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2013 KHC 4858

Supreme Court
*G. S. Singhvi; S. J. Mukhopadhaya, JJ.

Makarand Dattatreya Sugavkar v. Municipal Corporation of Greater Mumbai

and Others
Parallel citation(s) : 2013 KHC 4858 : 2013 (9) SCC 136
CaseNo : C. A. No. 4821 of 2013
Date : 01/07/2013
Municipal Corporation Act, 1888 (Bombay) -- S.354, S.489, S.490, S.491,
S.499, S.3(gg) -- Commissioner is duty bound to ensure execution /
implementation of notice issued under S.354(1) -- Appellant, a member of
R3 Cooperative Housing Society, was allotted a flat in building
constructed by R3 -- Failure of R3 to get the damaged portion of flat of
appellant repaired -- Notices issued under S.354(1), BMC Act, 1888 to R3
to carry out repairs in appellant's flat, not complied with -- Appellant
Tiling writ petition before High Court -- Appellant not availing alternative
remedy -- Impugned order of High Court rejecting appellant's aforesaid
prayer and relegating him to remedy of seeking execution of order
passed by Cooperative Appellate Court, held, was proper

Important Para(s):2, 21, 22

Constitution of India -- Art.226 -- Writ petition filed by appellant seeking

issue of mandamus to Commissioner concerned to ensure execution of
notices issued by him under S.354(1) to R3 -- Alternative remedy
available to appellant under S.499 -- Appellant had already obtained an
order passed by Cooperative Appellate Court directing repair of his flat --
Impugned order of High Court rejecting appellant's aforesaid prayer and
relegating him to remedy of seeking execution of order passed by
Cooperative Appellate Court, held, was proper

Important Para(s):18, 21, 22

Municipal Corporation Act, 1888 (Bombay) -- S.354 -- Object of -- The

primary object underlying S.354 is to safeguard the public from the
danger of being forced to live in a structure, which includes any building,
wall or other structure and which is in a ruinous condition or is likely to
fall or is in any way dangerous to any person occupying the same -- This
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section is also intended to protect those who may pass by such

structure

Important Para(s):20

Advocates:

