When the court should not grant stay to the order of municipal commissioner for demolition of dangerous building?

Once we find that the satisfaction recorded by the Municipal Commissioner is in accordance with the due procedure prescribed by law and is not vitiated by any perversity or any illegality, there exists no ground to interfere with the impugned notices. Merely because the Appellants are senior citizens, does not impel us to take any lenient view in the matter in larger public interest particularly when the private interests of the Appellants have been amply safeguarded. {Para 22}

23. Judicial notice can be taken of various media reports reporting collapse of many old structures in Mumbai causing serious loss of human lives and limbs. By making interference of any sort in the matter at the behest of the Appellants, in the existing facts and circumstances, we would not only be putting the life of the Appellants and other residents of the building in jeopardy, but also hazarding the life and limb of the general public as well.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5825 of 2022.

Ratilal S. Pujara (since deceased) thr. his L.Rs. and Ors. Vs.

Municipal Commissioner, Municipal Corporation of Greater Mumbai and Ors.

Hon'ble Judges/Coram:

N.V. Ramana, C.J.I., Krishna Murari and Hima Kohli, JJ.

Author: Krishna Murari, J.

Decided On: 25.08.2022

Citation: MANU/SC/1068/2022

Print Page

Whether application before corporation court is maintainable if landlord has remedy before rent court?

   The next contention urged on behalf of the petitioners is that the learned Chief Judge had no jurisdiction to entertain the applications under Section 507 as the owners had a special remedy under the special statute, viz., the Bombay Rents. Hotel and Lodging House Rates Control Act. 1947 for recovering possession of the premises in the possession of the tenants if the Court under that Act is satisfied under Section 13(1)(hhh) that the premises are required for the immediate purpose of demolition ordered by any local authority or other competent authority. Apart from authority, in our opinion, the contention must be rejected, because it is only in respect of suits or proceedings between landlords and tenants relating to recovery of rent or possession of any premises to which Bombay Rent Act applied and in respect of applications made under that Act or any claim or question arising out of the Act or any of its provisions that the jurisdiction of other Courts is excluded under Section 28 of the Bombay Rent Act. The application made by the owners under Section 507 of the Bombay Municipal Corporation Act does not fall under any of the categories of suits or proceedings referred to in Section 28(1) of the Bombay Rent Act. It cannot be said that an application under Section 507 relates to the recovery of possession of the premises because Section 507 empowers the Chief Judge to make a written order “requiring the occupier of the building or land to afford all reasonable facilities to the owner for complying with the notice”. Section 507 is not concerned with the termination of the tenancy or recovery of the possession of the premises but only with providing reasonable facilities to the owner to comply with a notice issued to him under the provisions of the Bombay Municipal Corporation Act. Such a question cannot be said to be a claim or question arising out of the Bombay Rent Act or any of its provisions. The tenancy is not terminated before or by making an application under Section 507. Section 507 enables the owner to get an order from the Chief Judge directing the occupants to give reasonable facilities and merely states that if the occupiers fail to afford the facilities after 8 days from the date of the order the owner shall be discharged, during the continuance of such refusal, from any liability which he would otherwise incur by reason of his failure to comply with the said provision or requisition. It is true that the consequence of the refusal is that the occupants made themselves liable to be prosecuted under Section 471, as stated above. But this is not a question or claim arising out of any provisions of the Bombay Rent Act and we find nothing conflicting between Section 13(1)(hhh) and Section 28 of the Bombay Rent Act and Section 507 of the Bombay Municipal Corporation Act from which we could infer an implied repeal of Section 354 of the Bombay Municipal Corporation Act. On the contrary, having regard to the nature and purpose of these provisions, it is clear that these sections can exist together and the applications made by the owners under Section 507 were maintainable notwithstanding Section 28 of the Bombay Rent Act. {Para 29}

 Bombay High Court

(Before K.K. Desai and Vaidya, JJ.)

