Western Refrigeration ... vs The State Of Maharashtra, Through ...
2023 Latest Caselaw 2602 Bom

WP 2544-21                                    1                                  Judgment

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         NAGPUR BENCH, NAGPUR.

                          WRIT PETITION NO. 2544/2021


1.    Western Refrigeration Engineering,
      Through Joseph K. Varghese, Aged 50 years,
      Occ. Business, R/o 22, Yeshwant Stadium, Nagpur.
2.    M/s Super Dry Cleaners,
      Through Fazle Mobin Siddhique, Aged about Adult,
      Occ. Business, R/o House No. 36, Plot No. 29,
      Khanna Building, Great Nag Road, Nagpur.
3.    M/s Cool World,
      Through Thanachen K. Varghese, Aged about Adult,
      Occ. Business, R/o House No. 36, Plot No. 29,
      Khanna Building, Great Nag Road, Nagpur.
4.    M/s New Rolex Engineering Works,
      Through Gurmeet Singh H. Warke, Aged about Adult,
      Occ. Business, R/o House No. 36, Plot No. 29,
      Khanna Building, Great Nag Road, Nagpur.
5.    M/s Sioppo Patterns,
      Through Yogeshree Naresh Gajbhiye, Aged about Adult,
      Occ. Business, Khanna Building Great Nag Road, Nagpur.
6.    M/s Jain Gases,
      Through Naresh Chaganrajji Dhamecha, Aged about Adult,
      Occ. Business, R/o House No. 36, Plot No. 29,
      Khanna Building, Great Nag Road, Nagpur.
7.    M/s Nagpur Engineering Works,
      Through Mohmmad Firoz, Aged about Adult,
      Occ. Business, R/o House No. 36, Plot No. 29,
      Khanna Building, Great Nag Road, Nagpur.
8.    M/s U.K. Plastics,
      Through Uttam Kumar Kisanlal Nabira, Aged about Adult,
      Occ. Business, R/o House No. 36, Plot No. 29,
      Khanna Building, Great Nag Road, Nagpur.
9.    M/s Devashish Industries,
      Through Sanjay Satyanarayan Laddha, Aged about Adult,
      Occ. Business, R/o House No. 36, Plot No. 29,
      Khanna Building, Great Nag Road, Nagpur.
10.   M/s Vinayak Scooters & Engineering,
      Through Ranjeet Singh H. Warke, Aged about Adult,
      Occ. Business, R/o House No. 36, Plot No. 29,
      Khanna Building, Great Nag Road, Nagpur.                             PETITIONERS




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 WP 2544-21                                     2                                Judgment

                                    .....VERSUS.....

1.    The State of Maharashtra, Through the Secretary,
      Ministry of Urban Development Department,
      Mantralaya, Mumbai.
1-A. The Nagpur Municipal Corporation,
     Through the Commissioner, Civil Lines, Nagpur.
2.    The Assistant Commissioner,
      Nagpur Municipal Corporation, Dhantoli Zone, Nagpur.

3.    Tripta Surendra Khanna (Dead) Through Legal Heirs

3A.   Ritesh S/o Surendra Khanna,
      Aged about 58 years, Occupation Business.

3B.   Unnat S/o Surendra Khanna,
      Aged about 57 years, Occupation Business.

Both R/o 307, Crorpati Galli, Civil Lines, Nagpur.

4.    Rama Arun Khanna,
      Aged about Adult, Occ., R/o 307, Hennessy Road,
      Civil Lines, Nagpur.

5.    The Commissioner of Police, Civil Lines, Nagpur.

6.    The Advocate General, State of Maharashtra,
      High Court Building Annexe, Mumbai.                               RESPONDENTS


        Shri Sudheer S. Voditel with Shri R.S. Renu counsel for the petitioner.
              Shri J.B. Kasat, counsel for the respondent nos.1-A and 2.
         Shri N.D. Khamborkar, counsel for the respondent nos.3A, 3B and 4.
Shri S.M. Ghodeswar, Assistant Government Pleader for the respondent nos.1, 5 and 6.



CORAM : A. S. CHANDURKAR              AND      MRS.VRUSHALI V. JOSHI, JJ.
DATE ON WHICH ARGUMENTS WERE HEARD : FEBRUARY 03, 2023
DATE ON WHICH JUDGMENT IS PRONOUNCED : MARCH  17, 2023

JUDGMENT (PER : A.S. CHANDURKAR, J.)

RULE. Rule made returnable forthwith and heard the learned

counsel for the parties.