JUDGMENT
G. S. Singhvi, J.
1. Leave granted.
2. This appeal is directed against order dated 22.3.2011 passed by the
Division Bench of the Bombay High Court in Writ Petition No.187/2011
whereby the appellant's prayer for issue of a mandamus to the Commissioner,
Mumbai Municipal Corporation (respondent No.2) to get the damaged portion
of his flat repaired was rejected but he was given liberty to secure execution of
the order passed by the Maharashtra State Cooperative Appellate Court,
Mumbai (hereinafter referred to as, 'the Cooperative Appellate Court').
3. The appellant is a member of respondent No.3-Shree Sainiketan
Cooperative Housing Society Ltd. He was allotted Flat No.001 in the building
constructed by respondent No.3 at Borivali (West), Mumbai. Respondent No.3
claims to have carried out major repairs in 2005-06 and all its members except
the appellant contributed towards the expenses. The appellant disputed his
liability to pay the expenses incurred by respondent No.3 and raised a dispute
under the Maharashtra Cooperative Societies Act, 1960. It is not clear from the
record as to what was the fate of the original dispute filed by the appellant
before the Cooperative Court IV, Mumbai, but this much is evident that the
matter was carried to the Cooperative Appellate Court in Revision Application
No.73/2007.
4. On 9.12.2007, a portion of the roof of the flat allotted to the appellant
collapsed and his mother is said to have suffered injuries. The appellant's
brother, who is an Advocate, made a complaint to the officers of the Municipal
Corporation of Greater Mumbai (for short, 'the Corporation'). Thereupon,
Assistant Engineer (Buildings and Factories), North Ward directed the
concerned Junior Engineer to inspect the flat. The latter inspected the
premises on 10.12.2007 and reported that a portion of the roof had collapsed.
Thereafter, notice dated 12.12.2007 was issued to the Chairman/Secretary of
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respondent No.3 under Section 354 of the Mumbai Municipal Corporation Act,
1888 (for short, 'the 1888 Act') and they were directed to carry out repairs in
the flat within a period of two months. It was also mentioned in the notice that if
the needful is not done then prosecution may be launched under Section
475-A and repairs may be carried out under Section 489 and the cost
recovered in accordance with Section 491.
5. In the meanwhile, M/s. Parlekar and Dallas, Architects were directed by the
Court to visit the flat and submit a report about its status as also the estimate
of cost/expenses of repair works required to be carried out. The Architects
inspected the flat and submitted report showing the damage to the flat but did
not give an estimate of the cost of repairs.
6. After submission of the report by the Architects, the appellant filed
Miscellaneous Application No.1/2008 and made the following prayers:
“1. Respondent society be directed to pay fees of the Architect and other
relevant incidental fees/ expenses.
2. To bear the cost of the leave and license compensation for such period
starting from the date of start of leave and license agreement by applicant till
the date of suit flat declared safe for resuming residing in it, by the expert
structural engineers and or architects and all other necessary incidental
expenses of leave and license agreement and its registration and others. The
above expenses should include such expenses that may be required to be
incurred on change and /or extension of leave and license agreements.”
7. The Cooperative Appellate Court took cognizance of the correspondence
between the appellant and the officers of the Corporation on the one hand and
the officers of the Corporation and respondent No.3 on the other and the
notices issued by the Competent Authority under Section 354 of the 1888 Act
and observed:
“As far as the first part is concerned, to pay the fees of the architect, it is to be
noted that it was the applicant who had applied for appointment of an architect
and at his instance M/s. Parelkar & Dallas from the panel of architects of the
Hon'ble High Court had been appointed. They have submitted their report but
appears that because of their fees not being paid and inspite of sending
reminders, the appellant has failed to pay the fees of the architect till today.
Since it was the appellant himself who had prayed for appointment of an
architect, it is the moral and legal responsibility of the applicant himself to pay
the amount. Hence, therefore as far as the question of payment of fees of
architect is concerned, the same to be paid by the applicant.
Now coming to the second part of the relief prayed for as stated in the report
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any work of repairs to be carried out the same to be done through experienced
civil Contractor under the advice of registered Structural Engineer and under
the supervision of a site supervisor, duly registered with the MMC. In view of
the nature of the repairs it is necessary that a competent/experienced person
is required to carry out the repairs so that no further damage is caused while
carrying out the repairs to the flat. Further the repairs are required to be
carried out in a planned manner. Hence therefore it is necessary that a
Structural Engineer/Contractor be appointed for that purpose to carry out the
work of repairs in the applicants flat. Further point which is to be noted is that
during the course of carrying out the repairs it may become necessary to
obtain permission from statutory authorities to carry out the work, otherwise
there may be a possibility of stop work notice or other notice being issued by
the statutory Authorities. If such notice is issued then obviously the repairs
work which is required to be carried out will come to a halt and there fore it is
necessary that all permission if any requited from statutory authorities for
carrying out the work to be obtained by the contractor expeditiously. Since the
issues in the dispute are yet to be decided, by this order passed the dispute is
also to be decided as expeditiously as possible.
The exact details of the repairs of the suit flat and its expenses etc. do not find
place in the reports nor in the Misc. Application. However, in that respect the
applicant can pay the expenses etc. and the same may be recovered from the
respondents subject to the outcome of the dispute. Thus, therefore, today for
the purpose of deciding this Misc. Application No.1/2008 what is borne in mind
are the two reports. Unfortunately, the Structural Audit Report does not
mention anything about the details of observation of the inside of the suit flat
since the person concerned had not been permitted to enter into the suit flat
and looking to report it does appear that repairs are essential to the suit flat to
prevent any further mishap.”
After making the aforesaid observations, the Cooperative Appellate Court
passed order dated 21.2.2008, the operative portion of which reads as under:
“1. Structural Engineer / Contractor to be appointed to carry out the work of
repairs of the applicants flat as per the report of M/s Parelkar & Dallas, since
no exact details of repairs are mentioned in the MA NO.l/2008 or in the
structural auditors reports.
2. All permissions, if any, required form statutory authorities for carrying out
the work to be obtained by the contractor expeditiously.
3. As prayed in revision application, costs of repairs etc. to be borne by the
applicant and recoverable form the respondents, subject to the outcome of the
dispute. The dispute to be expedited and to be disposed of as expeditiously as
possible.
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4. The dispute to be expedited and to be disposed of as expeditiously as

