M.L. Pendse, J.
1. The grievance of the petitioners in this petition filed under Article 226 of the Constitution of India lies in a very narrow compass. The petitioners are tenants occupying residential flats in a building known as Vincent Terrace situate at Dadar, Bombay. Respondents No. 3 to 11 others are tenants in respect of the same building. Respondent No. 3 purchased the building from the former owner and she is in occupation of seven residential flats. Respondents Nos. 1 and 2, that is the officers of the Maharashtra Housing and Area Development Board served notice upon the landlord calling upon to contribute an excess of Rs. 50,000/- to effect the repairs to the building. The landlord did not agree to contribute any amount and subsequently the Board informed the Secretary of the Tenants Association that the excess amount now required to be paid is Rs. 1,40,000/- instead of Rs. 50,000/- due to rise in construction cost. The revised cost of 1,40,000/- was informed to the Secretary of the Tenants Association on September 7, 1981.
2. It appears that the landlord is in occupation of seven residential flats and is not interested in contributing any amount towards the excess charges, while the tenants are willing to contribute their share, obviously with a view to retain shelter over their head. In view of the fact that the landlord declined to contribute any amount, the tenants could not deposit the excess amount with the Housing Board. Thereafter, on June 19, 1982 respondents Nos. 1 and 2 served notice to the Secretary of the Tenants Association pointing out that the amount was not paid and hence the building is proposed for demolition under section 88(3)(a) of the Maharashtra Housing and Area Development Act, 1976 ( hereinafter referred to as 'the Act'). The notice further recites that in case the tenants or the landlord paid the required excess amount, the building will be repaired otherwise the building will be declared beyond economical repairs and will be demolished and will be proposed for reconstruction, if feasible, and the tenants will be asked to vacate the building. This notice has given rise to the filing of the present petition.
3. Shri. Damania, learned Counsel appearing on behalf of the petitioners, urged that the landlord was taking a cantankerous attitude and declining to contribute sums towards the excess amount and is driving the tenants on the street. The learned Counsel urged that the result of the failure of the landlord to contribute inspite of the fact that the landlord is in occupation of seven tenements, would completely remove the shelter over the head of the tenants. The learned Counsel urged that the tenants are willing to contribute their share and the landlord should be compelled to do accordingly I am afraid that it is not possible to compel the landlord to contribute towards the excess amount, because there is no provision in the Act or in any other statute to compel the landlord to contribute. The plain reading of sub section (3) of section 88 indicates that the Board would carry out the repairs to the building provided the cost does not exceed Rs. 200/- per .sq.mt. In cases where the cost exceeds that figure and the occupiers of the building undertake to bear the cost of repairs; which are in excess of Rs. 200/- per sq. metre, then the Board may carry out the structural repairs to the building. It is obvious that the Second Proviso to sub-section (3) of section 88 is only enabling one and gives an option to the occupier to contribute the excess amount to require the Board to carry out the repairs. There is no power conferred either on the Board or the occupiers to compel other occupants to contribute their share or to recover the contribution which would fall to the share of every occupant. In these circumstances it is impossible to accede to the request of Shri. Damania that the landlord should be compelled to contribute his share.
4. Shri. Damania then submitted that even assuming that the petitioner tenants are unable to pay the entire excess amount demanded by the Board, still that would not automatically confer power upon the Board to demolish the building. The learned Counsel submitted that the Board will have to take appropriate proceedings as provided by the provisions of the Act before proceeding to declare that the building is beyond the economical repairs and the steps of demolition can be taken only if permitted by the provisions of the Act. There cannot be any dispute about the proposition of the Learned Counsel, and Shri Rijhwani, Additional Government Pleader very stated that the Board will not proceed to demolish the building forthwith but would take steps only in accordance with the provisions of law. In view of this assurance, no relief is required to be granted to the petitioners.
5. Accordingly, petition falls and the rule is discharged without any under as to costs.