Calcutta High Court
Bijoy Shankar Tiwari And Ors. vs Calcutta Municipal Corporation And ... on 22 August, 2001
Equivalent citations: (2001)3CALLT360(HC)
JUDGMENT
The Court
1. The disputes involved in the present writ proceeding relate to Premises No. 30, Burtolla Street, Calcutta-700 007 (hereinafter referred to as the said building). Prior to initiation of the present writ proceeding there were other writ proceedings also in connection with the said building. It is not necessary to refer to all the prior writ proceedings except one which was instituted by the writ petitioner calling in question a notice dated 6.12.1999 (annexure-'P-15' of the writ application) issued by the Municipal Commissioner of the Calcutta Municipal Corporation (hereinafter referred to as the corporation) under section 411(4) of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as the said Act), directing to demolish departmentally the northern and southern part of the balconies at 1st and 2nd floor and roof slab at front corridor and stair case including main walls at road side of the said building. By the aforesaid notice under section 411(4) of the said Act it was Certified that the demolition was necessary forthwith for the safety' of public or the inmates of the building. This notice under section 411 (4) of the said Act was called in question by the writ petitioner in a writ proceeding which went up to the Division Bench of this high Court as Appeal No. 211 of 2000 (Bijoy Shankar Tewari and Ors. v. The Calcutta Municipal Corporation and Ors.) and the Division Bench by a Judgment and order dated 4.8.2000 disposed of the aforesaid appeal. The relevant part of the aforesaid Judgment and order of the Division Bench is set out hereunder:
"On the one hand the Court cannot take upon it any responsibility by passing an order that a building although unfit for human consumption should not be demolished which may be dangerous for the life and property of the habitants thereof but on the other hand in absence of any proof that the authority of the Corporation had acted bonafide, it cannot also allow demolition of a building solely for the benefit of a private parly. The Calcutta Municipal Corporation Act, 1980 is regulatory in nature. The Legislature has enacted the Act with the objects and salutary principles as is stated in the preamble thereof. Such a statutory provision contained in section 411 relates to safety of the inhabitants of the building and/or its neighbours, but the same cannot be permitted to the used by the authorities of the Corporation on their whims and caprice. An action in terms of such provision must be taken only when the concerned authority satisfies itself that the public interest demands that action is necessary to be taken thereunder. Satisfaction of the statutory authority was therefore sine qua non for acting in terms of the said provisions. The report of the Chief Municipal Engineer (Building) shows that such a satisfaction had not been reached nor can be reached unless experts of some institution examine the building.
We are, therefore of the opinion that the Mayor of the Corporation be requested to constitute a body of experts consisting of three members so as to satisfy himself as also the statutory authority that condition precedent exists for exercising the power under Sub-section 4 of section 11 of the Act. One of three such experts may be an Engineer from Jadavpur University and another may be a reputed Chartered Engineer of the City.
We. therefore, set aside the order and direct the Corporation to act only upon satisfying itself that condition precedent for exercising the power under section 411 exists. In the event, if the1 Committee the experts is Of the opinion that the repair of the building which although may entail a huge expenses would serve the purpose such a direction may be Issued. We make this observation having regard to the observation made by the Chartered Engineers appointed by this Court. The appellant is at liberty to carry on such repair in respect whereof an order of sanction has been issued by the Corporation in this regard. But that does not mean that Corporation would not be entitled to take any action against the appellant if they are guilty of violation of the order of sanction as suggested by the Chief Engineer (Building) in his report as noticed hereinbefore.
We may place on record that having regard, to the limited prayer made before this Court," all questions shall remain open.
Having regard to the peculiar situation involved in this appeal we would also request the appropriate Bench to consider the desirability of disposing of the suit which is pending since 1964 particularly in view of the order of the apex Court dated 12.4.2000 passed in Special Leave Petition (Civil) No. 3365 of 1997. The Registrar, O.S., is directed to place the matter before the Hon'ble the Chief Justice, if not already done.
Parties may mention the matter before the appropriate Bench for early herelng of the suit. They would also be at liberty to file such application before the appropriate Bench, as may be advised, for such direction or directions as may be considered necessary.
All parties are to act on a xeroxed certified copy of this judgment, to be delivered on priority basis, on the usual undertaking."
2. Thereafter a body of experts consisting of Prof. Dr. Sakti Ranjan Bhattacharya, M.C.E., Ph.d, F.I.E., F.A.E., M.I.S.,M.I.G.S., M.A.S.C.E., M.I. Struct, E, Member of the Indian Society for Non destructive testing. Head of the Department of Civil Engineering, Jadavpur University, Shri Phalguni Bandopadhya, B.C.E.M. Sc. C. Eng, M.I. Struct. E. (London) Chartered Structural Engineer, Shrl Shankar Das. B.E. (CAL) M.E. (CAL) Structural Consultant was constituted and the said body of experts submitted a report relating to the aforesaid building and thereafter a demolition order under section 411(1) has been issued. A copy of such demolition order admittedly, has not been served upon the writ petitioners. But the writ petitioners and other occupants of the said building were informed by a notice dated 12.6.2001 issued under section 411(2) of the said Act to vacate the said building within five days from 12.6.2001.
3. In the present writ proceeding the writ petitioners have prayed for an order in the nature of mandamus commanding the respondent Nos. 1 to 4 not to give any effect or further effect to the order dated 18.5.2001 passed by the Municipal Commissioner, the respondent No.3 and the order dated 19.5.20001 passed by the Mayor, the respondent No. 2 and the order passed by the Dy, Chief Engineer (Building), the respondent No. 4 bearing reference Dy. CE (B) North/140/2001-02 dated 12.6.2001 being annexure 'P-19' of the writ petition. The order dated 18.5.2001 passed by the Municipal Commissioner and the order dated 19.5.2001 passed by Mayor are set out hereunder:
"Municipal Commissioner's Office Calcutta Municipal Corporation Sub: 30. Burtala Street, Calcutta-700 007, Hon'ble Mayor may kindly recall that the Division Bench of the Hon'ble High Court had on 20th September, 2000 requested Hon'ble Mayor to constitute a body of expert consisting of 3 members so as to satisfy himself that the condition precedent exists for exercising the power under section 411(4).
The brief background of the case is that the building at 30 Burtala Street was in absolutely dilapidated condition and in the opinion of CMC dangerous to the habitants. The owners, however, had challenged the decision of the CMC in the Court. The then CMC (Building) was asked by the Hon'ble High Court to submit a report to the Court regarding the stability of the building. The report of the then CMC (Building) failed to satisfy the Hon'ble Court. The Division Bench requested Hon'ble Mayor to constitute a body of expert of which one would be from Jadavpur University and another may be the reputed Chartered Engineer from the city. Accordingly under order of Hon'ble Maydr the Committee was constituted. The Committee had since submitted their report which is placed below. I have examined the report of the Committee. The Committee has also carried out tests on the materials of the building to ascertain the approximate age of the building. In all the tests they have found that the building materials like brick, timber etc. Is well below the safety limit and has deteriorated to a great extent. The Committee has finally concluded that even the building has to be repaired such repair would mean reconstructing the entire building. Actually they have advised against retaining the structure by carrying out repairs and they have recommended that the entire building to be demolished with sufficient care so that there is no loss of life during demolition.
I have carefully gone through the report of the Expert Committee and I am of the view that the condition precedent exist to application of section 411(4) of CMC Act, 1980.
Opinion of learned C.M.L.O. has also taken as to whether a hearing has to be given to the owners before passing a suitable order and the C.M.L.O. is of the view that a hearing has to be given before passing the appropriate order.
