NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4821 OF 2013
(Arising out of SLP(C) No. 16977 of 2011)
Makarand Dattatreya Sugavkar ....Appellant
versus
Municipal Corporation of Greater Mumbai and others ....Respondents
J U D G M E N T
G.S. SINGHVI, J.
1. Leave granted.
JUDGMENT
2. This appeal is directed against order dated 22.3.2011 passed by the
Division Bench of the Bombay High Court in Writ Petition No.187/2011
whereby the appellant’s prayer for issue of a mandamus to the Commissioner,
Mumbai Municipal Corporation (respondent No.2) to get the damaged portion of
his flat repaired was rejected but he was given liberty to secure execution of the
order passed by the Maharashtra State Cooperative Appellate Court, Mumbai
(hereinafter referred to as, ‘the Cooperative Appellate Court’).
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3. The appellant is a member of respondent No.3-Shree Sainiketan
Cooperative Housing Society Ltd. He was allotted Flat No.001 in the building
constructed by respondent No.3 at Borivali (West), Mumbai. Respondent No.3
claims to have carried out major repairs in 2005-06 and all its members except
the appellant contributed towards the expenses. The appellant disputed his
liability to pay the expenses incurred by respondent No.3 and raised a dispute
under the Maharashtra Cooperative Societies Act, 1960. It is not clear from the
record as to what was the fate of the original dispute filed by the appellant before
the Cooperative Court IV, Mumbai, but this much is evident that the matter was
carried to the Cooperative Appellate Court in Revision Application No.73/2007.
4. On 9.12.2007, a portion of the roof of the flat allotted to the appellant
collapsed and his mother is said to have suffered injuries. The appellant’s
brother, who is an Advocate, made a complaint to the officers of the Municipal
Corporation of Greater Mumbai (for short, ‘the Corporation’). Thereupon,
JUDGMENT
Assistant Engineer (Buildings and Factories), North Ward directed the concerned
Junior Engineer to inspect the flat. The latter inspected the premises on
10.12.2007 and reported that a portion of the roof had collapsed. Thereafter,
notice dated 12.12.2007 was issued to the Chairman/Secretary of respondent
No.3 under Section 354 of the Mumbai Municipal Corporation Act, 1888 (for
short, ‘the 1888 Act’) and they were directed to carry out repairs in the flat within
a period of two months. It was also mentioned in the notice that if the needful is
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not done then prosecution may be launched under Section 475-A and repairs may
be carried out under Section 489 and the cost recovered in accordance with
Section 491.
5. In the meanwhile, M/s. Parlekar and Dallas, Architects were directed by
the Court to visit the flat and submit a report about its status as also the estimate
of cost/expenses of repair works required to be carried out. The Architects
inspected the flat and submitted report showing the damage to the flat but did not
give an estimate of the cost of repairs.
6. After submission of the report by the Architects, the appellant filed
Miscellaneous Application No.1/2008 and made the following prayers:
“1. Respondent society be directed to pay fees of the
Architect and other relevant incidental fees/ expenses.
2. To bear the cost of the leave and license compensation
for such period starting from the date of start of leave and
license agreement by applicant till the date of suit flat declared
safe for resuming residing in it, by the expert structural
engineers and or architects and all other necessary incidental
expenses of leave and license agreement and its registration and
others. The above expenses should include such expenses that
may be required to be incurred on change and /or extension of
leave and license agreements.”
JUDGMENT
7. The Cooperative Appellate Court took cognizance of the correspondence
between the appellant and the officers of the Corporation on the one hand and the
officers of the Corporation and respondent No.3 on the other and the notices
issued by the Competent Authority under Section 354 of the 1888 Act and
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observed:
“As far as the first part is concerned, to pay the fees of the
architect, it is to be noted that it was the applicant who had
applied for appointment of an architect and at his instance M/s.
Parelkar & Dallas from the panel of architects of the Hon'ble
High Court had been appointed. They have submitted their
report but appears that because of their fees not being paid and
inspite of sending reminders, the appellant has failed to pay the
fees of the architect till today. Since it was the appellant himself
who had prayed for appointment of an architect, it is the moral
and legal responsibility of the applicant himself to pay the
amount. Hence, therefore as far as the question of payment of
fees of architect is concerned, the same to be paid by the
applicant.
