1. In these proceedings, the petitioners seek to challenge proceedings for acquisition initiated u/s 91(3) of the Maharashtra Housing and Area Development Act, 1976 in respect of property situated at 51-53, Keshavrao Khade Marg, Mumbai-400011. The property in question is stated to have been purchased by the First and Second Petitioners and their deceased brother in a public auction held by the Municipal Corporation for Greater Bombay on 15th September, 1970 under the provisions of the Bombay Municipal Corporation Act, 1888. A certificate of sale dated 14th January, 1971 was issued to the petitioners which was then registered with the Sub Registrar of Assurances. The brother of the First and Second Petitioners expired on 15th September, 1992 and the Third Petitioner is his widow.
2. Prior to September 1976, the property comprised of a Ground Floor and three upper floors. The upper floors and a portion of the Ground Floor were being used for residential purposes. The Bombay Housing and Area Development Board levied a repair cess on the aforesaid property and under the provisions of Section 84 of the Maharashtra Housing and Area Development Act, 1976 ("the Act"), the property was classified as belonging to category ''A'' since it was constructed prior to 1st September, 1940.
3. The property is stated to have been in need of structural repair and, under the provisions of the Bombay Building Repairs and Reconstruction Board Act, 1969, a certificate u/s 33(3) was issued on 2nd March, 1972. Plans and estimates were prepared in May 1972 under which the estimated cost of repair was determined at Rs. 78,871/- at the rate of Rs. 92.24 per sq. meters. Under the then applicable provisions of law, the budgetary limit for carrying out repairs was Rs. 75/- per sq. mtr. Since the petitioners and the tenants did not collect or pay the excess amount, a certificate u/s 33(3) came to be issued. Subsequently, the prescribed limit was enhanced from Rs. 75/- per sq. mtr. to Rs. 120/- per sq. mtr. and in 1975, upon the tenants offering to pay the excess amount, the certificate was withdrawn by the Board under a Resolution dated 29th September, 1975. The plans and estimates were thereafter modified by the Architect and the cost of repair was computed at the rate of Rs. 117,30 per sq. mtr. An amount of Rs. 28,000/- was communicated to the tenants as being the excess liable to be paid by them and it has been stated that the tenants paid the aforesaid amount on 21st April, 1976. In its affidavit in reply, the authority has stated in these proceedings that by the lime the property was inspected, its condition had become dilapidated and the revised estimate was ''now computed at Rs. 241.40 per sq. mtr. for carrying out repairs. According to the authorities, the tenants were thereupon called to pay an amount of Rs. 1,04,117/- which they failed to pay. Accordingly, the Board passed a resolution to cancel the withdrawal of the certificate issued u/s 33(3), in a meeting on 31st December, 1976 and a demolition order was also issued u/s 34(4).
4. On 14th June, 1976, a notice was issued by the Assistant Engineer, E-Ward of the Municipal Corporation by which the Corporation notified that the entire building upto the level of the Ground Floor, except the shops on the Ground Floor was required to be pulled down, in accordance with the orders of the Chief Technical Officer of the Bombay Building Repairs and Reconstruction Board according to whom the aforesaid portion had become dangerous. Therefore, it is common ground that in the month of September, 1976, the entire building, save and except for the Ground Floor, came to be demolished and pulled down. The Ground Floor has been in the occupation of certain tenants. According to the petitioners, on 17th June, 1982, the Special Land Acquisition Officer ("SLAO") issued a notice in exercise of power u/s 93 of the Act. The notice stated that the Third Respondent had issued a certificate u/s 88(3)(a) of the Act to the effect that the Board is of the opinion that the building is not capable of being repaired and rendered fit for habitation at reasonable expense and that the Board has consequently not considered it fit for repair under the Act. According to the authorities, the Board thereafter, submitted a proposal u/s 92(1) of the Act to the Government of Maharashtra for the compulsory acquisition of the land and building and that proposal was approved by the Government u/s 93(2) of the Act. In reply thereto, the petitioners filed their objections on 21st July, 1982.
