This Court has examined the notice dated 18.11.2020, issued by respondent Nos. 3 and 4. It prima facie does not appear to be issued in a mechanical manner. There is reference made to the area of two storied structure, the condition of the structure as being bad and at various places even the walls having cracks in the said structure. It is then stated that demolition of the structure is necessary for larger good and to avoid any danger to human life. A structural audit report dated 27.10.2020 is on the record on the file of respondent Nos. 3 and 4 and having applied the same, the said notice has been issued. {Para 20}
21. In this backdrop, there is substance in the reliance placed by the learned counsel appearing for respondent Nos. 3 and 4 on judgement in the case of M/s. Sai Auto Parts and others Vs. State of Maharashtra and Ors. (supra), wherein the Division Bench of this Court has observed that the Court cannot sit in appeal over the satisfaction of the respondent-Corporation in such matters. There is also substance in reliance placed by learned counsel for respondent Nos. 3 and 4 on judgment in the case of Dattatray Ambo Mhatre & Ors. Vs. The State of Maharashtra & Ors.(supra), wherein the Division Bench of this Court observed that the Municipal Corporation is the only authority empowered to make such structural audits and to arrive at a decision to issue such a notice under Section 264 of the said Act, upon being satisfied, that it is necessary in the facts and circumstances of the individual case. Reliance placed on observations made by the Division Bench of this Court in the case of High Court on its own motion (in the matter of Jilani Building at Bhiwandi) Vs. Bhiwandi Nizampur Municipal Corporation & Ors.(supra) is also apposite for the reason that in the said judgment, it has been laid down as to why Courts ought not to interfere in such matters where safety of human lives is involved. It has been emphasized that a life lost is lost forever and the alternative is unimaginable. The learned counsel is also justified in relying upon the observations made by the Division Bench of this Court in the case of Municipal Corporation of Greater Mumbai Vs. State of Maharashtra(supra), wherein, inter alia, it is indicated that tenancy rights and dispute between the landlords and tenants would have nothing to do with a situation covered under Section 264 of the said Act, because what is important in such cases, is the material indicating satisfaction of the concerned authority, while issuing notice.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition No. 1871/2022
Decided On: 22.06.2022
Mahadeo Vs. Vimalbai and Ors.
Hon'ble Judges/Coram:
Manish Pitale, J.
Citation: MANU/MH/4921/2022
1. When the writ petition is called out for hearing, the learned counsel for the petitioner has handed over a rejoinder affidavit, it is taken on record.
2. By this writ petition, the petitioner is challenging concurrent orders passed by the two courts below, rejecting prayer for temporary injunction made on behalf of the petitioner in a pending suit.
3. The petitioner has filed Regular Civil Suit No. 983/2021, being a suit for declaration and permanent injunction against the respondents. By the said suit, the petitioner has challenged notice dated 18.11.2020, issued by respondent Nos. 3 and 4 i.e. the officials of the Nagpur Municipal Corporation. According to the petitioners, the said notice issued under Section 264 of the Maharashtra Municipal Corporations Act, 1949, is unsustainable as being mala fide and a nullity. In the said suit, it is alleged that respondent Nos. 1 and 2, being the landlords, having failed in earlier litigation between the parties, have been able to manipulate and manage the respondent Nos. 3 and 4 into issuing the aforesaid notice in a most mala fide manner, to somehow deprive the petitioner from enjoying the suit property. In the said suit, the petitioner filed an application for grant of temporary injunction, praying for an order restraining the respondents from interfering with the structure in question in any manner and from interfering in the process of repairing the structure that the petitioner intends to undertake.
4. The respondent Nos. 1 and 2 filed their written statement in the aforesaid suit and also reply to the application of temporary injunction, denying the allegations of the mala fide made against them and other respondents. They also raised a preliminary objection regarding maintainability of the suit under the provisions of the said Act.
5. By order dated 24.11.2021, the Court of 3rd Joint Civil Judge (Junior Division), Nagpur (hereinafter referred to as the "trial Court"), rejected the application of temporary injunction. Aggrieved by the same, the petitioner filed Misc. Civil Appeal No. 210/2021 before the District Court (hereinafter referred to as the "Appellate Court"). By the impugned judgment and order dated 22.03.2022, the Appellate Court dismissed the appeal and confirmed the order passed by the trial Court.
6. Aggrieved by the same, the petitioner approached this Court by filing the present writ petition, wherein notice was issued on 05.04.2022 and interim protection, that was granted by the Appellate Court during the pendency of the appeal, was continued.
