0212wp4738.08.sxw 1. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. WRIT PETITION NO. 4738 OF 2008 Gajanan Ramraoji Ambagovind & others Vs. The Corporation of the City of Nagpur & others Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED :02nd Dec., 2008. 1. By this writ petition the petitioners have challenged the orders passed by the Corporation Authorities on 18/9/2008 and 16/10/2008, in an appeal & revision filed by the petitioners. 2. Earlier, the Corporation had issued a notice to the petitioners under Section 289 (1) of the City of Nagpur Corporation Act, 1948 and ultimately the petitioners were permitted to repair the dilapidated premises by the order dated 21/02/1995 passed by the Municipal Commissioner. Again, a notice under Section 289(1) of the Act, 1948 was issued by the Corporation on 12/8/2005. The appeal and 0212wp4738.08.sxw 2. revision filed by the petitioners were dismissed by the Corporation Authorities. A writ petition challenging the orders passed in appeal as well as in revision was also dismissed on 01/02/2006. The letters patent appeal filed by the petitioners, however, was allowed by this Court by the judgment dated 23/6/2006 as it was found by this Court that the report of the Assistant Director of Town Planning was not secured before the issuance of notice dated 12/8/2005 under the provisions of Section 289(1) of the Act. 3. On 15/9/2006 a notice was issued under Section 289(1) of the Act. The same was challenged in writ petition No. 2013 of 2006. This Court, however, dismissed the writ petition on the ground of alternate remedy. It is not in dispute that the premises occupied by several tenants were already demolished in pursuance of notice dated 12/8/2005. It appears that only 3 or 4 tenants were in possession of the premises at the time of rendering of the decision in appeal, by the Corporation Authority on 18/9/2008. 0212wp4738.08.sxw 3. 4. Shri Z. A. Haq, the learned Counsel for the petitioners challenged the impugned orders dated 18/9/2008 and 16/10/2008 principally on two grounds. It is submitted on behalf of the petitioners that the Commissioner is required to form an opinion about the condition of the building under the provisions of Section 289 (1) of the Act and it is only after formation of the opinion by the Commissioner, that the notice under Section 289 can be issued to the petitioners. It is submitted on behalf of the petitioners that in the instant case there was no formation of the opinion by the Commissioner. The learned Counsel for the petitioners submitted that though it appears that the powers of the Commissioner were delegated to the Assistant Commissioners by issuance of general order under Section 59(5) of the Act, it is necessary for the Assistant Commissioner to exercise powers and perform duties and functions subject to the control and superintendence of the Commissioner as required under the provisions of Section 59(5) of the Act. It is submitted on behalf of the petitioners that there is nothing on record to 0212wp4738.08.sxw 4. show that the powers had been exercised by the Assistant Commissioner under the superintendence and control of the Commissioner. The learned Counsel for the petitioners therefore sought for setting aside of the notice under Section 289 (1) of the Act and also the orders passed by the Corporation authorities in appeal and revision. 5. Shri S. K. Mishra, learned Counsel for respondents No. 1 to 4 submitted that the notice under Section 89 (1) of the Act was passed on the report of the joint committee which was filed before the High Court in writ petition No. 5528 of 2006. The learned Counsel then submitted that the opinion was formed by the authorities on the basis of the report which was in existence prior to the issuance of notice and hence the appellate as well as revisional authorities have rightly held that the issuance of notice under Section 289(1) of the Act was based on the joint committee report. The learned Counsel further submitted that the Assistant Commissioner has no doubt exercised the jurisdiction to issue notice under 0212wp4738.08.sxw 5. Section 289(1) under the control and superintendence of the Commissioner and hence no fault can be found with the notice under Section 289(1) on that count. 6. Shri A. S. Kilor, learned Counsel for respondents No. 5 and 6 supported the orders passed by the principal authority and also sought dismissal of the writ petition by making submissions on similar lines. 7. I have perused the provisions of the City of Nagpur Corporation Act, 1948 and also the impugned orders. The submission made on behalf of the petitioners that the opinion was not formed by the Commissioner or the delegate before issuance of the notice under Section 289 (1) of the Act, is not well founded as in the instant case the joint committee report was in existence and it clearly showed the dilapidated and dangerous condition of the building in which the petitioners resided. In the earlier round of litigation, this Court had allowed the Letters patent appeal as there was no report of the 0212wp4738.08.sxw 6. Assistant Director of Town Planning and no material on record for issuance of notice under Section 289 (1) of the Act. But, such is not the case here. The report of the joint committee was duly considered by the Assistant Commissioner before issuance of notice to the petitioners. Hence, notice under Section 289(1) of the Act was passed on adequate material after forming an opinion on the basis of the same. 8. It also cannot be said that the powers of the Commissioner were not exercised by the Assistant Commissioner under the superintendence or control of the Commissioner in accordance with the provisions of Section 59 (5) of the Act of 1948. The reliance of the Counsel for the petitioners on note 2 of the general order of delegation dated 24/9/2004 for canvassing that it was necessary for the Assistant Commissioner to send the proposal pertaining to demolition of the house to the Commissioner is also not well founded for the reason that note 2 of the general order requires the Assistant Commissioner to send proposal in the matters of policy decision to 0212wp4738.08.sxw 7. the Commissioner. In fact, the duties mentioned in the general order and specially the duty at item No. 10 clearly empowers the Assistant Commissioner to take necessary action in regard to the dilapidated houses. 9. No fault can, therefore, be found with the notice issued by the Corporation Authorities under the provisions of Section 289 (1) of the Act. The orders passed by the Authorities in appeal and in revision and impugned in the instant petition also do not suffer from any jurisdictional error. The writ petition is therefore dismissed with no orders as to costs. An oral request is made on behalf of the petitioners for staying this order for a period of four weeks. The learned Counsel for the respondent-Corporation strongly opposes the prayer. However, since the stay is operational in the matter, it is necessary to protect the petitioners for a period of ten days only, at the risk of the petitioners. It is further made clear that time would not be extended in any case in 0212wp4738.08.sxw 8. the matter since it has rightly been pointed out on behalf of respondent-Corporation that this Court has in a Public Interest Litigation directed the Corporation Authorities to take immediate action for demolition of dilapidated structures in Nagpur. Steno-copy of this order be furnished to the parties, for necessary action, on request. Judge. wwl