Himachal Pradesh High Court
Jagannath And Ors. vs The Kullu Municipal Committee And Ors. on 1 January, 2002
Equivalent citations: AIR2003HP5
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. This appeal is directed against the judgment and decree passed by a learned single Judge of this Court in Civil Suit No. 34 of 1982 on November 2/ 3, 1989. By means of impugned decree, suit of the appellants, (hereinafter referred to as the 'Plaintiffs') has been partly decreed against Respondent No. 1 (hereinafter referred to as 'Defendant No. 1'), with proportionate costs in terms of the decree, dismissing rest of the claim as set up in the plaint. Defendant No. 1 has filed the Cross-Objections against the decree that has been passed against it.
2. A suit for recovery of Rs. 6,32,058/- was filed by the plaintiffs against defendant No. 1 and other respondents who were also arrayed as defendants No. 2 to 4 in the suit, and all of them hereinafter are being referred hereto as defendants. Defendant No. 1 is Kullu Municipal Committee, defendant No. 2 is the Secretary of the Committee. Defendant No. 3 is Deputy Commissioner, Kullu and defendant No. 4 is the State of Himachal Pradesh through Secretary Local Self Government to the Govt. of Himachal Pradesh, Shimla. After conclusion of the trial, a decree for Rs. 6,991/- with proportionate costs as aforesaid was passed.
3. We have heard learned counsel for the parties present and have also examined the record of the case to which a detailed reference was made at the time of hearing of this appeal. Facts as they emerge on the basis of the pleadings and evidence are as under :
4. Plaintiffs are the owners of some buildings situate in Akhara Bazar, Kullu. Those buildings were occupied by Punjab National Bank, Shri Sita Ram and Shri Madan Lal as tenants. In the vicinity of these buildings, there were buildings of Shri Bhagat Ram and Shri Dev Raj Vig (DW-1). It is also made out that buildings of the plaintiffs as well of Shri Bhagat Ram and Shri Dev Raj Vig were gutted in fire that broke out on the intervening night of November 10/11, June, 1981. According to plaintiffs it was due to sheer acts of omission, commission and negligence on the part of the fire fighting staff which was being maintained by Defendant No. 1 that huge loss was caused to them. Further case of the plaintiffs is that the Fire Brigade Station is at a distance of 100 meters from the spot where fire incident occurred. When contacted the staff, was unwilling to act as was required of them. Lack of preparation was also set up as an act of negligence.
5. In the aforesaid circumstances, under great public pressure the Fire Brigade Staff was forced to come into action. According to plaintiffs if timely and prompt, action had been taken, the devastation could have been avoided. Fire fighting engine was out of order and it was not drawing adequate water to be thrown on the buildings for extinguishing the fire. Plaintiffs pleaded that a duty was cast upon the Municipal Committee, Kullu and its officials to carry out their statutory duty to maintain and keep the fire fighting machinery in working order. Because of its negligence and inaction to keep it in that state they sustained loss.
6. Plaintiffs further claimed that after the fire their two neighbours DW 1 Sh. Dev Raj Vig and Bhagat Ram started construction and they raised the same. But when they started their work, notices under Himachal Pradesh Municipal Act, 1968 were issued to them. In post-haste and in a mala fide manner demolition was carried out on 15-9-1981 of the four pillars. Basis for claiming compensation was on capitalization of rent of the building.
7. Here it may be noted that there is evidence on record from which it is made out that Punjab National Bank was paying Rs. 1200/- p.m. whereas other two tenants were aying Rs. 350/- and Rs. 800/- p.m. at the time of fire incident to the plaintiffs. Plaintiffs claimed that they wanted to raise construction in RCC for which no prior sanction was intended as it did not involve the changing of building line. Since Defendant No. 1 had been superseded and the Administrator had been appointed, they claimed to have approached him (the Administrator), who referred them to approach the defendant No. 3 under whose orders the demolition were being carried out. Till 5 p.m. they could not get an audience with the said defendant No. 3.
8. Stand of the defendants No. 1 and 2, that the plaintiffs were violating either the provisions of H.P. Municipal Act, 1968 or H.P. Town and Country Planning Act, 1977 was denied. Building plans submitted by them were rejected by the Administrator on 26-10-1981 and appeal preferred under Section 240 of 1968 Act supra was dismissed on 12-3-1982. However, copy of this order was not supplied for the apparent reason that judgment had not been written. This was a clear cut act of mala fide on the part of defendant No. 3 aimed at causing harassment to the plaintiffs for the reasons that plaintiffs had issued notice claiming damages.
9. Defendants No. 1 and 2 filed common written statement and similarly defendants No. 3 and 4 also filed their common written statement. Defendants No. 1 and 2 pleaded that the suit is bad for non-joinder of necessary parties as according to them officials who were remiss were required to be impleaded and in their absence suit cannot proceed, though it was denied that there was any negligence either on its part or on the part of its staff, (fire fighting). According to them fire brigade with its assets and liabilities vested in the Government of H.P. vide Government Notification No. 4-11/73-Home (B) dated 9th November, 1981. In paragraph 3 while denying cause of action, it was pleaded that controlling of fire is not the responsibility either of the State or the Municipal Committee. According to them it is the duty of every citizen. The Government and the Municipal Committee merely assists the citizens in the operation. The interpretation sought to be placed on Sections 90 to 92 of H. P. Municipal Act was wholly misconceived.
10. These defendants further pleaded that the suit does not lie against them and no valid notice had been given. Fire fighting staff of defendant No. 1 did reach the spot promptly and water was thrown at the place which was under fire. In addition to this, local residents. Jawans of I.T.B.P. and SSB were also helping in extinguishing the fire. The fire fighting engine was operational for about 45 minutes, then got seized. According to them the buildings were of wooden structure and combustible material like paints and other connected material was lying in the shop of Shri Madan Lal tenant of the plaintiffs. Besides this, there was a Halwai shop in the premises tenanted from the plaintiffs. According to them there was no negligence or wilful default either in the machinery or human agency. The entire exercise of extinguishing fire resulted for about 30 hours when fire fighting engines from Manali and Civil Aviation. Bhuntar were also requisitioned and were operational. In this background they prayed for dismissal of the suit.
11. Almost identical written statement was filed by defendants No. 3 and 4.
On the basis of the pleadings of the parties, the points on which parties were at variance, following issues were framed :
1. Were the defendants duty bound to maintain the fire brigade at Kulu? If so, which defendant was bound to maintain it? OPP
2. Was the equipment for extinguishing fire maintained property? OPDs
3. Was there any negligence on the part of the defendants in fighting the fire which broke out on the night intervening 10/11 June, 1981? OPP
4. Did defendants No. 1 and 2 act illegally in demolishing and removing the steel columns put up by the plaintiffs for reconstructing the building? OPP
5. Were the plaintiffs entitled to re-construct the building without getting the plans sanctioned from defendants No. 1 to 2? OPP
6. Is there no cause of action? OPP
7. Is the notice served by the plaintiffs on defendants No. 1 and 2 not valid? OPD-1 & D2.
8. Whether proper Court for has been paid? OPP
9. What is the amount of damages to which the plaintiffs are entitled ? OPP
12. Issue No. 1 was held to be rendundant, whereas Issue No. 2 was decided in favour of the defendants, and Issue No. 3 was decided against the defendants. Under Issue No. 4 it was held that the plaintiffs are entitled to recover sum of Rs. 6,991/- being cost of four columns illegally demolished. Issue No. 5 was decided against the plaintiffs Issues No. 6 and 7 were not pressed on behalf of the defendants and Issue No. 8 was decided in favour of the plaintiffs since proper Court-fee had been paid. It is in this background that present Regular First Appeal as well as Cross-Objections have been filed by the Defendants No. 1 and 2 as aforesaid. In case on re-examination of the whole matter, if the Court comes to the conclusion that there was negligence on the part of the defendants 1 and 2 and/or any one of them, plaintiffs may be entitled to some relief. Otherwise the decree passed by the learned single Judge has to be upheld.