Now coming to the second part of the relief prayed for as stated
in the report any work of repairs to be carried out the same to be
done through experienced civil Contractor under the advice of
registered Structural Engineer and under the supervision of a
site supervisor, duly registered with the MMC. In view of the
nature of the repairs it is necessary that a
competent/experienced person is required to carry out the
repairs so that no further damage is caused while carrying out
the repairs to the flat. Further the repairs are required to be
carried out in a planned manner. Hence therefore it is necessary
that a Structural Engineer/Contractor be appointed for that
purpose to carry out the work of repairs in the applicants flat.
JUDGMENT
Further point which is to be noted is that during the course of
carrying out the repairs it may become necessary to obtain
permission from statutory authorities to carry out the work,
otherwise there may be a possibility of stop work notice or
other notice being issued by the statutory Authorities. If such
notice is issued then obviously the repairs work which is
required to be carried out will come to a halt and there fore it is
necessary that all permission if any requited from statutory
authorities for carrying out the work to be obtained by the
contractor expeditiously.
Since the issues in the dispute are yet to be decided, by this
order passed the dispute is also to be decided as expeditiously
as possible.
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The exact details of the repairs of the suit flat and its expenses
etc. do not find place in the reports nor in the Misc.
Application. However, in that respect the applicant can pay the
expenses etc. and the same may be recovered from the
respondents subject to the outcome of the dispute.
Thus, therefore, today for the purpose of deciding this Misc.
Application No.1/2008 what is borne in mind are the two
reports. Unfortunately, the Structural Audit Report does not
mention anything about the details of observation of the inside
of the suit flat since the person concerned had not been
permitted to enter into the suit flat and looking to report it does
appear that repairs are essential to the suit flat to prevent any
further mishap.”
After making the aforesaid observations, the Cooperative Appellate Court
passed order dated 21.2.2008, the operative portion of which reads as under:
“1. Structural Engineer / Contractor to be appointed to carry
out the work of repairs of the applicants flat as per the report of
M/s Parelkar & Dallas, since no exact details of repairs are
mentioned in the MA NO.l/2008 or in the structural auditors
reports.
2. All permissions, if any, required form statutory
authorities for carrying out the work to be obtained by the
contractor expeditiously.
JUDGMENT
3. As prayed in revision application, costs of repairs etc. to
be borne by the applicant and recoverable form the respondents,
subject to the outcome of the dispute. The dispute to be
expedited and to be disposed of as expeditiously as possible.
4. The dispute to be expedited and to be disposed of as
expeditiously as possible.
5. Revision application no.73/2007 is reassigned to Ld.
Member Smt. Pawar for hearing on 3/3/2008 since Ld. Member
is attending camp at Pune Bench from 25/2/2008 to 29/2/2008.”
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8. In October-November, 2008 Executive Engineer (Special Zone VII)
inspected the appellant’s flat and submitted a separate report showing the extent
of damage. Thereafter, Assistant Commissioner, R/North Ward sent letter dated
22.12.2008 to the appellant and asked him to seek approval of the Commissioner
under Section 499 of the 1888 Act for executing the work with a stipulation that
once the approval is granted, he may deduct the expenses from the
rent/maintenance charges.
9. In 2009, the appellant along with his Advocate met the officers of the
Corporation to apprise them about further deterioration in the condition of the flat
and the constant threat under which his family was living. On 10.9.2009, Deputy
Municipal Commissioner (Zone-VII) and Assistant Engineer visited the flat and
found that its condition had worsened.
10. On 5.2.2010, the Assistant Engineer issued another notice under Section
354 to the Chairman/Secretary of respondent No.3 requiring it to carry out the
JUDGMENT
structural repairs to the east side of the columns of the society building at the
ground, first, second and third floors and the damaged portions in flat Nos.001
and 002. That notice contained stipulations similar to those specified in notice
dated 12.12.2007.
