Jharkhand High Court
Kishan Parasrampuria vs The Ranchi Municipal Corporation ... on 10 December, 2014
Equivalent citations: AIR 2015 JHARKHAND 45
Author: Virender Singh
Bench: Virender Singh, D. N. Patel
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 423 of 2014
Kishan Parasrampuria ... ... ... ... ... Appellant
Versus
1. The Ranchi Municipal Corporation through the Chief Executive Officer,
having its office at Kuthcery Road, Ranchi, P.O. GPO, P.S. - Kotwali, District
- Ranchi.
2. The Chief Executive Officer, Ranchi Municipal Corporation, having its
office at Kurchery Road, Ranchi, P.O. GPO, P.S. - Kotwali, District - Ranchi.
3. The Deputy Chief Executive Officer, Ranchi Municipal Corporation, having
its office at Kurchery Road, Ranchi, P.O. GPO, P.S. - Kotwali, District -
Ranchi.
4. Bishnu Prasad Lohia, son of Late Jwala Prasad Lohia, resident of Flat
No.105/106 "Panchwati", Kanke Road, P.O. - University, P.S. - Gonda,
District - Ranchi.
... ... ... ... ... Respondents
------
CORAM: HON'BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE
HON'BLE MR. JUSTICE D. N. PATEL
-----
For the Appellant: M/s. Rajiv Ranjan, Shresth Gautam, Shray
Mishra, Piyush Chitresh
For the Respondents: M/s. R.R. Nath, Indrajit Sinha, Shresth Gautam,
Shray Mishra, Piyush Chitresh
------
05/Dated : 10th December, 2014
Per Virender Singh, CJ
1) The instant appeal is at admission stage. We, however, intend to dispose it of finally at this stage itself as learned counsel for both sides have consented for it, the controversy otherwise being very short in nature.
2) The appellant is the writ petitioner (for short "petitioner" only) and running a business in the premises bearing Municipal Holding No.928 in 2 Ranchi Municipal Ward No.3 (new 22) in the district of Ranchi on a month-to- month tenancy under respondent No.4. Respondent No.4 filed an application before Ranchi Municipal Corporation (for short 'RMC') under Section 38 of the Jharkhand Municipal Act, 2011 (for short 'Municipal Act') seeking an appropriate order of demolition of the aforesaid premises occupied by the petitioner. Chief Executive Officer, RMC, Ranchi thereafter passed an order of demolition of the building on 20th May, 2014. Aggrieved of the said order, the petitioner approached the Writ Court through the medium of W.P. (C) No. 2792 of 2014 seeking quashment of the said order inter alia on the ground that no notice was served upon him and that Section 387(7) of the Municipal Act provides that an order for demolition could be passed having regard to the facts which includes repair of the building in question and that the petitioner had specifically denied that the building was in dilapidated condition and could be repaired also, therefore not a case of demolition. The learned Writ Court, however, dealt the present case under the provisions of Section 499 of the Municipal Act and observed that since the building had become dangerous for habitation, therefore, even if no notice was issued to the petitioner (occupier), that would not change the decision taken by the respondent No.2 vide order dated 20th May, 2014 as the said order was passed on the report prepared by the Engineers of the Municipal Corporation who had visited the site and physically examined the site. It is in this factual matrix, the writ petition filed by the petitioner came to be dismissed vide impugned order dated 7th October, 2014. The petitioner being aggrieved of the said order is once again before us through the medium of the instant Letters Patent Appeal.
3) Heard learned counsel for the petitioner and perused the record.
4) Mr. Rajiv Ranjan, learned counsel for the petitioner, states that respondent No.4, who is owner of the premises, cannot be allowed to get the petitioner evicted without following the due procedures of law. He submitted 3 that respondent No.4 had been pressurizing the petitioner to vacate the premises which constrained him to file a suit in the Court of Civil Judge, Junior Division, Ranchi seeking grant of perpetual injunction restraining respondent No.4 from interfering with the legal possession of the petitioner and that during the pendency of the said civil proceedings, he filed an application before the RMC under Section 387 of the Municipal Act for demolition of the suit premises and got a favourable order also on 20th May, 2014.
5) Mr. Ranjan further submitted that although respondent No.4 sought demolition of his premises under Section 387 of the Municipal Act, his case was considered under Section 449 of the Municipal Act by RMC and that the order of demolition came to be passed without giving any opportunity to the petitioner to put forth his stance. According to the learned counsel, even the Writ Court has also not taken this vital aspect seriously observing that it would not change the decision taken by the respondent No.2.
6) Strengthening his arguments, Mr. Ranjan has once again drawn our attention to Section 449(1) of Municipal Act which relates to the power to order removal of dangerous building. It reads: -
"449. Power to order removal of dangerous buildings:-
(1) If any wall or building, or anything affixed thereto, is deemed by the Municipal Commissioner or the Executive Officer to be in a ruinous state, or is likely to fall, or to be in any way dangerous, he shall forthwith cause a notice, in writing, to be served on the owner and to be put on some conspicuous part of the wall or building or served on the occupier, if any, of the building requiring such owner or occupier forthwith to demolish, repair, or secure such wall, building or thing, as the case may require."4
7) Learned counsel submitted that bare reading of the aforesaid Section makes it amply clear that a notice in writing which is to be served on the owner has also to be put in some conspicuous part of the wall or the building (declared to be dangerous building) and that the said notice has also to be served on the occupier, if any, of the said building. According to the learned counsel, serving of the notice on the occupier, if any, of such building has some basis for the reason that no building should be declared as dangerous building in a casual manner as it can be repaired or other measures can also be taken depending upon the requirement and for this reason, anybody who is occupying that particular building, has to be given an opportunity of putting forth his case before the concerned officer/official; otherwise, any order can be obtained for demolition of the building at the whims of the Officers of the Corporation, or, may be on the asking of the owner of the property for any ulterior motive as is done in the present case by respondent No.4.
