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Dhirubhai H. Ambani Vs. Dhanpati Thakersi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberAppeal No. 488 of 1977 from Order with Civil Application No. 4712 of 1977
Judge
Reported in(1980)82BOMLR382
AppellantDhirubhai H. Ambani
RespondentDhanpati Thakersi
DispositionAppeal dismissed
Excerpt:
.....out the structural repairs. such a right is not to be found even in section 58 (2) of the bombay building repairs and reconstruction board act. there is no other provision in the said act which creates a right in favour of the occupier to carry out the structural repairs on his own without the sanction of the appropriate authorities.;there does not seem to be any power in the municipal corporation act, at least under section 354, to call upon the owner to construct a new building at the same place where the old building was standing before it was pulled down. the power under section 354 is restricted to either pulling down the structure or securing the structure or repairing the structure. the expression 'repairing the structure' referred to in section 354 does not include..........no repairs having been carried out, the occupiers made an application to the bombay building and repairs board, for a no objection certificate enabling them to carry out the repairs themselves. this is objection certificate was granted on april 29, 1976 and the municipal corporation also permitted those repairs to be carried out as contemplated by section 499 of the municipal corporation act. it is not in dispute that the repairs which were permitted to be carried out by the occupiers were the same which were directed to be carried out initially by the owners in the notice alleged to have been issued under section 354 of the municipal corporation act. the occupiers wanted certain changes to be made in the premises by way of having one w.c., a washing place, a water tap, a water line.....
Judgment:

Chandurkar, J.

1. The decision of this appeal which is directed against an order of the City Civil Court, Bombay, issuing an injunction against defendant No. 1 restraining him from carrying out any work of digging of land or laying of foundation columns or doing any other work of any nature whatsoever thereon turns upon the construction of the provisions of the Bombay Building Repairs and Reconstruction Board Act, 1969 (hereinafter referred to as 'the Act') read with the provisions of Sections 354 and 499 of the Bombay Municipal Corporation Act (hereinafter referred to as 'the Municipal Corporation Act').

2. The facts which have led to the suit filed by the respondents, who are trustees of a trust known as Khetsi Chatrabhuj Khiasi Ajani Shri Kutchi Dasa Oswal Jain Vidyalaya are not in dispute. The trust which has been referred to as the owners by the learned trial Judge admittedly owned the suit building which consisted of a ground floor and four upper floors which were in the occupation of thirty-two different occupiers. It was alleged in the suit that the Municipal Corporation issued a notice on February 13, 1973 under Section 354 of the Municipal Corporation Act calling upon the owners to carry out certain repairs mentioned therein. The notice itself has however, not been produced either by the plaintiffs or the defendants. No repairs having been carried out, the occupiers made an application to the Bombay Building and Repairs Board, for a no objection certificate enabling them to carry out the repairs themselves. This is objection certificate was granted on April 29, 1976 and the Municipal Corporation also permitted those repairs to be carried out as contemplated by Section 499 of the Municipal Corporation Act. It is not in dispute that the repairs which were permitted to be carried out by the occupiers were the same which were directed to be carried out initially by the owners in the notice alleged to have been issued under Section 354 of the Municipal Corporation Act. The occupiers wanted certain changes to be made in the premises by way of having one W.C., a washing place, a water tap, a water line separately on each floor, to which the owners did not have any objection if the occupiers were going to foot the bills. The occupiers thereafter approached the Municipal Corporation for permission to make these alterations which was also granted. Among the changes which were sought were replacement of the original roof by a R.C.C. roof.

3. Now, while the repair work was being done and the work of dismantling was going on, a part of the building collapsed on August 15, 1976. After this, the Technical Officer of the Board called upon the tenants to stop the repair work and directed that the dangerous portion of the building should be demolished. It is not in dispute that thereafter the entire building has been demolished and what now remains is merely a plinth. The defendants have admitted that the entire property 'was grounded to level, except certain rear portion in the form of godown'. According to the plaintiffs, what remained was not really the godown, but it was only a small portion of the original godown without the doors which was being used for the purpose of storing cement and other building material as well as for providing a temporary shelter to the workmen working for construction.