11. In response to the second notice, respondent No.3 sent reply dated 5.4.2010
mentioning that the appellant was not allowing inspection of the flat by its
Structural Auditor to facilitate the repairs. Thereupon, the Assistant
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Commissioner sent letter dated 22.4.2010 to the appellant and asked him to
remain present in the joint meeting arranged in his Chamber on 28.4.2010.
However, instead of attending the meeting, the appellant filed Writ Petition
No.187 of 2011 for issue of a mandamus to respondent No.2 to invoke Section
489 of the 1888 Act and get the flat repaired at the cost of respondent No.3. The
appellant pleaded that respondent No.2 was bound to take necessary steps in
terms of Section 489 because respondent No.3 had failed to comply with the
notices issued under Section 354 of the 1888 Act.
12. In the counter affidavit filed by respondent No.3 through its Honorary
Secretary, Shri Kishore Vedac, the following averments were made:
(i) Respondent No.3 carried out major repairs in the building in 2005-06 and
all the members except the appellant had paid their respective contribution.
(ii) When the appellant was asked to pay Rs.1,23,936/- towards his share of the
JUDGMENT
expenses, he filed a dispute before the Cooperative Court.
(iii) During the pendency of the dispute, the appellant filed Miscellaneous
Application No.1/2008, which was finally disposed of by the President of the
Cooperative Appellate Court vide order dated 21.2.2008 and certain directions
were given for repair of the flat.
(iv) The directions given by the Cooperative Appellate Court could not be
implemented because the appellant did not allow inspection of the flat.
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(v) After disposal of the earlier application, the appellant filed Interim
Application No. _____/09 with the prayer that respondent No.3 be directed to
carry out the repairs in terms of the report of M/s. Parelkar & Dallas and the same
is pending.
13. The Division Bench of the High Court took cognizance of the orders
passed by the Cooperative Appellate Court and disposed of the writ petition by
recording the following observations:
“ Having heard the Ld. counsel for the parties we are unable
to accept the petitioner's contention that for the structural
repairs to be carried out in the petitioner's flat the Munici-
pal commissioner should be directed to spend from the
public funds and thereafter, to recover the same from the
Respondent no.3 society. We do not find any such provision
in section 489 or 499 of the Act which would justify this
court to direct the Municipal Commissioner to spend for re-
pairs in a private flat from out of the public funds. At the
highest the petitioner is entitled to carry out repairs in his
flat and to recover the same from the respondent no.3 soci-
ety as per the decisions of the co-operative appellate court.
We, therefore, leave it open to the petitioner to approach
the Co-operative Court which will allow the petitioner to
withdraw the amount of approximate Rs.40,000/- deposited
during the pendency of the proceedings before the Co-
operative Court. The Petitioner will also be at liberty to
carry out repairs in his flat and recover the amount
from respondent no.3 society by taking out appropri-
ate execution proceedings for execution of the orders
of the Cooperative Appellate Court. If the petitioner
moves the Cooperative Court with an application for
withdrawal of the aforesaid amount, the Cooperative
Court shall pass appropriate order so as to enable the
petitioner to withdraw the amount within one week
from the date of filing the application.”
JUDGMENT
14. Shri Ram Jethmalani, learned senior counsel appearing for the appellant,
argued that the impugned order is legally unsustainable and is liable to be set
aside because the High Court failed to notice the mandate of Section 489 which
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imposes a duty on respondent No.2 to ensure that in the event of non-compliance
of the notice issued under Section 354, the repairs are carried out at the cost of
respondent No.3. Shri Jethmalani referred to Section 3(gg) of the 1888 Act to
show that the definition of the word ‘premises’ is comprehensive enough to
include public as well as private buildings and argued that respondent No.2 was
duty bound to take steps for repair of the damaged portion of the flat because
despite two notices issued under Section 354, respondent No.3 failed to undertake
the required repairs. Learned senior counsel submitted that even though use of
the word ‘may’ in Section 489(1) suggests that it is only an enabling provision,
this Court should interpret the same as mandatory else Section 354 will become
otiose.
