This Court in the case of Mahendra Bhalchandra Shah & Ors. Vs. Municipal Corporation of Greater Bombay & Ors. in Writ Petition (L) No. 1755 of 2019 has set out at length the governing principles, in relation to subject issue;
“(a) It is never for a Court in exercise of its limited writ jurisdiction under Article 226 of the Constitution of India to decide whether a particular structure is or is not actually in a ruinous or dilapidated condition;
(b) The rights of tenants/occupants are not harmed by demolition ordered and carried out. These rights are adequately safeguarded by Section 354(5) of the MMC Act and by the provisions of the governing Maharashtra Rent Control Act 1999 which fully occupies the field regarding tenancies of built premises in Maharashtra.
(c) A Writ Court exercising jurisdiction will not substitute its own view for that of technically qualified experts. Equally, the Writ Court will not prefer the view of one expert over another.
(d) In order to succeed a Petitioner before the Court must be able to show that the impugned action suffers from Wednesbury unreasonableness, (Associated Provincial Picture Houses Ltd v Wednesbury Corporation, (1948) 1 KB 223 : 1947 (2) All ER 680.) i.e. it is so unreasonable that no rational person could, having regard to the fact of the case, ever have reached it. There is no scope in such cases for any larger judicial review or invoking the doctrine of proportionality. (State of Madhya Pradesh & Ors v Hazarilal, (2008) 3 SCC 273; Coimbatore District Central Cooperative Bank v Coimbatore District Cooperative Bank Employees Association & Anr, (2007) 4 SCC 669.) In other words the decision must be shown to be utterly perverse, or in excess of authority or manifestly illegal.
(e) It is never sufficient merely to allege mala fides without particulars. While direct evidence may not always be available as proof of mala fides, they must nonetheless be established. In the words of the Supreme Court, allegations of mala fides are more easily made than proved, and the very seriousness of such allegations demands proof of high order of credibility. (Union of India v Ashok Kumar, (2005) 8 SCC 760; Government of Andhra Pradesh & Ors v P Chandra Mouli & Anr, (2009) 13 SCC 272.) Courts are slow to draw dubious inferences from incomplete facts, especially when the imputations are grave and they are made against one who holds an office of responsibility in the administration.(EP Royappa v State of Tamil Nadu, (1974) 4 SCC 3; Indian Railway Construction Co Ltd v Ajay Kumar, (2003) 4 SCC 579.) Mala fides are the last refuge of a losing litigant. (Gulam Mustafa v State of Maharashtra, (1976) 1 SCC 800.) Hence, whenever mala fides are alleged, we will demand proof. In case after case we are told that the provisions of the MCGM Act are being abused by rapacious landlords in connivance with venal officers of the MCGM to order the demolition of the buildings that are otherwise structurally sound. We have yet to come across any such case. The argument is in generalities. Though it is an argument of mala fides, it is always made without any particulars whatsoever and we are asked simply to conjecture that this must be so. The law in regard to allegations of mala fides is well settled and we will draw no such general conclusion.
(f) Further, it is no answer at all, as we have held in Mahendra Bhalchandra Shah, to seek an order of status quo. We have discussed this aspect quite elaborately and have held that no such order can be passed by any Court without specific reference to the actual state of affairs at that moment. There can be no order of status quo against natural elements. It is one in one thing to direct the parties to a contract to maintain the status quo. This may be an order against one person seeking another's eviction. This has no application whatsoever to a situation where the complaint is about the deterioration day by day of the physical condition of a built structure exposed to the elements.
(g) We have also demonstrated in Mahendra Bhalchandra Shah that the entire trend in this Court in the recent past of obtaining undertakings from occupants allowing them to continue in occupation at their own risk is without any basis in law. The MCGM cannot contract out of a statute. An undertaking by a Petitioner to a Court does not absolve the MCGM from its statutory responsibilities or liabilities under that statute. If the undertaking is intended to function as some sort of an indemnity then we have expressed the gravest doubts about any such undertaking ever being enforceable, let alone when the person who gives the undertaking himself or herself suffers an unfortunate mishap.” {Para 14}
15. The structural audit report of the tenants, landlords and inspection report of the TAC were material considerations, on which the Committee concluded that structure is in ruinous condition and required to be pulled down. This Court in the case of Mahendra Shah (Supra), while dealing with the identical arguments has held that it is not open to the Court, to sit in judgment over that satisfaction of the Technical Advisory Committee i.e. to substitute that opinion with its own.
16. Thus, taking into consideration the material before us, we do not see any reason to reject the conclusion reached by the Technical Advisory Committee. The argument that the notices have been issued at the instance of the landlord in collusion with Municipal Official is without any foundation and no particulars of alleged collusion were furnished to this Court in the pleadings or otherwise. In the circumstances, we do not think that we should afford any challenge to this notice, on this ground.
17. In the case of Makarand Dattatreya Sugavkar Vs. Municipal Corporation of Greater Mumbai and Others : (2013) 9 Supreme Court Cases 136 it is held in paragraph no. 20 that,
“The primary object underlying Section 354 is to safeguard the public from the danger of being forced to live in a structure, which includes any building, wall or other structure and which is in a ruinous condition or is likely to fall or is in any way dangerous to any person occupying the same. This section is also intended to protect those who may pass by such structure. A reading of the plain language of Section 489 gives an impression that it is only an enabling provision but if the same is read keeping in view the purpose of its enactment and the setting in which it is placed, it becomes clear that the Commissioner is duty-bound to ensure that the written notice given to the owner or occupier under Section 354(1) is implemented in its letter and spirit. The duty cast upon the Commissioner is in the nature of a public law obligation and in appropriate case, the court can issue direction for its enforcement.”
18. Thus, once it is found that building is in ruinous condition, Corporation owes its duty to take appropriate steps, to ensure and safeguard the public from likely danger. It is to be noted that when there are conflicting opinions of experts opining that the building structure should be pulled down or removed, such opinion cannot be discarded because the primary object of Section 354 is to protect the public at large and the passerby, of a building, which is in ruinous state.
Bombay High Court
JUSTICE SANDEEP K. SHINDE JUSTICE S. C. DHARMADHIKARI
Richard Gasper Mathias & Ors. Vs. The Municipal Commissioner & Ors.
WRIT PETITION NO. 2108 OF 2018
1st August 2019
Author: Sandeep K. Shinde, J.
Citation: 2019(5) ALL MR 377
Print Page