1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION FIRST APPEAL NO.1560 OF 2009 1 Popatlal Bharmal Shah of Bombay & Ors. ...Appellants. v. The Municipal Corporation of Greater Bombay & Ors. ...Respondents. Mr. Navin Parekh i/by Ms.Hetal Patel, advs. For the Appellants. Mr.J.J.Xavier For the Respondent/BMC. Mr.M.D.Pakale a/w J.V.Rasal, advs. for the Respondent Nos.5A to 8. Mr.Yogesh P. Gandhi, adv. for the respondent nos.3,4A, 10,11 and 12. CORAM : J.H. BHATIA, J. DATED : 7th November , 2009 P.C. 1 The original plaintiffs, who are the trustees of Shri Cutchi Visa Oswal Derawasi Jain Mahajan Trust, have preferred this appeal against the dismissal of suit no.2166 of 2005. To state in brief, defendants/respondent nos.3 to 12 are the tenants in the suit building owned by the said Trust. Municipal Corporation issued a notice dated 5.1.2004 under Section 354 of the Bombay Municipal Corporation Act to the Trust to pull down/demolish the entire ground floor plus 1 upper floor structure 13A and to pull down/demolish entire rear side of the chawl (ground floor plus one upper floor) on the ground that the 2 structures, being in dilapidated and ruinous condition, were likely to fall and their existence was dangerous to the human-being occupying, resorting to or passing by the same. By the notice, 45 days time was given to the trust to comply with the same, failing which the owner would render himself liable to prosecution under Section 479 of the Act and also an action under Section 489 of the Act. Plaintiffs contended that tenants, who are the occupants of the different parts of the building, were not co-operating and some of them had also issued a notice alleging that notice under Section 354 was collusive. By filing the suit, the Plaintiffs sought declaration that the plaintiffs had taken all the steps within the power and control to comply with the requirements of the notice under Section 354. They also sought direction to the defendant no.1 Municipal Corporation to initiate an action under Section 489 of the Bombay Municipal Corporation Act and to file compliance report. 2 On behalf of the defendants, it was contended that City Civil Court had no jurisdiction to entertain such a suit and that the remedy was in filing the proceedings under Section 507 of the Act before the Small Cause Court. In view of this, preliminary issue was framed by the trial Court in respect of the jurisdiction and the trial Court came to conclusion that it had no jurisdiction to entertain the suit and that 3 jurisdiction lies with the Small Cause Court. 3 Heard the learned counsel for the Parties. 4 On perusal of the pleadings, it is clear that plaintiffs, who are the trustees did not challenge the notice. They admit that building is very old and in dilapidated condition and that its existence is dangerous to the human-beings. Plaintiffs admitted that demolition of the said building is necessary. It means according to the plaintiffs also notice issued under Section 354 by the Municipal Corporation has to be complied with. However, according to them, they are not getting necessary co-operation from the tenants/occupants and, therefore, they sought declaration that they have done everything which is possible for them to do and they should be absolved from the liability under Section 471. The learned counsel for the defendants/respondents including the learned counsel for the Municipal Corporation, contended that for the reliefs sought by the plaintiffs, proper remedy is to file proceedings before the Small Cause Court under Section 507. Section 507 reads as follows: “507. Remedy of owner of building or land against occupier who prevents his complying with any provisions of this Act. (1)If the owner of any building or land is prevented by the occupier thereof from complying with any provision of this Act or 4 of any regulation or by-law made under this Act or with any requisition made under this Act or under any such regulation or by-law in respect of such building or land, the owner may apply to the Chief Judge of the Small Cause Court. (2)The said Chief Judge, on receipt of any such application, may make a written order requiring the occupier of the building or land to afford all reasonable facilities to the owner for complying with the said provision or requisition and may also, if he thinks fit, direct that the cost of such application and order be paid by the occupier. (3) After eight days from the date of any such order, it shall be incumbent on the said occupier to afford all such reasonable facilities to the owner for the purpose aforesaid as shall be prescribed in the said order; and in the event of his continued refusal so to do, 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.” Thus, the specific provision is made under Section 507 whereby the owner of the building can approach the Small Cause Court and seek direction against the occupiers to provide all reasonable facilities for compliance of any provisions of law, regulation or by law. As notice under Section 354 was issued to demolish/pull down certain structures, if the proceeding is filed before the Small Cause Court under Section 507, 5 naturally Small Cause Court will be required to hear the parties before passing appropriate order and also provide an opportunity to the occupiers to defend notice under Section 354 and to point out to the Court that the building was infact not in dilapidated condition and that it did not require demolition. If after hearing the parties Small Cause Court is satisfied that the building really requires to be demolished and the notice under Section 354 is not collusive, it can give necessary direction. After that if in spite of that direction, occupiers do not co-operate or vacate the premises and as a result, the owner is unable to comply with the notice under Section 354, in view of the provisions of Sub-section 3 of Section 507, owner shall be absolved from the liability which he would otherwise incur by not complying notice under Section 354. Not only this, when it becomes clear that owner has taken all the necessary steps but because of the difficulties or obstructions created by occupiers, he can not demolish the building and comply with the notice, the Municipal Corporation will be at liberty to take necessary steps to demolish that building on its own as provided under Section 489. In the present case, plaintiffs did not follow procedure laid down under Section 507 and directly filed suit before the City Civil Court seeking declaration that they are absolved from the liability. In fact, there is 6 nothing on record to show that they had taken all the necessary steps which would absolve them from the liability incurred by non-compliance of the notice. In fact, there was no need for the plaintiffs to seek any directions against the Municipal Corporation to demolish the building taking resort to Section 489. If the owner of the building fails to comply, Municipal Corporation has got the powers and the learned counsel for the Municipal Corporation makes a statement that Municipal Corporation would not fail from discharging its duties as per law. In the given circumstances proper steps would be to file proceeding under Section 507 before the Small Cause Court. Anyhow, the suit for declaration and the directions sought by the plaintiffs would not be tenable before the City Civil Court. Taking into consideration the facts and the legal position, I find no fault in the findings of the Civil Court that it had no jurisdiction to entertain the suit in the form in which it is filed. Therefore, there is no substance in the present appeal. 5 For the aforesaid reasons, appeal stands dismissed. (J.H. BHATIA,J.)