1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 448 of 2009 Bin K. Kuriakose & ors. ....Petitioners Vs. The Commissioner Municipal Corporation of Gr. Mumbai & ors. ....Respondents Mr. S.G.Kudle for the petitioners. Mr. A.A. Kumbhakoni a/w. Mr. S.D.Mishra & A.R.Shaikh for respondents 4 & 5. Mr.Milind More-AGP for the State. Mr. J.G.Reddy for respondent no.6. Mr. A.Y. Sakhare for BMC. CORAM:- A.M.KHANWILKAR AND R.M.SAVANT, JJ DATED:- MAY 05, 2010. P.C. By this Writ Petition under Article 226 of the Constitution of India, the Petitioners are challenging the notice issued under the signature of Assistant Commissioner K/West ward dated 21st February, 2009 being without authority of law. Besides several other issues have been raised in the Writ Petition to which 2 we need not make any reference at this stage. In our opinion, the Petitioner should succeed on the sole argument that the impugned notice has been issued by an authority not competent to exercise power under Section 34 of the Disaster Management Act, 2005. We say so because Section 34 of the Act clearly provides that the District Authority is supposed to exercise powers and functions referred to therein. The impugned notice has been issued with reference to the said powers. It is only the District Authority who can exercise such powers. The District Authority has been defined in terms of Section 2(f) of the Act of 2005 which means the District Disaster Management Authority constituted under sub-section (1) of Section 25 of the Act. Section 25(1) provides that the State Government shall as soon as may after issuance of notification under sub-section (1) of Section 14, by notification in the official gazette, establish a District Disaster Management Authority for every district in the State with such name as may be specified in the notification. Sub-Section (2) of Section 25 provides for the constitution of the District Authority which reads thus:- (2) The District Authority shall consist of the Chairperson and such number of other members, not exceeding seven, as may be prescribed by the State Government, and unless the rules otherwise provide, it shall consist of the following, namely:- (a) the Collector of District Magistrate or Deputy 3 Commissioner, as the case may be, of the district who shall be Chairperson, ex officio; (b) the elected representative of the local authority who shall be the co-Chairperson, ex officio; Provided that in the Tribal Areas, as referred to in the Sixth Schedule to the Constitution, the Chief Executive Member of the district council of autonomous district, shall be the co-Chairperson, ex officio; (c) the Chief Executive Officer of the District Authority; ex officio; (d) the Superintendent of Police, ex officio; (e) The Chief Medical Officer of the district, ex officio; (f) not exceeding two other district level officers, to be appointed by the State Government.” 2. Suffice it to observe that the expression District Authority appearing in Section 34 will have to be understood in the context of definition in Section 2(f) read with Section 25 of the Act of 2005. Admittedly, the impugned notice has been issued by the Assistant Commissioner and not by the District Authority constituted under Section 25 of the Act. 3. To get over this position, the only argument canvassed before us is that the Assistant Commissioner has been authorised to discharge the functions of the District Authority referred to in Section 34 of the Act. This argument does not 4 commend to us. By Resolution, the requirement provided by Section 34 of the Act read with Section 25 thereof cannot be diluted so as to permit any officer other than the District Authority to exercise the powers under Section 34 of the Act. Besides, we may usefully refer to sub-section (4) of Section 25 of the Act which provides that the State shall appoint an officer not below the rank of Additional Collector or Additional District Magistrate or Additional Dy. Commissioner, as the case may be, of the district to be the Chief Executive Officer of the District Authority to exercise such powers and perform such functions as may be prescribed by the State Government and such other powers and functions as may be delegated to him by the District Authority. It is not the argument of the Respondents that the post of Assistant Commissioner is equivalent to the officers designated in sub-Section (4) of Section 25 of the Act. The minimum qualification provided of the officer is that of Additional Dy. Commissioner and not of Assistant Commissioner. Thus understood, even the provisions of sub-section (4) will be of no avail to the Respondents. 3. Taking any view of the matter, in our opinion, the impugned notice issued to the Petitioners Exhibit B dated 21st February, 2009 by the Assistant Commissioner cannot be sustained in law being without authority of law. Accordingly, the same is quashed and set aside with liberty to the Respondents 5 to take such appropriate measures as may be warranted in respect of the disputed structures by following proper procedure prescribed by law. 4. Petition disposed of on the above terms. (R.M. SAVANT, J) (A.M.KHANWILKAR, J)