7. The learned counsel for the respondents appeared and the petition was taken up for final disposal.
8. Mr. Sahil Dewani, learned counsel appearing for the petitioner submitted that both the courts below had concurrently erred in appreciating the facts of the present case, while rejecting the application of temporary injunction. It was submitted that the material placed on record sufficiently demonstrated mala fide approach of respondent Nos. 3 and 4 against the petitioner, at the behest of respondent Nos. 1 and 2. It was submitted that respondent Nos. 1 and 2 having been frustrated by earlier attempts to secure possession of the said premises in which the petitioner is a tenant, had resorted to provoking the respondent Nos. 3 and 4 in a most mala fide manner into issuing the impugned notice dated 18.11.2020. It was submitted that the Appellate Court committed a further error by observing that the suit filed by the petitioner itself was not maintainable. It was submitted that the said finding rendered by the Appellate Court was not only uncalled for but, it was in the teeth of law laid down by this Court as regards maintainability of a suit to challenge a notice under Section 264 of the said Act, notwithstanding the bar under Section 433A of the said Act.
9. Learned counsel for the petitioner also relied upon judgment and decree dated 02.05.2017, passed by the Small Causes Court, Nagpur, whereby a suit filed by the petitioner was decreed and the respondent Nos. 1 and 2 were restrained from disturbing peaceful possession of the petitioner and also directed the petitioner to make necessary repairs and adjust the rent as per Section 14 of the Maharashtra Rent Control Act, 1999. It was also brought to the notice of this Court that when the respondent Nos. 1 and 2 sought eviction of the petitioner on the ground of arrears of rent and bona fide need, the suit was dismissed by order dated 16.02.2018 by the Small Causes Court. It was submitted that although the judgment and decree dated 02.05.2017 was in force, the respondent Nos. 1 and 2 prevented the petitioner from carrying out repairs and thereafter, the said respondents caused the impugned notice dated 18.11.2020, issued by respondent Nos. 3 and 4. It was submitted that in the facts and circumstances of the present case, a prima facie case was made out and since balance of convenience and aspect of irreparable loss was clearly in favour of the petitioner, the application for temporary injunction ought to have been allowed.
10. The learned counsel for the petitioner relied upon the judgments in the cases of Municipal Corporation of Greater Mumbai Vs. Rajendra Phulchand Gupta & Ors. reported in MANU/MH0670/2022, Municipal Commissioner, Nagpur Municipal Corporation & Ors. Vs. Shivdatt & Sons and Ors. reported in MANU/MH/3318/2019, Maya Shrikant Sawant Dessai Vs. The Chief Secretary Government of Goa and Ors. reported in MANU/MH/0345/2015, Gajanan Ramraoji Ambagovind & Ors. Vs. Corporation of the City of Nagpur & Ors. reported in MANU/MH/0534/2006 : 2006(4) Mh.L.J. 789 and Ram Prakash Vs. Puttan Lal reported in MANU/SC/0529/2019 : AIR 2019 SC 1800.
11. On the other hand, Mr. Kunte, learned counsel appearing for respondent Nos. 3 and 4 i.e. the Municipal Corporation, submitted that there was no substance in the contentions raised on behalf of the petitioner, for the reason that the notice dated 18.11.2020 was issued after the respondent Nos. 3 and 4 had called for a report, which showed that the structure was in such a dilapidated condition that it was dangerous for human habitation and that demolition was the only option available. It was submitted that such a notice under Section 264 of the said Act, could not be challenged in a civil suit in view of the bar under Section 433A of the said Act and that in any case, the limited scope for entertaining the civil suit even as per judgments on which the learned counsel for the petitioner placed reliance, did not justify the petitioner having approached the civil court. It was further submitted that the allegation about mala fide and the notice being issued in bad faith, are not supported by material on record. It was brought to the notice of this Court that the impugned notice dated 18.11.2020 was made subject-matter of challenge by the petitioner himself before the Division Bench of this Court by filing Writ Petition No. 3694/2020, which was disposed of by order dated 15.09.2021. It was submitted that the observations made in the said order by the Division Bench of this Court, were telling in nature and further demonstrated why the petitioner did not deserve an order of temporary injunction in his favour. It was further submitted that this Court in various judgments, had emphasized upon the need to ensure that structures dangerous for human habitation are pulled down and demolished, so that uncalled for incidents are avoided. It was emphasized on the basis of such orders passed by this Court that when the Municipal Corporation issued notices based upon reasonable material placed on record, the Courts ought not to interfere as they do not sit in appeal over the notices issued by said authorities upon satisfaction based on material on record. Reliance was placed in the cases of High Court on its own motion (in the matter of Jilani Building at Bhiwandi) Vs. Bhiwandi Nizampur Municipal Corporation & Ors. in Sou Motu Public Interest Litigation No. 1/2020, Dattatray Ambo Mhatre & Ors. Vs. The State of Maharashtra & Ors. in Writ Petition No. 444/2019, M/s. Sai Auto Parts and others Vs. State of Maharashtra and Ors. in Writ Petition No. 3651/2019 and Municipal Corporation of Greater Mumbai Vs. State of Maharashtra reported in MANU/MH/0799/2014.