The building still has tenants. In case the CMC has to demolish the building under section 411(4) the onus would He on the CMC to have the building vacated and to spend money for demolition which can later be realised from the Owners which would be a long drawn process. Therefore, it is recommended that we may pass order under section 4121(1) where the onus of demolition of the building would He on the owners.
Hon'ble Mayor may kindly peruse the report of the Expert Committee and pass necessary orders.
Submitted.
Hon'ble Mayor Sd/-
18.5.01 MUNICIPAL COMMISSIONER Demolition order under section, 411(1) may be issued without further delay: after proper notice.
Sd/-
19.5.01 MAYOR"
4. The order of the Dy. Chief Engineer (Building)/North bearing reference No. Dy. C.E. (B) North/140/2001-02 dated 12.6.2001 is set out hereunder:
"Ref. No. Dy. CE (B) North/140/2001-02 dt. 12-6-01.
Mr. Bijoy Sankar Tlwarl and Ors. of 30, Burtala St. Calcutta-700 007.
II. The Hon'ble Mayor of Calcutta upon satisfying himself that condition ...precedent for exercising the power U/S 411 of the CMC Act, 1980 in pursuance of the Order of the Hon'ble Division Bench of Calcutta High Court in APOT No. 211 /2000 dt. 4.8.2000, this Notice under Section 411 (2) of CMC Act, 1980 is issued to vacate the premises at 30, Burtalla Street, Calcutta within 5(five) days from the date thereof.
Enclo:--Order of the Hon'ble Mayor dt 19/5/01.
Dy. Chief Engineer (Building)/North",
5. The learned Advocate for the petitioners in course of his argument, formulated the following points in support of the petitioner's case.
1. Petitioners are protected by orders of Courts Including Supreme Court to the effect that their tenancy right and right of possession should not be disturbed.
2. Having failed to fulfil their desire to vacate the petitioners from the building, respondent No. 5 now connive with the Corporation to demolish the building.
3. Once without any Intimation or notice the Corporation and the men of respondent No. 5 on 18.12.99 all on a sudden started demolishing.
4. The order to demolish issued under section 411(4) of the aforesaid Act on 26.12.99 was set aside by the Division Bench of the High in Appeal No. 211 of 2000 by an order 4.8.2000.
5. The Division Bench by its order dated 4.8.2000 directed the Mayor of the Corporation to constitute a Body of Experts.
6. Expert Body was not constituted by Mayor.
7. Expert Body sent no notice of inspection of the aforesaid building to the petitioners.
8. No. Inspection was at all held by the Expert Body either in presence of the petitioners or in presence of the other occupants of the building, :
9. No method of Civil Engineering technic was adopted by the Expert Body recorded in the report while coming to the conclusion.
10. Reports submitted by the Expert Body exhibits non-application of mind and it is based on surmise and conjecture.
11. The Expert Body exceeded its Jurisdiction beyond the portions of the premises described in the demolition notice dated 6.12.1999 i.e. the notice issued under section 411(4) of the aforesaid Act.
12. The Mayor has not come to the conclusion that the circumstances are warranting to invoke the provisions of section 411(4) of the said Act.
13. The impugned notice purported to be issued under section 411(2) of the aforesaid Act has been issued without issuing a notice under section 411(1) and in complete derogation from the mandatory provision contained in section 558 of the said Act.
14. Representation of the petitioner dated 14.6.01 has not been disposed of in accordance with the provisions contained in section 558 of the said Act.
15. Entire action of the Corporation is malafide because the Corporation took such action to help the landlady to get rid of the petitioners and construct a commercial complex there.
6. On 10.3.2000 the Division Bench of this High Court in Appeal No. 211 of 2000 passed the following order:
"The Court : Leave in terms of prayer (a) is granted. Having heard the learned counsel for the parties we are of the opinion that keeping in view the fact that order of injunction passed in respect of the tenancy in question is still operative and keeping in view the allegations that despite such an order of injunction the authority of the CMC had carried on its demolition activities in respect of the premises in question we direct that a Chartered Engineer to be nominated by the Registrar, O.S. of this Court may be appointed as the Special Officer. Such Chartered Engineer may inspect the premises in question thoroughly and submit a report to this Court within two weeks from date.
Let the matter appear two weeks hence. Costs of the Chartered Engineer shall be borne by the petitioner. The parlies may exchange affidavits in the meantime.
Till further orders the parties shall maintain status-quo as regards the building in question.
All parlies including the Registrar. O.S. are to act on a signed copy of the minutes of this order on the usual undertaking."
7. Pursuant to the aforesaid order S.N. Pal & Associates, Chartered Engineers submitted a report dated 30.3.2000 before the Division Bench. The relevant part of the recommendations from the aforesaid report dated 30.3.2000 is set out hereunder :
(06) RECOMMENDATIONS :
This building has not been maintained at all for year and as a result the same has been rendered unsafe for human habitation for absence of proper water and toilet facility, unsafe passage and corridors and fear of electrical short circuit. Even sudden collapse of a part of the building, affecting adjoining part of the same building with the Appellants living therein causing fatal injury cannot be ruled out.
Peace meal repair of the building is not advisable. However, very major and costly repair is possible by replacing the existing old floor slabs by Isolated R.C.C. floor, one by one starting from first floor and moving upward making use of the existing load bearing walls under the strict supervision of an experienced Engineer. Repair of one intermediate floor only is not advisable.
In the interest of safety. It would be desirable to have the inmates of the house shifted to a safer place during the execution of the repair work as otherwise portions of building may subside during such repair work causing fatal injury. The present condition of the wooden beams and runners are unpredictable as it appears that some of these have been decayed although it may not be apparent.
The loose debris generated out of the last demolition work done by CMC should be removed immediately as this is likely to injure pedestrians besides demolishing the loose structure particularly the structure being supported on brick pillars adjoining the staircase taking due care to ensure that such demolition does not affect presently habitable portion of the building."
8. Thereafter the Division Bench of this High Court in Appeal No. 211 of 2000 passed an order on 6.4.2000. The relevant part of the said order dated 6.4.2000 is set out hereunder:
"A report has been submitted by S.N. Pal & Associates, Chartered Engineers. However, according to Mr. Bachawat the said report suffers from many defects and the same is beyond the order of this Court. Learned counsel submits that his client may get the building Inspected by another Chartered Engineer at his client's own cost. As Mr. Verma appearing on behalf of the appellant has no objection to the said proposal of Mr. Bachawat, we direct that the parties if they so desire may get the building inspected by a Chartered Engineer whose name is borne out from the panel maintained by the Registrar, Original Side of this Court. The Registrar, Original Side of this Court is directed to appoint another Chartered Engineer from the panel and the Chartered Engineer so to be appointed is directed to inspect the building and submit a report about the condition of the building to this Court on the next date of hearing.
However, in the meantime, Mr. Verma's client would be entitled to carry out the necessary repairs as per the sanction of the Calcutta Municipal Corporation but such repair works would be at his client's risks and costs.
Let the matter appear two weeks hence.
All parties including the Registrar. O.S.. and the newly appointed Chartered Engineer are to act on a signed copy of this dictated order on the usual undertaking."
9. Pursuant to the aforesaid order dated 6.4.2000 another Chartered Engineer was appointed from the panel of the Chartered Engineers to Inspect the building and submit a report about the condition of the building. H.P. Das, Chartered Engineer was appointed to submit a report and H.P. Das, Chartered Engineer submitted an Inspection report dated 19.4.2000. The remarks of the aforesaid Chartered Engineer from the inspection report dated 19.4.2000 is set out herein below:
(07) REMARKS The building is a load bearing brick masonry structure and mainly with wooden beams and barghas and filed roof, Lime and surki is used mainly as mortar. Thickness of the walls are mainly of 25" & 30".
