Madras High Court
B.K.S.Mahendran vs The Commissioner on 28 July, 2006
Author: K.Mohan Ram
Bench: K.Mohan Ram
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28/07/2006
CORAM
THE HONOURABLE MR. JUSTICE K.MOHAN RAM
W.P.No.475 of 2006
and W.P.M.P.No.557 of 2006 and
W.V.M.P. No.199 of 2006
B.K.S.Mahendran ... Petitioner
Vs
1. The Commissioner
Bodinayakanur Municipality
Bodinayakanur, Theni District.
2. Tmt. K.Jothi and K.Sujatha ... Respondents
Prayer
Writ petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of certiorari to call for the records
relating to the order passed by the 1st respondent in his proceedings
Na.Ka.No.,1/2232/05 dated 30.09.2005 and quash the same as illegal.
!For petitioner ... Mr. M.Ajmalkhan.
^For Respondents ... Mr. P.T.S.Narendravasan, for R-1.
Mr. A.Thirumurthy, for R-2.
:ORDER
With consent of the learned counsel on either side, the writ petition itself is taken up for final disposal.
2. The facts, which are necessary for the disposal of the above writ petition, are set out below:-
(i) The petitioner's father was a tenant under the vendor of the second respondent in respect of a non-residential premises bearing door No.24/9, Subramaniyar Kovi Street, Bodinayakanur town on a monthly rent of Rs.150/-
wherein a printing press is being run. The second respondent's vendor demanded the petitioner's father to vacate the rented premises and the petitioner's father filed RCOP No.2 of 2002 on the file of the Rent Controller (District Munsif-cum-Judicial Magistrate), Bodinayakanur under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 against the second respondent's vendor and pending the said petition, he died on 08.01.2003 and the petitioner was brought on record as his LR. The said petition was allowed by an order dated 12.07.2004 and the petitioner is depositing the monthly rents. While so, the petitioner's landlords sold the rented premises to the second respondent by a registered sale deed dated 16.09.2004 and the second respondent immediately requested the petitioner to vacate the premises.
(ii) While matters stood like that, the second respondent, according to the petitioner, approached the first respondent to initiate action under the Tamil Nadu District Municipalities Act, 1920 (hereinafter referred to as "the Act") and the second respondent has issued impugned proceedings in Na.Ka.No.,1/2232/05 dated 30.09.2005 calling upon the second respondent to demolish the building and to remove the debris alleging that the building appears to be of 150 years old and the roof is in a damaged condition and it may create danger to the devotees and the general public visiting the temple and the impugned order is said to be issued under Section 218 of the Act and a copy of the order was sent to the petitioner also. In the impugned order, it is stated that a notice dated 31.3.2005 is said to have been issued. But, according to the petitioner, no such notice was served on him.
3. The above writ petition has been filed challenging the impugned order on the following grounds, namely:
(a) The impugned order suffers from colourable exercise of power.
(b) If the first respondent found any portion of the building in a ruinous state, he should have directed repairing of the structure or fencing of the building or to do fitness to prevent danger in compliance of Section 128 (1) and (2) of the Act and
(c) The impugned order passed by the first respondent requiring the petitioner to demolish the building without any spot inspection or on a report of an expert is illegal.
4. A detailed counter affidavit has been filed by the first respondent. In the counter affidavit, in paragraph 2, it is stated as follows:
"2. ...... On 19-1-2005 'Thirukoil Baktharkal Peravai', Bodinayakanur submitted a petition to this respondent stating that the above said building was constructed 150 years back and the same is in a dilapidated condition and it will cause danger to the Public visiting to the temple and hence it is just necessary to demolish the building. Based on the representation this respondent along with the Municipal Engineer inspected the building. During the inspection this respondent and the Engineer was able to see that the building is in a bad condition and it requires immediate demolition. Hence this respondent issued notice under Section 218 of Tamil Nadu District Municipalities Act, 1920 to the 2nd respondent herein who are the owners of the premises on 31.03.2005".