15. Shri Pallav Shihsodia, learned senior counsel appearing for the
Corporation, argued that Section 489(1) is not couched in mandatory form and
respondent No.2 is not obliged to take steps for repair of the damaged portion of
JUDGMENT
the building or structure merely because the owner has failed to take steps in
terms of the notice issued under Section 354. Shri Shishodia further argued that
the plain language of Section 489 does not admit the interpretation placed by Shri
Jethmalani because the Legislature has deliberately used the expression ‘the
Commissioner may..............’. He submitted that if the language of Section 489 is
construed as casting a duty on the Commissioner to take measures for execution
of the notices issued under Section 354 and other sections enumerated in sub-
section (2) of Section 489, then it will become impossible for him to perform his
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duties under various other provisions of the Act. Shri Shihsodia also pointed out
that in terms of Section 499, the appellant could have obtained approval of the
Commissioner for repair of the flat and recovered the cost from respondent No.3
by making appropriate deduction towards the rent and maintenance charges.
Learned senior counsel invited our attention to letter dated 22.10.2008 sent by the
Assistant Commissioner to the appellant requiring him to seek approval of the
Commissioner for the execution of works in terms of Section 499 and argued that
the appellant cannot take advantage of his own failure to seek necessary approval
from the Competent Authority.
16. Shri Shivaji M. Jadhav, learned counsel appearing for respondent No.3,
supported the impugned order and submitted that in view of the directions given
by the Cooperative Appellate Court, the appellant can recover the cost of repairs
from respondent No.3 subject to final adjudication of the dispute.
17. We have considered the respective arguments and carefully perused the
JUDGMENT
record. Sections 3(gg), 354, 489,490, 491 and 499 of the 1888 Act, which have
bearing on the decision of the issue involved in this appeal read as under:
“premises” includes messuages, buildings and lands of any tenure, whether open or
“ 3(gg).
enclosed, whether built on or not and whether public or private.
354. Removal of structures, etc., which are in ruins or likely
to fall.
(1) If it 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 in a ruinous condition, or
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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, subject to
the provisions of section 342 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
handrail, 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.
489. Works, etc. which any person is required to execute
may in certain cases be executed by the Commissioner at
such person's cost.
(1) When any requisition or order is made, by written notice by
the Commissioner or by any municipal officer empowered
under section 68 in this behalf, under any section, subsection or
clauses of this Act mentioned in sub-section (2), a reasonable
period shall be prescribed in such notice for carrying such
requisition or order into effect, and if, within the period so
prescribed, such requisition or order or any portion of such
requisition or order is not complied with the Commissioner may
take such measures or cause such work to be executed or such
thing to be done as shall, in his opinion be necessary for giving
due effect to the requisition or order so made; and, unless it is in
this Act otherwise expressly provided, the expenses thereof
shall be paid by the person or by any one of the persons to
whom such requisition or order was addressed.
JUDGMENT
(2) The sections, sub-sections and clauses of this Act referred to
in sub-section (1) are the following, namely:—
Section 230, sub-section (5) Section 305
Section 231. Section 308, sub-section (2)
Section 232. Section 309, sub-section (1)
Section 233, clause (b). Section 311
Section 233A, clause (b) Section 315
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Section 243, sub-section (2) Section 325
Section 248, sub-section (1) Section 326, sub-section (3)
Section 249A Section 327, sub-section (1),
clause (d)
Section 257 Section 328, sub-section (3).
Section 271, sub-section (2) Section 328A, sub-section (3).
Section 272, sub-section (5) Section 329, sub-section (1).
Section 274, sub-sections (1)
and (1A)
Section 334, sub-section (1).
Section 274A, sub-sections (1)
and (2)
Section 338, sub-section (2).
Section 278 Section 352.
Section 353. Section 380.
Section 354. Section 381.
Section 363, sub-sections (1),
(2), (3) and (4).
Section 381A, sub-section (2).
Section 375. Section 382.
Section 375A. Section 383, sub-section (1).
Section 376. Section 392, sub-section (1).
Section 377. Section 405.
Section 377A. Section 425, sub-section (1).