Considering the condition of the structure with several cracks and decay of wooden beams & barghas, maximum and major in secUon-I and Section-II and sanatory and electrical systems in maximum portion of the building is in unworkable condition, this portions are not fit for Human habitation and dangerously threatening for collapsing.
The southern portion, which seems slightly better than the other portions, can be restored by reconstruction and thorough repairing, but the cost will be very hfgh and which is uneconomical. It is also to be kept in mind that due to sudden collapsing dismantling of this portion i.e. section I & II (refer Sketch), the effect may cause badly damage to the section-Ill of the building."
1O. The Division Bench of this High Court on 19.5.2000 in Appeal No. 211 of 200 passed the following order:
"The Court : Let the matter appear in the list Immediately on re-opening. In the meantime, it would be open to the parties to file objection to the Report Mr. Verma, learned counsel appearing on behalf of the appellant states that no portion of the building is in such a position that may fall down immediately endangering the lives and properties of others. The learned counsel states that his client and some sub-tenants are residing in the house who would continue to do so at their own risk and cost.
However, if there exists any grave emergency, the Chief Engineer or the Chief Engineer-in-charge of the 'Calcutta Municipal Corporation, upon notice to all the parties, may take steps for Inspecting the premises and demolish all such portions of the building which in the opinion of the authorities of the Calcutta Municipal Corporation are in dangerous condition. But such demolition must come within the purview of the order of demolition passed by the Calcutta Municipal Corporation, However, the petitioner may carry out the repairs strictly in terms of the permission granted by the Calcutta Municipal Corporation dated 13-10-1999.
The Chief Engineer, Calcutta Municipal Corporation and all parties concerned shall act on a signed copy of the minutes of this order on usual undertaking."
11. However, pursuant to the aforesaid order the Chief Engineer-in-Charge of the Corporation did not submit any report before the Division Bench of this High Court. Thereafter the Division Bench on 22.6.2000 in Appeal No. 211 of 2000 passed the following order:
"When the case was called on our attention was drawn to our order dated 19.5.2000 wherein this Court inter alia directed as under-
"However, if there exists any grave emergency, the Chief Engineer or the Chief Engineer-in-Charge of Calcutta Municipal Corporation, upon notices to all the parties may take steps for inspecting the premises and demolish such portion of the building which in the opinion of the authorities of the Calcutta Municipal Corporation are in dangerous condition. Such demolition must come within the purview of the order of demolition passed by the Calcutta Municipal Corporation".
Mr. Chakraborly, learned counsel appearing on behalf of the CMC however, submitted that as the Chief Engineer or the Chief Englneer-in-Charge did not consider it so emergency no Inspection was made. However, having regard to the fact that two reports have been submitted before this Court by two Chartered Engineers and an objection thereto has been taken by the petitioner we are of the opinion that an Engineer of the status of Chief Engineer of the CMC may Inspect the premises and submit a report to this Court so that it may be assessed properly.
For the reasons aforementioned let the matter appear 10 days hence.
It is expected that in the meantime such report shall be filed. Prior to the holding of such inspection the parties may be noticed through their learned Advocates.
All parties are to act on a xeroxed signed copy of this order on the usual undertaking."
12. Pursuant to the order dated 22.6.2000 passed by the Division Bench in Appeal No. 211 of 2000 the Chief Municipal Engineer (Building) submitted his report in respect of the said building before the Division Bench. The relevant part of the said report dated 3.7.2000 submitted by the Chief Municipal Engineer (Building) of the Corporation is set out hereunder:
"Pursuant to the order passed by Hon'ble Mr. Justice M.H.S. Ansarl on 21,6.2000 and 19.5.2000, Ch. Mpl. Engineer (Bldg.) inspected the premises on 28.6.2000 at 30, Burtolla Street in Ward No. 42 along with Dy. Ch. Englneer(N) and Executive Engineer, Br. V of Building Department and others wherein the representative of the petitioner/appellant and the representative of the owner of the Building were present.
During Inspection of site it has been observed that the following items of works were executed in deviations from specified items of works for which repairing permission were accorded by Executive Engineer Br. IV & V of City Architect's Deptt. On 15.10.99, the deviated Items which was carried out, are as follows :-
1. Insertion of RSJ beam at 1st floor level for replacement of wooden beam.
2. Construction of bracket for supporting of RSJ beam which will ultimately support the floor slab at the east and west side.
3. Construction of a brick masonry pillar on the north side of the courtyard from ground floor to 1st floor and from 1st floor to 2nd floor.
4. Providing 2 Nos. Shal-ballah posts at south side verandah. 5- Some other miscellaneous works.
deviations, being unauthorised, are likely to be demolished by the CMC Authorities. These unauthorised constructions were carried out only to check the collapse of the building. Even if those unauthorised constructions are allowed to retain, this structure cannot be said to be secured as those constructions were executed in a hapazard and hence not fit for human habitation. This observation can be supported by the fact as all these rooms at ground floor are found under lock and key and that nobody is staying over there as reported since long.
Moreover it was also observed that one stair on the south is closed to negotiate 1st floor from ground floor as the same has already collapsed and the condition of that stair negotiating from 1st and above also require through re-constniction. From the foregoing report it is prima-facie observed that the entire building may be collapsed as the existing structures have already decayed and lost its stability. However, before coming to a final decision regarding the stability of the existing structure and expert opinion of structural Engineer from any recognised institution may be obtained."
13. After taking into consideration all the aforesaid reports submitted by different experts the Division Bench of this High Court requested the Mayor of the Corporation to constitute a Body of Experts consisting of three members so as to satisfy himself as also the statutory authority that condition precedent exists for exercising the power under Sub-section 4 of section 411 of the Act. It was further directed that one of three such experts may be an Engineer from Jadavpur University and another may be a reputed Chartered Engineer of the city. Accordingly a Body of Experts consisting of three was constituted as discussed in the earlier part of this Judgment. It is important to refer to annexure 'R-9' of the affidavit-in-opposition affirmed by Manlndra Kumar Som on 12th July, 2001. The content of the said annexure 'R-9' is set out hereunder :
Re: 30. Burtala Road.APOT No. 211 of 2000 G.A. No. 1077 of 2000
T. No. 300 and 301 of 2000 From No. O.S. 27 Note st & Order In connection with the above this is to report that Hon'ble Court was pleased to request Hon'ble Mayor to constitute a body of experts consisting of 3(three) members so as to satisfy himself with the condition that exists for its exercising the power under Sub-section 4 of section 411 of C,M. Act, 1980. One of such experts should be an Engineer of Jadavpur University and another be a reputed Chartered Engineer of the City.
In compliance to the orders of the Hon'ble Court and partial modification of the previous proposals, as discussed with the authority it is proposed to constitute the body of experts as follows :-
1. Dr. Shakti Ranjan Bhattacharjee, Professor of Civil Engineering, Jadavpur University, 48/1W, B.T. Road Calcutta-50.
2. Sri Phalgunl Mukherjee, Chartered Engineer and empanelled Struc-
tural Engineer of CMC 56G, Shyampukur St., Calcutta-4.
3. Sri Sankar Das, empanelled Structural Engineer of CMC 127/2. Canal St. (Sreebhuml), Calcutta-48.
An honorarium of Rs. 10.000/- each in favour of Dr. Shakti Ranjan Bhattacharjee and Sri Phalguni Mukherjee and Rs. 7,500/- fn favour of Sri Sankar Das may allow for carrying out the Inspection and submission necessary reports which appears to be reasonable.