possible.
5. Revision application no.73/2007 is reassigned to Ld. Member Smt. Pawar
for hearing on 3/3/2008 since Ld. Member is attending camp at Pune Bench
from 25/2/2008 to 29/2/2008.”
8. In October-November, 2008 Executive Engineer (Special Zone VII)
inspected the appellant's flat and submitted a separate report showing the
extent of damage. Thereafter, Assistant Commissioner, R/North Ward sent
letter dated 22.12.2008 to the appellant and asked him to seek approval of the
Commissioner under Section 499 of the 1888 Act for executing the work with a
stipulation that once the approval is granted, he may deduct the expenses
from the rent/maintenance charges.
9. In 2009, the appellant along with his Advocate met the officers of the
Corporation to apprise them about further deterioration in the condition of the
flat and the constant threat under which his family was living. On 10.9.2009,
Deputy Municipal Commissioner (Zone-VII) and Assistant Engineer visited the
flat and found that its condition had worsened.
10. On 5.2.2010, the Assistant Engineer issued another notice under Section
354 to the Chairman/Secretary of respondent No.3 requiring it to carry out the
structural repairs to the east side of the columns of the society building at the
ground, first, second and third floors and the damaged portions in flat Nos.001
and 002. That notice contained stipulations similar to those specified in notice
dated 12.12.2007.
11. In response to the second notice, respondent No.3 sent reply dated
5.4.2010 mentioning that the appellant was not allowing inspection of the flat
by its Structural Auditor to facilitate the repairs. Thereupon, the Assistant
Commissioner sent letter dated 22.4.2010 to the appellant and asked him to
remain present in the joint meeting arranged in his Chamber on 28.4.2010.
However, instead of attending the meeting, the appellant filed Writ Petition
No.187 of 2011 for issue of a mandamus to respondent No.2 to invoke Section
489 of the 1888 Act and get the flat repaired at the cost of respondent No.3.
The appellant pleaded that respondent No.2 was bound to take necessary
steps in terms of Section 489 because respondent No.3 had failed to comply
with the notices issued under Section 354 of the 1888 Act.
12. In the counter affidavit filed by respondent No.3 through its Honorary
Secretary, Shri Kishore Vedac, the following averments were made:
(i) Respondent No.3 carried out major repairs in the building in 2005-06 and all
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the members except the appellant had paid their respective contribution.
(ii) When the appellant was asked to pay Rs.1,23,936/- towards his share of
the expenses, he filed a dispute before the Cooperative Court.
(iii) During the pendency of the dispute, the appellant filed Miscellaneous
Application No.1/2008, which was finally disposed of by the President of the
Cooperative Appellate Court vide order dated 21.2.2008 and certain directions
were given for repair of the flat.
(iv) The directions given by the Cooperative Appellate Court could not be
implemented because the appellant did not allow inspection of the flat.
(v) After disposal of the earlier application, the appellant filed Interim
Application No. _____/09 with the prayer that respondent No.3 be directed to
carry out the repairs in terms of the report of M/s. Parelkar & Dallas and the
same is pending.
13. The Division Bench of the High Court took cognizance of the orders
passed by the Cooperative Appellate Court and disposed of the writ petition by
recording the following observations:
“Having heard the Ld. counsel for the parties we are unable to accept the
petitioner's contention that for the structural repairs to be carried out in the
petitioner's flat the Municipal commissioner should be directed to spend from
the public funds and thereafter, to recover the same from the Respondent no.3
society. We do not find any such provision in section 489 or 499 of the Act
which would justify this court to direct the Municipal Commissioner to spend for
repairs in a private flat from out of the public funds. At the highest the
petitioner is entitled to carry out repairs in his flat and to recover the same from
the respondent no.3 society as per the decisions of the co-operative appellate
court. We, therefore, leave it open to the petitioner to approach the
Co-operative Court which will allow the petitioner to withdraw the amount of
approximate Rs.40,000/- deposited during the pendency of the proceedings
before the Cooperative Court. The Petitioner will also be at liberty to carry out
repairs in his flat and recover the amount from respondent no.3 society by
taking out appropriate execution proceedings for execution of the orders of the
Cooperative Appellate Court. If the petitioner moves the Cooperative Court
with an application for withdrawal of the aforesaid amount, the Cooperative
Court shall pass appropriate order so as to enable the petitioner to withdraw