5. The SLAO by an order dated 30th October, 1982, declined to accept the proposal for acquisition. In doing so, the SLAO noted that the certificate which had been issued initially on 2nd March, 1972, u/s 33(3) of the Act, was promulgated at a time when the ceiling limit on the cost of repairs prescribed under the Act was Rs. 75/- per sq. mtr. The Housing Board had initially on 29th September, 1975 passed a resolution withdrawing the said certificate. On 31st December, 1976, the resolution to withdraw the certificate was cancelled and as a result the original certificate dated 2nd March, 1972 was revived. In the meantime, the limit on the cost of repair had been increased from Rs. 75/- to Rs. 120/- per sq. mtr. with effect from 1st April, 1974. According to the SLAO, if the Board desired to acquire the property, a fresh resolution and a new certificate u/s 33(3) of the 1969 Act ought to have been issued with reference to the revised limit of Rs. 120/- per sq. mtr. In arriving at the aforesaid conclusion, the SLAO relied upon a Judgment of this Court in Appeal No. 207 of 1982 in Writ Petition No. 347 of 1982. Thus, in view of the aforesaid circumstances, the SLAO declined to accept or proceed upon the proposed acquisition.
6. The immediate development which led to the filing of the present proceedings was that on 30th December, 1989, a fresh notice was issued by the SLAO recording that the Housing Board had sent a proposal for acquisition u/s 91(3) of the Act and that the Board was of the opinion, that the building "due to its collapse upto the Ground Floor was not capable of being repaired or kept fit for habitation at reasonable expense and was not considered for repairs." The Board had submitted a proposal for acquisition u/s 91(3) of the Act which was approved by the Government. By the said communication dated 30th December, 1989, the SLAO invited the objections, if any, of the owners and occupiers of the property. The petitioners responded to the notice by a representation dated 23rd January, 1990. Thereafter, by an order dated 20th November, 1993, the SLAO accepted the proposal for acquisition and directed that a final statutory order u/s 93(5) of the Act be issued. In his order, the SLAO has noted the objections of the petitioners and the remarks thereon of the Executive Engineer of the Housing Board. The SLAO has concluded that the acquisition is purely for a public purpose and that the proposal sent by the Housing Board is "correct and genuine". There was in the opinion of the SLAO, no mala fide intention. The order of the SLAO has been sought to be impugned in these proceedings.
7. At the outset, it must be noted that the proposal for acquisition, in the present case, covered two properties viz., (i) City Survey No. 1969, comprising of Building No. 49-49A, situated at Keshavrao Khade Marg, Mumbai and (ii) City Survey No. 1990 comprising of Building No. 51-53-a situated at Keshavrao Khade Marg, Mumbai. The subject matter of the Writ Petition is the second property since it is only in that property that the petitioners claim an interest.
8. In the affidavit in reply, which has been filed on behalf of the Second, Third and Fourth Respondents by Shri G. M. Sawant, Deputy Engineer on 5th January, 1995, it has been stated that the first of the aforesaid two properties consisted of a three storeyed building in which there were 51 occupants. In the second property, in which the petitioners claim an interest, there were 54 tenants/occupants. After a substantial part of the building upto the Ground Floor was demolished in 1977, the occupants were moved to a transit Camp. The First property admeasures about 285 sq. mtrs. while the second property which forms the subject matter of the petition admeasures 240 sq. mtrs. According to the Respondent-authorities, a certain part of the aforesaid properties would be affected by a set back for the purposes of road widening and only a small area admeasuring about 200 sq. mtrs. of each of the two properties would be available for reconstruction. Consequently, it has been stated that it is only on the amalgamation of the two properties together, that a building can be constructed for the purposes of accommodating the old tenants/occupants who have been dishoused as a result of the demolition of the erstwhile structure. In these circumstances, it has been stated on behalf of the Respondents that it is in the public interest that the proposed acquisition should be allowed to go through since ultimately this would enure to the benefit of the tenants and occupants who were dishoused as far back as in 1977 as a result of the demolition of the structure.