13. Before proceeding further in the matter, we may notice that the area of Kullu Town merged in the State of Himachal Pradesh on coming into force of Punjab Re-organisation Act with effect from 1-10-1966. At that time Punjab Municipal Act, 1911 was admittedly applicable in this Town. Chapter VI of this Act deals with Extinction and Prevention of fire. Relevant provisions are extracted herein below :
"93. Establishment and maintenance of fire-brigade. For the prevention and extinction of fire, the Committee may and, if the (State) Government so directs shall, establish and maintain a fire brigade, and provide implements, machinery or means of communicating intelligence for the efficient discharge of their duties by the brigade.
94. Power of fire-brigade and other persons for suppression of fires. (1) On the occasion of a fire in a municipality any magistrate, the Secretary of the Committee, any member of Committee, any member of a fire-brigade maintained by the Committee then and there directing the operations of men belonging to the brigade, and any police officer (not below the rank of Sub-Inspector may :--
(a) remove or order the removal of any person who by his presence interferes with or impedes the operations for extinguishing the fire or for saving life or property;
(b) close any street or passage in or near which any fire is burning;
(c) for the purpose of extinguishing the fire break into or through or pull down, or cause to be broken into or through or pulled down, or used for the passage of houses or other appliances, any premises:
(d) cause mains and pipes to be shut-off so as to give greater pressure of water in or near the place where the fire has occurred;
(e) call on persons in charge of any fire-engine to render such assistance as may be possible; and
(f) generally, take such measures as may appear necessary for the preservation of life or property.
When any Government building is endangered by such a fire the officer of the Public Works Department for the time being in charge of the building may exercise the powers conferred on a Magistrate by this sub-section.
(2) No person shall be liable to pay damages for any act done by him under Sub-section (1) in good faith.
(3) Any damage done in the exercise of a power conferred or a duty imposed by this section shall be deemed to be damaged by fire within the meaning of any policy or insurance against fire.
95. Limitation on operation of chapter. The powers conferred by the last foregoing section shall be subject to any regulations, conditions or restrictions which may be imposed by rule."
14. This Act was repealed by Himachal Pradesh Municipal Act, 1968. In its Chapter VI Sections 90 to 92 are part-materia to what is contained in Chapter VI of the Punjab Act supra. What is the effect of Section 90 on the present case and when fire brigade was ordered to be maintained as per first part of Section 92 supra, is directory or not, in our opinion, will determine the fate of this appeal depending upon the nature of evidence to which a reference will be made hereinafter.
15. PW. 1 is H.C. Harbhajan Singh. He had brought the record of Daily Diary of Police Station Kullu, and as per entry at Serial No. 32 there was a mention of fire on the nigh intervening 10 and 11th June, 1981 at Kullu. A copy of the daily diary report is Ext. PI. This was objected to on behalf of defendant No. 1 on account of its mode of proof. Ext. P2 is the copy of Rapat Rojnamcha of Police Station, Sadar Kullu informing about the return of SI/SHO and staff. There is a mention of the fire in question which was controlled with great difficulty. As per report, the fire was controlled with great difficulty by Jawans of SSB ITBP and HHG with the assistance of public and police. The Town's people protested against the Kullu Fire Brigade and they raised slogans against the S.D.M. and the Secretary of the Municipal Committee, Kullu. They observed 'Hartal' the whole day. Spreading of fire was checked and was extinguished by the Fire Brigade of Manali and Bhuntar.
16. PW. 3 is Sh. T.S. Paul, Commandant. Home Guards, Mandi, who was informed by his Chowkidar about the fire. He walked for about two kilometers to reach the spot around 1.35 a.m. He found that the building which was under fire, housed P.N.B. Akhara Bazar, Kullu was on fire. 2000 to 3000 persons had gathered there and were fighting the fire. He did not notice any fire engine on the road side, though the fire station was at a distance of 100 yards from this building. River Beas is at a distance of 70-80 yards from this building. Witness immediately proceeded to Sharabai near Bhuntar, where 100 Jawans of Home Guards were there. According to this witness, he was directed by Commandant-in-Chief, Home Guards-cum-Director Fire Services to inquire into the matter and he submitted his report vide Ext. P. 3. According to him when he returned from Sharabhai Home Guard Campus, he did not notice any ITBP/SSB personnel fighting the fire. However, Fire Brigade, Manali, was there fighting the fire. Again he did not notice Kullu Fire Brigade on the spot. Witness informed the Civil Aviation Fire Brigade authorities whose fire fighting engine reached the spot and started working. In cross-examination he stated that he did not see any water being thrown on the building which was on fire through jets or with pressure of the engine.
17. PW-4 Mohan Lal was President of Municipal Committee, Kullu from March, 1978 to August, 1980. According to him. Defendant No. 1 was maintaining the Fire Brigade. It was equipped with only one engine which was not in a good working condition. Whenever fire occurred, this engine would work for about 4/5 minutes and then stop working. This had brought bad name to the Municipal Committee. There were in all five members in the Fire Brigade fighting staff. One of them was driver and out of the remaining, 2-3 remained on leave and one or two persons were on duty. Government was being asked by the Committee to either take over the Fire Brigade or to equip it with men and material. Witness stated that the defendant No. 1 was superseded and one reason for it was that the Committee had not maintained the fire fighting service properly. He claimed that when he reached the spot, it was noticed that the building adjoining the Punjab National Bank building was on fire and it was advancing towards Bank building. Fire engine of Fire Brigade Kullu had come there. It threw water for 4/5 minutes and then stopped working, This resulted in protest by the people present who pelted stones on the fire brigade. The people were throwing water with buckets. Next morning 'Hartal' was observed and procession was taken in the bazaar of Kullu against this incident. According to this witness defendant No. 3 assured that everything possible would be done and he also ordered enquiry into the fire incident. In cross-examination, he had stated that engine maintained by the fire brigade of the Committee did go to the spot to put off fire at Akhara Bazaar, Dhalpur and Sharvari Bazaar. Loss caused due to fire was insignificant and fires were put-off. According to him Committee had only one fire engine and it did not have adequate funds to purchase a new fire fighting engine. However, money was being spent on the repairs of the engine. He admitted that there was one hardware shop in the building where Bank was housed as also a Halwai shop. He denied the suggestion that the fire engine was in good working condition and used to extinguish the fire as and when the need arose. Walls of the building were made of cement and stone. Per him building also was made of cement and timber.
18. PW. 5 is Shri Vasudeva Suri, who was a Municipal Commissioner from 1978 to 1980. According to him Committee had one jeep in which fire fighting engine was fitted and the machinery was old. His house was at a distance of two furlong from the Punjab National Bank building. At about 1 p.m. on the fateful night after hearing noise he reached the spot and found lot of people having gathered there. Building adjoining the Bank building was on fire. Fire brigade was standing on the road side and pipe had been aid down upto the river. The engine worked for a few minutes. It could be about 4/5 minutes, thereafter it stopped working. This infuriated people who pushed the jeep towards fire brigade office. He intervened at this Juncture. People fought the fire themselves by throwing water with buckets. As a result of fire. Bank building was destroyed. Dr. Vig's building also caught fire. Fire brigade Manali reached at about 5.00 A.M. In cross-examination this witness has stated that the top storey of the building was made of mainly timber, but the lower portion was pucca and made of cement and stones. He admitted that while he was Municipal Commissioner Fire Brigade engine used to be pressed into service.