5. It is further stated in the counter affidavit that on verification, the first respondent came to know that the building is aged about more than 90 years and that the first respondent passed the impugned order based on the representation made by the 'Thirukoil Baktharkal Peravai'. It is further stated in the counter affidavit that it is incorrect to state that the first respondent in collusion with the second respondent is taking steps to dispossess the petitioner from the premises with the aid of police. It is also stated in the counter affidavit that the respondent has passed the impugned order after due inspection along with the Engineer.
6. A separate counter affidavit has been filed by the second respondent. In the counter affidavit, it is stated that on 18.01.2005 'Thirukoil Baktharkal Peravai' gave a complaint to the Commissioner, Bodi Municipality to demolish the building and the first respondent, after investigation of the building, issued a notice dated 31.03.2005 under Section 218 of the Act and directed the second respondent to demolish the building immediately, since the same is very dangerous to the neighbours as well as to public. It is further stated therein that since the writ petitioner refused to vacate the house, a legal notice dated 21.06.2005 has been issued calling upon the writ petitioner to vacate the premises. Thereafter, the Bodinayakanur Municipality issued another notice on 30.09.2005 under Section 218 of the Act directing demolition of the building immediately, otherwise the Municipality threatened to take separate legal action against the second respondent. It is further stated in the counter affidavit that the second respondent also requested the first respondent by their notice dated 14.10.2005 to proceed with the demolition of the building. The maintainability of the writ petition is questioned. It is further stated in the counter affidavit that the building is more than 100 years old and it is in a dilapidated condition and a school is located nearby and the lives of the children are in danger.
7. Heard the respective learned counsel.
8. The first respondent, as directed by this Court, has produced the original files. The learned counsel for the petitioner submitted that Section 218 (1) of the Act does not empower the first respondent to issue the impugned notice directing demolition of the building in question, as the word 'demolish' does not find place in the said Section and that no notice was served on the petitioner before issuing the impugned order. The learned counsel further submitted that the impugned proceedings has been issued as a result of collusion between the first and second respondents with a view to evict the petitioner from the tenanted premises. The learned counsel for the petitioner further submitted that there was no inspection of the building in question either by the first respondent or the Municipal Engineer or anybody from the municipality and he further submitted that the condition of the building is not as bad as it is alleged to be and it does not require immediate demolition.
9. The learned counsel for the first respondent submitted that the allegation of collusion between the first and second respondents is absolutely false and the impugned order came to be passed after issuing the notice dated 31.03.2005. The learned counsel further submitted that a complaint dated 19.01.2005 was received from 'Thirukoil Baktharkal Peravai' stating that the building in question was constructed 150 years back and the same is in a dilapidated condition and it will cause danger to the public visiting the temple and hence it is necessary to demolish the building. According to the learned counsel, based on the said complaint, the first respondent along with the Municipal Engineer inspected the building and during inspection, they found out that the building in question is in a bad condition and it requires immediate demolition. Hence the impugned order was issued under Section 218 of the Act.
10. The learned counsel for the second respondent - the owner of the building submitted that Section 218 (1) of the Act authorises the first respondent to issue the demolition notice and that the contention of the learned counsel of the writ petitioner that the word "demolish" does not find place in Section 218(1) of the Act is not correct. The learned counsel, by referring to the word "take down", which is found in Section 218(1) of the Act, submits that the meaning of 'take down' as per 'D.K.'s Illustrated Oxford Dictionary' is "remove (a structure) by dismantling". The learned counsel further submitted that the impugned notice has been issued pursuant to the complaint given by 'Thirukoil Baktharkal Peravai' and the impugned notice was not issued at the instance of the second respondent. The learned counsel further submitted that if the building is not demolished as directed by the first respondent and if the building collapses and if any member of the public gets injured or dies, the second respondent will be held responsible whereas the writ petitioner will not be affected in any manner. The refusal on the part of the writ petitioner to vacate the rented premises in spite of the impugned notice issued by the first respondent is unjustified.