Diwanchand Gupta  Vs N.M. Shah 

Print Page

Whether the court should interfere if municipal corporation issues notice for demolition of the dangerous building?

   Moreover, it is not for the Court to satisfy itself whether the building was in a dangerous condition when the notice was issued. The fact that part of the building has been already pulled down and the majority of the occupants have no grievance against the pulling down itself further shows that the allegations of mala fides made against the Assistant Engineer is baseless. The criterion of the building being in a ruinous condition or dangerous to the occupants and to the passers-by, as required by Section 354, has been applied by the Assistant Engineer in the notice which mentions that the building “is in a ruinous condition, likely to fall and dangerous to any Person occupying, resorting to or passing by the same”. As Lord Halsbury stated in Westminster Corporation v. London and North Western Railway, 1905 AC 426,

“Where the legislature has confided the power to a particular body, With a discretion how it is to be used, it is beyond the power of any Court to contest that discretion”. {Para 27}

28. In the absence of anything to show abuse of the discretion or mala fide or capricious exercise of the discretion, it must, therefore be held that the contention of the petitioners that there was an unfair discrimination against them as citizens in violation of their right under Article 14 of the Constitution of India is without any foundation.

 Bombay High Court

(Before K.K. Desai and Vaidya, JJ.)

Diwanchand Gupta  Vs N.M. Shah 

Print Page

Whether Deputy commissioner of Municipal corporation can delegate his powers to assistant engineer?

 It was next contended that the authority, who issued the notice was delegated the power to issue the notice under Section 354 by the Deputy Commissioner who was himself a deputy of the Municipal Commissioner and this violated the principle contained in the maxim delegatus non potest delegare. The law on this point is succinctly stated in Allen on Law and Orders, 2nd edition at page 204 as follows:—

“With regard to executive functions, it is clear, on the one hand, that any administrator, whether of Ministeral degree or below it must be allowed a reasonable amount of delegation in ordinary routine duties; but, on the other hand if certain specific executive functions are committed to him, he cannot, without authority, entrust them to a deputy of his own choice”.{Para 18}

19. Wade on Administrative Law, 2nd edition. 1967, at page 59 has stated the law as follows:—

“Although, therefore, the Courts are strict in requiring that statutory power shall be exercised by the, persons on whom it is conferred, and by no one else, they make liberal allowance for the working of the official hierarchy, at least so far as it operates within the sphere of responsibility of ministers of the Crown. Powers, conferred upon special statutory bodies are more jealously watched, as we have noticed. Yet the maxim delegatus non potest delegare, like so many of the other rules of administrative law, turns out to be no more than a qualified rule for the interpretation of Parliament's intentions”.

20. It is, therefore, necessary for BS to consider whether in enacting the relevant provisions of the Bombay Municipal Corporation Act, the legislature had intended that the Deputy Commissioner, to whom powers of the Commissioner were delegated, had no power to delegate the powers to the Assistant Engineer, who, in the present case, issued the notice.

21. The learned Chief Judge considered the proceedings of the Municipal Corporation of Greater Bombay at Ex. L relating to the Corporation resolution No. 820 dated October 28, 1958 and the Corporation resolution No. 331 dated May 16, 1960. which refers to the information given by the Commissioner under Section 56(2)(b) and proviso to Section 56-B (1) of the Bombay Municipal Corporation Act, stating that the Commissioner had deputed inter alia to the Deputy Municipal Commissioner Mr. S.M.Y. Shastri the powers under Section 354. He also considered Ex. H. which records the deputation of the powers to the Deputy Commissioner as well as Ex. G under which powers were delegated on September 26, 1960 to the Assistant Engineer Mr. Countinho (who issued the impugned notice) including the powers to issue notice under Section 354, and held that in view of the provisions of Section 56(3) of the Bombay Municipal Corporation Act, the Deputy Commissioner Mr. Shastri could validly delegate his powers under Section. 68 to Mr. Countinho, the Assistant Engineer. In effect, he held that as under Section 56(3) all acts and things performed and done by a Deputy Commissioner during the tenure of his office and in virtue thereof shall for all purposes be deemed to have been performed and done by the Commr., the Deputy Commissioner Mr. Shastri had a statutory authority or permission to delegate the powers of the Commissioner under Section 354 to Mr. Coutinho the Assistant Engineer. We find no reason to disagree with the view taken by the learned Chief Judge.