19. PW. 6 is Sh. Sant Ram Chabba, Platoon Commander. Home-guards 6th Battallion, Mandi. According to him he was posted in Kullu in the year 1981. Bank building in Akhara Bazar caught fire in that year. Witness reached the spot at about 11.45 p.m. According to him Municipal Committee fire engine had stopped working though pipes were lying over there and people were trying to extinguish the fire. He went to Battalion Headquarters at Kullu to bring more help. Per him there was a centre at Shrabai, near Bhuntar. When witness returned after one hour, no fire engine was working. He is trained in fire fighting operations. He was unable to state when fire fighting engines from Kullu and Bhuntar reached. He was deputed by Commandant Homeguards under the instruction of Commandant-in-Chief (Homeguards)-cum-Director Fire Service, Himachal Pradesh to inspect the fire fighting engine. Witness claimed that he took one mechanic to carry out the inspection on 28-7-1981, he submitted his report vide Ext. P4. According to him he had completed 12 years service as Platoon Commander in the year 1981. His quarter from the place of occurrence was at a distance of about 100 yards, He was informed around 11.40 p.m. by his Chowkidar, Tedhi Singh about the incident. On his arrival he found fire fighting engine of the defendant No. 1 being at the spot, but was not in use and it did not work in his presence. According to him he obtained fire fighting training at Nagpur in the year 1974 for a period of 35 days. This was elementary fire fighting course. He was trained to extinguish fires. He had sought help of mechanic at the time of inspection. He has further stated that fire men present at the spot informed the witness regarding working of engine for about 25 minutes. But he had no personal knowledge about it.
20. PW. 7 is Punnu Ram, Constable No. 3, Per him he accompanied Station House Officer, Kullu, Sardara Singh to the site of fire in the year 1981. There were other police officials also. They had started from Police at about 1 p.m. After reaching the spot the witness noticed that top storey of the building adjoining the Bank was on fire. In that adjoining building there was one shop selling Iron etc. There was no fire brigade at the site, though many persons had gathered there and were fetching water in buckets from river to extinguish the fire. He remained there at the spot till next evening. Manali Fire Brigade Engine, according to him, reached there at about 3.30 a.m. As a consequence of this fire, Bank building and building belonging to Dr. Vig was also burnt. The people observed Hartal showing their resentment against the Kullu Municipal Committee First Brigade. Police Station was at a distance of 750 meters from the site. When Police reached at the spot, Jawans of I.T.B.P./S.S.B. and Homeguards were present there. Bhuntar Fire Fighting Engine reached earlier than the one from Manali.
21. PW. 8 is Bela Ram Clerk from the office of Municipal Committee, Kullu, According to him file summoned regarding transfer of Fire Brigade from the Committee to the Government was not brought by the witness because it had been transferred to the Fire Superintendent of defendant No. 1, as services of the defendant No. 1 were taken over in the month of November, 1981, the officer is no longer with the Committee. The file in question is also with the Fire Officer Homeguards, Kullu. As per entry made on 3-12-1977 letters were dispatched to Shri Kunj Lal Thakur MLA. Shri Maheshwari Singh MLA and the Chief Minister, Himachal Pradesh. He further admitted that entries made in the Register were not in his hand.
22. PW. 9 is Tarsem Singh, Secretary Municipal Committee under suspension, Kullu. According to him he was working as Secretary, Municipal Committee, Kullu in the year 1981. Letter No. 1004 dated 2-6-1981 was issued under his signatures to the Chief Fire Officer, H.P. Shimla. After seeing the original he has placed on record its copy Ext. P. 5. According to him letter was issued after getting information from Shyam Sunder (DW. 7). Though he was suspended on 18-10-1982 he continued to work as Secretary during that period. He has proved on record entry Ex. D1 relating to the building which caught fire in Akhara Bazar, Kullu. He also placed on record Ex. D-2 notice issued to the plaintiffs on 8-9-1981; as also documents Exhibits D3 to D8. These are documents relating to the issuance of notices, objections filed by the plaintiffs followed by communication dated 14-9-1981 from the Overseer of the Committee.
23. PW. 10 is T.R. Thandra, Manager, PNB. According to him he was Manager of PNB at its main Branch Kullu from 1977 to 1982. This building was owned by the plaintiffs. It had the residence of the Manager in the first floor. Guest House of the Bank as also the Bank premises. On the intervening night of 10/11th June, 1981 while he was asleep with his family, he noticed smoke in his room, he got up and found that the ad-Joining building was on fire. He asked his family members to start throwing water on the fire. Witness came out of his room with a view to go to Fire Brigade Office which was situated nearby. He found that the Fire Brigade had already reached and the engine was 30 to 40 yards away from the Bank building. It was near the H.R.T.C. but stand. It was not working. He also found that officials were trying to handle the engine to make it functional. Witness claimed to have helped the fire brigade officials in laying the water pipes upto the river but engine did not work. This resulted in spread of fire to his residential portion. At this juncture, he asked his family members to come out. At this point of time engine did start and started throwing water for about 5 to 10 minutes and thereafter stopped. He has categorically stated that if engine had worked properly his residential as well as bank portion and guest house would have been saved. He lost all his belongings and all belongings of the Bank except the strong room and one fire resistant almirah. According to his witness fire engine from other places probably from Bhuntar and Manali came after about one and a half to two hours. Many Jawans of I.T.B.P. had also reached the spot for fire fighting. But by that time the Bank building was completely gutted. These premises had been newly renovated. Bank used to pay Rs. 900 p.m. as rent before the witness took over. This included the rent for guest house as well as his residential portion. It was enhanced to Rs. 1200 p.m. with effect from 1-1-1981. Original lease deed was burnt and Ex. P-8 was its copy. It was objected to for want of proof on account of loss of original. He denied the suggestion on behalf of defendant No. 1 that the fire engine worked for 45 minutes before breaking down. He admitted that there was a Halwai shop situate towards the right side of the Bank building and next was a paint shop. There was wooden partition between his residential portion and the halwai shop in the upper floor. According to him he first noticed smoke coming from wooden wall. He denied the suggestion that the Bank was not paying rent of Rs. 1200/- with effect from January, 1981 onwards.
24. According to PW-11 Rakesh Kohli his house is situated at a distance of thirty yards towards Mandi side from the bank building. This building caught fire. Municipal Committee Fire Brigade office was at a distance of about twenty yards from his house. Fire officials tried to start the engine. After sometime it did work but only for five to seven minutes and thereafter stopped working. He informed the police on telephone about the fire and also Municipal Fire Brigade. He admitted that there was a shop of hardwares and paints of Madan Lal, which was also gutted in fire. When the witness noticed the fire, it was from the upper storey of the building in which point shop was situate. He did not know whether paint was being manufactured in the upper storey.