WP 2544-21 3 Judgment

2. The challenge raised in this writ petition filed under Article 226 of

the Constitution of India is to the notice dated 05.03.2021 issued by the

Nagpur Municipal Corporation under the provisions of Section 264(1) of the

Maharashtra Municipal Corporations Act, 1949 (for short, 'the Act of 1949'). A

further challenge has been raised to the constitutionality of Section 433A of the

Act of 1949 since it bars the questioning of a notice issued under Section 264

of the Act of 1949 in any suit or legal proceedings.

3. The facts giving rise to the present proceedings are that the

respondent nos.3A, 3B and 4 claim ownership rights in the premises standing

on Plot No. 29, Municipal House No. 36, Great Nag Road, Nagpur which is in

occupation of the petitioners as tenants. For the reason that the structure in

question was quite dilapidated requiring the same to be pulled down, the

owners on 01.11.2020 made a complaint to the Municipal Authorities

requesting it to pull down the same in accordance with law. On receiving the

aforesaid complaint, the Municipal Corporation on 22.01.2021 called upon the

owners to submit a Structural Audit Report from a recognized Auditor from the

panel of Structural Auditors maintained by the Municipal Corporation to

enable it to consider the complaint of the owners. The owners on 10.02.2021

obtained a Structural Audit Report of the premises in question from 4 th D

Design Structural Designer, a Structural Consultant. Under the said report, it

was recommended that the structure ought to be demolished at the earliest in

the interest of property and human life. The owners on 16.02.2021 forwarded

this report to the concerned department of the Municipal Corporation. The

WP 2544-21 4 Judgment

Municipal Authorities after considering the said report and after inspecting the

premises issued the notice dated 05.03.2021 under Section 264(1) of the Act

of 1949 to the owners as well as the petitioners-occupants stating therein that

within a period of seven days of receiving the said notice, the structure should

be pulled down. Since no further action was taken in the matter, the Municipal

Corporation on 30.06.2021 made a request for grant of police protection to

undertake demolition of the structure. A similar request was also made by the

owners on 16.09.2021. On 27.10.2021 the Municipal Authorities issued

another communication to the owners as well as the occupiers stating therein

that when the site was inspected on 26.10.2021 it was noticed that half of the

said structure had been pulled down while the remaining half structure which

was in a dilapidated condition was found standing. The remaining structure

was also directed to be pulled down. Some of the petitioners on 21.12.2021

issued a communication to the Mayor of the Municipal Corporation stating

therein that another Structural Audit Report dated 08.03.2021 submitted by

M.R. Shelote and Associates had been obtained by them which did not require

the entire structure to be pulled down. A request was made to take necessary

action in that regard and prevent the pulling down of the said structure. The

Mayor accordingly called for necessary reports in that regard from the

concerned department. On there being two contradictory reports with it, the

Municipal Authorities called for another Structural Audit Report from the

Visvesvaraya National Institute of Technology, Nagpur (for short, 'VNIT') being

an independent authority. After the expenses towards such report were paid by

the owners, the VNIT submitted its report dated 28.07.2022. As per the said

WP 2544-21 5 Judgment

report, it was opined that the premises were in a dilapidated condition having

been constructed about sixty five years ago and hence, it was recommended

that the same be demolished at the earliest. It is in this backdrop that the

challenge to the notice dated 05.03.2021 has been considered.

4. Shri Sudheer Voditel, learned counsel for the petitioners referred to

various provisions of the Act of 1949 and especially the provisions of Chapter-

XV with regard to the dangerous structures. It was submitted only if a

structure was in a ruinous condition or was likely to fall that the Designated

Officer could by issuing a written notice require the owner or the occupier of

such structure either to pull down the same or repair that structure so as to

prevent all causes of danger therefrom. Referring to the provisions of Section

300 of the Act of 1949 in the matter of demolition of insanitary building,

Section 303 with regard to demolition of obstructive buildings and Section 306

which provided the remedy of appeal against any demolition order made under

Section 300 or Section 303 of the Act of 1949, it was submitted that such

remedy against a notice issued under Sections 260, 261, 264, 267 or 478 of the

Act of 1949 was not provided. A notice issued under the aforesaid provisions

could not be questioned in any suit or other legal proceedings. While absolute

discretion was vested with the Designated Officer, a party aggrieved by the

issuance of such notice was precluded from challenging the same before the

Civil Court. It was thus submitted that an aggrieved party was not provided

any statutory remedy to question the issuance of such notice nor was any civil

suit maintainable to challenge the same. Section 433A of the Act of 1949 was

WP 2544-21 6 Judgment

thus unconstitutional since there was a bar in challenging or questioning a

notice issued under Sections 260, 261, 264, 267 or 478 of the Act of 1949 in

any legal proceedings.