Approval of the authority is solicited to the above panels well as payment of honorarium as proposal debiting the cost to Suspense Account for the present.
Sd/-
(A.K. Roy Chowdhury) Director General (Bldg.) Place before MC for kind consideration.
May be approved.
Sd/- (6.3.01) Principal Commissioner The Calcutta Municipal Corporation.
Sd/-
Mayor Cal. Ml. Corporation"
14. The aforesaid Body of Experts submitted its report to the Corporation. The relevant part of the report of the aforesaid Body of Experts is set out hereunder :
"8. Conclusion.
On the basis of the above observation the conclusions are as follows :
1. From the test result (Material testing) it is clear that except bricks all other materials have deteriorated to a great extent which may cause collapse of the building.
2. From the appraisal of building technical wear it is clear that repairing will mean rebuilding of the entire building after demolition.
3. Considering the recent earthquake at Bhuj the building condition under lateral (earthquake) load may cause collapse of entire building causing loss of lives. .
4. The collapse may also occur during repair. When the northern part has collapsed the southern part cannot be in good condition. The test result proves that the materials have deteriorated to a large extent which may cause collapse of the entire structure suddenly due to any external force like storm or earth quake or heavy rain.
5. The designed life period of the building is almost exhausted. It would be Inadmissible to retain this structure as the repairs to this veiy old and partly demolished structure may turn futile and can produce unpredictable result.
Considering the above it is recommended that the entire building to be demolished with sufficient care so that there is no loss of life during demolition work. Safety precaution will pay in the long run."
15. From the discussions made herein above it is clear that three reports of three different experts were available before the Division Bench in Appeal No. 211 of 2000 and the Division Bench after considering the aforesaid reports arrived at a conclusion that "reports of the Engineers are contradictory and/or Inconsistent with each other". This conclusion of the Division Bench closed the chapter of the aforesaid three reports. It would be Inappropriate for me to examine those reports once again. I am bound by the aforesaid conclusion of the Division Bench. So I shall keep myself confined to the questions relating to (1) formation of body of experts pursuant to the order dated 4.8.2000 passed by Division Bench in Appeal No. 211 of 2000, (2) the report of the body of experts, (3) acceptability of the report and (4) whether notice under challenge have been issued in accordance with the provisions of the said Act.
Formation of body of experts:
I have, in the earlier part of this judgment, set out in extenso annexure--'R-9' of the affidavit of Manlndra Kumar Som affirmed on 12th July. 2001. Referring to the said annexure-'R-9' it was argued by the learned Advocate for the petitioners that the body of experts was not constituted in accordance with the said order of Division Bench dated 4.8.2000. He argued that the Division Bench directed the Mayor of the Corporation "to constitute a body of experts consisting of three members" but the Mayor did not constitute the body of experts, the Mayor only put his signature meaning thereby that he only approved the body of experts constituted by some other authority. It was argued by the learned Advocate for the petitioners that the Mayor should have himself selected the experts but the Mayor himself did not select the experts, according to the learned Advocate for the petitioners, the experts were selected by others and the mayor approved the same and thus the Mayor did not act in accordance with the direction of the Division Bench and this alleged failure has vitiated everything.
16. I cannot accept the argument of the learned Advocate for the petitioners. A bare perusal of the above referred annexure--'R-9' shows that. that document is nothing but an office note sheet.
17. It is evident from the said annexure--'R-9' that the Director General (Building) by his note dated 1-3-2001 proposed three names of experts for the purpose of Constitution of body of experts as directed by the Division Bench. It is evident that the Director General (Building) made the proposal for approval of the authority. It is also evident from the said annexure--'R-9' that the proposal of the Director General (Building) was placed before the Municipal Commissioner who by his note dated 6-3-2001 recorded "May be approved". Thereafter the matter was placed before the Mayor who on 8.3.2001 put his signature signifying his concurrence. The procedure followed was consistent with the administrative practice. The question is whether the procedure thus followed in the present case compiled with the direction of the Division Bench. For the purpose of dealing with this aspect of the matter 1 am prepared to assume that when Division Bench directed the Mayor to constitute the body of experts then he must act on his own and not be assisted by the proposals tendered to him. Even on that assumption, I am unable to see how the procedure followed in the present case can in substance, be said to contravene the substantial requirement of the direction of Division Bench. What the direction of the Division Bench required was that before the body of experts was constituted, the Mayor must apply his mind to it and make a decision on It. it would be unreasonable to suggest that while constituting the body of experts the Mayor was precluded from receiving the assistance of lower rank officers before he made up his mind as to who should be the members of the body of experts. If the Mayor thought that who should be the members of the body of experts should first be considered by lower rank officers and then submitted to him, I do not see how the direction of the Division Bench has not been compiled with. In Edwingson Branch v. The State Assam reported at , a bench of five judges of Supreme Court was considering some paragraphs of Schedule-VI of Constitution of India. One of the points considered was whether the Governor considered the report submitted by the Commission and made his recommendation. In pressing the argument that it was not shown that the Governor considered the report and made his recommendations thereon, Mr. Settled assumed that the Governor, in the context, was not functioning as the constitutional Governor who received the advice of his Council of Ministers, but was functioning in his own individual character as Governor; and before the validity of notification could be upheld, it must be established that the Governor did consider the report and did make his own recommendations. What actually happened in that case was that after the report of the Commission was received, the Council of Ministers considered the report in its meeting and decided to accept the recommendation of the Commission. An explanatory memorandum was then drawn up, and whole file was placed before the Governor. After the Governor read the file he wrote on it "Seen thanks". The question was whether the procedure thus followed compiled with the relevant conditions prescribed by para (14) of Schedule VI or not. Majority of the Judges (four out of five) held:
"For the purpose of dealing with this aspect of the matter in the present appeal, we are prepared to assume that when para 14(2) refers to the Governor, it refers to him as Governor who must act on his own and not be assisted by the advice tendered to him by the Council of Ministers.
Even on that assumption, we are unable to see how the procedure followed in the present case can in substance, be said to contravene the substantial requirements of Para 14(2). What para 14(2) requires is that before the matter goes to the Legislature of the State, the Governor must apply his mind to it and make his recommendations on It. It would be unreasonable to suggest that in considering the report, the Governor is precluded from receiving the assistance of the Council of Ministers before he makes up his mind as to what recommendations should be sent before the Legislature of the State. If the Governor thinks that the questions raised by the report should first be considered by the Council of Ministers and then submitted to him, we do not see how it can be said that para 14(2) htis not been complied with".
18. That apart "Approval" implies knowledge and exercise of discretion after knowledge (Me Cartees v. Sanderson, 111 Mont. 207, 109 p. 2d 1108, 1112). The word "approve" means to confirm, ratify. Here the maxim omnis ratihabitio retrotrahttur et mandato priori aeiuiparatur means a subsequent rectification has a retrospective effect, and is equivalent to a prior command applies. The doctrine that ratification is equivalent to a prior command is applicable to persons, not only when they act on behalf of the private Individuals, but also when they act on behalf of the State or local authority.
19. In view of the discussions made hereinabove 1 am of the view that the body of experts was constituted by the Mayor in compliance of the order dated 4.8.2000 of the Division Bench.
20. The report of the body of experts and acceptability of the report:
It was argued by the learned advocate for the petitioners that (a) no notice of inspection by the body of experts was given to the petitioners, (b) no inspection was at all held by the body of experts either in presence of the petitioners or in presence of the other occupants of the building, (c) method of civil engineering technlc adopted by the body of experts was not recorded in report while coming to the conclusion, (d) report exhibits non-application of mind and it is based on surmise and conjectures and (e) the body of experts exceeded its Jurisdiction beyond the portions of the building described in the demolition notice dated 06.12.1999 (annexure--'P-15' of the writ application).