25. PW. 12 is Jagan Nath. He has stated regarding rental of the premises i.e. Rs. 1200/- p.m. of the Bank portion, Rs. 800/- p.m. of Madan Lal's portion and Rs. 350/-p.m. of Sita Ram's portion. Since Madan Lal and Sita Ram did not pay rent regularly so suits had to be filed against them. Copies of judgment and decree sheet against Sita Ram are Exts. P.9 and P. 10 and against Madan Lal are Ex. P. 11 and P. 12, respectively. Plaintiffs stated removing the malva of that building. They got a permit for 60 bags of cement from the Deputy Commissioner, Kullu. Foundation of that building was dug up and was also filled up. The owners of the two adjoining buildings, which had also been burnt had already rebuilt their buildings. Plaintiffs could not do so because they were unable to remove the malva. In the first week of September, 1981, defendant No. 1 issued notice to them for stopping of construction which they did. On 15-9-1981 when the witness learnt regarding defendant No. 1's intention to demolish the pillars, he sent his son to the office of the said defendant with reply, but it was not received. Witness along with his father went to S.D.M. to find out why demolition is proposed who referred them to defendant No. 3, since orders had been passed by the latter. Despite best efforts they could not get an audience with defendant No. 3. when a suit was intended to be filed, they learnt that the defendant No. 1 had already demolished the pillars causing damage to them to the extent of Rs. 7000/- FIR was lodged with the police. At about 2 p.m. reply was received by defendant No. 1 from the plaintiffs. Defendant No. 3 gave them audience at 5 p.m. However, by that time demolition had been carried out which fact was highlighted to defendant No. 3. They also pleaded discrimination because owners of the adjoining building had been permitted to reconstruct their houses whereas they were not allowed to do so. They served notice Ex. P. 13 upon the Committee. It was acknowledged by reply Ex. P. 14. This was followed by notice under Section 80 of the Code of Civil Procedure and also under the Himachal Pradesh Municipal Act vide Ex. P. 15. State Government replied to the same vide Ex. P. 17. Against rejection of building plan appeal was filed vide Ex. P. 18 and copy of the order passed on it is Ex. P. 19. Witness has sworn affidavit Ex. P. 20 to the effect that though decision had been announced on 12-3-1987 it had not been dictated till June, 1982. He has placed on record the documents admitted by the defendants which is the correspondence between the parties Ex. P. 24 to Ex. P. 31. He has gone on record to state that house of one Ram Prasad was destroyed in fire in Dhalpur in the year 1978. Fire engine of defendant No. 1 could not extinguish the fire. There was agitation by the public and defendant No. 1 had appointed a Committee to go into the matter. This matter was later on closed. Defendant No. 1 was superseded in the year 1980. Still no steps were taken by the Government to improve the fire fighting equipment or personnel, even after the supersession of the Committee. He admitted that Sita Ram was running a Halwai shop in the ground floor whereas Madan Lal had a shop of hard-wares, paint etc. in the building, besides Bank. According to him, he as well as other plaintiffs were residing at Bhuntar which was at a distance of 10 Kilometers from the spot. Madan Lal used to pay Rs. 800/- p.m. and Sita Ram Rs. 350/-p.m. Bank used to pay Rs. 1200 p.m. He denied the suggestion of the defendants that the Bank was not paying Rs. 1200/- p.m. as rent. He further admitted that renovation plan Ex. D-9 was sanctioned after alterations in the year 1976. He denied the suggestion that Overseer working in the Building Section of the Municipal Committee came to the spot on 7-9-1981 and noted that construction was on. Application along with the plan was taken by the son of the witness on the morning of 15-9-1981 for the first time at 10.00 a.m. However, those were not received. Application was received but without plan at 2 p.m. that time pillars had been demolished. However, plan was sanctioned in the year 1984 and construction was raised. Witness admitted that a writ was filed in the High Court challenging the order of dismissal of his appeal by defendant No. 3. But the same was dismissed because civil suit had already been filed. It was in June, 1982, In cross-examination on behalf of defendants No. 3 and 4 he admitted that witness had applied for inspection of file when he learnt that defendant No. 3 had not written the judgment though announced on 12-3-1982. This is the entire oral evidence examined on behalf of the plaintiffs.
26. DW. 1 is Shri Dev Raj Vig whose building was also destroyed in the fire. He had his dispensary in the ground floor of his building, in the first floor he had his residence. Besides this his son had a store there and there was also a hotel in it. He has admitted that the plaintiffs building was two storeyed and a part of it was with the Punjab National Bank. There was one Halwai and one hardware shop in the ground floor. Premises above the hardware shop were in the possession of the said shop owner who used to store paints and manufacture those. For this purpose, he used to lit fire. He further started that fire incident occurred during the night intervening 10/11th June, 1981 at about 12.30 a.m. He heard noise then got up, came to the road. He noted flames coming from the first storey portion over the hardware shop. He did not see any flames from any other portion of the building at that time. Fire Brigade of respondent No. 1 reached the spot 4/5 minutes after the witness came down to the road. Per him, fire engine worked for about 45 minutes and water was thrown on the flames but the fire had spread meanwhile. He has shown his ignorance about what happened to the engine after that as he and his family members got busy in removing luggage towards back side of the house for safety. According to him plaintiffs had not carried out any repairs in the burnt portion as condition must have deteriorated. Plaintiffs had built a new portion at the back side of the house and had carried out some repairs to the back portion. In cross-examination he has pleaded ignorance as to how the engine was brought at spot by driving or pulling it. At one place in his cross-examination he has stated that new building has been constructed by the witness on the site of the burnt building after the plan was sanctioned by defendant No. 1. At another place he has admitted that he commenced the construction work before obtaining the sanction. Regarding rent that was being received by Jai Ram. he has also shown his ignorance, He also admitted that distance of Fire Brigade office from his building was 40 to 50 yards and one could reach there within two minutes. He further admitted that floor of Jai Ram's building was of RCC as also the building had attic over the first storey.
27. According to DW-2 Mansha Ram he had seen the house of plaintiffs that was burnt in June, 1981. His residential house was 2/3 shops away from the said building towards Manali side. It was not damaged in the fire. On hearing noise from the Chowkidar of H.R.T.C. He got up from shop and learnt about fire incident at about 12.30 a.m. in the night. He noted that the first storey of the plaintiffs building was on fire. This portion was in occupation of Madan Lal, who was doing hard-ware business. According to him when he reached the spot he found fire engine already operational and throwing water on the flames. This engine was operational for about 40/45 minutes when it stopped working. According to him 4/5 employees in the Fire Brigade were working there at the spot. He had further stated that fire was finally extinguished at about 8/9 a.m. next day. He admitted that engine became hot because every person who was coming there was pressing its accelerator. According to him what he stated regarding the state of affairs of this engine needs to be extracted in verbatim. "The Municipal Committee Fire Engine had been brought to the spot by lifting it. There were no wheels underneath it"
28. Per DW. 3 Shri Inder Kumar he is resident of Akhara Bazar and is a witness to the effect that he reached the spot and assisted in extinguishing the fire. According to him, fire engine of defendant No. 1 worked for about 45 minutes after which it stopped. Thereafter fire engines from Bhuntar and Manali arrived and helped in extinguishing the fire. The personnel of I.T.B.P. and S.S.B. had also reached the spot and helped in extinguishing the fire. In his cross-examination, he has admitted that plaintiffs had carried out repairs to the portion occupied by the Bank in the first storey and had constructed new portion at the back side. He was however, unable to say that in this exercise Rs. 2 to 2.5 lakhs were spent. He admits visiting the Bank. There was chips flooring inside it. He denied the suggestion that fire engine worked for not more than 5 minutes.
29. DW-4 Tilak Raj is a retired Municipal Engineer. According to him he was an Overseer with defendant No. 1 from 1950 to 1979 and Municipal Engineer from 1979 to 1982. He knew the plaintiffs whose building was destroyed in the fire. According to him on 7-9-1981, Balwant Singh (DW-8) put up a report Ex. D-16 on which he appended his note Ex. D-17 and submitted the matter to the Secretary of defendant No. 1. His note was approved and the Administrator, who appended his signatures on it. On its basis notice under Section 208 of the H.P. Municipal Act was to be issued. However, he did not remember whether it was actually issued or not. Similarly, he did not remember as to whether the plaintiffs stopped the construction work or not. Again aforesaid Overseer put his note Ex. D-18 on which witness put up his signatures as Ex. D-19. Secretary of Defendant No. 1 thereafter proposal action in terms of note Ex. D-20 which was approved by the Administrator. It is necessary to extract Ex. D-21 which is as under :
"As proposed. Sd/- 15/9 Notice under Section 207 be issued just now. It should be ensured that the pillars are got demolished today by the M. E. positively.
Sd/- 15/9"
30. In this behalf it may be appropriate to note that Ex. D-18 is of 14-9-1981. D-19 is also of 14-9-1981. Ex. D-20 and Ex. D-21 both are of 15-9-1981. Vide Ex, D-22 Municipal Overseer reported compliance on 15-9-1981 itself. According to this witness building plan was received from the plaintiffs by defendant No. 1 which was returned after It was dealt with by the Municipal Overseer vide Ext. D-24. Objections raised were vide Ex. D-25. Witnesses admitted in his cross-examination that he did not visit the spot while putting down his note Ex. D-17 as also while appending his signatures on Ex. D-25. According to him, he was not in a position to say whether objections contained in Ex. D-25 were correct or not. Though he admitted that the structure raised by the plaintiffs was demolished by a party headed by Overseer and perhaps he visited the spot after such demolition in the evening. Regarding Ex. D-21 witness has stated that Administrator had called him and directed that structure should be demolished by the evening and compliance reported to him (Administrator). This was verbal instruction. He admitted that plaintiffs were not residing at Kullu. Demolition notice is Ex. D-26. Its perusal shows that it had been issued to one of the plaintiffs, namely, Sudarshan Kumar, that too at Kullu address when its officials were well aware that the plaintiffs were re- siding at Bhuntar at a distance of about 10 KMs. This Ex. D-26 will be dealt with appropriately hereinafter. He further admitted that when structure of the plaintiffs was demolished (it was on 15-9-1981) the building of Mr. Vig. (DW-1) and Bhagat Ram were almost nearing completion. However, he did not remember whether building plans of these persons had been sanctioned till date. He admitted that the fire fighting equipment was being maintained by defendant No. 1.