Without prejudice to the aforesaid, it was submitted that the report

obtained by the petitioners was from a Structural Auditor whose name was

included in the panel of Architects authorized by the Municipal Corporation

and that report clearly stated that it was not necessary to demolish the entire

structure. Without considering the effect of that report the Municipal

Authorities intended to proceed on the basis of the impugned notice dated

05.03.2021. Since the structure was not in a ruinous condition and the same

could be made habitable by repairing it, it was the responsibility of the owners

to carry out necessary repairs and not to demolish the entire structure. A

drastic action of demolition of the building was not called for. In that context,

the learned counsel placed reliance on the judgment of the Division Bench in

Gajanan Ramraoji Ambagovind & Others Versus Corporation of the City of

Nagpur & Others [2006(4) Mh.L.J. 789]. The provisions of Section 264 of the

Act of 1949 could be resorted to only when the structure was not repairable

and not otherwise. Though at present the structure was occupied by three

occupants out of eleven, it was necessary to have the structure repaired by

following the modalities prescribed under the Act of 1949. Since an absolute

discretion was vested with the Municipal Authorities in taking action under

Section 264 of the Act of 1949, it was necessary to examine whether the

decision to demolish the structure had been taken in accordance with law. To

substantiate his contentions in that regard, the learned counsel placed reliance

WP 2544-21 7 Judgment

on the decisions in Regional Provident Fund Commissioner Versus Hooghly

Mills Company Limited & Others [(2012) 2 SCC 489], Southern Motors Versus

State of Karnataka & Others [(2017) 3 SCC 467], Reserve Bank of India Versus

Peerless General Finance and Investment Co. Ltd. & Others [(1987) 1 SCC

424], Uttar Pradesh Power Corporation Limited Versus Ayodhya Prasad

Mishra & Another [(2008) 10 SCC 139], Franklin Templeton Trustee Services

Private Limited & Another Versus Amruta Garg & Others [(2021) 9 SCC 606],

Rakesh Kumar Paul Versus State of Assam [(2017) 15 SCC 67] and

Tirath Singh Versus Bachittar Singh & Others [AIR 1955 SC 830]. It was

thus submitted that the petitioners were entitled for the reliefs prayed for by

them.

5. Shri Jemini Kasat, learned counsel for the Municipal Corporation

supported the impugned notice dated 05.03.2021. According to him after

following the prescribed procedure, action under Section 264 of the Act of

1949 was taken. Initially notice was issued to the owners of the building to

have the same inspected by a Structural Auditor. After the audit report was

submitted by the owners the site was again inspected and after due application

of mind, the Designated Officer directed issuance of the notice under Section

264 of the Act of 1949 on 05.03.2021. According to him, if the entire structure

was in ruinous condition, notice under Section 264(1) of the Act of 1949 could

be issued. However, if it was possible to undertake repairs at the said structure

then steps could be taken under Section 264(2) of the Act of 1949. It was then

submitted that in the light of the subsequent report submitted by the

WP 2544-21 8 Judgment

petitioners, it was decided to obtain a fresh Structural Audit Report from

an independent agency. Such report was accordingly obtained from the

VNIT which clearly opined that the structure in question was liable to be

demolished considering its dilapidated nature. There was no reason to

question the action taken by the Municipal Corporation since all steps were

taken bona fide and in accordance with law. It was undisputed that the

structure was about sixty five years old and most of the petitioners except three

had vacated the same. Hence, no interference at the instance of the petitioners

was called for.

Shri Nitin Khamborkar, learned counsel appearing for the

respondent nos.3A, 3B and 4-Owners supported the stand taken by the

Municipal Corporation. It was submitted that after the initial complaint was

made by the owners they were directed to obtain a Structural Audit Report.

The same was accordingly obtained and in view of the recommendation to

demolish the structure, the impugned notice came to be issued. The VNIT as

an independent agency had also opined that the entire structure was

dilapidated and was thus liable to be pulled down. There was no question of

the respondents acting against the interest of the petitioners since it was

undisputed that the entire structure was in a dilapidated condition. The

tenancy rights of the parties, if any, would be protected as per law. Since

majority of the petitioners had vacated the premises, there was no legal

justification in entertaining the writ petition at the behest of only three

occupants. He too submitted that the writ petition was liable to be

dismissed.