11. The learned counsel for the second respondent, by relying upon the decision in the case of Dwarka Mahton Vs. Patna City Municipality (A.I.R. 1936 Patna 282) and more specifically the following passage found at page 284 and 285, namely, "It seems to us that the Scheme of the Act is that it is for the Municipality to decide not only whether a building is in a ruinous condition or is dangerous to person or property, but also whether demolition is necessary or repairs would suffice. The decision of the Municipality is not one to be questioned in the Courts, but the rate payer is not absolutely helpless for he has the alternative of preferring an objection under Section 360 of the Act. We must, therefore, overrule the contention of the petitioner that the notice was contrary to law in that it did not give him the choice between demolition and repair", submitted that it is for the municipality to decide not only whether a building is in a ruinous condition or dangerous to person or property, but also whether demolition is necessary or repairs would suffice and that the decision of the Municipality cannot be challenged in this Court.
12. To appreciate the contentions of the petitioner and the respondents and to decide as to whether Section 218 of the Act authorises the first respondent to issue a notice directing demolition of the building in question, it will be useful to refer to the Section itself, which reads as follows:
"218. Precautions in the case of dangerous structures. - (1) If any structure appears to the executive authority to be in a ruinous state and dangerous to the passers-by or to the occupiers of neighbouring structures the executive authority may by notice require the owner or occupier to fence off, take down, secure or repairs such structure so as to prevent any danger therefrom. (2) If immediate action is necessary the executive authority shall himself before giving such notice or before the period of such notice expires, fence off, take down, secure or repair such structure or fence off a part of any street or take such temporary measures as he thinks fit to prevent danger and the cost of doing so shall be recoverable from the owner or occupier in the manner provided in Section 344.
(3) If in the opinion of the executive authority the said structure is imminently dangerous to the inmates thereof, the executive authority shall order the immediate evacuation thereof and any person disobeying may be removed by any police officer".
13. The true meaning of the word "take down" found in Section 281 (1) of the Act has to be ascertained. As per 'Oxford Dictionary', the word "take down"
means "A wrestling manoeuvre in which an opponent is swiftly brought to the mat from a standing position" and "informal a police raid or arrest". As per 'Word Web', the word "take down" (verb) means "tear down so as to make flat with the ground". As per 'Web Star's New World Dictionary' the word "take down" means "the act or process of taking down, especially of disassembling mechanically".
As per 'D.K.'s Illustrated Oxford Dictionary' the word "take down" means "remove (a structure) by dismantling". The meaning of the word "take down" as found from the above referred to dictionaries clearly indicate "removal of a structure by dismantling" and "the act or process of taking down, especially of disassembling mechanically".
14. On a consideration of the above said dictionary meanings, this Court is of the considered view that Section 218(1) of the Act authorises the Executive Authority to issue a notice requiring the owner or occupier to demolish the structure, so as to prevent any danger therefrom, if any such structure appears to the Executive Authority to be in a ruinous state and dangerous to the passers-by or to the occupiers of the neighbouring structures. No other meaning can be given to the words "take down" and some meaning should be given to those words and that meaning could be "to demolish" and that meaning alone can fit into the context in which the words "take down" has been used. Therefore, the contention of the writ petitioner that Section 218(1) of the Act does not authorises the first respondent to issue the impugned proceedings directing demolition of the building is rejected.
15. Now, this Court has to decide as to whether this Court can interfere with the finding of the first respondent that the building requires immediate demolition, as the building is in a dilapidated condition. The learned counsel for the second respondent has relied upon a Division Bench Judgement of Patna High Court reported in A.I.R. 1936 Patna 285 (supra). As seen from the passage extracted above, it is for the Municipality to decide not only whether a building is in a ruinous condition or is dangerous to person or property, but also whether demolition is necessary or repairs would suffice. According to the Division Bench, the decision of the Municipality is not one to be questioned in the Courts. I respectfully agree with the said decision of the Patna High Court. This Court, exercising jurisdiction under Article 226 of The Constitution of India, cannot go into the questions of fact and especially technical aspects relating to the condition of the building, which is the domain of the Civil Engineers. This Court is of the considered view that the Municipal Engineer is a competent person to decide the condition of the building, but of course, the decision of the Municipal Engineer cannot be arbitrary, but it should be based on proper inspection and examination of the condition of the building.