9. The Learned Counsel appearing on behalf of the petitioners sought to submit that the petitioners have two fundamental objections to the manner in which the acquisition was proposed to be carried out. The first of these two objections can be formulated thus : u/s 92 of the Maharashtra Housing and Area Development Act, 1976, one of the circumstances in which an acquisition can take place is that a certificate u/s 88(3) of the Act is issued by the Board. Under Sub-section (3) of Section 91, one of the circumstances in which an acquisition can take place is that the building is not capable of being repaired and rendered fit for habitation at reasonable expense. The Learned Counsel submitted that the requirement of the Board issuing a certificate u/s 88(3) which is an intrinsic part of Section 92 must also be read into Section 91(3) of the Act. In the present case, there was admittedly no certificate issued by the Board u/s 88(3) upon which, the acquisition proceedings, it was contended, must fail. The second objection which was sought to be urged was that though the building which was in existence on the land was a cussed structure of Category-A, the residential part of the building had been demolished by the Municipal Corporation. The learned counsel sought to submit that under Clause (j) of Sub-section (1) of Section 83 buildings which arc exclusively used for non-residential purposes are exempt from the payment of cess. The submission was that the provisions of Chapter VIII of the Act apply only to cussed structures and since the building does not now consist of any residential tenements, the acquisition proceedings must fail. The learned counsel submitted that these two submissions ought to have been considered by the SLAO since they go to the root of the validity of the acquisition and in the absence of a considered or reasoned decision by the SLAO, the acquisition must fail. The Learned Counsel sought to submit that the matter should be remanded back to the SLAO for the purposes of reconsideration.
10. Chapter VIII of the Maharashtra Housing and Area Development Act, 1976 is entitled "Repairs and Reconstruction of Dilapidated Buildings." The aforesaid Chapter consists of a fasciculus of sections from Section 74 to Section 103. Section 82 provides for the levy of a building repairs and reconstruction cess and Section 84 for the categorization of buildings with reference to the date of construction for the purposes of the levy of cess. The expression "building" for the purposes of Chapter VIII has been defined by Sub-section (7) of Section 2 to mean a building in respect of which the cess is levied under that Chapter. The two sections upon which the controversy in the present case turns, are Sections 91 and 92 of the Act. Sub-section (1) of Section 91 casts an obligation on the Board to allot temporary accommodation in, any building maintained by the authority where a building suddenly collapses or becomes uninhabitable due to fire, torrential rain, tempest or otherwise and all or any of the occupiers thereof are dishoused. Under Subsection (2) of Section 91, the Board is obligated to immediately undertake necessary repairs to such a building if it is of the opinion that the building is not capable of being repaired and rendered fit for habitation at reasonable expense. Sub-sections (3) and (4) of Section 91 have a significant bearing on the question of interpretation involved in these proceedings and it would be, therefore, convenient to extract them :--
"(3) Where the whole building collapses or is rendered uninhabitable, or the Board is of the opinion that the building is not capable of being repaired and rendered fit for habitation at reasonable expense, the Board may move the State Government to acquire the property under the provisions of this Chapter and take necessary further action to construct a new building on the site to accommodate the dishoused occupiers and to provide accommodation for other purposes specified in Sub-section (2) of Section 92.
(4) The provisions of succeeding section shall apply mutatis mutandis to the acquisition, reconstruction and rehabilitation of occupiers of such buildings."
Under Sub-section (3) of Section 91 therefore, the Board has the discretion to move the State Government to acquire the property under the provisions of Chapter VIII and to take necessary action to construct a new building on the site to accommodate the dishoused occupiers. The power of acquisition is, therefore, conditioned by the public purpose that this would be in order to effectuate the construction of new premises to rehabilitate the dishoused occupiers. The power of the Board to move the Government is where (i) the whole building collapses; (ii) the whole building is rendered uninhabitable or (iii) the Board is of the opinion that the building is not capable of being repaired or rendered fit for habitation at reasonable expenses.
11. Sub-section (1) of Section 92 empowers the Board to submit to the State Government a proposal for acquisition of land in three circumstances which are as follows : (i) if in respect of any building the Board has issued a certificate under Sub-section (3) of Section 88; (ii) the Municipal Commissioner has u/s 354 of the Bombay Municipal Corporation Act, 1888 issued a written notice requiring the owner or occupier thereof to pull down the building with a view to preventing all cause of danger therefrom, and the Board is of the opinion that such building is not capable of being repaired or rendered fit for habitation at reasonable expense and is dangerous or injurious to the health or safety of the inhabitants thereof; or (iii) The Municipal Corporation has u/s 354R of the Municipal Corporation Act, 1888 passed a resolution declaring the area in which any such building is situated as a clearance area.