12. Mr. Joshi, learned counsel appeared on behalf of respondent Nos. 1 and 2 and submitted that the allegations made against the said respondents, were not made good by the petitioners and that the impugned orders did not deserve interference.
13. In the present case, it needs to be examined, whether the two courts below concurrently had fallen in error in rejecting the application of temporary injunction. The entitlement of an applicant seeking such reliefs, has to be tested on the well known parameters of prima facie case, balance of convenience in favour of the applicant and grave irreparable loss that such an applicant would suffer in the event the order of temporary injunction is not granted. There can be no doubt about the fact that, if the applicant fails to make out a prima facie case, the other two parameters pale into insignificance. Therefore, it needs to be examined whether the petitioner has been able to make out a prima facie case, while asserting that the notice dated 18.11.2020 issued under Section 264 of the said Act by respondent Nos. 3 and 4, is vitiated by mala fide and virtually amounts to a nullity. To reach a prima facie conclusion, in that regards, the material on record deserves to be taken into consideration.
14. It is emphasized on behalf of the petitioner that since the respondent Nos. 1 and 2 had failed in earlier rounds of litigation to somehow evict the petitioner from the suit premises, in a most mala fide manner, the said respondents caused the respondent Nos. 3 and 4 to issue the impugned notice dated 18.11.2020. In this regard, reference was made to judgment and decree dated 02.05.2017, passed by the Small Causes Court, whereby not only were the respondent Nos. 1 and 2 restrained from disturbing the peaceful possession of the petitioner in the suit property, but the petitioner was directed to make repairs of the structure in question. Much emphasis was also placed on a subsequent judgment and decree passed by the Small Causes Court, whereby a suit for eviction filed by respondent Nos. 1 and 2, was dismissed.
15. By referring to the said judgments and decrees passed by the Small Causes Court, it was sought to be highlighted that respondent Nos. 1 and 2 had caused the notice dated 18.11.2020, issued by respondent Nos. 3 and 4. The sequence of the events in the present case does not prima facie support the allegations that the petitioner appears to be drawing in the facts and circumstances of the present case. Although it was asserted that it was the respondent Nos. 1 and 2 i.e. the landlords, who had prevented the petitioner from carrying out necessary repairs of the structure, despite the decree in favour of the petitioner dated 02.05.2017, there was no material brought to the notice of this Court to indicate as to what attempts were made by the petitioners to carry out such repairs and in what manner, the respondent Nos. 1 and 2 had obstructed the petitioner from doing so. There is nothing to show that between 2017 and 2019, any such attempt was made on the part of the petitioner, which was frustrated by respondent Nos. 1 and 2.
16. It is also significant that when the petitioner approached the Division Bench of this Court by filing Writ Petition No. 3694/2020, to challenge the notice dated 18.11.2020, issued by respondent Nos. 3 and 4, while dismissing of the said petition, the Division Bench of this Court emphasized upon the value of human life and the necessity to ensure that human lives were safe and secure and protected, which was the responsibility of Municipal Authority, while dealing with structures that appeared to be dilapidated. In fact, in paragraph 6 of the order dated 15.09.2021, passed by the Division Bench of this Court, while dismissing Writ Petition No. 3694/2020, it was specifically observed that prima facie the show cause notice dated 18.11.2020, did not have any connection whatsoever with the judgment and decree dated 02.05.2017, passed in favour of the petitioner. Thus, the Division Bench of this Court found prima facie that the petitioner was not able to demonstrate any nexus between decree dated 02.05.2017, passed in his favour and the notice dated 18.11.2020, issued by respondent Nos. 3 and 4.
17. Therefore, it needs to be examined firstly, as to whether prima facie the suit filed by the petitioner can be said to be maintainable, because the aspect of a strong prima facie case in favour of the petitioner necessarily subsumes within itself examination of the question as to whether prima facie the suit filed by the petitioner can be said to be maintainable.