31. DW-5 is Gian Singh. He was working as a Fitter with defendant No. 1 in the year 1981. According to him he was asked to serve the notice Ex. D-26 upon the defendants. Per his version he went to get it served. But Sudarshan Kumar plaintiff was not available. As such under the instructions of Overseer he affixed it at the pillar of new construction of the plaintiffs and submitted his report Ex. D-27 which was in his hand. Munshi of Sudarshan Kumar according to witness refused to accept the notice. It was thereafter that he affixed the notice. For ready reference Exhibits D-26 to D-28 are extracted hereinbelow :
Ex. D-26 Office of the Municipal Committee Kullu To Sh. Sudershan Kumar, S/o Sh. Jagan Nath, Akhara Bazar, Kulu.
Sub : Unauthorised Construction.
Whereas it has come to the notice of the Committee that you have constructed a building in the shape of pillars at Akhara opposite to Bus St. and without obtaining proper prior sanction of the Committee as required under Section 199 of the Himachal Pradesh Municipal Act, 1968. Therefore you are hereby served a notice at 10.00 a.m. on 15-9-1981 under Section 207 of the Himachal Pradesh Municipal Act, 1968, and you are directed to demolish this unauthorized construction within three hours from the receipt of this notice.
Seal Sd/-
Secretary, Municipal Committee, Kulu (H.P.) Ex. D-27 Sudarshan Kumar is not present at the site. The Munshi has refused to receive the notice.
Sd/-
(Gian Singh) 15-8-91 Notice to be affixed On the building.
Sd/- Sd/- Sd/-
(Balak Ram) (Tilak Raj)
M.E. (Khyali Ram)
15-9-81 15-9-81
Ex. D-28
Notice has been affixed.
Sd/-
(Gian Singh)
In cross-examination, he admitted that he stated from office at 10 a.m. to get the notice served. The Secretary of defendant No. 1 had not reached the office by that time, so he returned from the spot after about half an hour and after obtaining instruction of the Overseer, he went again after 10-15 minutes and affixed the notice at about 1.45 or 11 a.m. This was done in the presence of the witness. This witness accompanied the demolition squad which was headed by Overseer. He denied the suggestion that the reports were prepared subsequently.
32. DW-6 Tej Ram was working as a fireman with defendant No. 1 from 1965 to 1981. He was leading fire-man in the year 1981. He knew plaintiffs, whose building was destroyed in the incident in question. According to him while on duty on the fateful night at the fire station he heard noise. He along with other fire men on duty took the portable fire fighting engine to the river side near the spot at a distance of about 200 meters away from the place of incident. Pipe was fitted to the engine and submerged in the river. Thus both of them started throwing water on the fire. This engine worked for about 45 minutes and then broke down. According to him they contacted Manali for sending the fire engine. He has gone on record to state that prior to the incident in question at Mata ka Mandir at Village Nao caught fire. The engine in question was operational for about 72 hours. He did his utmost to extinguish the fire. In his cross-examination, he admits that the engine in question was with the defendant No. 1 when he joined service. It had been sent outside Kullu for repairs during his tenure. Regarding fire to the building of Ram Prasad 3/4 years prior to 1981 he stated being on leave, as such was unable to say that people had thrown stones on fire brigade personnel and have taken out a procession in protest.
33. Shyam Sunder (DW-7) was the Station Fire Officer, In-charge of Fire Brigade in 1981, he had also reached the spot. This witness was not imparted any training regarding fire fighting. He was appointed as a fire man because of his being an ex-serviceman. According to this witness fire had started at three places at one time. When the witness reached the spot, building belonging to plaintiff, Dr. Vig (DW-1 's shop) as also house belonging to Bhagat Ram were on fire. From Fire Station it takes two minutes to reach the spot. Portable engine could be lifted by two persons. Since people had gathered there, they also helped in lifting it after having heard the noise. It took about 15 to 20 minutes for the engine to start and become operational. According to him both were holding jet but they had no means to remove the roof of the buildings. Defendant No. 1 had two fire fighting engines one of which was lying for repairs in PWD Workshop, Shamshi. According to this witness fire engine was tested every day for about 10 minutes by the fireman on duty which fact was recorded in the register maintained at the fire station. It may be noted in this behalf that the same had not been produced. Staff strength of fire station of defendant No. 1 according to the witness was one leading fire man, two fire men and one driver in addition to himself. There was one portable fire engine, one trailer pump and other ancillary material for fighting fire. According to him in 1981 there were fire incident at Bhuntar and Village Nau. Both were attended to with the help of portable fire engine. It was operational for five hours at Bhuntar and 22-23 hours at Village Nau. He was called by fireman from his residence on the fateful night at about 12.32 or 12.35 a.m. When he reached the spot he found that the firemen had already taken the portable engine on the side of the river Beas and there was process of laying down the pipes. Witness started the engine and water started running in the pipe. The engine was operational for about 40-45 minutes and then it stopped working. A mechanic was brought and the witness did his best to re-start it. But in vain. It was thereafter that telephone calls were made to Manali as well as Bhuntar for calling the fire brigades. In such situation fire men joined the public in extinguishing the fire by throwing water in buckets, which was finally brought under control by 7/8 a.m. He was unable to say why the engine did not work on the fateful night. However, portable engine was in good working condition. The fire fighting services of the Municipal Committee, Kullu were taken over by the Government in the year 1981. He submitted his reports Ex. D-29 and Ex. D-30. Ex. D-29 pertains to fire at Village Nau and Ex. D-30 pertains to the fire at Akhara Bazar, Kullu i.e. the present fire. In his cross-examination on behalf of the plaintiffs he stated that he was unable to give detail of the expenditure incurred by defendant No. 1 in maintaining the fire engine from 1973 to 1981. He further stated that no major equipment was purchased. During the said period only hose pipes were purchased for the fire station and the existing engines were got repaired. Since he had not completed 3 years services in the year 1975 so his sponsorship for further training at National Fire Service College, Nagpur was rejected. According to him portable fire engine was started by him at about 12.40 or 12-45 a.m. He admitted that he did not catch the water jet in his own hand for throwing water as it was being done by the firemen. However, he was near the portable engine till the time It was functional, According to him ordinarily there is one fire man on duty at a time but on the might intervening 10/11th June, 1981 all the three fire men were present at the fire station. He admitted that houses in Kullu were constructed mostly by using timber. He also admitted that for delayed throwing of water, warning was issued to all the staff members working in fire station, Kullu. The witness stated that during his tenure he had demanded for modern engine and other material to be purchased by defendant No. 1. He denied the suggestion on behalf of the plaintiffs that the engine was operational only for five minutes. What he has stated in reply to last question needs to be extracted which is as under :
"The staff kept at the fire station was insufficient to meet the exigencies of fire."
34. Balwant Singh (DW-8) was working as Overseer with defendant No. 1 in the year 1981. He is a diploma holder in Civil Engineering. He had seen the plaintiffs building at Akhara Bazar. He has confirmed the reports Exhibits D-18, D-22 and D-31. According to him Ex. D-16. Ex. D-18 and Ex. 22 are in his hand. Application Ex. D-13 was received by defendant No. 1 for sanctioning along with the plan Ex. P-22. Objections raised by the witness were contained in Ex. D-25. Witness admitted having submitted those to the Municipal Engineer vide reports Ex. D-23, D-32 and D-33. In cross-examination by plaintiffs he has stated that he went for demolition at about 1 p.m. and had inspected the spot a day earlier. As already noted that exhibits D-20 to D-22 are of 15-9-1981. He has stated that he did not remember whether buildings belonging to others were being constructed near the house of the plaintiffs. This was also his answer regarding completion of building by Dr. Vig (D.W. 1) and Bhagat Ram. He has tried to justify the objections raised by him against the building plan Ex. P-22. This is the entire evidence examined on behalf of the defendants No. 1 and 2.