12. Section 93 of the Act makes a provision for what has to take place upon the receipt of a proposal for acquisition u/s 92. Under Subsection (1) of Section 93 the State Government on being satisfied about the reasonableness of the proposal and the resources available with the Board for constructing a new building, may approve the proposal and communicate its approval to the Board. On receipt of the approval of the Government, the Board is required under Sub-section (2) of Section 93 to forward the proposal for acquisition to the Land Acquisition Officer for initiating acquisition proceedings. Thereupon, the Land Acquisition Officer is mandated by Subsections (3) and (4) to publish and issue a notice inviting objections and suggestions as to why the land should not be acquired. Sub-section (5) of Section 93 provides that on considering the objections and suggestions and on giving a reasonable opportunity of being heard to the persons affected by the proposal, the Land Acquisition Officer may sanction the proposal with or without modification. The Land Acquisition Officer has to thereafter publish a notification in the Gazette fixing the date on which the proposal as approved shall become operative and the land specified therein shall, on and from the date of such publication, vest absolutely in the Board on behalf of the Authority free from all encumbrances.
13. In order to complete the narration of statutory provisions, regard also must be had to Section 88 of the Act. Under Sub-section (1) of Section 88, the Board is required, subject to the provisions of Sub-section (3) to undertake repairs to a building where on information furnished by the Municipal Commissioner, a report of an authorised officer or on the basis of other information, the Board is satisfied that any building which is occupied by any person is in such a ruinous or dangerous condition that it is imminently likely to fall unless structural repairs which will render it fit and safe for habitation, are urgently done. Sub-section (3) of Section 88 creates an exception wherein the Board is granted the discretion not to consider a building or buildings for repairs. A case for the exercise of the discretion under Sub-section (3) arises if the Board is of the opinion that the cost of structural repairs to a building will exceed Rs. 1000/- per sq. mtr. or, where the cost of structural repairs exceeds that amount but the size of the land on which such building is standing is such that for some reason or the other it is not possible or economical to erect any new building thereon and there is an adjoining building in the case of which the cost of structural repairs does not exceed Rs. 1000/- per sq. mtr. Under the first proviso to Sub-section (3), the Board is still empowered in cases of special hardship and subject to such terms and conditions as it may impose to consider a building for structural repair even if the cost of such repair is likely to exceed the limit set out by the substantive part of Sub-section (3). Under the second proviso to Sub-section (3), the Board may carry out structural repairs to a building where the cost of repair is in excess of the statutory limit if the occupiers of the building undertake to bear that part of the cost of repair which is in excess of Rs. 1000/- per sq. meter. The statutory limit which has been prescribed under Sub-section (3) of Section 88 has been revised by amendments from time to time, the last of them being by Amending Act No. 16 of 1998 by which the figure of Rs. 750/- was replaced by the present limit of Rs. 1000/- per square meter. Prior thereto by Maharashtra Act 12 of 1992 the earlier limit of Rs. 500/- came to be increased to Rs. 750/- per sq. meter. Be that as it may, if the Board comes to the conclusion that the cost of structural repair is in excess of the statutory limit which has been prescribed, it is duly empowered to issue a certificate to that effect. Upon the issuance of a certificate, the Board is then empowered under Sub-section (1) of Section 92 to submit a proposal for acquisition of the land to the State Government. The contingencies in which the Board can move the State Government to acquire the land are delineated in various provisions of the Act. u/s 41 of the Act, the State Government is empowered to acquire the land so as to enable the authority to discharge any of