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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.

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,  

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.”

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.

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.

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  

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  

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.”

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  

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  

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:

“3(gg). “premises” includes messuages, buildings and lands of any tenure, whether open or  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.

(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.

(1)  The expenses  incurred  by the  Commissioner  in  effecting  any removal under section 314 or sub-section (3) of section 322 or sub- 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.

(4)  Notwithstanding  anything  contained  in  this  Act,  when  the  removal  of  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  subject to the provisions of sub-section (2)  of section 503,  by distress  and sale of the goods and chattles of the defaulter, as if the amount thereof  were a property tax due by the said defaulter.

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  

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 the 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,  

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  

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.

20. Although, most of the above mentioned provisions are intended to benefit  

the  public  at  large,  some of  them are  also  meant  for  the  benefit  of  private  

individuals.   The primary object  underlying Section 354 is  to  safeguard the  

public from the danger of being forced to live in a structure, which includes any  

building, wall or other structure and which is in a ruinous condition or is likely  

to fall or is in any way dangerous to any person occupying the same.  This  

section is also intended to protect those who may pass by such structure.  A  

reading of the plain language of Section 489 gives an impression that it is only  

an enabling provision but if the same is read keeping in view the purpose of its  

enactment  and  the  setting  in  which  it  is  placed,  it  becomes  clear  that  the  

Commissioner is duty bound to ensure that the written notice given to the owner  

or occupier under Section 354(1) is implemented in its letter and spirit.  The  

duty cast upon the Commissioner is in the nature of a public law obligation and  

in appropriate case, the Court can issue direction for its enforcement.  In this  

connection, we may usefully quote the following passage from  'Principles of  

Statutory Interpretation' by Justice G.P. Singh (12th Edition, 2010 - page 389):  

“As  approved  by  the  Supreme  Court:  "The  question  as  to  whether a statute is mandatory of directory depends upon the  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  must govern, and these are to be ascertained not only from the  phraseology of the provision, but also by considering its nature,  its  design  and  the  consequences  which  would  follow  from  construing it  the one way or the other" "For ascertaining the  real intention of the Legislature", points out Subbarao, J, "the  court  may  consider  inter  alia,  the  nature  and  design  of  the  statute,  and  the  consequences  which  would  follow  from  construing it the one way or the other; the impact of the other  provisions  whereby  the  necessity  of  complying  with  the  provisions in question is avoided; the circumstances,  namely,  that  the  statute  provides  for  a  contingency  of  the  non- compliance  with  the  provisions;  the  fact  that  the  non- compliance  with  the  provisions  is  or  is  not  visited  by some  penalty; the serious or the trivial consequences, that flow there  from; and above all, whether the object of the legislation will be  defeated  or  furthered".  If  object  of  the  enactment  will  be  defeated by holding the same directory, it will be construed as  mandatory, whereas if by holding it mandatory, serious general  inconvenience will be created to innocent persons without very  much  furthering  the  object  of  enactment,  the  same  will  be  construed  as  directory.  But  all  this  does  not  mean  that  the  language used is to be ignored, but only that the prima facie  inference of  the intention of  the Legislature arising from the  words used may be displaced by considering the nature of the  enactment,  its  design  and  the  consequences  flowing  from  alternative construction. Thus, the use of the words 'as nearly as  may  be'  in  contrast  to  the  words  'at  least'  will  prima  facie  indicate a directory requirement, negative words a mandatory  requirement  'may'  a  directory  requirement  and  'shall'  a  mandatory requirement.””

In Bachahan Devi v. Nagar Nigam, Gorakhpur (2008) 12 SCC 372, this  

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  the legislature should be looked into along with the pertinent  circumstances.  The  distinction  of  mandatory  compliance  or  directory  effect  of  the  language  depends  upon  the  language  couched  in  the  statute  under  consideration  and  its  object,  purpose and effect. The distinction reflected in the use of the  word  `shall'  or  `may'  depends  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  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  

quoted with approval the following observations of Earl Cairns, L.J. in Julius v.  

Lord Bishop of Oxford (1880) 5 AC 214:  

“(W)here  a  power  is  deposited  with  a public  officer  for  the  purpose  of  being  used  for 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  

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  

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 ]

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