-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2786 OF 2005 Uday Pandurang Modak Chief Promoter of Shree Ganesh Kripa Co-op. Hsg. Society (Prop.) Room No.14, Khot building, Akshikar Street, Dadar (West), Mumbai--400 028. : Petitioner V/s. 1. S.L.A.O., Mumbai Having his office at Mumbai Building Repairs & Reconstruction Board, 3rd floor, Griha Nirman Bhavan, Bandra (E), Mumbai--51. 2. The State of Maharashtra, Through its Housing & Special Assistance Department, Having its office at Mantralaya, Mumbai--400 032. 3. The Maharashtra Housing and Area Development Authority, Through its Executive Engineer, (RR) Cell of Mumbai Building Repairs & Reconstruction Board, 3rd floor, Griha Nirman Bhavan, -: 2 :- Bandra (E), Mumbai--51. 4. Yeshwant Shridhar Khot 5. Shripad Shridhar Khot 6. Dilip Hari Khot 7. Nandakishore Hari Khot 8. Nanda S. Oak All Adults, residing at Building No.8, Khot Building, Akshikar Road, Dadar (W), Mumbai--400 028. : Respondents ... Mr.P.G.Karande for the petitioner. Mrs.Geeta Shastri, Asstt. Govt. Pleader for respondent nos.1 to 3. ... CORAM : S.A.BOBDE, J. DATE : JULY 29, 2008. ORAL JUDGEMENT: 1. On Akshikar Street, Dadar (West), Mumbai, there is a building known as "Khot building" on a plot of land admeasuring 570.15 sq. mtrs. The building is said to have been constructed in 1933 and, according to the petitioner, has not been repaired till 1985. The building has 28 tenements, out of which seven are in possession of the landlord and two in possession of one Jaywant R. Mehta, who is not a member of the petitioner co-operative -: 3 :- housing society. According to the petitioner, the condition of Khot building has deteriorated and it requires immediate structural repairs for its better preservation. Most of its occupants, therefore, formed a society known as "Shree Ganesh Kripa Co-op. Housing Society" with the petitioner as its Chief Promoter. Nineteen occupants applied for action under Chapter VIII-A of the Maharashtra Housing and Area Development Act, 1976, hereinafter referred to as the "Act", which had come into force on 26.2.1986. The occupants required the Board to move the State Government to acquire the land together with the existing building thereon in the interest of its better preservation or for re-construction. This application was made under section 103-B of Chapter VIII-A which reads as follows:- "103-B Acquisition of cessed property for co-operative societies of occupiers.--(1) Notwithstanding anything contained in any of the provisions of Chapter VIII or any other law for the time being in force or in any agreement, contract, judgment, decree or order of any Court or Tribunal to the contrary, a co-operative society formed or proposed to be formed under the provisions of the Maharashtra Co-operative Societies -: 4 :- Act, 1960 (Mah.XXIV of 1961), by not less than seventy per cent of the occupiers in a cessed building may by written application request the board to move the State Government to acquire the land together with the existing building thereon or where the owner of the building does not own the land underneath or appurtenant to such building but holds it as a lessee or licensee, or where any person holds the building or the land underneath or appurtenant to such building or both under a lease or license, then to acquire the right or interest of such owner or person in or over such building or land or both as lessee or licensee together with the existing building thereon (hereinafter in this Chapter referred to as "the land"), in the interest of its better preservation or for reconstruction of a new building in lieu of the old one and intimate their willingness to pay the amount of such acquisition as may be determined under the provisions of this Chapter and to carry out the necessary structural and other repairs or, wherever necessary, to reconstruct a -: 5 :- new building, as the case may be, at their own cost. Explanation I.-- In this section the expression "seventy per cent of the occupiers" means the seventy per cent of the occupiers on the date of commencement of the Maharashtra Housing and Area Development (Second Amendment) Act, 1986 (Mah.XXI of 1986), and include their successors in interest or new tenants inducted in place of such occupiers, but does not include the owner or the occupiers inducted by virtue of creation of any additional tenancies or licenses by the owner after the date of commencement of the aforesaid Act. Explanation II.-- .................... (2) ............................. (2A) ............................ (3) ............................. (4) ............................. (5) ............................. (6) ............................. -: 6 :- (7) ............................." The Special Land Acquisition Officer, Mumbai Building Repairs & Reconstruction Board, Mumbai, has framed the issues and answered them in the following manner:- "8) In view of the legal position under section 103B(1) of the Act the issues for determination of this case are as under a) Whether the building is falling under the category "A". b) Whether the property under acquisition is cessed property. c) Whether the building requires structural repairs for its better preservation. d) Whether the applicant society has fulfilled the quota of 70% of the occupier. Finding/replies to the above issues are as under a) affirmative b) affirmative c) Negative d) Negative."’ In effect, the Special Land Acquisition Officer has held that the application by 19 tenants-occupants is not maintainable because 19 tenements do not constitute 70% of the occupiers in the cessed building and that structural repairs have been carried out to Khot building -: 7 :- in the year 1996 when that building was repaired through MLC funds. 