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Judgment
D.G. Deshpande, J.—Heard Mr. Pande for the petitioner and Mr. Walawalkar for the BMC.
The petition is filed for quashing the proceedings started by the BMC against the petitioner filed before the Special Metropolitan Magistrate, 15th Court, Mazgaon, u/s 259(A) of the Bombay Municipal Corporation Act (BMC Act) and committed an offence u/s 471 of the BMC Act.
It was contended by Mr. Pande that these proceedings have been initiated by the Bombay Municipal Corporation (BMC) against the petitioner on the ground that the petitioner did not carry out the repairs as per the BMC Notice dated 27.7.1995, Exhibit ''E'' to the petition. However, according to Mr. Pande the petitioner-landlord who was paying repair cess to the MHADA through BMC and which was moving MHADA from 1991 for undertaking the repairs of his building was not in a position to and could not have carried out those repairs as per notice, Exhibit ''E'' to the petition. Firstly, because it was for the MHADA to carry out repairs u/s 76(c) of The Maharashtra Housing and Area Development Act, 1976 (MHADA Act) and secondly because MHADA has already undertaken to carry out structural repairs to the building and thirdly repairs as per, Exhibit ''E'' to the petition, should not have been carried out until and unless the structural repairs were completed by MHADA. He further pointed out Section 102 of the MHADA Act and since the petitioner was paying repair cess to MHADA, he could not be called upon by the BMC to carry out repairs which were required to be carried out by MHADA u/s 76 of the MHADA Act.
When this matter was previously heard, Mr. Walawalkar contended that BMC has already carried out those repairs and BMC had to recover something more than Rs. 1 lac towards the expenses of these repairs from the petitioner. Mr. Walawalkar produced necessary documents in that regard. As against these documents, it was contended by Mr. Pande that on the face of it the documents indicated that the repairs were of the year 1994; whereas notice, Exhibit ''E'' to the petition, which was given to the petitioner was of 1995. Further, Mr. Pande produced two notices issued by the BMC in July, 1995 and May, 1997 to the petitioner calling upon him to undertake the repairs. According to Mr. Pande both these notices falsify the contentions of the BMC that the repairs, as per Exhibit ''E'' to the petition were carried out by the BMC. Because according to him these two notices (zerox copy of which are obtained from Mr. Pande and taken on record) are almost identical.
This case therefore involves questions of law as well as question of fact and since disputed questions of facts cannot be decided by this Court while exercising revisionary powers, the matter is required to be sent back to the Magistrate.
However, it is necessary to clarify the legal position regarding the rights of the building owner with respect to his building and the repairs to be done by him as required by the BMC.
The preamble to MHADA Act, 1976 shows that the Board is constituted with this Act is intended to unify, consolidate and amend the laws relating to housing, repairing and reconstructing dangerous buildings and carrying out improvement works in the slum areas. Chapter VIII of this Act is in respect of repairs and reconstruction of dilapidated buildings. Section 74 provides that the Board constituted or established u/s 18 of this Act shall be Board for the purposes of carrying out the purpose of this Chapter. Section 76 further cast certain duties upon the Board which can be said to be statutory duties and Sub-section (c) requires the Board to undertake, from time to time, the work of ordinary and tenantable repairs, in respect of all premises placed at the disposal of the Board.
So far as the present case is concerned, the building of the petitioner can be said to have been placed at the disposal of the Board and if Section 76(c) only is considered then it is legal and statutory duty of the Board to carry out the tenantable repairs. However, rider has been provided in this very Chapter on the powers of the Board by virtue of Section 102 and the wording of Section 102 clearly shows that the provisions of Section 102 will override all other provisions of that Chapter VIII. Section 102 read as under:
(1) Nothing in this Chapter shall affect the powers of the Municipal Commissioner or any other authority or the rights or liabilities of any person (including the owner of any occupier) to carry out any repairs to any building, or to execute any works thereon or to take any other action in respect of such building authorised under Sections 257, 354, 377A, 381, 489 or 499 or any other provisions of the Corporation Act, or u/s 10D or 10E or any other provisions of the Rent Act, or under the provision of any other law for the time being in force, in so far as the said repairs, works or action does not require any structural repairs; and in so far as they do require structural repairs, until such repairs are undertaken by the Board :
Provided that, if any occupier of a building seeks the approval of the Municipal Commissioner u/s 499 of the Corporation Act, for carrying out structural repairs in respect of any such building, such approval may be given by the Municipal Commissioner only after consultation with the Board, but the occupier shall not be entitled to recover from the owner under the said Section 499 the expenses incurred by him on any such structural repairs ;
Provided further that, during the period this Chapter is in force, the provisions of Sections 10D and 10E of the Rent Act, shall not apply to any building, in so far as they relate to buildings undertaken or proposal to be undertaken by the Board for structural repairs.
(2) If, while carrying out any repairs, or executing any works or taking any action referred to in Sub-section (1), it becomes necessary for the Municipal Commissioner or any other authority or any person to carry out structural repairs also, and the Municipal Commissioner or such authority or person desires that the cost of the structural repairs should he paid by the Board, the Municipal Commissioner or such authority or person, as the case may be, shall obtain the previous sanction of the Board for such repairs. The Board may give such sanction on such terms and conditions as it may deem fit to impose, having regard to the priority, if any, assigned to the building under Sub-section (2) of Section 88 and availability of resources; or may not agree to give such sanction.
(3) Where sanction is given under Sub-section (2), it shall be lawful for the Board to pay the cost of the structural repairs actually carried out in lumpsum or by installments or according to the progress of the work from time to time as it may deem fit.
(4) When the Board pays the cost of the structural repairs in full, or when a period of three months elapses after the Board has paid not less than seventy-five per cent of such cost, whichever is earlier, the building shall be deemed to be structurally repaired by the Board under this Chapter.
Bare reading of this Section 102 will therefore show that even if Section 76(c) casts a statutory duty or legal duty on the Board to carry out tenantable repairs, Section 102 having over-riding effect over Section 76 and other provisions of the same Chapter retains powers of the Municipal Commissioner or any other authority under the BMC Act to carry out repairs and reimbursement of cost for structural repairs in certain cases. There is specific reference to Section 259-A of the BMC Act under which the impugned notice was given, under which the BMC is alleged to have carried out repairs and under which the BMC is now laying his claim for recovery of the amount. Therefore, contention of Mr. Pande that since it was the statutory duty of the Board to carry out repairs including the tenantable repairs u/s 76(c) of the MHADA Act and since the Board has undertaken those repairs, the petitioner could not carry out those repairs, pursuant to Exhibit ''E'' cannot be accepted in view of the provisions of Section 102 of the MHADA Act. So far as other contentions raised by Mr. Pande, namely, that incurring of expenses by the BMC, their applicability or non-applicability and issuance of notices in 1995 and 1997 in respect of the same repairs meaning thereby that the claim and contentions of the BMC regarding carrying out repairs in pursuance of notice. Exhibit ''E� being false, are disputed facts which cannot be decided by this Court. Since the petitioner has directly moved this Court for quashing the proceedings without approaching the Trial Court, petition is required to be rejected. Hence, the order :
ORDER
Petition dismissed. Rule discharged. All these questions are however kept open for the purpose of adjudication before the Trial Court.
Prayer for stay is rejected.