1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No.5565/2009 ( Bhimrao S/o Late Shri Laxmanrao Khandale ..V/s.. Municipal Commissioner, Nagpur Municipal Corporation, Nagpur & others ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. S.V. Bhutda, counsel for the petitioner. Mrs. S. Jachak, counsel for respondent nos.1 to 5 and 7. Mr. S.Y. Deopujari, counsel for the respondent no.6. CORAM : D.D. SINHA & F.M. REIS JJ. DATE : 22 nd APRIL, 2010 . Heard the learned counsel for the petitioner, the learned counsel for the respondent nos.1 to 5 and 7 and the learned counsel for the respondent no.6. This writ petition is directed against the order dated 6th November 2009 passed by the Additional Deputy Municipal Commissioner (Rural), Nagpur Municipal Corporation Nagpur in appeal, whereby the appeal filed by the appellant against the notice dated 25th September 2009 issued by the corporation under section 289 (1) of the City of Nagpur Corporation Act came to be dismissed ; and the order dated 18/12/2009 passed by the revisional authority, whereby the revision filed by the petitioner came to be dismissed. 2 The grievance of the petitioner is that the authorities below failed to adhere to the principles of natural justice before coming to the conclusion that the house in question is dilapidated and the action of demolition of the house is necessary. It is further contended that the report dated 19/6/2009 submitted by the Ward Officer of the concerned ward where the house in question is situated, is in favour of the petitioner. It is submitted that as per the said report the problem about ceiling of the house, cracks in the walls of the house can be repaired conveniently and the roots of the tree which have entered into the wall do not pose any danger to the structure in question. It is further contended that the other two reports i.e. the report dated 6/6/2009 submitted by Structural Engineer of the corporation as well as the report dated 7/6/2009 submitted by the Junior Engineer are otherwise. The learned counsel for the petitioner further contended that the respondent – corporation also obtained opinion of Dr. Kulkarni and as per the opinion of Dr. Kulkarni dated 7/9/2009, the house is in a dilapidated condition and defects cannot be cured by undertaking repairs. The learned counsel for the petitioner has submitted that, in view of all these conflicting views expressed by the officers of corporation as well as Dr. Kulkarni in respect of condition of the structure in question, the conclusion arrived at by the authorities of the corporation that the house is in a 3 dilapidated condition and needs demolition is not well founded and therefore, the impugned orders may be quashed. The learned counsel for the corporation, on the other hand, submitted that the report submitted by the Structural Engineer, who is the superior authority as well as the report submitted by the Junior Engineer clearly demonstrate that the structure in question is completely dilapidated and needs demolition. It is further contended that since there was some variance in the opinion expressed by the Ward Officer in his report dated 19/6/2009 as well as the other two reports submitted by the authorities of the corporation, the corporation also sought opinion of Dr. Kulkarni who is the expert in the field. It is contended that Dr. Kulkarni has visited the site and carried out inspection personally in presence of the petitioner. The opinion expressed by Dr. Kulkarni in writing clearly shows that the house in question is completely dilapidated and needs demolition. It is submitted that all these facts were considered by the authorities concerned and it is only thereafter the impugned orders came to be passed. It is further contended that the petitioner was well aware of the contents of the reports including the opinion expressed by Dr. Kulkarni and therefore, it is submitted that the contentions canvassed by the learned counsel for the petitioner that the authorities concerned violated the 4 principles of natural justice is incorrect. We have considered the rival contentions and perused the impugned orders passed by the lower authorities. In the present case, the petitioner has filed an appeal against the notice dated 25 September 2009 issued by the respondent under section 289 (1) of the City of Nagpur Corporation Act. After taking into consideration all the pros and cons as well as the reports available on record, the Additional Commissioner (I) vide order dated 6 November 2009 has concluded the issue by observing thus - “ Heard the parties to the proceeding, and the case is closed for order. It is evident from the record that the site was inspected by the concerning C.E.A. on dated 6.6.09, and found that house in question admeasuring 4.35 x 7.75 m and the walls of the said house is of bricks, mud, sand and lime. Ceiling is of wooden ballies, tin and country tiles. There is a heavy cracks in the walls, and plaster has been detached at several places. The wooden ballies of the ceiling is in a decade condition and tilted. The doors and windows also in a decade condition. The roots of the trees entered in the walls. The entire house is in a dilapidated condition. The site was also inspected by the Jr. Engineer, on 7.6.09. The site was again inspected by Dy. Engineer on 7.6.09, and by the City Engineer on 4.7.09. The site was also inspected by the technical expert on 26.08.09, and accordingly notice under section 289, dated 25.9.09 came to be issued. The contention of the appellant, that the Asstt. Engineer has no power to issue the notice is not sustainable. The contention of the appellant is that the structure and condition of the house is in good condition is also not sustainable, in pursuance of the technical expert report on the record. It is very much clear from the 5 impugned notice that the house is not repairable.”. Being aggrieved by the same, the petitioner filed a revision before the revisional authority and the revisional authority after hearing both the sides has dismissed the revision by observing thus - “Initially the engineers of the NMC visited the house in question in June, 2009. They finally concluded that the house is in a dilapidated condition. The authorities also took opinion from Dr. S.S. Kulkarni, a consulting engineer. The observations recorded by the engineer are (1) Roof is tilted on one side and wooden rafters are rotten. Roof is in dilapidated condition (2) The plaster of the walls has peeled of at number of places (3) There is a tree coming out from one of the walls (4) The roots of the tree will always pose the problem of structural stability of the wall. The engineer recorded his opinion that the house is in a dilapidated and bad condition. It is beyond repairs. I think there is no reason to disbelieve the expert opinion. The photographs of the house in question are on record. The photographs support the expert opinion. It is also seen from the record that the applicant was present when Dr. Kulkarni inspected the house. A notice was given to him when the municipal engineers inspected the structure. Before the first appellate authority also he was given an opportunity of hearing. So I did not see any impropriety or illegality in the impugned order.” The findings recorded by the lower authorities clearly show that the house is in a dilapidated condition and therefore, further action in this behalf is necessary as per law. There is no reason for us to take a different view than the one taken by the lower authorities which is based on the factual aspects of the matter. It also appears that the petitioner was personally present 6 at the site when the inspection was carried out by Dr. Kulkarni. Similarly, it is difficult for us to disbelieve the statement made by the learned counsel for the corporation that the petitioner was aware of the contents of all these reports. At the same time, except the passing reference made in this behalf in the petition, nothing has been placed in order to show that this point was canvassed before the lower authorities. Taking into consideration the overall view of the matter including the fact that the conclusion recorded by the Additional Municipal Commissioner vide order dated 6 November 2009 is in the nature of finding of facts which are confirmed by the lower revisional authority, we are of the view that the petition suffers from lack of merits. Hence the same is dismissed. The learned counsel for the petitioner states that the interim order dated 22nd December 2009 passed by this Court may kindly be continued for a period of three weeks. Since the interim order is in operation for a long time, we continue the same for a period of three weeks from today which shall cease to operate automatically thereafter. JUDGE JUDGE Tambaskar.