 Bombay High Court

(Before K.K. Desai and Vaidya, JJ.)

Diwanchand Gupta  Vs N.M. Shah 

Special Civil Appln. No. 259 of 1970, 

Decided on July 1, 1971

Citation: 1971 SCC OnLine Bom 30 : AIR 1972 Bom 316

Print Page

Whether rent control Act will prevail over Municipal Act?

 The High Court has returned a finding that the Rent Act will

prevail over the Act. However, we are unable to agree with

this observation. Both the statutes are enacted by the State

of Karnataka. The Act deals with the municipal functions

which are wider and welfare-oriented towards the residents of

the area of Corporation, whereas the Rent Act has a limited

application for determining the rights of land owner and tenant.

Both operate in separate spheres as both have different

objectives to be achieved.{Para 38}

40. In Allahabad Bank v. Canara Bank & Anr19, this Court held

that there can be a situation in law where the same statute is

treated as a special statute vis-à-vis one legislation and again

as a general statute vis-à-vis another legislation. Between

the Act and the Rent Act, the Act is a general statute enacted

as a third tier of local Government administration. The functions

of the Corporation, inter alia, includes the regulation

and maintenance of the land and building, hygiene and

health, public streets and other for a larger section of the inhabitants

falling in the municipal area, whereas the Rent Act

deals with the issues between the landlord and the tenant

conferring right to the landlord to seek eviction and correspondingly

provide protection to the tenant. Therefore, the

finding of the High Court that Rent Act would prevail over the

Act is clearly erroneous as both legislations operate in separate

distinct spheres having different objectives in mind.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1833 OF 2008

ABDUL KHUDDUS  Vs  H.M. CHANDIRAMANI (DEAD) THR LRS. & ORS.

Print Page

Whether Statutory Tenant Can Seek Repossession After Demolition Of Building Under Section 108B(e) Of Transfer Of Property Act?

In view of the binding decisions of the larger bench and

keeping in view the fact that the judgment of this Court in

Shaha Ratansi Khimji was dealing with the rights of

contractual tenant, the statutory tenant cannot seek

repossession after the demolition of building under Section

108(B)(e) of the TP Act as the rights and liabilities of a

statutory tenant have to be found under the Rent Act alone.

32. The petition for eviction filed by the landlord was withdrawn.

Since the premises are situated within the urban areas

governed by the Rent Act, the tenant has a right to seek

possession only in terms of Section 27 of the Act if the decree

for eviction has been passed by a Court on the ground

specified under clause (j) of the proviso to sub-section (1) of

Section 21. Even if it is assumed that decree of eviction was

passed on the withdrawal of the eviction petition, the tenant

has to seek possession of the premises from the date on

which he delivered vacant possession of the premises to the

landlord. The plaintiff filed first suit claiming right over the

land after demolition of the building but being a statutory

tenant, he had to avail the remedy under the Rent Act as the

provisions of the TP Act are not applicable to the building and

land situated within urban area. In view of the provisions of

the Act, the terms of the TP Act cannot be applied for in

respect of statutory tenants. The High Court has returned a

finding that the plaintiff was a statutory tenant. In view of the

said fact, the remedy of the tenant, if any, has to be found

within four corners of the Rent Act and not under the TP Act.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1833 OF 2008

ABDUL KHUDDUS  Vs  H.M. CHANDIRAMANI (DEAD) THR LRS. & ORS.

Author: HEMANT GUPTA, J.

Dated: SEPTEMBER 14, 2021.

Print Page