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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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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.

This case was followed with approval in the case reported in Govindji Vithaldas v. Municipal Corporation, Ahmedamad, . In the case Section 37(3) of the Bombay Police Act, 1951, was challenged and this Court held that Section 37(3) of the Act is a restriction imposed by the Legislature in the interests of public order and in the interests of the general public upon the freedom guaranteed to the citizen under Article 19(1)(b) and (d) of the Constitution, and that restriction is a reasonable restriction. Now, a restriction may be imposed as a matter of policy or in the case of an emergency. Bapurao Dhondiba's case ((S) ) is a case of the latter description. But there can be no doubt that a restriction can be placed upon the right enjoyed under Article 19. In this case it may be not merely a case of policy but also of emergency. If the authority takes the view that a building is required to be pulled down, provided the authority comes to a bona fide conclusion, it makes no difference that contrary to the conclusion the building does come to fall. Having regard to the authorities. We are satisfied that assuming that Art. 19(1)(f) applies, the restriction imposed is a reasonable restriction in the interests of public safety grounded upon a principle of policy and, in our view, Section 354 is not, therefore, open to challenge in view of Article 19(5) of the Constitution. Mr. Mehta has pointed out - and I think rightly - that the view of the authority acting under Section 354 is also open to correction under Section 66(1)(c) of the Bombay Municipal Corporation Act. That is a safeguard to keep an authority in his proper place and under control and where there is a check upon the activity of an authority issuing a notice under Section 354, it is hardly reasonable to contend that the restriction imposed is not a reasonable restriction. A view, similar to the view which we are taking, was taken by this Court in Special C. A. No. 233 of 1956 to which reference has been made already, and one may refer to it again, though briefly. It was a case where, as in this case, the right conferred upon a citizen under Article 19(1)(f) was challenged and whet eh point was argued unsuccessfully, it was pointed out after citing the case reported in Jeshingbhai Ishwarlal v. Emperor, , that the restriction was a reasonable restriction. it is true that in that case the conclusion was subject to the review of the Director of Local Authority. If that was the safeguard in that case, here was a safeguard provided in Section 66(1)(c) of the Act. It seems to us, therefore, that if the restriction placed upon the enjoyment of a right guaranteed under the Constitution is a reasonable restriction, then of course, the challenge based upon Article 19(1)(f) cannot be accepted.