1 1wp4653-96 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION WRIT PETITION NO. 4653 OF 1996 Ramchandra Hiraman Dolas & Others .. Petitioners V/s. Hastimal Pukhraj Gugliya & Anr. .. Respondents ..... Mr. Mandar Limaye i/b. Mr. S. S. Deshpande for the Petitioners. Mr. Pratap P. Bhosale i/b. Mr. A. L. Desai for Respondent Nos.1 and 2. ..... CORAM : A.S.OKA, J. DATE : DECEMBER 22, 2011. ORAL JUDGMENT : On the last date submissions of the learned counsel appearing for the parties were heard. 2. This Writ Petition along with Writ Petition No.5044 of 1996 were taken up for hearing earlier. The Petitions were finally decided by a common Judgment and order dated 29th November, 2010. It must be noted here that the Judgment and order dated 29th November, 2010 has been set aside only as far as the present Petition is concerned. The said Judgment of this Court as far as the Writ Petition No.5044 of 1996 is concerned has been affirmed by the Apex Court. 2 1wp4653-96 3. The Respondents are tenants of the Petitioners in respect of a shop premises situated at Bhosari, Pune within the municipal limits of Pinpari Chinchwad Municipal Corporation, District Pune. The Petitioners are the landlords and original Plaintiffs. The Respondents are tenants-original Defendants. The Writ Petition No.5044 of 1996 was filed by the Petitioners in respect of the another premises in the same building in which the Respondent therein was the tenant. 4. The suits for eviction were separately filed by the Petitioners against the Respondents therein and the Respondent in the companion Petition. The suits were filed under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (herein after referred to as “the said Act”). 5. A notice was issued by the Municipal Corporation of the City of Pimpari Chinchwad on 4th August, 1994 under Section 264(1) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as “the said Act of 1949” ). In the said notice, it was stated that a portion on western side of the building constructed by the Petitioners has come down. The second statement in the notice is that the foundation of the building on the eastern side has become weak. It was stated 3 1wp4653-96 that the building has become dangerous to the persons occupying the same and the persons residing nearby the building. Therefore, a notice of demolition was issued calling upon the Petitioners to remove the structure as it had become dangerous. On the basis of the said notice, the Petitioners issued notices to the tenants on 10th August, 1990 calling upon them to vacate the said building. As the tenants did not vacate, the two suits for eviction against them came to be filed seeking a decree for possession under Section 13(1)(hhh) of the said Act. 6. The suits were contested by the tenants (the Respondents herein and the Respondent in companion Writ Petition) by filing Written Statement. It was denied that the entire building was in a dilapidated condition. It was alleged that the building was in a good condition and recently a shop premises in the said building was let out by the Petitioners by accepting huge amount of deposit. It was alleged that the Petitioners acting hand in glove with the officers of the Municipal Corporation have procured a notice for the purposes of having the suit premises demolished. 7. The parties adduced evidence. Both the parties have examined the witnesses. The Trial Court proceeded to pass a 4 1wp4653-96 decree under Section 13(1)(hhh) of the said Act on the basis of the notice of demolition. Appeals were preferred by the tenants. A request was made by the Respondents in their Appeals for remanding the matter to the Trial Court. For the reasons recorded in the judgment, the said request was rejected. The Appellate Court held that the Respondents-Tenants failed to establish that the Petitioners and the officers of the Municipal Corporation had acted hands in glove with a mala fide and dishonest intention. It was held that the said contention was not proved by the Defendants-Tenants. The Appellate Court found fault with the decree of the Trial Court on the ground that the notice is not sufficient to come to a conclusion that the building was required for immediate purpose of demolition. The Appellate Court held that no officer of the Municipal Corporation was examined before the Trial Court and even the report of an Engineer on the structural status of the building was not produced. Therefore, the Appellate Court came to the conclusion that on the basis of the notice, one cannot jump to the conclusion that the suit premises was required for immediate purpose of demolition. Another ground held against the Petitioners was that the notice under Section 264(1) of the said Act of 1949 was not signed by the Municipal Commissioner but it was singed by a Deputy Engineer. Therefore, the Appellate 5 1wp4653-96 Court has set aside the decree of the Trial Court. Paragraph 7 of the Judgment of the Appellate Court reads thus: “7. So, in this case appellant has to show malafide or dishonesty on the part of the competent authority who issues notice. But, except pleading defendant has not adduced any evidence. In my opinion just making allegation that plaintiff and officer of the competent authority hands in gloves is not sufficient to draw the conclusion that there is any malafide in issuing notice unless defendant adduced substantial evidence in support of their contention. So, I have to follow this ruling in the case of Manohar Rajpal V. Satara Municipal Corporation (Supra). IN WHICH ALL THE PREVIOUS RULING HAS BEEN CONSIDERED AND IN which Their Lordship held that, “it is not open to the Court to go into the question as to whether on merit the premises were required for the immediate purpose of the demolition as order by the local authority.” 