4. In this state of affairs, the occupiers applied to the Repairs Board on November 18, 1976 seeking reimbursement to the extent of Rs. 120 per sq. metre and approval of the Board was sought for carrying out repairs in R.C.C. to reduce the cost. The Board granted this permission on January 28, 1977 informing the occupiers that their proposal to complete the repairs to the building in all respects and then to approach the Board for reimbursement was approved. With regard to the proposal to carry out the work in R.C.C., the occupiers were advised to get the approval to the same from the Municipal Corporation. This permission was sought by the occupiers from the Municipal Corporation on February 4, 1977, and was granted on April J4, 1977. This permission was subject to certain conditions with which we are really not concerned in this appeal. It also does not seem to be in dispute that when this permission was sought by the occupiers, a plan of the building which was sought to be put up at the place where the original plinth was situated was submitted to the Corporation and a copy of the plan was returned by the Corporation. The repairs were accordingly started after the necessary approval was taken from the Central Railway Authorities whose no objection certificate was required as intimated by the Corporation.

5. It appears that when the work of reconstruction of the building was commenced, the plaintiffs filed a suit in which their main contention was that under the garb of repairs, the defendants had no right to put up a new structure on the land where the old structure stood and that is how they sought an injunction against the occupiers restraining them from digging of land or laying foundation columns, because admittedly the work was to be carried out in RC.C. The defendants sought to oppose the Notice of Motion relying almost solely on the provisions of Section 58 of the Act and according to the defendants, the rights which they were claiming were under the provisions of the Act but for which even, according to them, they would have no' right to do the construction work which they wanted to do on the suit land. The learned Judge of the City Civil Court observed that what the occupiers wanted to do was to put up a structure from its very foundation though, according to the defendants, that new structure would be similar in most respects to the old building that had stood on the same site. The learned Judge further took the view that Section 499 read with Section 354 of the Municipal Corporation Act does not give a right to any one to put up a new structure and consequently confirmed the injunction. Against this order the present appeal has been filed by the appellants.

6. Mr. Adik, the learned Counsel appearing on behalf of the appellants, has relied on the provisions of the Act in support of his contention that it was permissible for the occupiers to put up entirely a new structure and that such a construction would be squarely covered, according to the learned Counsel, by the definition of 'structural repairs' given in Section 20) of the Act. It was contended by Mr. Adik that when Section 2(s) of the Act refers to 'structural repairs' to be carried out, if necessary, in view of the definition, the entire building could also be reconstructed.

7. In order to appreciate this contention, it is necessary first to refer to the relevant provisions of the Municipal Corporation Act. It is not in dispute that what the Corporation would require the owners to do would be what is contemplated by the notice issued under Section 354 of the Municipal Corporation Act. Section 354 of the Municipal Corporation Act reads as follows:

354. (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 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, 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.

8. Now, there is a pre-condition which must be satisfied before a notice under Section 354 of the Municipal Corporation Act is issued. The pre-condition is that it must appear to the Commissioner that a structure is either in a ruinous condition or that it is likely to fall or that it is 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. Once the Commissioner is satisfied that the condition of the building is such as is referred to above, then he has been given the power under Section 354 to give a written notice to either the owner or the occupier calling upon him to do certain things. By notice under Section 354, the Municipal Commissioner can call upon the owner or the occupier either to pull down, or secure, or repair the structure. Thus in the statutory exercise of the power under Section 354, the Commissioner cannot transgress the limits that are set out in that section and the notice must strictly adhere to what the owner can be required to do by the section itself. Though no notice under Section 354 is on record, it does not seem to be in dispute that the notice did not direct either the owners or the occupiers to pull down the building. The case of the defendants appears to be that the notice was one requiring the owners to repair the building.