its functions, to exercise any of its powers or to carry out any of its proposals, plans or projects. Section 41 forms part of Chapter V of the Act which is entitled, "Acquisition of Land and Disposal of Property of the Authority". Chapter VIII of the Act in which a statutory power to acquire land is conferred, deals with "Repairs and Reconstruction of dilapidated buildings." The power of acquisition, which is conferred upon the State Government by the sections falling within the purview of Chapter VIII is, therefore, designed to achieve the public purpose underlying the provisions of the Chapter. Under Sub-section (3) of Section 91, the Board is empowered to move the State Government to acquire the property where the whole building collapses or is rendered uninhabitable or in a case where the Board is of the opinion that the building is not capable of being repaired and rendered fit for habitation at reasonable expense. The contingencies where the Board may move the State Government for acquisition under Sub-section (1) of Section 92 are those in which (i) the Board has issued a certificate under Sub-section (3) of Section 88, (ii) the Commissioner of the Municipal Corporation has issued a written notice u/s 354 of the Municipal Corporation Act, 1888 to pull down the building with a view to preventing all cause of danger and the Board is of the opinion that the building is not capable of being repaired and rendered fit for habitation at reasonable expense and is dangerous or injurious to the health and safety of the inhabitants or (iii) where the Municipal Corporation u/s 354R of the Corporation Act has passed a resolution declaring the area as the clearance area. A reading of these sections would make it abundantly clear that while the issuance of a certificate u/s 88(3) is one of the contingencies prescribed by Sub-section (1) of Section 92 for the initiation of a proposal for acquisition by the Board, that is not a requirement which conditions the exercise of power under Sub-section (3) of Section 91. The Learned counsel appearing on behalf of the petitioners submitted that the expression "reasonable expense" which is used by Sub-section (3) of Section 91 must necessarily be implied to mean an expense in excess of the statutory limit which is prescribed by Section 88(3) and hence even if the Board exercises the power of moving a proposal on the ground that the building is not capable of being repaired and rendered fit for habitation at reasonable expense, there has to be a certificate u/s 88(3). The question as to how the expression "reasonable expense" should be construed will be dealt with shortly hereafter and is a separate matter. But, it is impossible to accept the submission that the power under Sub-section (3) of Section 91 cannot be exercised unless a certificate u/s 88(3) is issued. The Legislature has advisedly refrained from conditioning the discretion of the Board under Sub-section (3) of Section 91 by the requirement that a certificate u/s 88(3) should have been issued. Indeed, if regard be had to the provisions of Sub-section (1) of Section 92, it would be apparent that there too, a second contingency under which the Board can move the State Government for acquisition is where a notice u/s 354 of the Municipal Corporation Act, 1888 requiring the pulling down the building has been issued. In the case of this contingency also, before moving the State Government, the Board has to be of the opinion that the building is not capable of being repaired or rendered fit for habitation at reasonable expense. Therefore, even within the same section, Section 92, the State Legislature has provided for one contingency viz, the issuance of a certificate u/s 88(3) and another distinct contingency where after the issuance of a notice u/s 354 of the Bombay Municipal corporation Act, 1888, the Board comes to the conclusion that the building cannot be repaired at reasonable expense. There is, therefore, intrinsic statutory material to demonstrate the fallacy in the construction which has been urged oh behalf of the petitioners. Having regard to the public purpose underlying the provisions of the Act, it would also not be appropriate to restrict the power which is conferred upon the Board and the State Government by introducing a restriction into Sub-section (3) of Section 91 which is not present in it.