21. I, in the earlier part of this judgment already set out the order dated 18.5.2001 passed by the Municipal Commissioner, the order dated 19.5.2001 passed by the Mayor and the order bearing reference No. Dy CE(B) North/ 140/2001-02 dated 12.6.2001 (annexure-'P-19' of the writ application). In the order dated 18.5.2001. more than once, the report submitted by the body of experts was referred to. It is apparent on the face of the aforesaid order dated 18.5.2001 that the said order was passed after taking into consideration the report of the body of experts. Therefore, the petitioners, at least, after receiving the annexure-'P-19' came to know that the body of experts submitted a report. At this stage it will be useful to look at paragraph-52 of the writ application. The said paragraph-52 is set out herein below:
"That thereafter the petitioner No. 3 demanded Justice by a letter dated 14.06.2001 to Mayor-in-Council (Building), and D.G. (Building), Calcutta Municipal Corporation and on 15.06.2001 by another letter demanded Justice from the Respondents Nos. 1 to 4 requesting them to withdraw and/or cancel the said orders dated 18.05.2001 and 12.06.2001. The letter dated 13.06.2001 was received and acknowledged on 15.06.2001. The petitioners personally met the Mayor on 16.06.2001 and requested him to withdraw the order as the said order was wholly illegal and malafide. The Mayor replied that he would simply extend the time for vacating the premises but would not withdraw or cancel the order of demolition.
Copies of the letters dated 14.06.2001 and 15.06.2001 are annexed herewith and collectively marked as annexure "P-20".
22. Therefore, the representation of the petitioners annexure-'P-26' of the writ application is a contemporaneous document. The relevant part of annexure-'P-20' is set out herein below:
"Finally after several inspection of the building the Hon'ble Division Bench found that the order of demolition was bad and illegal and set aside the same and allowed us to repair the premises. We repaired the premises spending about Rs. 2.50 Lakhs.
Surprisingly taking shelter of the order of the Division Bench again the Corporation has passed an order of demolition without any enquiry and completely behind the back of my family members, myself and other sub-tenants of the premises. This time despite our securing the building and making it habitable at our cost, the corporation has slapped a notice upon my uncle, Bijoy Shankar Tewari in the evening of 13.06.2001 asking him and others to vacate the premises No. 30, Burtolla Street, Calcutta-700 007 within five days to facilitate the Corporation to demolish the building under Section 411 of the CMC Act, 1980.
Notable point is that earlier notice of demolition was for a part of the building and after complete and thorough repairing the eyes of the experts appointed by the Corporation behind our back saw the entire building in ruinous condition and the corporation ordered demolition.
The northern portion of the building was forcibly demolished and a little was left by the corporation in the northern portion of the building to show that the building was dilapidated. Such notoriety of the Corporation and landlady is worth viewing.
These facts makes it crystal clear that the order of demolition has been passed being unduly influenced by the landlady, Smt. Jashoda Devi Lakhotia and the order is wholly malafide, arbitrary, illegal, unlawful and gross abuse of the powers vested in the Corporation.
I bring it to your notice that Smt. Jashoda Devi Lakhotia is trying to put the gun on the shoulders of the corporation and by abusing the power of corporation to get the building vacated for constructing a commercials complex for minting money legally and illegally. Corporation officers have shaken hands with the landlady and joined to share the income from the commercial complex and for such malaflde intention they have manufactured records to help the landlady. All these malaflde actions have been taken expecting that our poverty would force us not to take up contempt application before the Hon'ble Supreme Court of India and the Hon'ble High Court at Calcutta.
In the circumstances I hereby request you to rescind and recall the order of demolition and eviction of my family members from the said premises No. 30, Burtolla Street, Calcutta-700 007 forthwith and see that the powers under Section 411 of the CMC Act, 1980 was not abused for helping a private individual to mint money by evicting lawful tenants in gross defiance and willfull disobedience to the orders of the Courts including the order of status quo passed by the Hon'ble Supreme Court of India."
23. It should be noted that in this contemporaneous document no allegation of mala flde had been made against the experts. In the said annexure-'P-20' there was no allegation that the body of experts did not inspect the building. If the allegations were correct then the petitioners would have made those allegations at the first opportunity when they made representation on 14-6-2001 to the Mayor. Under these circumstances I do not accept the allegations of malafide made in course of argument against the members of the board of experts and also the allegation that body of experts did not inspect the building. Body of experts in its report clearly stated that first site visit was made on 29th March, 2001 for collection of timber and lime concrete and inspection of site and the second site visit was made on 16th April, 2001 for collection of brick sample and Inspection of Interior of rooms at different door levels. I have no reason to disbelieve the aforesaid statements recorded in the report of the body of experts. In my view those allegations are products of after thoughts. Regarding the allegations that method of civil engineering technlc adopted by the body of experts was not recorded in the report while coming to the conclusion and that report exhibits non application of mind and it is based on surmises and conjectures, I am of the opinion that this Court does not have the necessary expertise to judge whether the method of civil engineering technlc adopted by the body of experts while coming to the conclusion has been recorded in the report or not. But I find from the said report that some method was followed by the body of experts. I find from the said report that the report, inter alia, contains description of building, material testing, appraisal of building technical wear, photo plates, tests results of materials, and plan of building. Therefore, I am of the view that the body of experts applied its mind to the relevant matters while coming to the conclusion. I am also of the opinion that the report of the body of experts is not based on surmises and conjectures.
24. It was argued by the learned Advocate for the petitioners that the body of experts exceeded its jurisdiction by submitting a report beyond the portions of the building described in the demolition notice dated 6.12.1999. It appears from annexure-'P-15 that the notice dated 6.12.1999 was issued under section 411(4) of the Act to demolish departmentally the northern and southern part of the balconies at 1st & 2nd floor and roof slab at front corridor and stair case including main walls at road side. It is evident from the relevant part of the order dated 4.8.2000 which has been set out in the earlier part of this Judgment that the Division Bench never directed that the report of the body of experts should be confined to the portion sought to be demolished by annexure-'P-15'. Rather it is evident from the relevant part of the aforesaid order of the Division Bench that the Division Bench referred to "building". Under the circumstances I am of the view that no word can be read into the aforesaid order of the Division Bench to limit its operation. I am of the view that the report submitted by the body of experts does not go beyond the aforesaid order of the Division Bench.
25. The law relating to Judicial review of the experts' opinion is now well settled. In University of Mysore v. Gobinda Rao reported at Supreme Court observed that the Courts should be slow to interfere with the opinion expressed by the experts in the absence of mala fide alleged against the experts. In J.P. Kulshrestha v. Allahabad University reported at Supreme Court held that the views of the educational experts are entitled to great consideration. In Dalpat Abasaheb Solunkev. B.S. Mahajan reported at Supreme Court held as follows:
"It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its Jurisdiction."
26. In M/s. Sri Sitaram Sugar Co. Ltd. v. Union of India reported at Supreme Court, inter alia, held as follows :
"Whether an order is characterised as legislative or administrative or quasi-judicial, or, whether it is a determination of law or fact, the Judgment of the expert body, entrusted with power, is generally treated as final and the Judicial function is exhausted when it is found to have "warrant in the record" and a rational basis in law : See Rochester Tel. Corp. v. Untied States, (1938) 307 US 125 ; 83 Law Ed. 1147. See also Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223".