WP 2544-21 9 Judgment

6. We have heard the learned counsel for the parties at length and we

have perused the documents on record. We have also given due consideration

to the respective submissions. Since the validity of Section 433-A of the Act of

1949 has been challenged by the petitioners on the ground that as a notice

issued under Section 264 of the Act of 1949 cannot be questioned in any suit

or legal proceeding, the said provision prevents an aggrieved party from taking

any legal recourse against such notice thus rendering it unconstitutional and

liable to be struck down. According to the petitioners, based on a notice issued

under Section 264 of the Act of 1949 a structure which otherwise may not be

in a ruinous condition or a structure which is not likely to fall or which is not in

any way dangerous to any person occupying the premises or passing by such

structure would be required to be complied with without there being any scope

to examine the satisfaction recorded by the Designated Officer. In other words,

complete and absolute discretion is conferred on the Designated Officer and

based on his satisfaction which cannot be questioned in any suit or legal

proceedings, the aggrieved party would be required to comply with such notice.

7. At the outset, we may note that though a notice issued or an order

passed or a direction issued by a Designated Officer under Section 264 of the

Act of 1949 cannot be questioned in any suit or other legal proceeding, such

bar is not absolute in the sense that if a notice is issued which is a nullity in the

eyes of law or the mandatory provisions of the Act of 1949 have not been

complied with or if there is an abuse in the exercise of power while issuing

such notice, recourse to a civil remedy is not barred. In this regard, we

WP 2544-21 10 Judgment

may refer to the judgment of the learned Single Judge in Commissioner,

Akola Municipal Corporation Versus Bhalchandra Govind Mahashabde [2013

(4) Mh.L.J. 45] wherein it has been observed in paragraphs 7 and 10 as under:-

"7. Now, Section 433-A of the Maharashtra Municipal Corporations Act creating a bar of jurisdiction of the Civil Court, being relevant, is reproduced below :

"433-A. Bar of jurisdiction. - Save as otherwise provided in this Act, any notice issued, order passed or direction issued by the Designated Officer, under sections 260, 261, 264, 167 or 478 shall not be questioned in any suit or other legal proceedings."

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. Hence, the question of law at Serial No.

(i) is answered accordingly.

8. ........

9. ........

10. A plea of bar to jurisdiction of the civil Court to entertain and decide the challenge to a notice under Section 260 of the said Act on the limited grounds, has to be considered having regard to the contentions raised in the plaint, the averments disclosing the cause of action, and the reliefs sought for therein. All such averments must be considered as a whole and not in isolation. The plaint must contain all such statements of material facts, as are necessary to invest such

WP 2544-21 11 Judgment

jurisdiction with the Civil Court. The statements of facts must be very clear and specific and not vague. The absence of a single material fact of jurisdiction, would entail the consequences of dismissal of suit, as barred by Section 433-A of the said Act."

This decision of the learned Single Judge has been considered by

the Division Bench of this Court in Abdul Karim Ahmed Mansoori Versus

Municipal Corporation of Greater Mumbai & Another [2014(1) Mh.L.J. 227] in

the context of pari materia provisions of Section 515-A of the Mumbai

Municipal Corporation Act, 1888. Under the said provision too, recourse to

civil remedy against issuance of a similar notice is barred. Referring to the

judgment of the learned Single Judge in Commissioner, Akola Municipal

Corporation (supra), the Division Bench observed that the consistent trend and

the opinion of this Court was in favour of entertaining a suit subject to such bar

and then applying it as and when invoked. The Division Bench agreed with the

view taken by the learned Single Judge in the aforesaid decision. Aforesaid

two decisions are an answer to the challenge raised to the constitutionality of

Section 433-A of the Act of 1949. There is no absolute bar to question a notice

issued, order passed or direction issued by the Designated Officer under

Section 264 of the Act of 1949 in any suit or legal proceeding and if the

aggrieved party is able to get over such bar by pointing the nullity of such

notice on the basis of parameters warranting interference by the Civil Court

notwithstanding the statutory bar, then such jurisdiction is preserved. It

therefore cannot be said that the invocation of a civil remedy is totally barred

by Section 433-A of the Act of 1949 and subject to the principles laid down by

the Hon'ble Supreme Court as well as this Court, jurisdiction of the Civil Court

WP 2544-21 12 Judgment

could be invoked in a given case. That contention of the petitioners therefore

cannot be accepted. For aforesaid reasons we are unable to uphold the

challenge raised by the petitioners to the constitutionality of Section 433-A of

the Act of 1949.

8. Coming to the challenge as raised to the notice dated 05.03.2021

issued by the Municipal Corporation under Section 264(1) of the Act of 1949,

we find that initially the land owners obtained a report of the Structural

Auditor dated 10.02.2021. After the said report of the Structural Auditor was

submitted to the Municipal Corporation, an inspection was undertaken by the

Sub-Divisional Engineer, Junior Engineer as well as Civil Engineering Assistant

on 22.02.2021. During the course of such inspection they found that the

structure was more than sixty five years old and it was in a ruinous condition.