14. A Learned Single Judge of this Court Mrs. Sujata V. Manohar, J. (as the learned Chief Justice then was) has considered the provisions of Section 91(3) and Section 92(1) in Ratnakar Narasinha Hegde v. Maharashtra Housing & Area Development Board, reported in 7985 M.L.J. 284. The Learned Single Judge dealt with the language of Sub-section (1) of Section 91 under which the Board is to allot temporary accommodation where the building suddenly collapses or becomes uninhabitable due to "fire torrential rain or tempest or otherwise". The Learned Single Judge held that the language of Sub-section (1) of Section 91 "is wide enough to include all uninhabitable buildings even buildings which become uninhabitable on account of age or lack of up-keep". Therefore, Section 91(1) cannot be restricted to cover only buildings which have become uninhabitable on account of sudden calamity or the otherwise. The Learned Judge further held that even if Section 91(1) is construed narrowly which is not a correct construction, the language of Section 91(3) is much wider. The Judgment of the Learned Single Judge holds that the right to move the State Government for acquisition arises u/s 91(3) in all cases where buildings are rendered uninhabitable. The submission before the Learned Single judge was that the cases of old and dilapidated buildings which are required to be pulled down and reconstructed are covered by Sub-section (1) of Section 92. The learned Judge held that Sub-section (1) of Section 92 deals with three specific types of buildings which are in an uninhabitable condition. Section 92(1) was held not to be exhaustive and, it was held that acquisition of uninhabitable buildings not covered by Section 92(1) can be done u/s 91(3). In that sense, both the provisions are complementary provisions. In para 18 of the Judgment, the learned Judge also noted that in that case a certificate had also been issued u/s 33(3) of the old Act which is equivalent to Section 88(3) of the 1976 Act. Section 92(1) would also apply. It was argued before the learned Single Judge that the Certificate u/s 33(3) was defective as that was not served in the manner prescribed under the section. The learned Judge held that there is no need to examine that aspect as the case was also covered by Section 91(3). The Judgment therefore, implicitly recognised that the validity of action taken under Sub-section (3) of Section 91 does not depend upon the existence of a certificate u/s 88(3) or, where one is issued, upon the legality of such a certificate. The ancillary submission which was urged before the learned Single Judge was that there was no provision under the Act for acquisition of a building which has stood on the land in the past and once the building had been demolished, the power to acquire was lost. The submission was rejected by the learned single Judge who held thus :
" If this submission were to be accepted the result would be that after such a building is vacated by the occupants the Board is compelled to allow the building to stand until such time as acquisition proceedings in respect of it are initiated and completed, even though allowing such a building to stand may be a source of danger to either the buildings in the neighbourhood or to passers-by. An Act which is made for the protection and the benefit of the public cannot be so construed as to make it compulsory for the Board to allow dangerous structures to stand if they wish to acquire and reconstruct such structures. The provisions relating to acquisition are attracted at the time when such a building is rendered uninhabitable or when the Board forms the opinion that the building is not capable of being repaired and renders fit for habitation at a reasonable cost as set out in the Act. Thereafter the Board may take steps to shift the occupants of such a building to a transit camp and may proceed to have the building demolished. The Board does not thereby lose the right to have the property acquired under the provisions of the Act. The provisions of the Act relating to acquisition are attracted by virtue of the fact that the building had become old and dilapidated and was uninhabitable. Its subsequent demolition does not deprive the board of its right to have the property acquired for reconstruction for the purpose of housing the dishoused occupants"
I am in respectful agreement with the view which has been taken by the Learned Single Judge in the aforesaid case.
15. The Learned Counsel appearing for the petitioners submitted that if the requirement of issuing a certificate under Sub-section (3) of Section 88 is not read into the provisions of Sub-section (3) of Section 91, then the question as to whether the expense required to repair a building in a given case is reasonable would depend upon the whims and fancies of an officer of the Board or of the Board itself from case to case. In dealing with this argument regard must be had to the fact that under the third contingency provided in Section 91(3), the Board has to form the opinion that the building is not capable of being repaired and rendered fit for habitation at reasonable expense. When the statute uses the expression "reasonable" it is implicit that the opinion which has to be formed by the Board cannot be formed arbitrarily. The opinion has to be based upon the material before the Board on the basis of which it forms the opinion that the expense is not reasonable. The statute has given one indicator in Sub-section (3) of Section 88 of what constitutes an expense which is reasonable atleast for the Board to undertake the work of repair. Ordinarily speaking and save in cases of special hardship which are covered by the first proviso to Section 88(3), the Board is under the mandatory obligation to carry out structural repairs to a building which is in a ruinous or dangerous condition which is imminently likely to fall unless structural repairs which will render it fit for habitation are urgently done. The obligation of the Board is, however, conditioned by the cost of the repair being within the statutory limit which is prescribed by Sub-section (3) of Section 88. If the cost of repair exceeds the statutory limit, the Board may still consider it proper to undertake the repairs in a case of special hardship falling under the first proviso. Alternately the work of repair can be undertaken if the occupiers agree to pay the cost of repair in excess of the statutory limit. Section 88(3), therefore, provides a limit of what constitutes a reasonable outlay for the Board to make, for carrying out the work of repair. Under subsection (3) of Section 91, the Board can move the State Government for acquisition if it is of the opinion that the building is not capable of being repaired and rendered fit for habitation at reasonable expense, or where the whole building having collapsed is rendered uninhabitable. In construing what is reasonable expense, therefore, for the purposes of Sub-section (3) of Section 91, the statutory guideline which is laid down and prescribed by subsection (3) of Section 88 will have to be necessarily borne in mind by the . Board. So construed, the provisions of Sub-section (3) of Section 91 contain a sufficient measure of guidance to condition the exercise of discretion by the Board. The discretion is, therefore, clearly structured by the language of the Statute itself. However, the exercise of the power u/s 91(3) does riot require a certificate u/s 88(3).