27. The Body of Experts was framed in accordance with the order passed by the Division Bench and this aspect of the matter I have already discussed in the earlier part of this judgment. There can be no dispute that each one of the experts is highly educated in their fields. Each one of the experts has special knowledge in structural engineering. The report submitted by the body of experts is also supported by the reasons and calculations mentioned in the report. The learned Advocate for the petitioners cited Haji Mohammad Ekramul Haq v. The State of West Bengal reported at . In Haji Mohammad case (supra) Supreme Court held that the Court can refuse to place any reliance on the opinion of an expert which is unsupported by any reasons. But in the instant case I find that the report of the experts is supported by reasons and calculations. Under these circumstances I do not find any reason whatsoever not to accept the report of the body of experts particularly when this Court has no such experties to determine and no illegality or patent material irregularity in the Constitution of the body of experts or its procedure vitiating the report or proof of mala fide has been placed before this Court. Under these circumstances I accept the report submitted by the body of experts as legal, valid and acceptable.
28. The learned Advocate for the petitioners argued that this lime, after going through the report of the body of experts, the Mayor has not come to the conclusion that the circumstances are warranting to act under section 411 (4) of the Act. It is true that the Mayor directed that the demolition order under section 411(1) of the said Act may be Issued without any further delay after proper notice, and the Mayor did not direct to issue a notice under section 411(4) of the Act. But for that reason notices issued under section 411(1) and 411(2) of the Act have not become illegal because such notices have been Issued in view of the report of the body of experts and in accordance with the order of Division Bench. The Division Bench by order dated 4.8.2000, inter alia, directed as follows :
"We, therefore, set aside the order and direct the Corporation to act only upon satisfying itself that condition precedent for exercising the power under section 411 exists."
29. Construction of section 411 of the said Act:
It is well settled rule of construction of statute that the statute must be read as a whole and every provision in the statute must be construed with reference to the context and other clauses in the statute so as, as far as possible, to make a consistent enactment of the whole statute (Municipal Corporation of City of Bulbl v. Subha Rao; ). Not only the statute but also the section (with Sub-sections) has to be read as a whole and together and not in isolation [J.R.G. Mfg. Association v. Union of India; ), it is the function of the Court to ascertain the real Intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequence that would flow from the construction to be placed thereon. A result flowing from a statutory provision is never an evil. A statute must of course be given effect to whether a Court likes the result of not (Martin Burn Ltd. v. Corporation of Calcutta; ).
30. The said Act contains IX Parts and XXXVIII Chapters. Part-VI of the said Act contains Chapters XXI to XXVI. Part-VI of the said Act deals with Town Planning, Land and Land use Controls. Chapter XXI deals with streets and public places. Chapter XXII deals with buildings. Chapter XXIII deals with regulation of building uses. Chapler-XXIlIA deals with preservation and conservation of heritage building. Chapter-XXIV deals with markets and slaughter houses. Chapler-XXV deals with municipal licences. Chapter-XXVI deals with buslees. Chapter-XXII contains sections 390 to 415. Section 400 of the Act deals with order of demolition and stoppage of buildings and works in certain cases and appeal. Sub-section 1 of 400 of the said Act reads as follows:
"400. Order of demolition and stoppage of buildings and works in certain cases and appeal.--(1) Where the erection of any building or the execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 396 or in contravention of any of the provisions of this Act or the rules and the regulations made thereunder, the Municipal Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or the work has been commenced or is being carried on or has been completed within such period, not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefore has been delivered to such person, as may be specified in the order;
Provided that no order of demolition shall be made unless such person has been given, by means of a notice served in such manner as the Municipal Commissioner may think fit. a reasonable opportunity of showing causes why such order shall not be made:
Provided further that where the erection or the execution has not been completed, the Municipal Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct such person to stop the erection or the execution until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under Sub-section(3).
Explanation.--In this chapter, "the person at whose instance" shall mean the owner, occupier or any other person who causes the erection of any building or execution of any work to be done, including alternations if any, or does it by himself.
(2) The Municipal Commissioner may make an order Under Sub-section (1), notwithstanding the fact that the assessment of such building has been made for the levy of the consolidated rate on lands and buildings.
(3) Any person aggrieved by an order of the Municipal Commissioner made under Sub-section(1) may, within thirty days from the date of the order, prefer an appeal against the order to the Municipal Building Tribunal appointed under section 415.
(4) Where an appeal is preferred under Sub-section (3) against an order made under Sub-section (1). the Municipal Building Tribunal may stay enforcement of the order on such terms, if any, and for such period, as it may think fit:
Provided that where erection of any building or the execution of any work has not been completed at the time of the order made under Sub-section(1), no order staying the enforcement of the order made under that Sub-section shall be made by the Municipal Building Tribunal unless a surety, sufficient in the opinion of the said Tribunal, has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal.
(5) Save as provided in this section, no Court shall entertain any suit, application or other proceeding for injunction or other relief against the Municipal Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section.
(6) Every order made by the Municipal Banking Tribunal on appeal and. subject to such order, the order made by the Municipal Commissioner under Sub-section (1) shall be final and conclusive.
(7) Where no appeal has been preferred against an order made by the Municipal Commissioner under Sub-section (1) or where an order under that Sub-section has been confirmed on appeal, whether with or without modification, the person against whom the order has been made shall comply with the order within the period specified therein, or as the case may be, within the period, if any, fixed by the Municipal Building Tribunal on appeal, and on the failure of such person to comply with the order within such period, the Municipal Commissioner may himself cause the building or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act.
(8) Notwithstanding anything contained in this Chapter, if the Mayor-in-Council is of the opinion that Immediate action is called for in relation to a building or a work being carried on in contravention of the provisions of this Act, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith."
31. It is Important to note that first proviso of Sub-section (1) of section 400 clearly lays down that no order of demolition shall be made unless the person at whose Instance the erection of the work has been commenced or is being carried on or has been completed, has been given, by means of a notice served in such manner as the Municipal Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made.
32. At this stage it is necessary to consider section 411 of the said Act which is set out herein below :
"411. Power to order removal of dangerous buildings : (1) if any wall or building, or anything affixed thereto be deemed by the Municipal Commissioner to be in a ruinous state, or likely to fall, or to be in any way dangerous, he shall forthwith cause a written notice to be served on the owner and to be put on some conspicuous part of the wall or building or served the occupier, if any, of the building requiring such owner or occupier forthwith to demolish, repair or secure such wall, building or thing, as the case may require:
(Provided that in the case of a heritage building the Municipal Commissioner may refer the State or the condition thereof to the Heritage Conservation Committee for its consideration and decision).
(2) The Municipal Commissioner may, if it appears to him necessary so to do, cause a proper hoarding or fence or other means of protection to be put up at the expense of the owner of such wall or building for the safety of the public or the inmates thereof; and may, after giving them such notice as the Municipal Commissioner may think necessary, require the Inmates of the building to vacate It.
(3) The provisions of this Act and of any rules or regulations made thereunder relating to buildings shall apply to any work done in pursuance, or in consequence, of a notice Issued under Sub-section (1).
(4) (a) Notwithstanding anything contained in the foregoing subsections, the Municipal Commissioner may, forthwith or with such notice as he thinks fit, demolish repair or secure or cause to be demolished, repaired or secured, any such wall or building or thing affixed thereto, on the report of the Chief Municipal Architect and Town Planner, certifying that such demolition, repair or securing of the building, wall or thing is necessary for the safely of the public or the Inmates of the building.
(b) in any such case the Municipal Commissioner may cause the Inmates of the building to be summarily removed from the same or such portion thereof as he may consider necessary.
(c) All expenses Incurred by the Municipal Commissioner in taking action under this Sub-section shall be paid by the owner of such wall, building or thing.