35. No evidence was examined on behalf of defendants Nos. 3 and 4.
36. Ex. P. 2 is report of SHO Sardara Singh on his return regarding incident in question as noted hereinabove. Ex. P. 3/A is the translated copy of Ex. P3. This is a communication addressed by the Commandant, Home Guards, 7th Battalion, Kulu, District Kulu to the Chief Fire Control Officer, Himachal Pradesh. A reading of this document makes interesting reading. Its contents are as under :
"With reference to your memo No. Home(FS.)(H.Q.) 1-18/77, dated 10-7-1981 on the above cited subject, the required comments are as follows :
1. The Kulu Municipal Committee's Fire Extinguishing Centre has two fire control pumps, one of which is trailer, and the other a portable one. In the fire incident of 11-6-1981 only one pump was put to use as the trailer pump had been sent for repairs.
On inspection of the portable pump, which was put to use, it was found that this pump was of British make of 1962, Hence being 17 years old, it has not been working. On the inspection of its engine, it was found that it had jammed after running for 25 minutes.
The components of this pump are worn out, which get jammed, or stop functioning after working for a short-while. As per the statement of the Fire Control Officer of the Municipal Committee, the spares of this engine are not available because it was also sent to Chandigarh.
Sd/-
Commandant.
Home Guards, 7th Battalion, Kuly, District Kulu.
37. He had enclosed Ex. P4/A which is inspection report regarding Municipal Committee Fire Station, conducted by Sh. Sant Ram Chaba (PW. 6) on 29-7-1981. This case is descriptive of the state of affairs regarding men and machinery at the Fire Station Kullu, Its extract is as under :
"Sir, I inspected the portable pump at Municipal Committee's Fire Station on 29-7-81 which was put to use to extinguish the fire of Akhara Bazar, Kullu on 11-6-81. This pump is made in England of 1962 Model and is in use of the Kulu Municipal Committee's Fire Brigade for about 17 years. When this engine was put to work, it stopped after running for about 25 minutes. The inspection of the engine has revealed that its engine has got seized, which is due to the fact that the pieces underneath the piston have gone bad.
The Fire Brigade of the Municipal Committee has two fire engines. One is a trailer pump, and the other one is this portable pump. The trailer pump had been sent for repairs on that day. The portable pump is so old that it is not fit for use now. The following equipment, which is every essential for the Fire Brigade, is also not available there :
1. Carbon Dioxide Extinguisher.
2. Dry Powder Extinguisher.
3. Fog Nozzle.
4. Revolving Head
5. Fire Axes.
6. Ceiling Hooks.
7. Collecting Head.
8. 1. 1/2 to 2. 1/2 Adopter.
In addition to the above, the following fire fighting crew has been found at the Fire Station, which is very insufficient.
1. Fire Officer One
2. Leading fire Man One
3. Fire Man One
4. Vehicle Driver One But the driver engaged at the Fire is also employed to run the tractor of the Municipal Committee.
Yours faithfully, Sd/-
(Sant Ram Chaba).
Platoon Commander.
Comments based in this report be sent to Chief Fire Officer.
Sd/- T. S. Paul.
38. Ex. PW.5/A is a report submitted by Secretary of defendant No. 1 to the Chief Fire Control Officer, Govt. of H.P., Shimla. Ex. P-8 is a photostat copy of the lease deed. Ex. P-9 to Ex. P-12 are copies of the judgment and decrees of both the suites filed by the plaintiffs against their tenants for recovery of rent. Ex. P. 13 is the notice issued on behalf of the plaintiffs to defendant No. 1 and Ex. P-14 is its reply. This was followed by Ex. P-15 notice under Section 80, CPC read with H.P. Municipal Act, 1968. It was replied to by the Municipality vide Ex. P-16.
39. Notice dated 3-9-1981 was served upon the plaintiffs was replied to by the plaintiffs on 15-9-1981. P.W. 12 has stated that it was accepted only after demolition had been carried.
40. On the other hand, Ex. D-l is the extract of assessment register relating to house tax for the period 31-3-1971 to 31-3 (illegible). It atleast speaks of one fact that it is not Sudarshan Kumar alone who is the owner. Ex. D-2 is the copy of notice dated 8-9-81 served upon the plaintiffs on 9-9-1981. Ex. D-22 is the demolition report submitted by DW-8 Balwant Singh. Ex. D-8 is the reply dated 15-9-1981 and report on it was also called by the Secretary of defendant No. 1 on the same day which is made available vide endorsement Ex. D8/A on it. Ex. D. 10 is sanction regarding back side construction but sanction for construction of room towards Highway side was not granted vide Ex. D-10, Ex. D-11 is the notice under Section 208 which is addressed to Sudarshan Kumar plaintiff alone.
41. The above is the resume of evidence on the file of this case. In the light of it first and foremost question that needs to be seen is on the basis of the provisions of Sections 93, 94 and 95 of the Punjab Municipal Act and Sections 90, 91 and 92 of Himachal Pradesh Municipal Act, 1968. According to learned counsel for defendant No. 1 it was not at all incumbent upon his clients to maintain the Fire Brigade as it was not a duty enjoined upon it under law. According to him the providing of fire fighting service was directory particularly when there is no evidence whether prior to 1966 Punjab Government, and thereafter Himachal Pradesh Government having issued by direction in the mandatory form to that effect. If this statement is accepted then further question that needs to be seen is as to what is the effect of word 'may' in Section 90 of the H.P. Municipal Act, 1968 and in provisions of Punjab Municipal Act (supra) dependent upon the nature of duty, it is not always that word 'may' used in a statute shall always be treated as directory as it is not a word of compulsion.
42. It is to be seen by the Court that when a capacity or power is given to a public authority like defendant No. 1, there may be circumstances which enjoin positive duty upon it as in the present case to mandatorily carry out the said duty. There can be something in the nature of thing empowered to be done something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may convert the power, into a duty and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so.
43. In our view the word 'may' used in Section 93 in Punjab Act (supra) and in Section 90 of H.P. Act of 1968 (supra) is to be construed as 'compulsory' looking to its object of effecting rights of the residents. How the word 'may' in different statutes has been dealt with will be examined hereafter.
44. In Section 35 of the income Tax Act, 1922, there was a power with the authorities who "may rectify any mistake apparent on the face of the record". Supreme Court held in L. Hirday Narain v. I.T.O. Barellly. AIR 1971 SC 33, that the authorities were bound to exercise the power, if conditions for its exercise were shown to exist by a person interested.
45. Depending on the nature of duty, even if the, words used in a statute were prima facie enabling, the Court shall infer a duty to exercise such power which is invested in aid of enforcement of a right public or private of a citizen.
46. While dealing with a case under the Rent Act, the words, 'the Court may pass a decree for eviction', have been construed as not conferring a discretion for refusing to pass a decree where a landlord in a suit has proved the fulfilment of all conditions entitling him to possession and the Court in such cases is bound to pass a decree in his favour in spire of the use of the word 'may'. (See Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatparasad Prabhhuprasad, AIR 1963 SC 120).
47. Similar is the position under Section 190(1)(b) of the Code of Criminal Procedure, 1973. In A. C. Aggarwal Sub-Divi., Magistrate, Delhi v. Mst. Ram Kali, AIR 1968 SC 1, it was held by the Supreme Court that the words 'may take cognizance' in the context means "must take cognizance" leaving no discretion to the Magistrate.
48. In Bashira v. State of U.P., AIR 1968 SC 1313, Supreme Court was dealing with a rule requiring that "the Court may engage a counsel to defend the person", in a capital sentence case, it was held obligatory duty on the Court to provide a counsel if the conditions of the rule were satisfied.
