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Nathubhai Dhulaji And Ors. vs The Municipal Corporation, ... on 11 October, 1957
Showing the contexts in which under section 354 appears in the document
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4. The fist defendant, which is a private limited company, filed a written statement and disputed the averments made by the plaintiffs. In the suit, apart from the first defendant, the owner, the plaintiffs made the Bombay Municipal Corporation as the second defendant in the suit, and by a written statement filed by the Corporation, it was contended that the notice issued under Section 354 was not mala fide, that the Court could not interfere with the executive authority conferred by Section 354 and that it denied the allegation made against it or collusion. Further, it was contended that Section 354 was not void and that the plaintiffs were not entitled to the reliefs claimed by them.

6. Upon this appeal, Mr. Phadke appearing for the plaintiffs has taken up three points. It has been urged, firstly, that the notice issued to the first defendant under Section 354 is mala fide both tin fact and in law. It is then urged that the authority acting under Section 354 must act judicially and in the present case the authority had not acted judicially, while issuing the notice under Section 354. It is urged, in the last place, that Section 354 was void, in view of Article 19(1)(f) of the Constitution. I will deal with the points in the order in which they have been taken.

The title under which this section occurs is "Dangerous Structures" and one has only to read the section to realize that the intention of the section is to secure public safety. The authority issuing notice under Section 354 has to objectively consider certain facts. After having ascertained the facts objectively, he has to satisfy himself as to whether or not he would issued a notice under Section 354. First, he has to consider whether a building is in a ruinous condition or is likely to fall or is in any way dangerous to any person occupying, resorting to or passing by such structure. This embraces not merely the persons who occupy the building but also those who go to the building and also those who happen to pass by the building. Therefore, the authority issuing notice under Section 354 has to ascertain these facts objectively. he has then to consider another fact objectively, which is, having regard to the state of the property, what is the degree of risk to the public safety and having ascertained this, he has then to consider whether he would issue a notice to the owner or occupier requiring him either to pull down the building or to repair it. It is quite clear, therefore, that the authority issuing notice under Section 354 has to ascertain certain facts objectively and then to satisfy himself. In other words, the satisfaction is his own satisfaction, i.e., the subjective satisfaction of the authority issuing notice under Section 354.

11. Now, in this case a notice was issued first in the year 1954 followed by a notice, which is challenged, and which was issued in 1958. A building which needed repairing in 1954 may, in conceivable circumstances, require pulling down in 1956. But whether the building should be pulled down or repaired is a matter of which the authority is the sole judge, and so long as the authority keeps himself within the limits of the authority given to him by Section 354, his discretion is absolute. The authority must act bona fide. He must not act capriciously or from an improper motive. But if he considers the facts objectively and comes to a particular conclusion, his satisfaction would not then be open to challenge, provided he has come to the conclusion honestly and bona fide. The contention which has been taken by Mr. Phadke is that Section 354 does not make provision for the right of a person to be heard. The short answer to this contention is that Section 354 does not provide for a hearing to be given to persons such as the plaintiffs in this case. When the contention is that the authority must act judicially, what the Court is concerned with is to see whether the section under which the right is claimed requires a hearing to be given. If the section of a statute requires that a hearing should be given, then surely the approach of the authority must be judicial approach. But the alternative argument which has been advanced by Mr. Phadke is that even if the authority may not be bound to act judicially, the principles of natural justice require that a party should be heard before his rights are affected in any way. So far as the judicial approach is concerned, there is no difficulty in holding that the notice issued under Section 354 is an executive act or an executive order and when by statute a provision is not made for a hearing, it is impossible to accept the contention that the authority is bound to act judicially; nor is, in my opinion, the contention tenable that although the section does not provide for a hearing, the rules of natural justice require that a party should be heard before his rights are affected. For the view which I take there is a good deal of authority in support and quite a slender authority against. The question whether the approach should be judicial has been decided in a number of cases, of which I would refer to two by way of illustration.