5. The learned counsel for the Petitioners adopted the submissions which are recorded in the earlier Judgment in the Writ Petition. The learned counsel appearing for the Respondents-tenants has made detailed submissions. He invited attention of the Court to the notice on which reliance was placed by the Petitioners. He submitted that the notice does not direct the demolition of the premises and in fact on the basis of the notice, the Petitioner-landlords ought to have carried out repairs. He submitted that it was for the Petitioners to prove that the notice was issued for the purposes of demolition of the building in which the suit premises are situated. He submitted 6 1wp4653-96 that unless it was established that the local authority has directed that immediate demolition of the building was required, a decree under Section 13(1) (hhh) could not have been passed. He invited the attention of the Court to the finding recorded by the Appellate Court. He submitted that the fact remains that after lapse of so many years, the building still stands. He submitted that a decree under Clause (hhh) of Sub Section (1) of Section 13 of the said Act cannot be casually passed. He submitted that the very fact that the structure has survived is the best evidence to show that the requirement of the suit premises for demolition was never a true and genuine requirement. 6. The learned counsel appearing for the Petitioners pointed out that the common judgment delivered by this Court in Writ Petition No.5044 of 1996 has been confirmed by the Apex Court by order dated 28th November, 2011 by dismissing the Special Leave Petition filed by the Respondent in the companion Petition. His submission is that thus, the decree passed on the basis of the same notice under Section 264(1) of the said Act of 1949 has been confirmed by the Apex Court. 7. I have considered the submissions. It is not in dispute that the notice under Section 264(1) of the said Act of 1949 was 7 1wp4653-96 issued in respect of the building in which the suit premises is situated. One issue which was considered by the Appellate Court was whether there were mala fides or dishonesty on the part of the Competent Authority while issuing notice. The Respondents have not adduced any evidence in support of the said contention. In fact, the Appellate Court held that the Respondents have failed to substantiate that the action of issuing notice under Section 264(1) was neither mala fide nor dishonest. 8. The perusal of the notice of demolition shows that a portion of the building in which the suit premises is situated has become dangerous to the occupants of the building and to persons in the nearby locality. Notice records that the condition of the building has become dangerous. There is a clause in the notice which requires owners to demolish the building. Even assuming that the building has not come down till date, the question is whether any legal evidence was adduced by the Respondents to show that what was set out in the notice was false or incorrect. As stated earlier, the contention that the notice was mala fide and dishonest has been rejected by the Appellate Court. The Respondents could have examined any expert to show that the structure was not in a dangerous condition. 8 1wp4653-96 9. Another contention which the Appellate Court has accepted is that the notice under Section 264(1) was not signed by the Municipal Commissioner and was signed by the Deputy Engineer. The contention regarding illegality of notice on that ground that it was not signed by the Commissioner was not urged in the written statement. If the said contention would have been urged, the Petitioners could have always adduced evidence to show that there was an authority vested in the concerned Engineer to issue notice. In fact, such contention cannot be allowed to be urged for the first time before the Appellate Court in absence of pleadings. The notice of demolition issued by the local Authority requiring the owner to demolish the building cannot be held to be illegal. The ground (hhh) of Sub-Section (1) of Section 13 is applicable when the suit premises is required for immediate purpose of demolition ordered by local Authority. As stated earlier, a decree of eviction passed on the basis of the same notice on the same ground in respect of another premises in the same building has been confirmed by the Apex Court. 10. Hence, the impugned Judgment and decree of the Appellate Court will have to be set aside on the ground that the same is completely erroneous. Hence, the Petition must succeed. 9 1wp4653-96 10. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and decree of the Appellate Court is quashed and set aside and the Appeal preferred by the Respondents stands dismissed. ii. The decree for eviction passed by the Trial Court stand restored. iii. Rule is made absolute on the above terms with no order as to costs. iv. On the prayer made by the learned counsel appearing for the Respondents, it is directed that decree for possession shall not be executed for a period of 12 weeks from today. (A.S.OKA, J.)