2. There was no reason why the Special Land Acquisition (SLAO) ought to have held that the building does not require any repairs if he was of view that the application was not maintainable. 3. The learned counsel for the petitioner submitted that the findings are vitiated by errors. The learned counsel submitted that the law clearly requires that an application for acquisition of a cessed building under section 103-B of the Act should be made by 70% of the occupiers. Having regard to the meaning of the term ‘70% of the occupiers’ given by the Explanation to section 103-B, the SLAO could not have rejected the application on the ground that it was not made by 70% of the occupiers. 4. It is, therefore, necessary to see what the SLAO has done, having regard to the aforesaid provisions. The SLAO has made the following observations:- "From the above situation it is clear that there are 28 tenements in the said building out of them 7 tenements were possessed by -: 8 :- landlord and 2 tenements were occupied by Shri Jaywant R. Mehta but he is not a member of the said cooperative housing society. Hence remaining 19 tenements are in occupation of the society therefore the percentage of the occupier of the said society is falls (sic) less than 70% i.e. 67% of the occupier, therefore the issue No.D is replied in negative." The SLAO has thus calculated the percentage of occupiers who made the application from out of 28 tenements and has come to the conclusion that 19% tenements is less than 70% of the total number of occupiers. In doing so, it is clear that the SLAO has breached Explanation I which stipulates that the occupiers will not include the owner. Had the SLAO removed seven tenements possessed by the owner from 28, he would have calculated the percentage from out of 21. In that case, the percentage of the occupiers who moved the application would have been clearly more than 70% of 21. 5. It was contended on behalf of the respondent nos.1 to 3 by Ms Shastri, the learned Asstt. Govt. Pleader, under the following phrase: -: 9 :- "..... but does not include the owner or the occupiers inducted by virtue of creation of any additional tenancies or licenses by the owner after the date of commencement of the aforesaid Act" only owners inducted after the date of commencement of the aforesaid Act are excluded from reckoning. There is no merit in this contention since, in the first place, the Legislature could not have intended to say that an owner is inducted and, secondly, if the latter part of the phrase is to be applied to owners, such owners who are inducted by owners would have to be excluded. The submission is rejected without further comment. In this view of the matter, it is clear that the finding that the application was not maintainable suffers from an error of law apparent from the record and is liable to be set aside. 6. As regards the other finding that the building has been already repaired by the Board, the said finding is uncalled for and untenable. The SLAO has observed that the building was repaired through the MLC funds in the year 1996. Therefore, the building must be deemed to have been repaired by the Board because section 2, sub-section (36) provides that when repairs to any -: 10 :- building are carried out by the Board, the building shall be deemed to be structurally repaired by the Act. That sub-section reads as follows:- "(36) "structural repairs" for the purposes of Chapter VIII means repairs or replacement of decayed, cracked, or out of plumb structural components of a building or any substantial part thereof or any part to which the occupiers have common access, such as, staircases, passages, water closets or privies by new ones of the like material or materials, or of different material or materials including change in the mode of construction like converting load bearing wall type or timber framed structure to an R.C.C. one, or a combination of both, which repairs or replacement in the opinion of the Board, if not carried out expeditiously may result in the collapse of the building or any such part thereof; and "structural repairs" includes repairs and replacement of all items which are required to be repaired or replaced as a consequence of the repairs or replacement aforesaid which are carried out -: 11 :- or to be carried out, and also repairs and replacement of the root (but not replacement of the tiles only) and of the drain pipes (including house gallies) fixed to the building, which, if not repaired or replaced simultaneously with structural repairs would cause further damage to the building. When such repairs to any building or any part thereof are carried out by the Board the building shall be deemed to be structurally repaired under this Act;" (Emphasis supplied) The observations of the SLAO does not fall short of a perversity. There is no reason to equate the work done from MLC funds to work done by the Board and that too because the specified repairs undertaken by the Board are deemed to be structural repairs under the Act. In any case, the SLAO was bound to apply his mind to the question whether the application is in the interest of its better preservation or for reconstruction of a building in lieu of the old one and not merely to the question whether structural repairs have been carried out, which he has not done. -: 12 :- 7. In this view of the matter, the impugned order is unsustainable. The impugned order dated 22.3.1997 passed in the matter of acquisition of Khot building at C.S. No.19 of Mahim division is set aside and the matter is remanded back for a fresh decision, in accordance with law. 8. Rule is made absolute in the aforesaid terms. S.A. BOBDE, J.