18. In this regard, the learned counsel appearing for the petitioner relied upon the aforementioned judgments of this Court, wherein despite the bar under Section 433A of the said Act, limited grounds were culled out, wherein such a suit could be said to be maintainable. In the case of Municipal Corporation of Greater Mumbai Vs. Rajendra Phulchand Gupta & Ors. (supra), this Court, inter alia, held as follows:
12. Thus, the aforesaid judgments, cull out the following limited grounds on which notice under Section 351 or 354A, may be questioned in the suit, when;
(a) act of issuance of notice is nullity, (b) the authority issuing such a notice, has not acted in conformity with the fundamental judicial procedure.
(c) notice has been issued by misusing the power; and
(d) offending act has not been done in good faith.
19. Thus, limited grounds would be available to a litigant to approach the civil court, despite the aforesaid bar under Section 433A of the said Act. But, the question would be as to whether the petitioner in the present case has prima facie made out existence of such limited ground or grounds for approaching the civil court. The two courts below have concurrently found that the petitioner failed to make out such a case. As noted above, the Division Bench also took a view that prima facie the petitioner was unable to show a nexus between the earlier litigations between respondent Nos. 1 and 2 and the petitioner and the notice dated 18.11.2020 issued by the respondent Nos. 3 and 4. Therefore, it cannot be said that the observations made by the Appellate Court in the impugned order regarding maintainability of the suit, are completely of the mark. But, there is some substance in the contentions raised on behalf of the petitioner that the observations appear to be sweeping in nature, but such observations can be taken care of by clarifying the same. Nonetheless, it cannot be said that the two courts below erred in rejecting the contentions of the petitioner that prima facie the notice dated 18.11.2020 was mala fide and issued in bad faith.
20. This Court has examined the notice dated 18.11.2020, issued by respondent Nos. 3 and 4. It prima facie does not appear to be issued in a mechanical manner. There is reference made to the area of two storied structure, the condition of the structure as being bad and at various places even the walls having cracks in the said structure. It is then stated that demolition of the structure is necessary for larger good and to avoid any danger to human life. A structural audit report dated 27.10.2020 is on the record on the file of respondent Nos. 3 and 4 and having applied the same, the said notice has been issued.
21. In this backdrop, there is substance in the reliance placed by the learned counsel appearing for respondent Nos. 3 and 4 on judgement in the case of M/s. Sai Auto Parts and others Vs. State of Maharashtra and Ors. (supra), wherein the Division Bench of this Court has observed that the Court cannot sit in appeal over the satisfaction of the respondent-Corporation in such matters. There is also substance in reliance placed by learned counsel for respondent Nos. 3 and 4 on judgment in the case of Dattatray Ambo Mhatre & Ors. Vs. The State of Maharashtra & Ors.(supra), wherein the Division Bench of this Court observed that the Municipal Corporation is the only authority empowered to make such structural audits and to arrive at a decision to issue such a notice under Section 264 of the said Act, upon being satisfied, that it is necessary in the facts and circumstances of the individual case. Reliance placed on observations made by the Division Bench of this Court in the case of High Court on its own motion (in the matter of Jilani Building at Bhiwandi) Vs. Bhiwandi Nizampur Municipal Corporation & Ors.(supra) is also apposite for the reason that in the said judgment, it has been laid down as to why Courts ought not to interfere in such matters where safety of human lives is involved. It has been emphasized that a life lost is lost forever and the alternative is unimaginable. The learned counsel is also justified in relying upon the observations made by the Division Bench of this Court in the case of Municipal Corporation of Greater Mumbai Vs. State of Maharashtra(supra), wherein, inter alia, it is indicated that tenancy rights and dispute between the landlords and tenants would have nothing to do with a situation covered under Section 264 of the said Act, because what is important in such cases, is the material indicating satisfaction of the concerned authority, while issuing notice.
22. This Court has examined the material on record and it is found that two courts below concurrently were justified in reaching the conclusion that the petitioner failed to make out a prima facie case in his favour. Therefore, examination of the aspects of balance of convenience and irreparable loss, is rendered irrelevant.
23. The petitioner has failed to make out a case for exercise of writ jurisdiction by this Court and, therefore, the writ petition deserves to be dismissed.
24. Accordingly, the writ petition is dismissed. Pending applications, if any, stand disposed of. It is made clear that the observations made by the two courts below and this Court are restricted to the question of considering the application for temporary injunction and that the trial Court shall proceed to decide the suit uninfluenced by said observations.
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