceed with the suit. It needs to be mentioned that, this

objection has been raised before this Court for the first time.

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No such point was raised and argued before the Courts below.

11. The question is, as to whether the suit premises

have really become unfit for occupation, requiring the

petitioners to immediately vacate the same. Close reading of

the impugned notice would indicate that the AMC although

has called upon the petitioners to immediately raze major

portion of the suit premises which has become dangerous for

occupation, it had, in the alternative, asked them to effect

necessary repairs.

12. The structural audit of the suit premises had been

initially done by two experts. Both are the Engineers on the

panel of the AMC. Their reports are not consistent with each

other.

13. The report of Shri Sanjay G. Pawar states that, the

premises are not structurally safe or stable and its structural

condition has deteriorated beyond the stage of economic

repairs. The structure is not, therefore, fit for human

habitation and needs to be demolished after clearing it of all

the occupants therein.

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                  The      report    of     Shri     Sanjay    Pawar      is    dated

 16/3/2018.



 14.              Shri         Rajkumar     Munot      gave     his     report       on

15/6/2018. His report specifically states that, the portion of

the property which is in possession of the shopkeepers

(petitioners herein) does not require urgent repairs. The

premises are in very good condition. No immediate repairs of

any kind such as changing of flooring, roofing, plastering or

painting of any part found necessary. According to Shri

Munot, the next structural examination is required to be

carried on or before 15/6/2023.

15. The AMC, therefore, requested the College of

Engineering, Pune (COEP) to have the structural audit of the

suit premises. Accordingly, COEP did the structural audit and

submitted its report on 4/1/2019. It is reported :-

"The Kapad Bazar building (Municipal House No.2557/58, City Survey No.3565) is inspected and structurally audited as per requirements of current codal provisions. In general, it falls under category of V3. As such as on date, no structural distress is found in structural wall and flooring. The 3D analysis of building with consideration of various loads & their combinations has projected that the structural actions and stresses are well within the limit. The functional

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use of building (first & second floors) could be made possible subjected to compliance/ pertaining to repairs/ replacement and restoration of roof, balcony and up gradation of doors and windows with provisions of separate access to first and second floor and the technical guidance and provisions."

The aforesaid report indicates that, no structural

distress was found in the structural wall and flooring. The

functional use of the building could be made possible subject

to compliance pertaining to repairs. This Court, vide order

dated 21/6/2019, had directed the respondents No.2 to 9 to

carry out the repairs of the suit premises as has been

suggested in the report of the COEP. The communication

dated 5/10/2019 made by City Engineer to the Principal,

COEP indicate that most of the work of the repairs as had

been suggested in the report, appears to have been complete.

16. As such, the suit premises particularly the ground

floor shop blocks in possession of the petitioners are found to

be fit for human habitation. The application Exh.5, therefore,

needs to be allowed. The orders passed by both the Courts

below may not be faulted with since the structural audit of the

suit premises by COEP has been done pending the present

Writ Petition. The impugned orders, however, are liable to be

set aside in view of CEOP report. The Writ Petition, therefore,

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succeeds. The orders impugned in this Writ Petition are set

aside. The application Exh.5 in Regular Civil Suit