1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.2055 OF 2009 Arvind Laxmilal Pitty. ...Petitioner. Vs. The Municipal Corporation for Greater Mumbai . ...Respondent. .... Mr.A.Y. Sakhare, Sr.Advocate with Mr. J.S. Kini i/b. Mr.Suresh Dubey for the Petitioner. Mr. S.S. Pakale with Ms. T.H. Puranik for the Respondents. ..... CORAM : DR.D.Y.CHANDRACHUD, J. November 23, 2009. P.C. The challenge in these proceedings is to a notice by the Municipal Corporation of 19th April 2007 under Section 354 of the Mumbai Municipal Corporation Act, 1888. 2. The Petitioner is the owner and landlord of a building known as 43/45, Rajabahadur Mansion, Tamarind Lane, Fort, Mumbai-400 023. The building, which consists of a ground and two upper floors is stated to be over 150 years old. The building is tenanted and there are about 45 tenants. It has been stated that the 2 great grandfather of the present owner purchased the property by an Indenture of Conveyance from the Norwich Union Life Insurance Society. The Municipal Corporation issued a notice under Section 354 of the Mumbai Municipal Corporation Act, 1888 on 19th April 2007. The notice recites that an inspection of the building found that the external balconies and midlanding portion have tilted; the wooden staircases were in a dangerous condition and the mangalore tile roof has been damaged. The toilet block on the rear side of the building was found to be dangerous and cracks have appeared on the external face of the building. The Petitioner was required under Section 354 to have the building inspected through a registered Structural Engineer and to carry out the work suggested within thirty days. In the event of a default, the Petitioner was warned of adverse consequences, including by way of a prosecution under Section 475A. The Municipal Corporation instituted a prosecution on 20th June 2007. On 20th July 2009, the Petitioner has been convicted of an offence punishable under Section 475A(1)(a) for contravening the provisions of Section 354 and has been sentenced to suffer simple imprisonment for one year and to pay a fine of Rs.25,000/- and in 3 default, to suffer simple imprisonment for three months. 3. The challenge in these proceedings is not to the notice per se, but time limit of thirty days that was set up in the notice. The contention of the Petitioner is that the time limit of thirty days was incapable of being adhered to. It has been submitted that the primary difficulty in the case was that the building was in the occupation of forty five tenants and that to facilitate the work of repair, a committee of tenants was set up. The Petitioner has annexed to the writ proceedings, documentary material to establish the action that was taken after the receipt of the notice. This included the appointment of a certified Architect with intimation to the Municipal Corporation on 27th April 2007, obtaining of quotation for carrying out the work and the appointment of a contractor. It has been stated that the Architect's report was submitted on 11th May 2007 and the report of the Consulting Engineer was obtained on 21st May 2007, following which the Petitioner submitted an application under Section 342 for carrying out the work of repairs on 3rd November 2008. Permission is stated to have been granted on 17th February 2009. The no objection 4 certificate of the Heritage Committee was required which was obtained on 7th March 2009. The Municipal Corporation issued an IOD on 8th May 2009 and a commencement certificate was issued on 10th June 2009. The Contractor came to be appointed on 30th June 2009 and work has substantially progressed. According to Counsel appearing on behalf of the Petitioner, nearly 75% of the work has already been completed. By a communication dated 19th November 2009, addressed to the Assistant Commissioner, Building and Factory Department it is stated that as per the approved plans, the work of repairing of common passages, staircase, balcony, toilet block, mangalore tile roof and plastering the external load bearing wall has been completed. It has been stated that hence, 75% of the work has been completed while the balance will be completed by March 2010. 4. Counsel appearing on behalf of the Petitioner submitted that Section 354 of the Mumbai Municipal Corporation Act, 1888 does not prescribe any specific period for the completion of the work. In so far as this aspect of the matter is concerned, it would be necessary to note that Section 354 deals with removal and repair of structures 5 which are in ruins or are likely to fall. Section 354 provides as follows: “354. (1) It if shall at any time appear to the Commissioner that any structure (including under this expression any building, wall or other structure and anything affixed to or projecting from any building, wall or other structure)is it a ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to pull down, secure, or repair such structure, and to prevent all cause of danger therefrom. -(2) The Commissioner may also if he thinks fit, require the said owner or occupier, by the said notice, either forthwith or before proceeding to pull down, secure or repair the said structure, to set up a proper and sufficient hoard or fence for the protection of passers by and other persons, with a convenient platform and had-rail, if there be room enough for the same and the Commissioner shall think the same if there be room enough for the same and the Commissioner shall think the same desirable, to serve as a footway for passengers outside of such hoard or fence.” 5. Section 354 ex facie empowers the Commissioner to issue a notice requiring the owner or occupier of the structure to pull down, secure or repair the structure and to prevent all cause of danger therefrom, where it appears to the Commissioner that any structure is in ruinous condition or is likely to fall or is dangerous to any person 6 occupying, resorting to or passing by such structure. Therefore, the basis and foundation of the power conferred upon the Municipal Commissioner is to enable the Commissioner to direct the owner or occupier to take emergent action in order to prevent the danger that may arise out of the existence of a structure in a ruinous condition. The power is conferred upon the Commissioner with a view to protecting the public interest in the safety of structures and to obviate a danger to human life and property. It is in view of this object that Section 354 does not postulate any specific time period, because action has to be taken expeditiously. The reason why the legislature has not considered it fit to impose a specific time period, is because the nature of the period that is required to be granted would vary upon the facts of each case. In certain eventualities action may be required to be taken immediately to protect the occupiers and people who use the building or pass by the neighbourhood from an imminent danger of collapse of a structure or part thereof. The Municipal Commissioner must, therefore, have a considerable degree of discretion to order emergent action to be taken in order to ensure that the safety of the community and of those who occupy such 7 structures is not imperilled. 6. What Section 354 requires is for the owner or occupier to take steps to pull down, secure or repair the structure and to prevent all cause of danger therefrom. In a given case, it would be open to the owner or occupier to move the Municipal Commissioner with an application for extension of time by demonstrating his bona fides, that all necessary steps have been taken in accordance with law and by satisfying the Municipal Commissioner of the basis of which such an extension has been sought. Whether such an extension should be granted or what should be the extent of the extension is not a matter for the Court to determine, but for the Municipal Commissioner having regard to the exigencies of each case and the safety of the occupants of the building and of those in the vicinity who are liable to be affected by a danger of collapse. 7. In the present case, the Petitioner has placed before the Court, some material to indicate the steps taken upon receipt of the notice. These essentially require determinations of facts which may 8 be made by the Commissioner. In so far as the conviction of the Petitioner is concerned, it is needless to add that it is open to the Petitioner to take recourse to the remedies available in accordance with law. However, in respect of the period of thirty days that was prescribed by the notice dated 19th April 2007, it would be open to the Petitioner to submit a representation to the Municipal Commissioner pointing out the steps that were taken in compliance with the notice and making out a case for the grant of an extension. The Municipal Commissioner may consider it appropriate to hear the Petitioner in person before determining as to whether a case for the grant of an extension has been made out. In the event that the representation is submitted within a period of four weeks from today, the Commissioner is requested to decide the question whether a case for the grant of an extension has been made out, preferably within a period of three months of the receipt of the representation. The petition shall accordingly stand disposed of. .....