(5) Any action taken by the Municipal Commissioner under Sub-section (4) shall, unless the contrary is proved, be deemed to have been taken lawfully and in good faith and with due care and attention."
33. A plain reading of section 411(1) of the said Act clearly shows that a notice Issued under that Sub-section should be served on the owner and another copy of the said notice should either to be put on some conspicuous part of the wall or building or be served on the occupier if any. Therefore, service of notice upon the occupier is not mandatory but service of notice upon the owner is mandatory. In addition to the mandatory service upon the owner a Notice under section 411(1) of the said Act should either be put on some conspicuous part of the wall or building or be served on the occupier. Here the word "or" means mutually exclusive. It is not the case of the petitioners that the notice under section 411(1) of the Act was not put on some conspicuous part of the wall or building. The case of the petitioners is that no notice under section 411(1) of the Act was served on them. But service of such notice upon the petitioners is not mandatory, therefore, 1 am of the view that non-service of the notice under section 411(1) upon the petitioners does not at all affect the legality or validity of the action taken by the municipal authorities when the notice was put on some conspicuous part of the building.
34. The learned Advocate for the petitioners argued that notice under section 41 1(2) of the Act has been Issued without Issuing a notice under section 41 1(1) of the said Act and in complete detraction from the mandatory provision contained in section 558 of the Act. I cannot accept the argument of the learned Advocate for the petitioners because from the affidavit-in-opposition affirmed by Manindra Kumar Som on 12th July, 2001 it is evident that a notice under section 411(1) of the Act bearing reference No. Dy. CE(B)north/140/2001-02 dt. 12/6/01 was Issued by Dy. Chief Englneer(B)/North. This notice has been annexed to the said affidavit of Manlndra Kumar Som as annexure 'R-14' which is set out herein below:
"Ref No:-Dy CE(B) North/140/2001-02 dt-12/6/01.
Smt. Jasoda. Devi Lakhotia of 263, Rabindra Saranl. Calcutta-700 007.
I. The Hon'ble Mayor of Calcutta upon satisfying himself that condition precedent for exercising the power under section 411 of the CMC Act, 1980 in pursuance of the order of the Hon'ble Division Bench of Calcutta High Court in APOT No. 211/2000 dt. 04.08.2000, this Notice under section 411(1), CMC Act, 1980 is issued for demolition of the Premises at 30, Burtala St., Calcutta within 7 (seven) days from the date hereof.
N.B. : if you do not comply with the above Notice, you will be liable if any accident occurs.
C.C. to:--1) Mpl. Commissioner
2) Director General (Bidg.).
Sd/-12/06/01 Dy. Ch. Engineer(B)/North"
35. It is evident from aforesaid annexure 'R-14' of the said notice was addressed to the respondent No. 5 who admitted service of this notice upon her. Thus section 411(1) of the said Act has been compiled with.
36. In the present case I find from annexure 'R-10', 'R-11' and 'R-12' of the affidavit filed by Manlndra Kumar Som that Dy. Chief Engineer (Building) (North) of the Corporation by his letter dated 16.5.2001 directed M/s. P.T. Enterprise, 6A, Gopal Bose Lane. Calcutta to fix a board of 'Insecured Building' Immediately at 30. Burtala Street, Calcutta for the safety of the public or the inmates of the building. It appears that one Tapas Bhattacharjee of P.T. Enterprise on 17.5.2001 lodged a complain to the Offlcer-in-Charge. Posta Police Station stating that P.T. Enterprise had been appointed to fix the board to notify as Insecured building' at 30, Burtala Street as per order of Dy. Chief Engineer (Bulldingl/North dated 16.5.2001 but on 17.5.2001 when the men of P.T. Enterprise attempted to fix up the above board at the above mentioned building some women from the building had made objection to fix up the above board. It was requested that police may render help to perform the Job' as fixed by the Corporation Authority on 18.5.2001 at 12 noon. From annexure 'R-12' of the affidavit of Manlndra Kumar Soni it appears that Dy. Chief Engineer (Bulldingl/North by his letter dated 2.7.2001 addressed to the M/s. P.T. Enterprise directed the addressee to submit the report in respect of fixing up the board of 'Insecured Building' at 30, Burtala Street, it further appears that on 3.7.2001 M/s. P.T. Enterprise by its letter Intimated the Dy. Chief Engineer (North). Building Department that the board of Unsecured Building' had already been fixed on 18.5.2001. The relevant part of the aforesaid letter dated 3.7.2001 is set out hereunder:
To The Deputy Chief Engineer (North) Building Department
5. S.N. Banerjee Road Calcutta-13 Respected Sir, Re: Premises No: 30. Burtolla Street, Calcutta-700 007 (Ward No. 42) Reference your letter dated 2.7.2001, 1 beg to Inform you that as per your order dt. 16.5.2001 vide Dy. CE(B)N/188 of 2001-2002, that I have already fixed up the board of 'Insecured Building' pn 18.5.2001 to the above mentioned premises with the help of Police Personnel.
In this connection, it is to be mentioned that I have already lodged a G.D. at Posta Police Station vide No: 1633 dated. 18.5.2001 and I have submitted a petition to the officer in charge. Posta Police Station on 17.5.2001 for police help.
submitted for your kind consideration please.
Thanking you, Yours faithfully for P.T. Enterprise Sd/-
(Tapas Bhattacharjee) Signature 3/7/01 Ends:
1). Letter dt. 17.5.2001"
37. Section 411 (2) of the said Act has two parts. The first part lays down that the Municipal Commissioner may. If it appears to him necessary so to do, cause a proper hoarding or fence or other men as of protection to be put at the expense of the owner of such wall or building for the safety of the public or the Inmates thereof. In view of the discussions made hereinabove I am of the view that the first part of section 411(2) of the said Act has been compiled with. The second part of section 411(2) requires service of notice upon the Inmates of the building to vacate it. This second part has also been complied with and this notice to vacate the building is under challenge in the present proceeding.
38. Section 411 of the said Act deals with the power to order removal of ruinous or dangerous wall or building. The term 'dangerous' has not been defined in the Act. But the CMC Building Rules, 1990, which was framed under the provision of the said Act, defined the word 'Dangerous'. Rule 2 Sub-rule(17) of the CMC building Rules, 1990 reads as follows:-
"(17)"dangerous" in relallon to a building means a building which by reason of its age, inadequate maintenance, dilapidation, abandonment or by any other reason, has become structurally unsafe or is not provided with adequate means of agrees which constitutes a fire hazard or which has otherwise become dangerous to human life".