the amount within one week from the date of filing the application.”
14. Shri Ram Jethmalani, learned senior counsel appearing for the appellant,
argued that the impugned order is legally unsustainable and is liable to be set
aside because the High Court failed to notice the mandate of Section 489
which imposes a duty on respondent No.2 to ensure that in the event of
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non-compliance of the notice issued under Section 354, the repairs are carried
out at the cost of respondent No.3. Shri Jethmalani referred to Section 3(gg) of
the 1888 Act to show that the definition of the word 'premises' is
comprehensive enough to include public as well as private buildings and
argued that respondent No.2 was duty bound to take steps for repair of the
damaged portion of the flat because despite two notices issued under Section
354, respondent No.3 failed to undertake the required repairs. Learned senior
counsel submitted that even though use of the word 'may' in Section 489(1)
suggests that it is only an enabling provision, this Court should interpret the
same as mandatory else Section 354 will become otiose.
15. Shri Pallav Shihsodia, learned senior counsel appearing for the
Corporation, argued that Section 489(1) is not couched in mandatory form and
respondent No.2 is not obliged to take steps for repair of the damaged portion
of the building or structure merely because the owner has failed to take steps
in terms of the notice issued under Section 354. Shri Shishodia further argued
that the plain language of Section 489 does not admit the interpretation placed
by Shri Jethmalani because the Legislature has deliberately used the
expression 'the Commissioner may..............'. He submitted that if the language
of Section 489 is construed as casting a duty on the Commissioner to take
measures for execution of the notices issued under Section 354 and other
sections enumerated in sub-section (2) of Section 489, then it will become
impossible for him to perform his duties under various other provisions of the
Act. Shri Shihsodia also pointed out that in terms of Section 499, the appellant
could have obtained approval of the Commissioner for repair of the flat and
recovered the cost from respondent No.3 by making appropriate deduction
towards the rent and maintenance charges. Learned senior counsel invited our
attention to letter dated 22.10.2008 sent by the Assistant Commissioner to the
appellant requiring him to seek approval of the Commissioner for the execution
of works in terms of Section 499 and argued that the appellant cannot take
advantage of his own failure to seek necessary approval from the Competent
Authority.
16. Shri Shivaji M. Jadhav, learned counsel appearing for respondent No.3,
supported the impugned order and submitted that in view of the directions
given by the Cooperative Appellate Court, the appellant can recover the cost
of repairs from respondent No.3 subject to final adjudication of the dispute.
17. We have considered the respective arguments and carefully perused the
record. Sections 3(gg), 354, 489,490, 491 and 499 of the 1888 Act, which
have bearing on the decision of the issue involved in this appeal read as
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under:
“3(gg). “premises” includes messuages, buildings and lands of any tenure,
whether open or enclosed, whether built on or not and whether public or
private.
354. Removal of structures, etc., which are in ruins or likely to fall.
(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, subject to the provisions of Section 342 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.
489. Works, etc. which any person is required to execute may in certain cases
be executed by the Commissioner at such person's cost.
(1) When any requisition or order is made, by written notice by the
Commissioner or by any municipal officer empowered under section 68 in this
behalf, under any section, subsection or clauses of this Act mentioned in
sub-section (2), a reasonable period shall be prescribed in such notice for
carrying such requisition or order into effect, and if, within the period so
prescribed, such requisition or order or any portion of such requisition or order
is not complied with the Commissioner may take such measures or cause
such work to be executed or such thing to be done as shall, in his opinion be
necessary for giving due effect to the requisition or order so made; and, unless
it is in this Act otherwise expressly provided, the expenses thereof shall be
paid by the person or by any one of the persons to whom such requisition or
order was addressed.
(2) The sections, sub-sections and clauses of this Act referred to in
sub-section (1) are the following, namely:-
Section 230, sub-section (5) Section 305
Section 231. Section 308, sub-section (2)
Section 232. Section 309, sub-section (1)
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Section 233, clause (b). Section 311