16. In this context, this Court has to decide as to whether the first respondent had actually inspected the building in question along with the Engineer as claimed by him in the counter affidavit.
17. In the counter affidavit filed by the first respondent, it is specifically stated that on 19.01.2005, 'Thirukoil Baktharkal Peravai, Bodinayakanur' submitted a petition to the first respondent, who, in turn, passed the impugned order after due inspection along with the Engineer. It is pertinent to point out that in the counter affidavit, it is not stated as to when the first respondent along with the Engineer inspected the building in question. A perusal of the original files produced by the first respondent also does not reveal as to when the inspection was conducted by the first respondent and the Engineer as claimed by the first respondent. A perusal of the original files shows that the Assistant Engineer has prepared a note dated 10.03.2005 and the same was put up for approval of the first respondent and for his permission for sending notice under Section 218 of the Act to the second respondent. In that note, the Assistant Engineer has referred to the complaint received from the Organiser of the 'Thirukoil Baktharkal Peravai'. But, the date of the complaint is not mentioned. It is stated in the note that the building in question was inspected by him and the Municipal Engineer. But, it is not stated that the building in question was inspected by the first respondent.
18. In the files, there is a letter addressed by the Organiser of the 'Thirukoil Baktharkal Peravai, Bodinayakanur' to the first respondent herein. The said letter is typed on the letter head of the 'Thirukoil Baktharkal Peravai' and in the said letter, the date has been originally typed as 18.02.2005, but, the month has been corrected in ink from "02" as "01". In that letter, there is absolutely no reference to the building in question or about its condition or the request for its demolition, but, it is only a letter referring to some service done by the 'Thirukoil Baktharkal Peravai' during Tsunami. In that letter, the first respondent and other officials of the first respondent have made certain notings. One such noting reads as follows:
"efuikg;g[ Ma;thpd; mwpt[iu bgwt[k;"
which is dated 27.01.2005 and another noting reads as follows:-
"A.E. ,lj;ij ghh;itapl;L mwpf;if jut[k;".
There is one another noting mentioned "E1", with the date 27.01.2005. In the letter head, there is one another writing as follows:-
"fl;ol chpikahsh; tpyhrk;
jpUkjp K.n$hjp & K.R$hjh f/bg. fdfuh$; j/bg.fdfuh$;
2/1 bry;yKj;J re;J Rg;g[ Kjyp bjU fPHuh$tPjp. nghoehaf;fDh;".
19. From a perusal of the said letter, this Court fails to understand as to why the said notings have been made, when the said letter has nothing to do with the building in question and the 'Thirukoil Baktharkal Peravai' has not sought for any action in respect of the building in question.
20. There is one another xerox copy of the complaint said to have been submitted by 'Bodinayakanur Thirukoil Baktharkal Peravai', which is dated 19.01.2005. It is not known or explained by the first respondent as to why the original copy is not available in the files. In the said complaint, the said Peravai has complained regarding the condition of the building in question mentioning about its age and the Peravai has sought for immediate action. In the said complaint, the organiser of the Peravai and other members have signed. But, no noting whatsoever is found on this complaint. In the counter affidavit itself, as pointed out above, the first respondent has specifically stated that the impugned notings have been issued pursuant to the petition dated 19.01.2005 submitted by 'Thirukoil Baktharkal Peravai'. But, as pointed out above, there is no noting whatsoever has been made on the petition/complaint dated 19.01.2005.
21. It is also very pertinent to point out that in the draft notice dated 31.03.2005 addressed by the first respondent to the second respondent herein marking a copy of the same to the Assistant Engineer for further action, in the reference column, it is stated as follows:-
"Complaint, dated 18.01.2005 of the Organiser, 'Thirukoil Baktharkal Peravai, Bodi".