(3) The Commissioner may take any measure, execute any work or cause
anything to be done under this section, whether or not the person who has
failed to comply with the requisition or order is liable to punishment or has
been prosecuted or sentenced to any punishment for such failure.
490. Recovery of expenses of removals by the
Commissioner under sections 314, 315, 354 and 380.
JUDGMENT
(1) The expenses incurred by the Commissioner in effecting
314 or sub-section (3) of section 322 or sub-
any removal under section
section (2) or (3) of section 354A or, in the event of a written notice issued
under sub-section (1) of section 315 or section 354 or 380 not being complied
with under section 489, shall be recoverable by sale of the materials removed,
and if the proceeds of such sale do not suffice, the balance shall be paid by the
owner of the said materials.
(2) But, if the expenses of removal are in any case paid
before the materials are sold, the Commissioner shall restore the
materials to the owner thereof, on his claiming the same at any
time before they are sold or otherwise disposed of, and on his
paying all other expenses, if any, incurred by the Commissioner
in respect thereof or in respect of the intended sale or disposal
thereof.
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(3) If the materials are not claimed by the owner thereof,
they shall be sold by auction or otherwise disposed of as the
Commissioner thinks fit if perishable forthwith, and if other
than perishable, as soon as conveniently may be after one
month from the date of their removal, whether the expenses of
the removal have in the meantime been paid or not and the
proceeds, if any, of the sale or other disposal, shall, after defraying therefrom the costs of the sale
or other disposal, and, if necessary, of the removal, be paid to the credit of the municipal fund, and
shall be the property of the corporation.
Notwithstanding anything contained in this Act, when the removal of
(4)
anything is effected under section 314, the Commissioner may direct that the
owner thereof shall, in addition to the expenses incurred in effecting the
removal of the thing, pay by way of penalty such sum not exceeding ten
thousand rupees as the Commissioner may specify, and such sum if not paid,
shall be recoverable in the same manner in which the expenses incurred in
effecting the removal of the thing are recoverable.
491. Expenses recoverable under this Act to be payable on
demand; and if not paid on demand may be recovered as an
arrear of property tax.
(1) Whenever under this Act, or any regulation or by-law made
under this Act, the expenses of any work executed or of any
measure taken or thing done by or under the order of the
Commissioner or the General Manager or of any municipal
officer empowered under section 68 in this behalf are payable by any
person, the same shall be payable on demand.
(2) If not paid on demand the said expenses shall be
recoverable by the Commissioner or the General Manager
(2) of section 503, by distress
subject to the provisions of sub-section
and sale of the goods and chattles of the defaulter, as if the amount thereof
were a property tax due by the said defaulter.
JUDGMENT
499. In default of owner, the occupier of any premises may
execute required work recover expenses from the owner.
(1) Whenever, the owner of any building or land fails
to execute any work which he is required to execute
under this Act or under any regulation or bye-law
made under this Act, the occupier, if any, of such
building or land shall be entitled to execute such
work in the manner set out in sub-section (2).
(2) The occupier or occupiers interested in such work may seek
the approval of the Commissioner for executing such work. The
Commissioner shall grant the approval unless other measures
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are taken by him to execute the said work. While granting the
approval the Commissioner shall specify the nature of the work.
Upon such approval being granted, the occupiers shall be
entitled to execute the said work and the expenses incurred for
such work shall for all purposes be binding on the owner. The
occupiers shall also be entitled to deduct amount of expenses
incurred for such work from the rent which from time to time
becomes due by them to the owner or otherwise recover such
amount from them :
Provided that, where such work is jointly executed by the
occupiers the amount to be deducted or recovered by each
occupier shall bear the same proportion as the rent payable by
him in respect of his premises bears to the total amount of the
expenses incurred for such work :
Provided further that, the total amount so deducted or
recoverable shall not exceed the amount of expenses incurred
for such work.”
18. An analysis of the above reproduced provisions makes it clear that the term
premises” includes public as well private messuages, buildings and lands. Section 354 (1) provides for issuance of notice to
“
the owner or occupier of any structure to pull down the same or secure or repair such structure,
subject to the provisions of Section 342 and to prevent every possible cause of danger therefrom.