Section 233A, clause (b) Section 315
Section 243, sub-section (2) Section 325
Section 248, sub-section (1) Section 326, sub-section (3)
Section 249A Section 327, sub-section (1),
clause (d)
Section 257 Section 328, sub-section (3).
Section 271, sub-section (2) Section 328A, sub-section (3).
Section 272, sub-section (5) Section 329, sub-section (1).
Section 274, sub-sections (1) and (1A)
Section 334, sub-section (1).
Section 274A, sub-sections (1) and (2)
Section 338, sub-section (2).
Section 278 Section 352.
Section 353. Section 380.
Section 354. Section 381.
Section 363, sub-sections (1), (2), (3) and (4).
Section 381A, sub-section (2).
Section 375. Section 382.
Section 375A. Section 383, sub-section (1).
Section 376. Section 392, sub-section (1).
Section 377. Section 405.
Section 377A. Section 425, sub-section (1).
(3) The Commissioner may take any measure, execute any work or cause
anything to be done under this section, whether or not the person who has
failed to comply with the requisition or order is liable to punishment or has
been prosecuted or sentenced to any punishment for such failure.
490. Recovery of expenses of removals by the Commissioner under sections
314, 315, 354 and 380.
(1) The expenses incurred by the Commissioner in effecting any removal
under section 314 or sub-section (3) of section 322 or subsection (2) or (3) of
section 354A or, in the event of a written notice issued under sub-section (1) of
section 315 or section 354 or 380 not being complied with under section 489,
shall be recoverable by sale of the materials removed, and if the proceeds of
such sale do not suffice, the balance shall be paid by the owner of the said
materials.
(2) But, if the expenses of removal are in any case paid before the materials
are sold, the Commissioner shall restore the materials to the owner thereof, on
his claiming the same at any time before they are sold or otherwise disposed
of, and on his paying all other expenses, if any, incurred by the Commissioner
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in respect thereof or in respect of the intended sale or disposal thereof.