This reference refers to the alleged complaint dated 18.01.2005 received from the Organiser, Thirukoil Baktharkal Peravai, Bodi and only based on that, the notice dated 31.03.2005 has been sent to the second respondent directing her to demolish the building in question. Therefore, the averment in the counter affidavit filed by the first respondent is contrary to the reference made in the notice dated 31.03.2005.
22. All the above said facts unmistakably lead to the irresistible conclusion that the first respondent has filed a counter affidavit containing false averments to mislead this Court. As pointed out above, when the first respondent has claimed in the counter affidavit that he and the Engineer inspected the building in question, the note put up by the Assistant Engineer, as pointed out above, does not reflect the fact that the first respondent inspected the building whereas in that note it is specifically stated that the building was inspected by the Assistant Engineer and the Municipal Engineer and the date of inspection has been conspicuously omitted to be stated.
23. Further, it is pertinent to point out that the entire file does not contain the notes of inspection by the Assistant Engineer or the Municipal Engineer. If really the building in question had been inspected by the Assistant Engineer and the Municipal Engineer, the notes of inspection should be there in the file and the absence of the same clearly shows that there was actually no inspection of the building in question either by the Assistant Engineer or by the Municipal Engineer or by the first respondent.
24. In the letter received from 'Thirukoil Baktharkal Peravai' in its letter head, the typed date has been corrected in ink as pointed out above, which raises a serious doubt in the mind of this Court about the bona fides of the respondents. It is not explained by the first respondent as to why on an innocuous letter of the 'Thirukoil Baktharkal Peravai', the first respondent directed the Assistant Engineer to inspect the place and submit a report.
25. The above said facts lend support to the contention of the writ petitioner that only due to the collusion between the first and second respondents, the impugned notice under Section 218 of the Act has been issued. The first respondent, being a public authority vested with responsible duties and functions under the Act, has abused the powers vested with him under Section 218 of the Act by colluding with the second respondent, which act of the first respondent is hereby deprecated and condemned. The first respondent has the audacity to fabricate the records and submit the same to this Court to justify the impugned proceedings. The first respondent has totally failed to consider the fact that the impugned proceedings will not only affect the statutory right of the petitioner as a statutory tenant entitled to the protection under the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, but, it will also affect his livelihood since the petitioner is running the printing press in the building in question.
26. For the above said reasons, though Section 218(1) of the Act empowers the Executive Authority to issue a notice directing demolition of the structure, if the conditions contemplated under Section 218(1) of the Act, are satisfied, in this case, the impugned notice, as pointed out above, has been issued by colourable exercise of power and in collusion with the second respondent and without any acceptable material and as such, the same is liable to be quashed.
27. Accordingly the impugned proceedings is quashed and the writ petition is allowed with exemplary costs. Consequently, the connected WPMP and WVMP are closed. Since the first respondent, a Public Authority has chosen to file a counter affidavit containing false averments to mislead this Court and produced fabricated files, this Court is of the considered view that the first respondent should be directed to pay exemplary costs. Hence, the first respondent is directed to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) as costs to the The Chief Justice Relief Fund within a period of two weeks from today. The second respondent shall also pay a sum of Rs.10,000/- (Rupees Ten thousand only) as costs to the writ petitioner within two weeks from today, since the impugned proceedings has been issued only at her instance and pursuant to the collusion between her and the first respondent and to the benefit of the second respondent. It is open to the Bodinayakanur Municipality to recover the said sum of Rs.10,000/- (Rupees Ten Thousand only) paid as exemplary costs from the salary of Thiru.N.M.Palanichamy, Commissioner, Bodinayakanur Municipality, who has filed the counter affidavit containing false averments and produced fabricated files before this Court.
28. Registry is directed to post this writ petition for reporting compliance of the payment of costs on 11.08.2006. Registry is also directed to keep the original files in sealed cover.
srk To The Commissioner Bodinayakanur Municipality Bodinayakanur, Theni District.