49. Stand of defendants Nos. 1 and 2 is that it is neither the duty of these defendants nor of State Government to control the fire. It is the duty of every citizens and Municipal Committee. It is unfortunate that being a statutory authority meant to run the local administration of the town, defendant No. 1 has taken up this stand. If the plea urged on behalf of the defendant Nos. 1 and 2 that it was merely obligatory and no duty is enjoined on defendant No. 1 to maintain the fire fighting equipment for extinction of fire is taken to its logical end it will not only lead to disaster but still further negate the duty cast upon the said defendant by law. What further follows from this stand of defendants 1 & 2, is that unless direction is issued by the State Government, there was no need for maintaining fire fighting equipment etc, Looking to the nature of the obligation cast under Section 93 of Punjab Municipal Act supra or under Section 90 of H.P. Act, 1968 supra, it cannot be said by any stretch of imagination that the duty cast upon the defendants was directory, therefore, it was not required to maintain the fire fighting equipment as well as to have adequate man power to control the same. In view of the evidence referred to herein above, particularly Ex. P3/ A and Ex. P4/A as well as statements of PWs. 3, 4, 5 and 6, we have no doubt that defendant No. 1 did not have either adequate fire fighting equipment or man power to carry out its duty required by the provisions of Punjab Municipal Act, 1911, as well as Himachal Pradesh Municipal Act. 1968 referred to herein above.
50. Mere non-availability of funds cannot be set up as a ground by any of the defendants, and particularly defendant No. 1, to carry out its statutory duty. What was held in Municipal Council. Ratlam v. Vardhichand. AIR 1980 SC 1622 and aptly applies to the present case, is extracted herein below :
"12. The statutory setting being thus plain, the municipality cannot extricate itself from its responsibility. Its plea is not that the facts are wrong but that the law is' not right because the municipal funds being insufficient it cannot carry out the duties under Section 123 of the Act. This 'alibi' made us issue notice to the State which is now represented by counsel, Shri Gambhir. before us. The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no judicial basis. The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, Section 123 of the Act has no saving clause when the municipal council is penniless. Otherwise, a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self defence a self created bankruptcy or perverted expenditure budge. That cannot be."
51. Efficient maintenance of the portable fire figure engine by defendant No. 1 can be seen from the fact, it had no tyres and the two fire men along with public had to lift it from the fire station. Duty of defendant No. 1 to maintain the fire fighting equipment and also to have requisite man power to operate the same was more onerous when it is defendants case that in Kullu Town most of the buildings are wooden.
52. Under Section 90 of the H.P. Municipal Act, 1968 it was the defendant No. 1 who was to maintain the fire fighting equipment etc. Webster's Third New International Dictionary (Volume II. P-1362) defines 'maintain' as under :
"to keep in a state of repair, efficiency, or validity : preserve from failure or decline : (.o sustain against opposition or danger."
53. In this behalf learned counsel for the plaintiffs, in our opinion, has rightly placed reliance on the decision of this Court in the case of in case Smt. R. Singha v. Secy. (PWD) to the Govt. of H.P. (1996) 1 Sim LC 1. We are satisfied that the defendant failed to maintain the machinery to fight fire (s) and also did not have adequate man power.
54. Defendant No. 1 is further guilty of negligence as it failed to perform its duty towards the public enjoined upon it under Section 90 supra. This is a clear cut case of misfeasance on the part of defendant No. 1 for its failure to equip the fire brigade properly both with man and machinery. There is positive evidence that portable engine in question did work. According to plaintiffs it worked for 5-7 minutes, whereas according to defendant it worked for 40 to 45 minutes. It hardly makes any difference for what period did it function. Reason being that looking to the nature of construction in the Kullu Town, it was incumbent upon the defendant No. 1 to have adequate proper fire fighting equipment. One relevant factor in this behalf is population, number of buildings and type of construction within the limits of Defendant No. 1.
55. Admittedly there were two engines one had been sent for repairs to Shamshi. How the other worked it hardly needs to be clarified. Simply because there was paint shop or halwai shop in premises in question would not exonerate defendant No. 1 of the duty cast upon it. If some combustible material was being stored within municipal limit, there was nothing that prevented defendant No. 1 to have taken remedial steps. There is no evidence to that effect. At best location of these two shops in the premises of the plaintiffs may be contributory factor. But in no case it discharges defendant No. 1 of its duty under law. Though learned counsel appearing for defendants No. 1 and 2 supported the judgment of the learned Single Judge and urged that while dismissing the appeal of the plaintiffs, cross objections filed by his clients deserve to be allowed, this plea cannot be accepted in view of the above discussion. Further in view of the manner in which the entire exercise of demolition has been carried out from the stage of issue of notice till completion of demolition, we see no reason why a contrary view to what has been held by the learned Single Judge while passing the decree against defendants No. 1 and 2, needs to be taken. In the circumstances of the case, it was incumbent upon defendants to have examined defendant No. 3 under whose verbal orders demolition was carried out. Nothing more needs to be added in that behalf to what has been found by the learned Single Judge.
56. In the circumstances of this case as well as in view of the statement of DW 1 Mr. Vig whose adjoining building was burnt having been allowed to raise construction without sanction, further suggests that defendants No. 1 to 3 were proposely harassing similarly situate persons by discriminating them. However, we may not be understood to have held by making this observation that in case DW 1 violated law plaintiffs should have also beep allowed to violate the same,
57. This seems to be the reason why DW 1 has appeared as a witness against the plaintiffs. Looking to the extent of the fire and the buildings have been engulfed in it, even if, the portable engine had worked for long hours, it would have been of no consequence in the present case. It is the admitted case of the parties that the fire was finally extinguished on the next day, that too with the assistant of fire brigades from Manali as well as Bhuntar.
58. View that has been taken under Section 90 of the H.P. Municipal Act, 1968, we feel that the plaintiffs were entitled to maintain suit. Reference in this behalf of can be made to a decision of Supreme Court in case K. Ramdas Shenoy v. The Chief Officers, Town Municipal Council, Udipi, AIR 1974 SC 2177.
59. So far the manner in which demolition has been carried out as noted herein above and the post haste shown in that behalf by defendants No. 1 and 2 is concerned, in the light of the decision in State of Jammu and Kashmir v. Haji Wall Mohammed, AIR 1972 SC 2538, we are of the view that it was not possible for the plaintiffs to comply with the notice or to take such action as is permissible under law. Everything was done within no time because demolition had been completed in the day. We have further no hesitation in holding that defendants were well aware regarding the residence of the plaintiffs at Bhuntar. Notice was sent at Kully, that too on Sudarshan Kumar plaintiff alone and not to others. There is no explanation corning forth this omission on the part of the defendants. Stand of the plaintiffs that defendants were hostile since they had issued notice and were staking their claim for damages appears to have aggravated the situation resulting in demolition in question.
60. While considering the matter relating to compensation arising out of tort and negligence, Supreme Court in Union of India v. United India Insurance Co. Ltd. (1997) 8 SCC 683 : (AIR 1998 SC 640) held as under (Paras 30 to 34) :
"31. Lord Hoffman further observed that whether a statutory duty gave rise to a private cause of action or not was a question of construction of the statute. It required an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for breach. The question whether it could be relied upon to support the existence of a common law duty of care was not exactly a matter of construction because the cause of action did not arise out of the statute itself. Whether there was a common law duty and if so what was its ambit must be profoundly influenced by the statutory framework within which the acts complained of were done. The same was true of omission to perform a statutory duty. If the policy of the Act was not to create a statutory liability to pay compensation, the same policy should certainly exclude the existence of a common law duty to care.
32. But it is not as if that a statutory "may" can never give rise to a common law duty of care (p. 414). There are exceptions in which a statutory "may" could create a common law "ought",
33. The exceptions according to Lord Hoffman require two conditions to be proved to postulate a duty to perform a common law obligation within the statutory framework of a discretionary power. The two minimum preconditions for basing a duty of care on the exercise of a statutory power were firstly, that it would have been irrational not to have exercised the power so that there was a public duty to act and secondly that there were exceptional grounds for holding that the policy of the statute must have been to require compensation to be paid to persons who would suffer damage because the power conferred was not exercised at all or not exercised when it was generally expected to be exercised.