(3) If the materials are not claimed by the owner thereof, they shall be sold by
auction or otherwise disposed of as the Commissioner thinks fit if perishable
forthwith, and if other than perishable, as soon as conveniently may be after
one month from the date of their removal, whether the expenses of the
removal have in the meantime been paid or not and the proceeds, if any, of
the sale or other disposal, shall, after defraying therefrom the costs of the sale
or other disposal, and, if necessary, of the removal, be paid to the credit of the
municipal fund, and shall be the property of the corporation.
(4) Notwithstanding anything contained in this Act, when the removal of
anything is effected under section 314, the Commissioner may direct that the
owner thereof shall, in addition to the expenses incurred in effecting the
removal of the thing, pay by way of penalty such sum not exceeding ten
thousand rupees as the Commissioner may specify, and such sum if not paid,
shall be recoverable in the same manner in which the expenses incurred in
effecting the removal of the thing are recoverable.
491. Expenses recoverable under this Act to be payable on demand; and if not
paid on demand may be recovered as an arrear of property tax.
(1) Whenever under this Act, or any regulation or by-law made under this Act,
the expenses of any work executed or of any measure taken or thing done by
or under the order of the Commissioner or the General Manager or of any
municipal officer empowered under section 68 in this behalf are payable by
any person, the same shall be payable on demand.
(2) If not paid on demand the said expenses shall be recoverable by the
Commissioner or the General Manager subject to the provisions of sub-section
(2) of section 503, by distress and sale of the goods and chattles of the
defaulter, as if the amount thereof were a property tax due by the said
defaulter.
499. In default of owner, the occupier of any premises may execute required
work recover expenses from the owner.
(1) 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
bye-law made under this Act, the occupier, if any, of such building or land shall
be entitled to execute such work in the manner set out in sub-section (2).
(2) The occupier or occupiers interested in such work may seek the approval
of the Commissioner for executing such work. The Commissioner shall grant
the approval unless other measures are taken by him to execute the said
work. While granting the approval the Commissioner shall specify the nature of
the work. Upon such approval being granted, the occupiers shall be entitled to
execute the said work and the expenses incurred for such work shall for all
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purposes be binding on the owner. The occupiers shall also be entitled to