The said Officers noted their observations in the file and the entire material

was placed before the Designated Officer. The Designated Officer thereafter

inspected the structure in question on 04.03.2021 alongwith the Sub-Divisional

Engineer, Junior Engineer and the Civil Engineering Assistant. After recording

his satisfaction, the notice dated 05.03.2021 under Section 264(1) of the Act of

1949 came to be issued by the Designated Officer. Thereafter steps were

sought to be taken by the Municipal Corporation for seeking police protection

and on 27.10.2021 half portion of the dilapidated structure came to be

demolished. In the meanwhile some of petitioners who continued in

occupation of the portion of the said premises issued a communication on

21.12.2021 alongwith the report of the Structural Auditor which according to

WP 2544-21 13 Judgment

them indicated that the remaining structure was not liable to be pulled down

and repairs could be carried out. In the light of these two reports with the

Corporation, the Designated Officer on 10.03.2022 directed an independent

Structural Audit Report to be obtained from VNIT. After the owners paid the

requisite amount for carrying out the Structural Audit the structure was

inspected by the team of the VNIT and thereafter on 28.07.2022 it submitted

its report recommending demolition of the remaining structure since it was in a

dangerous and ruinous condition.

From the aforesaid, it becomes clear that the Designated Officer

after being duly satisfied that the structure in question was in a ruinous

condition directed it to be pulled down in terms of the impugned notice dated

05.03.2021. After half portion of the building was pulled down some of the

petitioners obtained a report of the Structural Auditor which did not require

the structure to be pulled down. Faced with two contrary reports of the

different Structural Auditors, the Corporation rightly obtained a third report

from an independent authority. This report of VNIT dated 28.07.2022 justifies

the action as directed by the impugned notice dated 05.03.2021.

9. It is well settled that the Court does not possess the requisite

expertise to examine the technical and finer details of such reports of the

Structural Auditors. The scope for interference with such reports is rather

limited. If it has been shown on the basis of an independent report that the

action proposed by the Corporation is in accordance with the procedure

prescribed and there has been due application of mind by the Designated

WP 2544-21 14 Judgment

Officer prior to issuance of such notice, the scope for interference would be

limited. In this context we may also refer to the judgment of the Division

Bench in Nathubhai Dhulaji a firm & Others Versus The Municipal

Corporation, Bombay & Others [AIR 1959 Bombay 332]. While considering

challenge to a notice issued under Section 354(1) of the Mumbai Municipal

Corporation Act, 1888 which is similarly worded as Section 264(1) of the Act

of 1949, the aspect of justiciability was considered. In paragraph 13 of the

decision it has been observed as under :-

"13. The other case to which reference may be made is the one reported in Nathubhai Gandabhai v. State of Bombay, 57 Bom L.R 199. At p.201 this is what the learned Chief Justice says:

'Now, when the Legislature leaves the establishment of a fact to the subjective determination of any authority, the Legislature clearly intends that the decision of that authority with regard to the establishment of that fact is final. There must be a mental satisfaction of the authority in question that a particular fact is established. That fact is not a justiciable fact; it is not a fact which has got to be objectively established in a Court of law. If the authority comes to Court and states that it has applied its mind to the particular question and it is satisfied that the fact has been established, the condition is clearly complied with. It is true that the subjective satisfaction must be a genuine subjective satisfaction. It must not be a colourable satisfaction, it must not be a satisfaction influenced by any external considerations, it must not be a satisfaction which is arbitrary or capricious; but if the satisfaction is a bona fide satisfaction, then the Court has no jurisdiction to question the decision and to investigate as to the correctness of the decision arrived at by the authority.' With respect, we agree with this view."

In that view of the matter the decisions relied upon by the learned

counsel for the petitioners do not assist their case.

WP 2544-21 15 Judgment

10. We therefore did not find any reason to hold that the impugned

notice dated 05.03.2021 has been issued by the Designated Officer in a manner

contrary to the Act of 1949. It is not the case of the petitioners that such notice

under Section 264(1) of the Act of 1949 could never have been issued in the

facts and circumstances of the present case. We therefore did not find any

reason to invoke extraordinary jurisdiction on the grounds urged by the

petitioners. The writ petition therefore stands dismissed with no order as to

costs. Rule stands discharged. Pending civil applications also stand disposed

of.

       (MRS.VRUSHALI V. JOSHI, J.)           (A.S. CHANDURKAR, J.)


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