Section 354(2) empowers the Commissioner to issue direction for urgent implementation of the
JUDGMENT
notice for pulling down of the structure or repair of the same. Section 489(1) deals with a situation
in which the person to whom a notice is issued either under Section 354 or any other section
enumerated in Section 489(2) has failed to comply with the same. In such an eventuality, the
Commissioner is empowered to take such measures or cause such works to be executed or such
things to be done which, in his opinion, may be necessary for giving effect to the requisition or order
made under the particular section. This section also lays down that unless otherwise provided in the
1888 Act, the expenses of such work etc. shall be paid by the person to whom such requisition or
order was addressed. Section 489
(3) empowers t he Commissioner to take any measure, execute
any work or cause anything to be done under that section irrespective of the fact that the wrongdoer
is liable to be punished or has been prosecuted or sentenced to any punishment. Section
490(1) provides for recovery of expenses incurred by the Commissioner in
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effecting any removal under Section 314 or 322(3) or 354A(2) or (3). This
section lays down that in the event the written notice issued under Section 315(1)
or 354 or 380 is not complied with under Section 489, then the expenses shall be
recoverable by sale of the materials removed. Section 490(2) and (3) contain
provisions ancillary to Section 490(1). Section 491 lays down that expenses of
any work executed or of any measure taken or thing done by or under the order of
the Commissioner etc. shall be payable on demand. If the demand is not satisfied,
proceedings can be taken against the defaulter for recovery by distress and sale of
goods and chattels. Section 499(1) is an enabling provision. It empowers the
occupier of any building or land to execute the work which the owner of any
building or land has failed to execute in accordance with the provisions of the Act
or regulation or bye-laws made thereunder. Section 499(2) lays down that before
executing the work referred to in Section 499(1), the occupier or occupiers of the
building or land, as the case may be, may seek approval of the Commissioner,
JUDGMENT
who, in turn, has to grant such approval unless he has taken other measures for
execution of such work. Once the approval is granted, the occupier is entitled to
execute the work and deduct the expenses incurred for such work from the rent
payable to the owner.
19. A careful reading of Sections 354 and 489 shows that if the Commissioner
is satisfied that any structure is in 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 structure or place in the neighbourhood thereof, then he can require the
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owner or occupier of such structure to pull down, secure or repair the same and to
prevent cause of danger therefrom. The word ‘structure’ used in sub-section (1)
of Section 354 includes any building, wall and other structure and anything fixed
to or projecting from any building, wall or other structure. Under Section 354(2),
the Commissioner can direct the owner or occupier to take steps enumerated in
Section 354(1) on emergency basis. If the owner or occupier fails to take steps in
terms of Section 354(1) or (2), then the Commissioner can suo motu take such
measures or cause such works to be executed. In that event the expenses incurred
in the taking of appropriate measures and/or execution of work are required to be
paid by the person or by any one of the persons to whom the requisition or order
issued under Section 354 was addressed. The other sections mentioned in Section
489(2), which relate to amenities like drains, water closets, privies, urinals,
private water supply, leveling and draining of private streets, prohibition of
projection upon streets, removal of any structure or fixture erected or set up
JUDGMENT
before the enforcement of Section 312, provision of passage or diversion of traffic
and for securing access to the premises approached from the street, drainage,
water supply etc., provision for parking, naming of streets etc., alteration in the
location of gas pipes etc., submission of plans and other documents for erection of
building and supply of other information, inspection and sanitary regulation of
premises, regulation of private market buildings and slaughter houses,
disinfection of buildings etc. empower the Commissioner to take various steps for
ensuring erection of buildings in accordance with the sanctioned plans, laying of
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streets, drainage, sanitation etc. In appropriate cases, the Commissioner can issue
directions for maintaining proper drainage, sanitation, cleanliness etc. and take
punitive measures for violation of such directions.