deduct amount of expenses incurred for such work from the rent which from
time to time becomes due by them to the owner or otherwise recover such
amount from them :
Provided that, where such work is jointly executed by the occupiers the
amount to be deducted or recovered by each occupier shall bear the same
proportion as the rent payable by him in respect of his premises bears to the
total amount of the expenses incurred for such work :
Provided further that, the total amount so deducted or recoverable shall not
exceed the amount of expenses incurred for such work.”
18. An analysis of the above reproduced provisions makes it clear that the
term
“premises” includes public as well private messuages, buildings and lands.
Section 354 (1) provides for issuance of notice to the owner or occupier of any
structure to pull down the same or secure or repair such structure, subject to
the provisions of Section 342 and to prevent every possible cause of danger
therefrom. Section 354(2) empowers the Commissioner to issue direction for
urgent implementation of the notice for pulling down of the structure or repair
of the same. Section 489(1) deals with a situation in which the person to whom
a notice is issued either under Section 354 or any other section enumerated in
Section 489(2) has failed to comply with the same. In such an eventuality, the
Commissioner is empowered to take such measures or cause such works to
be executed or such things to be done which, in his opinion, may be necessary
for giving effect to the requisition or order made under the particular section.
This section also lays down that unless otherwise provided in the 1888 Act, the
expenses of such work etc. shall be paid by the person to whom such
requisition or order was addressed. Section 489 (3) empowers the
Commissioner to take any measure, execute any work or cause anything to be
done under that section irrespective of the fact that the wrongdoer is liable to
be punished or has been prosecuted or sentenced to any punishment. Section
490(1) provides for recovery of expenses incurred by the Commissioner in
effecting any removal under Section 314 or 322(3) or 354A(2) or (3). This
section lays down that in the event the written notice issued under Section
315(1) or 354 or 380 is not complied with under Section 489, then the
expenses shall be recoverable by sale of the materials removed. Section
490(2) and (3) contain provisions ancillary to Section 490(1). Section 491 lays
down that expenses of any work executed or of any measure taken or thing
done by or under the order of the Commissioner etc. shall be payable on
demand. If the demand is not satisfied, proceedings can be taken against the
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defaulter for recovery by distress and sale of goods and chattels. Section
499(1) is an enabling provision. It empowers the occupier of any building or
land to execute the work which the owner of any building or land has failed to
execute in accordance with the provisions of the Act or regulation or bye-laws
made thereunder. Section 499(2) lays down that before executing the work
referred to in Section 499(1), the occupier or occupiers of the building or land,
as the case may be, may seek approval of the Commissioner, who, in turn,
has to grant such approval unless he has taken other measures for execution
of such work. Once the approval is granted, the occupier is entitled to execute
the work and deduct the expenses incurred for such work from the rent
payable to the owner.
19. A careful reading of Sections 354 and 489 shows that if the Commissioner
is satisfied that any 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 structure or place in the neighbourhood thereof, then he can
require the owner or occupier of such structure to pull down, secure or repair
the same and to prevent cause of danger therefrom. The word 'structure' used
in sub-section (1) of Section 354 includes any building, wall and other structure
and anything fixed to or projecting from any building, wall or other structure.
Under Section 354(2), the Commissioner can direct the owner or occupier to
take steps enumerated in Section 354(1) on emergency basis. If the owner or
occupier fails to take steps in terms of Section 354(1) or (2), then the
Commissioner can suo motu take such measures or cause such works to be
executed. In that event the expenses incurred in the taking of appropriate
measures and/or execution of work are required to be paid by the person or by
any one of the persons to whom the requisition or order issued under Section
354 was addressed. The other sections mentioned in Section 489(2), which
relate to amenities like drains, water closets, privies, urinals, private water
supply, leveling and draining of private streets, prohibition of projection upon
streets, removal of any structure or fixture erected or set up before the
enforcement of Section 312, provision of passage or diversion of traffic and for
securing access to the premises approached from the street, drainage, water
supply etc., provision for parking, naming of streets etc., alteration in the
location of gas pipes etc., submission of plans and other documents for
erection of building and supply of other information, inspection and sanitary
regulation of premises, regulation of private market buildings and slaughter
houses, disinfection of buildings etc. empower the Commissioner to take
various steps for ensuring erection of buildings in accordance with the
sanctioned plans, laying of streets, drainage, sanitation etc. In appropriate
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cases, the Commissioner can issue directions for maintaining proper drainage,
sanitation, cleanliness etc. and take punitive measures for violation of such
directions.
20. Although, most of the above mentioned provisions are intended to benefit
the public at large, some of them are also meant for the benefit of private
individuals. The primary object underlying Section 354 is to safeguard the
public from the danger of being forced to live in a structure, which includes any
building, wall or other structure and which is in a ruinous condition or is likely
to fall or is in any way dangerous to any person occupying the same. This
section is also intended to protect those who may pass by such structure. A
reading of the plain language of Section 489 gives an impression that it is only
an enabling provision but if the same is read keeping in view the purpose of its
enactment and the setting in which it is placed, it becomes clear that the
Commissioner is duty bound to ensure that the written notice given to the
owner or occupier under Section 354(1) is implemented in its letter and spirit.
The duty cast upon the Commissioner is in the nature of a public law
obligation and in appropriate case, the Court can issue direction for its
enforcement. In this connection, we may usefully quote the following passage
from 'Principles of Statutory Interpretation' by Justice G.P. Singh (12th Edition,
2010 - page 389): “As approved by the Supreme Court: "The question as to
whether a statute is mandatory of directory depends upon the intent of the
Legislature and not upon the language in which the intent is clothed. The
meaning and intention of the legislation must govern, and these are to be
ascertained not only from the phraseology of the provision, but also by
considering its nature, its design and the consequences which would follow