39. According to the definition of the word 'dangerous' as defined in the CMC Building Rules; 1990 the term 'dangerous building' means a building which by reason of its age, Inadequate maintenance, dilapidation, abandonment or by any other reason has become structurally unsafe or is not provlded.wlth adequate means of egress or which constitutes a fire hazard or which has otherwise become dangerous to human life. Thus section 411 of the said Act is a special provision by which the authorities mentioned in the said section have been authorised to exercise the power to order removal of dangerous buildings following the procedures laid down in the said section. This is not a general provision. Section 411 has been enacted for special cases in special circumstances in contradistinction to the general rules of the law laid down as applicable generally to all cases with which the general law deals. In section 411. there is no provision like first proviso to section 400(1) of the said Act. Legislature Intentionally did not keep such provision like first proviso to sectipn 400(1) in section 411 of the said Act because section 411 deals with grave situations like ruinous or dangerous wall or building which requires prompt action for the safety of the public and the inmates thereof. Safety of the public and the inmates is the prim consideration for prompt action. Section 411 has been enacted for special cases in special circumstances. Section 558 of the said Act is a general law regulating the procedure for complying the requisition or order and power of the Municipal Commissioner to enforce requisition or order in default. The mandate of section 411 of the said Act is service of notice; service of notice upon the owner under Sub-section (1) and service of notice on the occupier under Sub-section (2). The section excluded opportunity of affording hearing either to the owner or to the occupier. This is a special law by itself which shall prevail over the general law. A statute may contain general law as well as special law. Reference may be made to Kaushalya Rant v. Gopal Singh reported at wherein Supreme Court (at page 263) while considering Criminal Procedure Code held as follows:
"The whole Code is Indeed a general law regulating the procedure in criminal trials generally, but it may contain provisions specifying a bar of time for parcular class of cases which are of a special character. For example, a Land Revenue Code may be a general law regulating the relationship between the revenue-payer and the revenue-receiver or the rent-payer and the rent-receiver. It is a general law in the sense that it lays down the general rule governing such relation-ship, but it may contain special provisions relating to bar of time, in specified cases different from the general law of limitation. Such a law will be a 'special law' with reference to the law generally governing the subject-matter of that kind of relationship. A 'special law', therefore, means a law enacted for special cases, in special circumstances, in contradistinction to the general rules if the law laid down, as applicable generally to all cases with which the general law deals. In that sense, the Code is a general law regulating the procedure for the trial of criminal cases, generally, but if it lays down any bar of time in respect of special cases in special circumstances like those contemplated by section 417(3) and (4), read together, it will be special law contained within the general law."
40. Here, the special law contained in section 411 shall prevail over the general law contained in section 558 of the Act. In other words section 558 of the said Act shall have no application in the field converted by section 411 of the said Act.
41. The learned Advocate for the petitioners argued that Instead of taking recourse to section 411 the authorities concerned should have taken recourse to section 495 of the said Act. Section 495 of the said Act is set out.herein below:
"495. Power to prohibit use of buildings or rooms in buildings unfit for human habitation.--(1) If, for any reason, it appears to the Municipal Commissioner that any building or any room in a building intended for or used as a dwelling is unfit for human habitation, he shall give to the owner or occupier of such building notice in writing stating such reason and satisfying his intention to prohibit further use of the building or the room, as the case may be, as a dwelling and shall by such notice call upon the owner or occupier as aforesaid to state in writing any objection thereto within thirty days after the receipt of such notice, and if no objection is raised by such owner or occupier within such period appears to the Municipal Commissioner invalid or insufficient, he may, with the previous approval of the Mayor-in-Council and by an order in writing, prohibit further use of such building or room as a dwelling:
Provided that, before such approval is given, the owner or occupier as aforesaid shall have the right of appearing before the Mayor in person or by agent and of showing cause why such approval should not be given.
(2) When any such prohibition as a aforesaid has been made, the Municipal : Commissioner shall cause notice of such prohibition to be affixed to and the letters "U.H.H." (being the abbreviation of the whole words "Unfit for Human Habitation") to be painted on the door or on some conspicuous part of such building or room, as the case may be, and no owner or occupier of such building or room shall use or suffer the same to be sued for human habitation until the Municipal Commissioner certifies in writing that the building or room, as the case may be, has been rendered fit for human habitation.
(3) The Municipal Commissioner Shall, in each such case, give written instructions to the owner or occupier as to what modifications or alternations are required to be made for rendering such building or room fit for human habitation.
(4) The Municipal Commissioner may cause any person who uses any building or room in contravention of Sub-section (2) to be removed from such building or room by any police officer.
(5) Where the Municipal Commissioner has prohibited the further use of a building or room as the case may be. as a dwelling, the owner of such building shall, so far as may be necessary to prevent nuisance, keep the building or room clean and wholesome."
42. It is apparent from the said section that the said section relates to dwelling houses unfit for human habitation. The said section 495 has no relation whatsoever with dangerous building dealt with by section 411 of the said Act. True that in the said Act the term "dangerous" has not been defined but the term "dangerous" has been defined in the CMC Building Rules, 1990. The rules framed under the Act can also be taken into consideration for proper Interpretation of the Act. In ex parte Wier in re Wier, (1871)6 Ch App 875 at page 879 it was laid down.
"We do not think that any other section of the Act throws any material light upon the proper construction of this section, and if the question had depended upon the Act alone we should have had great doubt what the proper construction was; but we are of opinion that, where the construction of the Act is ambiguous and doubtful on any point, recourse may be had to the rules which have been made by the Lord Chancellor under the authority of the Act, and if we find that in the rules any particular construction has been put on the Act, that it is our duty to adopt and follow that construction".
43. For the aforesaid reasons I do not accept the argument of the learned Advocate for the petitioners that Instead of section 411 a notice ought to have been Issued under section 495 of the said Act. I also do not accept the argument of the learned Advocate for the petitioners that notice under section 411 of the said Act should be Issued in terms of section 558 of the said Act. The learned Advocate for the petitioners argued that representation of the petitioner dated 14.6.2001 has not been disposed of as -per the provision of section 559 of the said Act. In the earlier, part of this Judgment paragraph 52 of the writ petition has been set out. It is evident from said paragraph 52 that the petitioners met personally with Mayor on 16.6.2001 and requested him to withdraw the order as the order was wholly illegal and mala fide but the Mayor replied that he would simply extend the time for vacating the premises but would not withdraw or cancel the order of demolition. Therefore, it is not correct to say that petitioners were not afforded any hearing by the Mayor. Petitioners made representations and the Mayor heard the petitioners and passed the order. I am of the view that this is substantial compliance of principles of natural justice and the concerned authorities acted fairly. It is important to note that the body of experts in their conclusion No, 4 recorded as follows:
"The collapse may also occur during repair. When the northern part has collapsed the southern part cannot be in good condition. The test result proves that the materials have deteriorated to a large extent which may cause collapse of the entire structure suddently due to any external force like storm or earth quake or heavy rain."
44. In the representation dated 14.6.2001 to the Mayor the petitioners themselves stated "due to Incessant rain in the year 1999, some portions of the premises demanded immediate repair for the safety of the appellants and other occupants. I made a representation by a letter dated 14th October. 1999 requesting the Corporation to permit the to cause immediate repairs of the premises." This statement of the petitioners shows that due to incessant rain the building is in such a condition that it may cause danger to the writ petitioners and other occupants.
45. The learned advocate for the petitioners argued that the entire action of the Corporation is mala fide because the same aims to help the landlady, respondent No. 5 to get rid of the petitioner and construct a commercial complex there. In view of the report of the body of experts I am unable to accept the argument made by the learned Advocate for the petitioners. The Division Bench in its order dated 4.8.2000 held that on the one hand the Court cannot take upon it any responsibility by passing an order that a building although unfit for human consumption should not be demolished which may be dangerous for the life and property of the habitants thereof but on the other hand in absence of any proof that the authority of the Corporation had acted bonafide. It cannot also allow demolition of a building solely for the benefit by a private party. In the Instant case the report of the body of experts and the conclusions recorded therein clearly show that the building is a dangerous building within the meaning of section 411 of the said Act. In view of the aforesaid report of the body of experts the Court cannot take upon it any responsibility by passing an order that a building although unfit for human consumption should not be demolished which is dangerous for life and property of the habitants thereof and safety of the public.
In view of the discussions made herelnabove I find that in view of the report submitted by the body of experts the orders and notices under challenge in the present writ proceeding are not Illegal or Invalid. I find no merit in the writ petition. The writ petition is accordingly dismissed. All interim orders are vacated. However, there shall be no order as to costs.
All parties are to act on a signed copy of the operative part of this judgment on the usual undertaking.
46. Petition dismissed