| | |
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| 20. Although, most of the above mentioned provisions are intended to benefit<br>the public at large, some of them are also meant for the benefit of private<br>individuals. The primary object underlying Section 354 is to safeguard the<br>public from the danger of being forced to live in a structure, which includes any<br>building, wall or other structure and which is in a ruinous condition or is likely<br>to fall or is in any way dangerous to any person occupying the same. This<br>section is also intended to protect those who may pass by such structure. A<br>reading of the plain language of Section 489 gives an impression that it is only<br>an enabling provision but if the same is read keeping in view the purpose of its<br>enactment and the setting in which it is placed, it becomes clear that the<br>Commissioner is duty bound to ensure that the written notice given to the owner<br>JUDGMENT<br>or occupier under Section 354(1) is implemented in its letter and spirit. The<br>duty cast upon the Commissioner is in the nature of a public law obligation and<br>in appropriate case, the Court can issue direction for its enforcement. In this<br>connection, we may usefully quote the following passage from 'Principles of<br>Statutory Interpretation' by Justice G.P. Singh (12th Edition, 2010 - page 389): | | |
| “As approved by the Supreme Court: "The question as to<br>whether a statute is mandatory of directory depends upon the<br>intent of the Legislature and not upon the language in which the | |
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| intent is clothed. The meaning and intention of the legislation<br>must govern, and these are to be ascertained not only from the<br>phraseology of the provision, but also by considering its nature,<br>its design and the consequences which would follow from<br>construing it the one way or the other" "For ascertaining the<br>real intention of the Legislature", points out Subbarao, J, "the<br>court may consider inter alia, the nature and design of the<br>statute, and the consequences which would follow from<br>construing it the one way or the other; the impact of the other<br>provisions whereby the necessity of complying with the<br>provisions in question is avoided; the circumstances, namely,<br>that the statute provides for a contingency of the non-<br>compliance with the provisions; the fact that the non-<br>compliance with the provisions is or is not visited by some<br>penalty; the serious or the trivial consequences, that flow there<br>from; and above all, whether the object of the legislation will be<br>defeated or furthered". If object of the enactment will be<br>defeated by holding the same directory, it will be construed as<br>mandatory, whereas if by holding it mandatory, serious general<br>inconvenience will be created to innocent persons without very<br>much furthering the object of enactment, the same will be<br>construed as directory. But all this does not mean that the<br>language used is to be ignored, but only that the prima facie<br>inference of the intention of the Legislature arising from the<br>words used may be displaced by considering the nature of the<br>enactment, its design and the consequences flowing from<br>alternative construction. Thus, the use of the words 'as nearly as<br>may be' in contrast to the words 'at least' will prima facie<br>JUDGMENT<br>indicate a directory requirement, negative words a mandatory<br>requirement 'may' a directory requirement and 'shall' a<br>mandatory requirement.”” | |
|---|
| | |
| In Bachahan Devi v. Nagar Nigam, Gorakhpur (2008) 12 SCC 372, this<br>Court observed: | | |
| “ | It is well-settled that the use of word `may' in a statutory |
|---|
| provision would not by itself show that the provision is | |
| directory in nature. In some cases, the legislature may use the | |
| word `may' as a matter of pure conventional courtesy and yet | |
| intend a mandatory force. In order, therefore, to interpret the | |
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| legal import of the word `may', the court has to consider various | |
|---|
| factors, namely, the object and the scheme of the Act, the | |
| context and the background against which the words have been | |
| used, the purpose and the advantages sought to be achieved by | |
| the use of this word, and the like. It is equally well-settled that | |
| where the word `may' involves a discretion coupled with an | |
| obligation or where it confers a positive benefit to a general | |
| class of subjects in a utility Act, or where the court advances a | |
| remedy and suppresses the mischief, or where giving the words | |
| directory significance would defeat the very object of the Act, | |
| the word `may' should be interpreted to convey a mandatory | |
| force. As a general rule, the word `may' is permissive and | |
| operative to confer discretion and especially so, where it is used | |
