- (1.) THE above four petitions under Article 227 of the Constitution of India are directed against an order dated November 28, 1969 passed by the Chief Judge of the Court of Small Causes at Bombay in two applications filed under Section 507 of the Bombay Municipal Corporation Act, 1888. The said two applications were filed by respondent Nos. 2 to 8 in special civil application No. 259 of 1970, who own the premises bearing No. 61. Clive Road, Danabunder Bombay No. 9 consisting of a ground floor and two upper floors. Municipal Application No. 174/m of 1966 was filed against 17 tenants, one of whom is the petitioner in special civil application No. 259 of 1970. He was respondent No. 259 of 1970. He was respondent No 15 in the application. Municipal application No. 175/m of 1966 was filed against 16 respondents mentioned therein, of whom the petitioners in special civil application Nos. 744, 745 and 750 were some of the respondents. They were described as occupants, who were not the tenants of the owners.
(2.) IN both the applications respondents Nos. 2 to 8 in special civil application No. 259 of 1970 (who will be hereinafter described as "the owners") stated that they were served with a notice bearing No. 18 dated June 11, 1965 from the Assistant Engineer, Division B, Bombay Municipal Corporation, which is as follows :- "bombay MUNICIPAL CORPORATION notice under Section 354 of the Bombay Municipal Corporation Act, No. BN/18 of 1965 - 1966 bombay, dt. 11-6-1965. To shri Parasram Dhanpat, the Owner of the Building whereas it appears to me that the certain structure, to wit, a portion of the building on premises No. 61 situate at Clive Road, of which you are the owner is in a ruinous condition, likely to fall and dangerous to any person occupying, resorting to, or passing - by the same. I hereby require you, under Section 354 of the Bombay Municipal Corporation Act to to pull down the whole building upto ground level. Time limit 30 days. Note : The building is presumed to face Clive Road, on east and to prevent all cause of danger therefrom, I further hereby require you, under the aforesaid section of the Municipal Corporation Act, forthwith before proceeding to pull down, and secure the said structure to set up a proper and sufficient board or fence for the protection of passers - by and other persons. I give you notice that, if within 30 days from the service or receipt hereof this requisition be not complied with you render yourself liable to prosecution under Section 471 of the said Act and I may thereafter, pursuant to the provisions of Section 489 of the said Act take such measures or cause such work to be executed or such thing to be done as shall in my opinion be necessary for giving due effect to this requisition and you will be liable for the expenses thereof which will be recovered from you in the manner provided by Section 491 of the said Act. No portion of the structure within the regular line of the street may be reconstructed nor may anything within the scope of Section 342 of the said Municipal Corporation Act, other than the work which you are expressly required by this notice to do, be made or done without previously giving notice thereof as required by Section 342 aforesaid. Sd/- (Illegible)Sd/ Coutinho s. E. B. South assistant Engineer division B bombay Municipal Corporation. Note : Under S. 68 of the Bombay Municipal Corporation Act the Municipal Commissioner for Greater Bombay has empowered the Asstt. Engineer Division B to exercise perform and discharge all the powers duties and functions conferred and imposed upon and vested in the Commissioner by Sections 354 and 489 of the said Act". It was alleged by the owners that although the owners were called upon by the said notice to pull down the said building upto the ground level as the building stood in a ruinous condition, the petitioners in these special civil applications and the other tenants and occupants (who will all be hereinafter described as "occupiers") failed to vacate the premises and made it impossible for the owners to comply with the notice, which was given under Section 354 of the Bombay Municipal Corporation Act and rendered respondent No. 2 in special civil application No. 259 of 1970, Parasram Dhanpat, liable for prosecution by the Bombay Municipal Corporation. It was alleged that a case bearing No. 563 of 1965 was filed against respondent No. 2, one of the owners, in the Court of the Presidency Magistrate, 28th Court, Esplanade, Bombay and he was convicted and sentenced to pay a fine of Rs. 50/- in the said case on February 22, 1966. The owners further alleged that thereafter a portion of the wall supporting the staircase leading to the second floor of the building in the premises referred to above collapsed, resulting in further deterioration of the structural condition of the building. The Municipal authorities then warned some of the occupants by a notice through their Advocate dated June 6, 1966 to vacate the premises occupied by them forthwith. In spite of this, the occupants failed and neglected to vacate the premises and refused to afford necessary facilities to the owners to pull down the building as required by the aforesaid notice dated June 11, 1965. It is in these circumstances that the two applications mentioned above were filed by the owners on July 13, 1966 under Section 507 of the Bombay Municipal Corporation Act.
(3.) THE petitioners in these special civil applications resisted the owners' applications by filing affidavits in reply to the applications contending inter alia that the applications were not properly filed, that they were belated and mala fide, that the owners had got the notice issued in collusion with Municipal officials with a view to get rid of the petitioners and other occupiers and thereafter to sell the plot as an open plot fetching a fabulous price or to reconstruct on it and let the same out to others free of any claim of the tenants, that the aforesaid notice purported to have been issued by the Assistant Engineer was invalid inasmuch as the signatory to the notice had no legal and valid authority to issue it and the notice was arbitrary, capricious and mala fide and that it was not expedient to pull down the tenements let out to the petitioners.;