9. Now, if the owner declines or refuses to comply with the notice under Section 354, the Municipal Corporation Act enables the occupier to carry out the said repairs and he is then entitled if he so desires to be reimbursed to the extent of reasonable expenses incurred by the occupier for doing what the owner had failed to do in pursuance of the notice under Section 354. The relevant provision is Section 499 of the Municipal Corporation Act which reads as follows:

499. 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 by-law made under this Act, the occupier, if any, of such building or land may, with the approval of the Commissioner, execute the said work, and he shall be entitled to recover the reasonable expenses incurred by him in so doing from the owner and may deduct the amount thereof from the rent which from time to time becomes due by him to the owner.

The wording of Section 499 on a plain reading clearly indicates that the work which could be executed by the occupier would be only that which the owner of the building fails to execute, when he is so required to do under the Act, the relevant provisions for our purpose being Section 354. Thus under the provisions of Section 354 of the Municipal Corporation Act, all that the occupiers could have done in the nature of execution of the work would be that which the owners were called upon to' do under Section 354 of the Municipal Corporation Act.

10. We now turn to the provisions of the Act. To begin with, there is the definition of 'structural repairs' in Section 2(s) which reads as follows:

'Structural repairs' means repairs or replacement of decayed, cracked, or out of plumb structural components of a building or any substantial part thereof or any part to which the occupiers have common access such as staircases, passages, water closets or privies by new ones of the like material or materials or of different material or materials including change in the mode of construction like converting load bearing wall type or timber framed structure to an R.C.C. one, or a combination of both, which repairs or replacement in the opinion of the Board, if not carried out expeditiously may result in the collapse of the building or any such part thereof; and 'structural repairs' includes repairs and replacement of all items which are required to be repaired or replaced as a consequence of the repairs or replacement aforesaid which are carried or to be carried out. When such repairs to any building or any part thereof are carried out by the Board, the building shall be deemed to be structurally repaired under this Act.

Particular reliance is placed by the learned Counsel for the appellants on the latter part of the definition which includes repairs and replacement of all items which are required to be repaired or replaced as; a consequence of the repairs or replacement, referred to in the earlier part of the definition, which are carried out or to be carried out as defined in the definition of 'structural repairs'.

11. There is no dispute that the effect of Section 58(1) of the Act so far as the present case is concerned, is that the rights which were given to the occupiers under s 499 of the Municipal Corporation Act enabling the occupiers to carry out the repairs which the owner had failed to carry out inspite of a notice under Section 354 have been saved. Therefore, notwithstanding the provisions of the Act, it would be permissible for an occupier to carry out the repair work himself if the owner has failed to carry it out after he was directed to do so by a notice under Section 354.

12. Section 58(2) deals with a contingency which might arise, when, while the repairs were being carried out, it became necessary to carry out structural repairs also. Where such structnra. repairs are required to be carried out, then the provisions of Section 58(2) tell us that the person who wants to carry out the structural repairs desires to be reimbursed to the extent of the cost of the structural repairs, then he has to obtain a previous sanction of the Board for such repairs. In other words, the scope of Section 58(2) is very limited inasmuch as it only deals with merely a right of reimbursement. It is only if the occupier desires to be reimbursed in respect of the cost of structural repairs, that a previous permission of the Board becomes necessary. It is necessary to point out that the reimbursement is not in respect of the entire cost of the repairs which the occupier is permitted to carry out under the provisions of Section 499 of the Municipal Corporation Act, but the reimbursement is only in respect of such structural repairs as are required to be carried out while the other repairs are being made. The latter part of Section 58(2) provides that the Board may give sanction on such terms and conditions as it may deem fit to impose. It is not obligatory upon the Board to give a sanction because Section 58(2) expressly provides that the Board may not agree to give sanction. Section 58(2) then provides that when the sanction is given, it shall be lawful for the Board to reimburse the cost of structural repairs actually carried out either in alumpsnm or by instalments or even according to the progress of the work done from time to time as it may deem fit. The last part of Section 58(2) then creates a deeming fiction that a building, in respect of which the Board has reimbursed the cost of the structural repairs in full or when a period of three months elapses after the Board has reimbursed not less than seventy-five per cent of such cost, whichever is earlier, shall be deemed to be structurally repaired by the Board under the Act. The fiction appears to have become necessary because in fact the structural repairs are not carried out by the Board. They are carried out by the occupiers, but the cost either entirely or substantially, has been borne by the Board.