from construing it the one way or the other" "For ascertaining the real intention
of the Legislature", points out Subbarao, J, "the court may consider inter alia,
the nature and design of the statute, and the consequences which would
follow from construing it the one way or the other; the impact of the other
provisions whereby the necessity of complying with the provisions in question
is avoided; the circumstances, namely, that the statute provides for a
contingency of the noncompliance with the provisions; the fact that the
noncompliance with the provisions is or is not visited by some penalty; the
serious or the trivial consequences, that flow there from; and above all,
whether the object of the legislation will be defeated or furthered". If object of
the enactment will be defeated by holding the same directory, it will be
construed as mandatory, whereas if by holding it mandatory, serious general
inconvenience will be created to innocent persons without very much
furthering the object of enactment, the same will be construed as directory. But
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all this does not mean that the language used is to be ignored, but only that
the prima facie inference of the intention of the Legislature arising from the
words used may be displaced by considering the nature of the enactment, its
design and the consequences flowing from alternative construction. Thus, the
use of the words 'as nearly as may be' in contrast to the words 'at least' will
prima facie indicate a directory requirement, negative words a mandatory
requirement 'may' a directory requirement and 'shall' a mandatory
requirement.””
In Bachahan Devi v. Nagar Nigam, Gorakhpur, 2008 (12) SCC 372, this Court
observed:
“It is well-settled that the use of word 'may' in a statutory provision would not
by itself show that the provision is directory in nature. In some cases, the
legislature may use the word 'may' as a matter of pure conventional courtesy
and yet intend a mandatory force. In order, therefore, to interpret the legal
import of the word 'may', the court has to consider various factors, namely, the
object and the scheme of the Act, the context and the background against
which the words have been used, the purpose and the advantages sought to
be achieved by the use of this word, and the like. It is equally well-settled that
where the word 'may' involves a discretion coupled with an obligation or where
it confers a positive benefit to a general class of subjects in a utility Act, or
where the court advances a remedy and suppresses the mischief, or where
giving the words directory significance would defeat the very object of the Act,
the word 'may' should be interpreted to convey a mandatory force. As a
general rule, the word 'may' is permissive and operative to confer discretion
and especially so, where it is used in juxtaposition to the word 'shall', which
ordinarily is imperative as it imposes a duty. Cases however, are not wanting
where the words 'may' 'shall', and 'must' are used interchangeably. In order to
find out whether these words are being used in a directory or in a mandatory
sense, the intent of the legislature should be looked into along with the
pertinent circumstances. The distinction of mandatory compliance or directory
effect of the language depends upon the language couched in the statute
under consideration and its object, purpose and effect. The distinction
reflected in the use of the word 'shall' or 'may' depends on conferment of
power. Depending upon the context, 'may' does not always mean may. 'May' is
a must for enabling compliance of provision but there are cases in which, for
various reasons, as soon as a person who is within the statute is entrusted
with the power, it becomes his duty to exercise that power. Where the
language of statute creates a duty, the special remedy is prescribed for
nonperformance of the duty.”
In Dhampur Sugar Mills Ltd. v. State of U.P., 2007 (8) SCC 338, this Court
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quoted with approval the following observations of Earl Cairns, L.J. in Julius v.
Lord Bishop of Oxford 1880 (5) AC 214:
“(W)here a power is deposited with a public officer for the purpose of being
used for the benefit of persons who are specifically pointed out, and with
regard to whom a definition is supplied by the Legislature of the conditions
upon which they are entitled to call for its exercise, that power ought to be
exercised, and the Court will require it to be exercised.”
21. In view of the above discussion, we may have set aside the impugned
order and issued a mandamus to respondent No.2 to ensure execution of the
notices issued under Section 354(1) but there are two impediments in
adopting that course. Firstly, the appellant could have availed of the remedy
under Section 499 by making an application to the Commissioner for grant of
approval to execute the work which respondent No.3 is alleged to have failed
to execute in terms of the notices issued under Section 354. At one stage, the
Assistant Commissioner had sent letter dated 22.8.2012 to the appellant
asking him to seek approval of the Commissioner but for reasons best known
to him, the appellant did not respond. The second impediment is order dated
21.2.2008 passed by the Cooperative Appellant Court. It is not in dispute that
the appellant had raised a dispute under the Maharashtra Cooperative
Societies Act questioning the demand raised by respondent No.3 in lieu of the
repairs carried out in 2005-2006. It is also not in dispute that during the
pendency of the revision petition before the Cooperative Appellate Court, the
appellant had filed Miscellaneous Application No.1/2008, which was disposed
of by the concerned Court by detailed order dated 21.2.2008. There is a lot of
controversy between the appellant and respondent No.3 on the issue of
implementation of the directions given by the Cooperative Appellate Court.
While the appellant has blamed respondent No.3 for not taking steps to repair
the flat in terms of direction Nos. 1 and 2, the latter has accused the appellant
of non-cooperation by stating that he persistently refused to allow inspection
by the Structural Auditor. However, we are not concerned with this controversy
and are of the considered view that once the appellant succeeded in
persuading the Cooperative Appellate Court to issue direction for repair of the
flat in question, he had no locus to file the writ petition under Article 226 of the
Constitution. In any case, instead of filing a petition under Article 226 of the
Constitution, the appellant should have taken steps for effective execution of
the order passed by the Cooperative Appellate Court. He could also have, by
taking advantage of letter dated 22.12.2008 sent by the Assistant
Commissioner, sought approval of the Commissioner under Section 499(2) for
executing the work relating to repairs and deducted the cost from the
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rent/maintenance charges.
22. In view of the above discussion, we hold that the Division Bench of the
High Court did not commit any error by relegating the appellant to the remedy
of seeking execution of the directions contained in order dated 21.2.2008
passed by the Cooperative Appellate Court.
23. The appeal is accordingly dismissed leaving it open for the appellant to
secure execution of order dated 21.2.2008 passed by the Cooperative
Appellate Court.

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