VIVIAN JOSEPH FERREIRA DR J EHANGIR RUSTOM SETHNA Vs. MUNICIPAL CORPORATION OF GREATER BOMBAY:MUNICIPAL CORPORATION OF GREATER BOMBAY

JUDGEMENT

(1.) These petitions by owners of two residential buildings in the city of Bombay, neither of which is by reason of its having been recently constructed, either dilapidated or in dangerous condition, challenge the validity of the Bombay Buildings Repairs and Reconstruction Board Act XLVII of 1969.

(2.) The preamble of the Act recites collapses of residential buildings, acute shortage of housing accommodation, and the problems of law and order arising from the unceasing influx of persons into the city of Bombay in search of work as having necessitated its enactment. It also recites the recommendations, suggestions and objections received by Government in response to the proposals made by it and its conclusion after considering them as to the necessity for establishing a Board to deal with the said problems by carrying out structural repairs to dangerous buildings, by acquiring and reconstructing buildings which are beyond repair and by providing for the rehousing of occupiers, who, because of such repairs would be dishoused, and to provide for the temporary levy of an additional cess on buildings and lands to meet the expenditure for the aforesaid purposes. The Act was brought into force on October 1, 1969 and the cess payable thereunder became operative as from November 1, 1970.

(3.) The Act by S.1 (4) is declared to be a temporary one and would expire on December 31, 1979. Structural repairs are defined by section 2 (s) as meaning 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, by new ones of the like materials, or of different materials including change in the mode of construction such as converting load bearing wall type or timber framed structure to an R.C.C. one, which repairs or replacement, if not carried out expeditiously, may result in the collapse of the building or any part thereof. Section 3 and 4 provide for the establishment and composition of the Bombay Building Repairs and Reconstruction Board. Sections 21 and 22 lay down the duties, powers and functions of the Board including the power to carry out structural as also tenantable repairs, to move the State Government to acquire old and dilapidated properties in respect of which the cess is levied and which, in the opinion of the Board, are beyond repair and to reconstruct new buildings thereon, to establish transit camps to temporarily accommodate persons dishoused and to demolish dangerous and dilapidated buildings incapable of being repaired at reasonable cost. Section 27 provides that subject to the provisions of Section 28 there shall be levied a tax on buildings and lands called the Bombay Buildings Repairs and Reconstruction Cess at the rate of so many percentum of the rateable value of the concerned property as is prescribed therefor under the Schedule to the Act. Sub-s. (4) of S.27 provides that the share of the owner shall be 10 per cent of the rateable value of the property and confers, a right on such owner to recover the balance from the tenant by making a proportionate increase in rent and recovering it as such. Section 28 enumerates various classes of buildings which are exempted from the enforcement of the levy. Section 29 lays down three categories of buildings to which the Act applies. The Schedule to the Act provides different rates at which buildings falling in each category would be subject to the cess. The Schedule also provides in respect of each category of buildings different rates at which the cess would be payable if structural repairs are carried out to such building. The proceeds of the cess would be first credited to the consolidated fund of the State and thereafter under an appropriation duly made by law in that behalf would be transferred to a fund, the amount of which would be placed at the disposal of the Board for carrying out its several functions. (S.31). Lastly, S.71 provides that in the case of any building subject to the cess, the owner shall not be bound to keep the premises let to any occupier in good and tenantable repair and accordingly S.23 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 shall be deemed to have been suspended and the provisions of the Transfer of Property Act, 1882 relating thereto shall apply.