13. Now on a reading of Section 58(2), it is difficult to find anything therein which would enable the occupier to carry out the structural repairs if those repairs were not permitted under Section 499 of the Municipal Corporation Act. Indeed, as already pointed out, Section 58(2) is merely a provision with regard to reimbursement. It is not a provision empowering the occupier to carry out structural repairs. A person, who claims a right to carry out the structural repairs by virtue of the provision under Section 499 of the Municipal Corporation Act, must be able to show that the notice under Section 354 was such that structural repairs were directed to be carried out by the Corporation. It will be only then that there will be an occasion for carrying out the structural repairs in exercise of the right under Section 499. It is difficult to see how the definition of 'structural repairs' in Section 2(s) of the Act can be of any assistance to the learned Counsel for the appellants. The definition in Section 2(s) merely defines 'structural repairs'. It does not create a right to carry out the structural repairs. Such a right is not to be found even in Section 58(2). There is no other provision in the Act which creates a right in favour of the occupiers to carry out the structural repairs on his own without the sanction of the appropriate authorities, because what is not disputed in the present case is that the appellants wanted to do something which the owners had neglected to do in spite of a notice under Section 354 of the Municipal Corporation Act. It is nobody's case that the notice under Section 354 required the owners to carry out any structural repairs in the nature of reconstruction of the building as is now contended.

14. It is not in dispute that the entire building has now been demolished and what is now existing on this plot is a plinth - a bare plinth - without a structure thereon. It is not in dispute that the entire building has to be built up anew, though it might so happen that the intention is to put up a building identical to the one which existed before. There does not seem to be any power in the Municipal Corporation Act, at least under Section 354, to call upon the owner to construct a new building at the same place where the old building was standing before it was pulled down. I have already pointed out that power under Section 354 is restricted to either pulling down the structure or securing the structure or repairing the structure.

15. It is also difficult to accept the argument that 'repairing the structure' referred to in Section 354 includes reconstruction of a building. In Lurcott v. Wakely & Wheeler [1911] 1 K.B. 905, the Court of appeal has considered the meaning of the word 'repair' in the context of a covenant to repair. The following observations at p. 918 made by Fletcher Moulton LJ. are instructive:

I come now to the third covenant, which is to repair. Here there is a duty to perform an operation. No doubt, if you thoroughly repair, it will put the house in a good condition and in a state of thorough repair. But it is plain that the word 'repair' refers to the operation to which the defendants bind themselves to have recourse. For my own part, when the word 'repair' is applied to a complex matter like a house, I have no doubt that the repair includes the replacement of parts. Of course, if a house had tumbled down, or was down, the word 'repair' could not be used to cover rebuilding. It would not be apt to describe such an operation. But, so long as the house exists as a structure, the question whether repair means replacement, or, to use the phrase so common in marine cases, substituting new for old, does not seem to me to be at all material.

16. In the same judgment of the Court of appeal, Buckley L.J. has observed (p. 923):

'Repair' and 'renew' are not words expressive of a clear contrast. Repair always involves renewal; renewal of a part; of a subordinate part. A skylight leaks; repair is effected by hacking out the putties, putting in new ones, and renewing the paint. A roof falls out of repair; the necessary work is to replace the decayed timbers by sound wood; to substitute sound tiles or slates for those which are cracked, broken, or missing; to make good the flashings, and the like. Part of a garden wall tumbles down; repair is effected by building it up again with new mortar, and, so far as necessary, new bricks or stone. Repair is restoration by renewal or replacement of subsidiary part of a whole. Renewal, as distinguished from repair, is reconstruction of the entirety, meaning by the entirety not necessarily the whole but substantially the whole subject-matter under discussion.