| in juxtaposition to the word 'shall', which ordinarily is | |
| imperative as it imposes a duty. Cases however, are not wanting | |
| where the words `may' `shall', and `must' are used | |
| interchangeably. In order to find out whether these words are | |
| being used in a directory or in a mandatory sense, the intent of<br>the legislature should be looked into along with the pertinent | |
| circumstances. The distin | ction of mandatory compliance or |
| directory effect of the lan | guage depends upon the language |
| couched in the statute u | nder consideration and its object, |
| purpose and effect. The di | stinction reflected in the use of the |
| word `shall' or `may' d | epends on conferment of power. |
| Depending upon the context, 'may' does not always mean may. | |
| 'May' is a must for enabling compliance of provision but there | |
| are cases in which, for various reasons, as soon as a person who | |
| is within the statute is entrusted with the power, it becomes his | |
| JUDGMENT<br>duty to exercise that power. Where the language of statute | |
| creates a duty, the special remedy is prescribed for non- | |
| performance of the duty.” | |
In Dhampur Sugar Mills Ltd. v. State of U.P. (2007) 8 SCC 338, this Court
| of Earl Cairns, L.J. in | Julius v. |
|---|
| “ | (W)here a power is deposited with a | | public officer for | the |
|---|
| purpose of being used fo | | r the benefit | of persons who are | |
| specifically pointed out, and with regard to whom a definition is | | | | |
| supplied by the Legislature of the conditions upon which they | | | | |
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| are entitled to call for its exercise, | that power ought to be | |
|---|
| exercised, and the Court will require it to be exercised.” | | |
21. In view of the above discussion, we may have set aside the impugned order
and issued a mandamus to respondent No.2 to ensure execution of the notices
issued under Section 354(1) but there are two impediments in adopting that
course. Firstly, the appellant could have availed of the remedy under Section 499
by making an application to the Commissioner for grant of approval to execute
the work which respondent No.3 is alleged to have failed to execute in terms of
the notices issued under Section 354. At one stage, the Assistant Commissioner
had sent letter dated 22.8.2012 to the appellant asking him to seek approval of the
Commissioner but for reasons best known to him, the appellant did not respond.
The second impediment is order dated 21.2.2008 passed by the Cooperative
Appellant Court. It is not in dispute that the appellant had raised a dispute under
the Maharashtra Cooperative Societies Act questioning the demand raised by
JUDGMENT
respondent No.3 in lieu of the repairs carried out in 2005-2006. It is also not in
dispute that during the pendency of the revision petition before the Cooperative
Appellate Court, the appellant had filed Miscellaneous Application No.1/2008,
which was disposed of by the concerned Court by detailed order dated 21.2.2008.
There is a lot of controversy between the appellant and respondent No.3 on the
issue of implementation of the directions given by the Cooperative Appellate
Court. While the appellant has blamed respondent No.3 for not taking steps to
repair the flat in terms of direction Nos. 1 and 2, the latter has accused the
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appellant of non-cooperation by stating that he persistently refused to allow
inspection by the Structural Auditor. However, we are not concerned with this
controversy and are of the considered view that once the appellant succeeded in
persuading the Cooperative Appellate Court to issue direction for repair of the flat
in question, he had no locus to file the writ petition under Article 226 of the
Constitution. In any case, instead of filing a petition under Article 226 of the
Cosntitution, the appellant should have taken steps for effective execution of the
order passed by the Cooperative Appellate Court. He could also have, by taking
advantage of letter dated 22.12.2008 sent by the Assistant Commissioner, sought
approval of the Commissioner under Section 499(2) for executing the work
relating to repairs and deducted the cost from the rent/maintenance charges.
22. In view of the above discussion, we hold that the Division Bench of the
High Court did not commit any error by relegating the appellant to the remedy of
seeking execution of the directions contained in order dated 21.2.2008 passed by
JUDGMENT
the Cooperative Appellate Court.
23. The appeal is accordingly dismissed leaving it open for the appellant to
secure execution of order dated 21.2.2008 passed by the Cooperative Appellate
Court.
.............................……......…………………..….J.
[ G.S. SINGHVI ]
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New Delhi, ...............................….……..…..………………..J.
July 01, 2013. [ SUDHANSU JYOTI MUKHOPADHAYA ]
JUDGMENT
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