16. The Learned counsel appearing on behalf of the petitioners also sought to submit that the building which was initially a cussed building in category-A had been pulled down upto the Ground Floor and that there were only Commercial Tenants situate now on the Ground Floor. It was, therefore, sought to be submitted that the building is now liable to be exempted from the levy of cess under Clause (j) of Sub-section (1) of Section 83 upon which the power of acquisition under Chapter VIII cannot come into existence. There is absolutely no merit in the submission and in fairness to the Learned Counsel it must be stated that after it was urged, the Learned Counsel has himself placed before the Court, the difficulties in the way of accepting that submission. Moreover, as held by the Judgment of the learned Single Judge of this Court in Ratnakar Hegde''s case (supra), the provisions relating to acquisition are attracted at the time when such a building is rendered uninhabitable or when the Board formed the opinion that the building is not capable of being repaired and rendered fit for habitation at reasonable cost as set out in the judgment. In the present case, there is no dispute about the fact that the building was one belonging to category-A u/s 84. The building was a cussed structure. The building came to be pulled down as a result of a notice issued by the Municipal Corporation u/s 354R of the Bombay Municipal Corporation Act, 1888, in order to ensure that the building did not pose a danger to the health, safety and welfare of the occupants and those in the vicinity. The power of acquisition is, therefore, clearly attracted to the circumstances of a case such as the present, where the building which was a cussed structure in Category A had to be pulled down in order to obviate any danger to the health or safety of the occupants and the public. The power of acquisition is not lost in such a case upon the pulling down of the building. The pulling down of the building in order to remove a source of danger to health and safety is one step in the ultimate acquisition of the property so that a new building can be reconstructed to re house the existing occupants. It would be indeed a travesty of justice to hold that the power of acquisition is lost. The submission, therefore, has to be rejected.
17. Finally it was sought to be submitted that the issues which were raised before the SLAO while objecting to the notice under Sub-section (5) of Section 93 of the Act have not been dealt with satisfactorily by the SLAO and there should now be a remand to the SLAO. There is no merit in this submission. The points which have been raised by the Learned Counsel are questions of law which are capable of being decided in these proceedings and have been dealt with in this judgment. The SLAO, it must be noted, does not exercise a quasi judicial power and, therefore, is not required to record elaborate reasons of either upholding or rejecting the objection to the proposal. In the present case, the building was pulled down in 1977. The occupants of the structure to which the present petition relates and the adjoining structures which also form the subject matter of the proposal for acquisition have been without a permanent shelter since then the occupants have been housed in accommodation in a transit camp. It is time that the decks are cleared for the Board and the State Government to expeditiously complete the work of acquisition so that the occupants find light at the end of the tunnel. The Board was in the circumstances of the present case, also not estopped from proceeding with the proposal for acquisition after the earlier proposal was dropped, The reason why the earlier proposal was dropped, as has already been noted is that there was an increase in the statutory limit which was prescribed u/s 33(3) of the old Act from Rs. 75/- to Rs. 120/-. The Board has now exercised the power u/s 91(3) after due consideration of all relevant facts and circumstances as mandated by subsection (3). It must be recorded in fairness that no such argument of estoppel has been raised in those proceedings by the learned Counsel. Having regard to the circumstances of the present case, the decision of the Board to combine the acquisition of two adjoining properties each of which is of a small size, so that a composite building can be constructed similarly cannot faulted.
18. After considering all the relevant circumstances and the submissions which have been urged, I do not find any merit in the petition. The petition is, therefore, rejected. In the circumstances of the case, there shall be no order as to costs. Application for stay rejected.
19. Petition rejected.