17. The above observations, in my view clearly bring out the difference between repairing a part of a structure and reconstructing the structure in its entirety. So far as a house or a building is concerned, therefore, what is contemplated when repairs are said to be required to be carried out is that the house as a structure exists and some part of it may need replacement. What is important is that in the case of repairs the house as such must exist, but certain parts thereof may either require repairs or replacement. The latter part of the definition of 'structural repairs' must be understood in this light. The argument of the learned Counsel for the appellants was that the definition 'structural repairs', would include repairs or replacement of all items which are required to be repaired or replaced. In other words, the argument appears to be that when the entire house is being rebuilt it is in essence a replacement of all the items of the building. It does not appear to me that the Legislature intended to include a reconstruction of the entire building in place of the old building within the definition of 'structural repairs'.

18. A clear indication to that effect is available in the Act itself, because the Act contains specific provisions in respect of buildings which have to be rebuilt after they have completely collapsed. Such a provision is to be found in Section 36(2) of the Act which clearly provides that when 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 chap. VI 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 including those specified in Sub-section (2) of Section 38. Therefore, the Act has independently dealt with the matter of reconstruction of a building where an old building collapses. When matters relating to repairs and relating to reconstruction are separately dealt with by the Legislature, it will be difficult to read the definition of 'structural repairs' as including a rebuilding of the entire house. Nothing could have been more easier for the Legislature than to include reconstruction of a building which has collapsed or has been demolished in the definition of the 'structural repairs' if the Legislature had so intended.

19. The view that 'structural repairs' does not contemplate a rebuilding of the entire structure is supported, apart from the provisions of the Act, by a decision of Jenkins L.J. in Granada Theatres Ltd. v. Freehold Investment (Leyton-stone) Ltd. [1959] Ch. D. 592. The question involved in that case was whether certain repairs to roof in the form of replacement could be styled as structural repairs of a substantial nature. The question was as to who would be liable, because on facts in that case, in case of structural repairs of a substantial nature, the liability was not that of the lessee, but of the landlord. Jenkins L.J. quotes the observations of Vaisey J. and concurs with those in the following words (p. 603):.As to the meaning of the expression 'structural repairs' and the words 'substantial' snd 'structure', the judge made these observations which I am content to adopt. He said: 'It appears, rather surprisingly, that the expression 'structural repairs' has never been judicially defined, a fact to which attention is drawn in Woodfall on Landlord and Tenant, 25th ed., p. 770, para. 1732, and counsel in the present case have accepted that statement as correct. The writer of the textbook submits on the same page that 'structural repairs' are those which involve interference with, or alteration to, the framework of the building, and I would myself say that 'structural repairs' means repairs of, or to, a structure. It is sometimes said that repairs must always be either structural or decorative, and if that is the simple criterion, we are in this case, certainly not dealing with decorative repairs.

Thus as observed by Jenkins L.J. if 'structural repairs' means repairs of, or to, a structure, there must exist a structure before the Board can carry out the repairs to that structure. 'Structural repairs' may be a category or a kind of repair work but the pre-condition is that a structure must exist. In the case of a building which has been demolished, it is difficult to see how an entirely new construction starting right from the foundation can be termed as 'structural repairs'. In any case, it is not the case of the appellants that such was the extent of their authority or right under Section 499 of the Municipal Corporation Act.

20. In my view, the order made by the learned Judge of the City Civil Court is clearly just and legal. It is based on a true construction of the provisions of the Act and the Municipal Corporation Act. This appeal must, therefore, fail and is dismissed. However, I make no order as to costs.


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