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Emperor Vs. Bastiao Andradez - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCriminal Application For Revision No. 406 of 1933
Judge
Reported inAIR1934Bom213; (1934)36BOMLR430
AppellantEmperor
RespondentBastiao Andradez
DispositionAppeal dismissed
Excerpt:
.....(xviii of 1925), section 149 -chief officer-house in a ruinous or dangerous state-option vests in chief officer whether to takedown, secure, or repair the house-act of legislature-construction.;under sub-section (2) of section 149 of the bombay municipal boroughs act, 1925, the option of determining whether a house, which is in a ruinous state or likely to fall or in any other way dangerous to its occupier or to the public, ought to be taken down, secured, or repaired, rests with the chief officer and not with the owner of the property. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases..........was told not to begin the repairs until permission had been granted, and on february 17 the chief officer replied to the application by saying that the house was in a dilapidated condition, and that the applicant should pull it down, and then apply for re-building, and on the same day formal notice was served on the applicant, purporting to be under section 149 of the act, requiring the applicant to pull down the house. thereafter the applicant did not pull down the house, but completed his alterations and repairs. he has accordingly been prosecuted under sections 123 and 193 of the act. i doubt if there was any breach of section 123, which only enables the chief officer to give consent or impose certain conditions, and he did not follow the provisions strictly of that section......
Judgment:

John Beaumont, Kt., C.J.

1. This is an application in revision in which the accused complains of his conviction under Sections 123 and 193 of the Bombay Municipal Boroughs Act, 1925. On January 19, 1933, an application was made to the Municipality of Thana for leave to make alterations and additions in the house belonging to the applicant. The application was made by the mortgagee of the house, but nothing, I think, turns on any distinction between the mortgagor and the mortgagee, and I will treat them both as coming within the description of the applicant. On February 8 the applicant was told not to begin the repairs until permission had been granted, and on February 17 the Chief Officer replied to the application by saying that the house was in a dilapidated condition, and that the applicant should pull it down, and then apply for re-building, and on the same day formal notice was served on the applicant, purporting to be under Section 149 of the Act, requiring the applicant to pull down the house. Thereafter the applicant did not pull down the house, but completed his alterations and repairs. He has accordingly been prosecuted under Sections 123 and 193 of the Act. I doubt if there was any breach of Section 123, which only enables the Chief Officer to give consent or impose certain conditions, and he did not follow the provisions strictly of that section. But if the notice given on February 17 was a good notice under Section 149, then I think there is no doubt that the applicant was properly convicted under Section 193. The contention of the applicant is that the notice requiring him to pull down the house was not such a notice as the Chief Officer is entitled to give under Section 149. Sub-section (2) of that section provides-that where any building, or anything affixed thereon, is deemed by the Chief Officer to be in a ruinous state or likely to fall or in any other way dangerous to any inhabitant of such building or of any neighbouring building or to any occupier thereof or to passengers, the Chief Officer may cause a fence or hoarding to be placed round it. Then Sub-section (2), which is the material one, provides that the Chief Officer shall also cause notice in writing to be given to the owner or occupier, requiring such owner or occupier forthwith to take down, secure, or repair such building, or thing affixed thereon, as the case shall require, and then the latter part of the Sub-section provides that if such owner or occupier do not begin to repair, take down, or secure such building or thing within three days after; the service of such notice, and complete such work with due diligence, the Chief Officer shall cause all or so much of such building or thing as he shall think necessary to be taken down, repaired or Secured. Now the contention of the applicant is that the only notice which the Chief Officer can give under that sub-section is a notice requiring the owner or occupier of the house to take down, secure, or repair the building or thing affixed thereon, leaving it to the owner or occupier to determine which of those three alternatives of taking down, securing, or repairing, he will adopt. On the other hand, the contention of the Municipality is that the Chief Officer may serve a notice requiring the owner or occupier either to take down, or to secure, or to repair such building, that is, to do any one of those things as the Chief Officer shall think fit, the option being, on that construction, in the Chief Officer to determine which alternative is the proper one. The phraseology of the sub-section is, I think, open to either construction, because the words, as the case shall require, which, if they applied only to the alternatives of taking down, securing, or repairing, would be conclusive in favour of the construction argued for by the Municipality, cannot be regarded as so conclusive, because they may be read as applying to the alternatives of giving the notice in respect of the building or the thing affixed thereon. It may be said in favour of the applicant's construction that the latter part of the section provides for his beginning to repair, take down, or secure within a specified time, and does not in terms provide for his beginning only such one of those things as the notice may have required him to do. However, in construing an Act of the legislature, the wording of which is open to two possible constructions, the Court must look at what appears to have been the real object of the Act in order to determine which of the two rival constructions should be adopted. It is clear here that the object of Section 149 is to enable the Chief Officer to deal with a dangerous structure. That, I think, is the overriding purpose of the section, and if all he can do is to require the owner to take down, secure, or repair, a dangerous structure, as the owner may think fit, it seems to me that the powers of the Chief Officer are seriously limited. It seems to me that the paramount object of the section being to enable the Chief Officer to protect the occupiers of a house and the public against the peril of the house falling down, we ought not to construe the section so as to curtail those powers unnecessarily. In my opinion the wording of Sub-section (2) is capable of the construction that the option is to rest with the Chief Officer of determining whether the house ought to be taken down, secured, or repaired, and that that construction is the one most consonant with the general purpose of the section. I think, therefore, that the notice given by the Chief Officer requiring the applicant to take down the house is a good notice under Section 149. That being so, the conviction under Section 193 must be upheld. We, therefore, set aside the conviction and sentence under Section 123, and the fine imposed under that section, if paid, will be refunded. We confirm the conviction and sentence under Section 193.

Barlee, J.

2. Section 149 falls within the portion of Chapter IX of the Act which is headed, 'powers for promotion of public health, safety and convenience', and, therefore, when there is a doubt as to the interpretation, it seems to me clear that we must adopt that interpretation which will give effect to the object stated in the headline. To do so, we must agree with the learned Assistant Government Pleader that the choice of deciding whether a building shall be taken down, secured, or repaired, must lie with the Chief Officer and not with the owner of the building. In this case we cannot interpret the section in the interests of the property holder, but must do so in the interests of the general public.


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