34. Lord Hoffman's observations indicate that he agreed that Anns (1978 AC 728) was overruled in Murphy (1991 (1) AC 398) only in relation to the extension of the "neighbourhood" rule as laid down in Donoghue v. Stevenson 1932 AC 562 to economic losses and that the said judgment in Anns was not overruled so far as compensation for physical injury (p. 410). But on facts in Stovin v. Wise (1996 (3) WLR 388) though it was a case of personal injury, the claim against the local authority for non-exercise of the power to direct the landowner to remove the earthen mound was rejected by the House of Lords on the ground that the above two preconditions were not fulfilled. Again, Lord Hoffman stated that the distinction made by Lord Wilberforce in Annus between non-feasance due to "policy" and "operations" was not a sound one.
35. Having referred to the two pre-conditions, we shall now refer to the more important part of the decision of the majority. This concerns the manner in which one can show that the two preconditions are to be satisfied in a given case of non-exercise of statutory powers.
36. So far as the first condition relating to "irrationality" is concerned, reference was made by the House of Lords in the above case to the principle of "particular reliance" laid down by Brennan J. of the Australian High Court in Sutherland Shire Council v. Heyman CLR (1985-157 CLR) at p. 483 and also to the other alternative principle of "general reliance" laid down by Mason, J. in the same case (p. 415). Lord Hoffman said that if the "particular reliance" of the plaintiff in respect of an expectation of exercise of statutory power by the authority was belied, then a conclusion can be drawn that the non-exercise was irrational. This form of liability based upon representation and reliance would not depend upon the public nature of the authority's power and would cause no problem. Alternatively, if the plaintiff had no idea or particularly relying upon the exercise of power by the authority in his favour but if as a matter of general reliance society could be previous experience expect the exercise of such a power and if such an expectation stood belied, then also a conclusion could be drawn that the non-exercise of power by the authority was irrational. This doctrine of "general reliance" according to the House of Lords had little in common with the ordinary doctrine of reliance. Here, so far as general reliance was concerned, the particular plaintiff need not have expected that the power would be used or need not have even known that such a power existed. This principle is based upon the general expectation of the "community", which the individual plaintiff may or may not have shared. A widespread assumption that an important statutory power would be exercised would certainly after the general pattern of economic and social behaviour of the community. It was further stated by the majority that this doctrine required an inquiry into the role of a given statutory power and its effect on the behaviour of the general public. On this principle of "general reliance", their Lordships stated that an outstanding example of its meaning was contained in the judgment of Richardson, J. of New Zealand Appeal Court in Invercargil v. Hamlin NZLR (1994 (3) NZLR 513) at p. 526 which was affirmed by the Privy Council in Invercargill v. Hamlin. As per this principle of general reliance propounded by Mason, J. it appeared that the benefit of service provided under statutory powers should be of a uniform and routine nature, so that one could describe exactly what the public authority was supposed to do. For example, a power of inspection for defects would clearly fall into this category. Again if a particular service was being pro-vided as a matter of routine, it would be irrational for a public authority to provide it in one case and withhold it in another. Obviously this was the main ground upon which in Anns it was considered that the power of the local authority to inspect foundations gave rise to a duty of care.
37. We are of the view that the principle laid down by Mason, J. is clearly applicable here. This general expectation of the community so far as the Railways are concerned can be summarized from the following passage in Halsbury's Laws of England (Vol. 34, Negligence. 4th Ed., 1984, para 73). It is stated that a plaintiff "is entitled to rely on reasonable care and proper precautions being taken and, in places to which the public has access, he is entitled to assume the existence of such protection as the public has, through custom, become justified in expecting". Halsbury then refers to a large number of cases of railway accidents. In view of this general expectation of the community that appropriate safeguards will be taken by the Railways at level-crossings, the first precondition is, in our view, clearly satisfied.
38. As to the second condition, namely, whether the statue can be taken to have intended to provide compensation for the injury arising out of non-exercise of statutory powers, Lord Hoffman again referred to Mason, J's judgment where he said that such a policy to pay compensation could be inferred if the power was intended to protect members of the public, from risks against which they could not guard themselves i.e. having regard to the expense involved or the highly technical nature of safeguards needed to be taken or because the safeguards have to be taken in the premises of the public authority. In the Invercargill case the New Zealand Court of Appeal found it in the general pattern of socio-economic behaviour. A careful analysis of community behaviour was therefore warranted, It is therefore necessary to know exactly what in the judgment of the Australian High Court, Mason, J. stated. He observed as follows : (at p. 460 of 157 CLR) "But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of the power. A common illustration is provided by the cases in which an authority in the exercise of its functions has created a danger, thereby subjecting itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory powers or by giving a warning. That it is the conduct of the authority in creating the danger that attracts the duty of care is demonstrated by Sheppard v. Glossop Corporation (1921 (2) KB 132).
XX XX XX XX There are situations in which the authority's occupation of premises of its ownership or control of a structure in a highway or public place attracts to it a duty of care.
XX XX XX XX And then there are situations in which a public authority not otherwise under a relevant duty may place itself in such a position that, others rely on it to take care for their safety so that the authority comes under a duty of care calling for positive action.....Mercer v. South Eastern & Chatham Rly (1922 (2) KB 549).
39. Thereafter justice Mason touched the crucial aspect in this branch of law which was quoted by the House of Lords in Stovin v. Wise (1996 (3) WLR 388). That passage refers to the special duties of public authorities recognized by the legislature to cover situations in which it is necessary to presume the inability of the public to protect themselves against certain serious and complex risks. That passage reads as follows (p. 464) :
"Reliance or dependence in this case is in general the product of the grant (and exercise) of powers designed to prevent or minimize a risk of personal injury or disability recognized by the legislature as being of such magnitude or complexity that individuals cannot, or may not, take adequate steps for their own protection. This situation generates on one side (the individual) a general expectation that the power will be exercised and on the other side (the authority) a realisation that there is a general reliance or dependence on its exercise of power to act..... The control of air traffic, the safety inspection of aircraft and the fighting of fire in a building by a fire authority may well be examples of this type of function."
61. In the light of the aforesaid discussion. We are satisfied that findings recorded by learned single Judge on Issues No. 1, 3 and 4 need to be reversed and thus those are decided in a favour of the plaintiffs, Issue No. 2 is decided against the defendants.
62. After this conclusion is arrived at now the question that needs to be decided in this appeal is as to what compensation the plaintiffs are entitled to. In the face of the evidence, both oral and documentary produced by the parties, we are satisfied that the plaintiffs were getting rental of Rs. 2350/- p.m. They have been deprived of the same because of acts of omission, commission and remiss-ness on the part of defendant No. 1. In case the fire had been controlled, then the possibility of the plaintiffs restoring the building could not be excluded and thus it would have started adequate income to them.
63. As such we feel that by capitalisation of the rent of the building for 10 years will provide just compensation to the plaintiff. This amount works out to Rs. 2,82,000/-, however, the plaintiffs are not entitled to this total amount. Reason being that even if fire fighting department of defendant No. 1 had adequate fire fighting equipment as well as enough staff, till such time the fire was brought under control some damage was bound to be caused to the building of the plaintiffs. Therefore, we feel that 25% out of total sum of Rs. 2,82,000/- needs to be deducted on that count. Thus, they are held entitled to Rs. 2,11,500/- with 6% interest from the date of filing of the suit till the payment of this amount. So far Cross-Objections filed by defendants No. 1 and 2 are concerned, on the basis of evidence on record those have no merit and are liable to be dismissed.
64. No other point is urged.
65. As a result of the aforesaid discussion this appeal is partly allowed and suit of the plaintiffs is decreed for Rs. 2,11,500/-with 6% interest w.e.f. 3-6-1982, i.e. the date of filing of the suit. Defendant No. 1 shall also pay proportionate costs on this sum to the plaintiffs both in this appeal as well as in the suit. Decree of the learned single Judge for Rs. 6991/- with costs is upheld and Cross Objections filed by defendants No. 1 and 2 are hereby dismissed.