8) Learned counsel further submitted that in the present case, respondent No.4 otherwise could not obtain an order of eviction of the premises under Section 11 of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 (in short "Control Act, 2000") as none of the grounds was available to him, therefore, he resorted to this clever tactics and moved an application before the RMC and obtained a favourable order which is staring at the petitioner who has to ultimately vacate the building, which, according to him, can be even repaired at a very reasonable cost and cannot be said to be unfit for human habitation or dangerous building, so as to bring it within the ambit of Section 387 or Section 449 of the Municipal Act. Learned counsel submitted that had the petitioner been served with a notice in terms of Section 449(1) of the Municipal Act, he would have put forth all the documentary evidence in rebuttal to the report prepared by the so-called experts of the Municipal Corporation, non-compliance thereof has caused grave prejudice to the petitioner, who, in terms of the order dated 20th May, 5 2014, has virtually been asked to be on the road leaving his established business on which his entire family is dependent, he being the bread winner.
9) Mr. Indrajit Sinha, appearing for respondent No.4, has refuted the submissions advanced by Mr. Rajiv Ranjan at the Bar stating that even if the petitioner has not been served with notice, it would not change the complexion of the case for the reason that it is for the concerned authorities to see, whether a particular building, which after being declared dangerous building, is to be demolished or not, and in the present case, all such exercise is not done in a day's time, that too in a casual manner, rather the building was physically inspected by the Engineers of the Municipal Corporation who submitted the report on 24th April, 2014 and thereafter only the order of demolition came to be passed.
10) On a specific query put to Mr. Sinha, whether at the time of inspection of the premises by the officials of the Municipal Corporation, the petitioner was joined, he fairly states that the report dated 24th April, 2014 is silent about it.
11) We find substance in the submission advanced by Mr. Rajiv Ranjan.
12) Admittedly, the petitioner, who is occupier of the building, has not been served with any notice, therefore, not been afforded an opportunity of putting forth his case. It is quite possible that he could convince the concerned authorities that it was not a case of demolition of building and that certain repairs could solve the purpose despite the fact that the building had gone very old age-wise. He could also submit some counter report in rebuttal to the report of the Engineers which admittedly is one-sided report. Whether it is prepared in a casual manner or not could be ascertained only if the petitioner was afforded an opportunity to project his case. Admittedly, all this is missing in the present case resulting into grave miscarriage of justice.
13) We may mention here that even the Writ Court has also not held that serving the occupier with notice in terms of Section 449(1) of the Municipal 6 Act is not legally required. The view taken is that it would not change the decision taken by the respondent No.2 vide order dated 20th May, 2014, even if no notice to the petitioner was served, as the petitioner himself had admitted that the building was 70 years old. This goes to show that notice to the occupier, if any, is otherwise required in terms of Section 449(1) of Municipal Act.
14) Let us now enter into little bit more elaborate discussion with regard to provisions of Section 449 of the Municipal Act. Prerequisite to the exercise of statutory power to remove dangerous building is a determination by the concerned officer/Executive Officer (Municipal Corporation) that the building is in a ruinous state and is likely to fall and in any way dangerous. It is inherent in this statutory provision that a brief recital has to be made with regard to the condition of such building to conclude as to how it is unsafe for human habitation. The statutory provision is clear and unambiguous that if there is an occupant, he has to be served with a notice and after the occupier is heard, then only an order of demolition can be passed.
15) Section 449 of Municipal Act requires Municipal Commissioner or Executive Officer of the Corporation to be vigilant enough to ensure that any building, if it is likely to fall on account of it being in a ruinous state or in any way dangerous, is either demolished, or, in the alternative, repaired depending upon the condition of an individual building. For this purpose he has not to wait for the application of the owner of the said building and can start with this exercise suo motu after serving notice upon the owner of the building and simultaneously to the occupier also, if any. However, the notice is required to be in writing only. What is expected of the Commissioner or the Executive Officer of the Municipal Corporation is that after the notice is served in writing on the owner, the said notice shall be put on some conspicuous part of the wall or building. This is in addition to serving of notice on the owner. The words "or served on the occupier" in this context, also assumes significance if read conjointly with the words 7 "and to be put on some conspicuous part of the wall or building or served on the occupier". This, in fact, is the inbuilt modes of informing the occupier of the building, if any, after the notice is served upon the owner of the said building. Therefore, in no case, the concerned official of Municipal Corporation can afford to skip serving the occupier of the building with a notice before demolishing the building or getting the same repaired, as the case may require. In this context, the words "as the case may require" have also their significance.
16) We are visualizing another situation also. If an order under Section 449 of Municipal Act is passed without putting the occupier to notice, possibility of misusing the provisions of this Section by the landlord/owner of the house in connivance with the officials of the Municipal Corporation especially in the case of a tenant occupying that building, cannot be ruled out. In this eventuality, Section 449 of Municipal Act would become handy substitution of eviction of an occupier at the hands of landlord who otherwise cannot get a favourable order under the Control Act, 2000. The statute, therefore, prescribes a procedure and power under a particular provision and it can be exercised only in the manner prescribed and in no other manner at all, otherwise it would tantamount to abuse of statutory power resulting into forceful demolition which again would be contrary to law.
17) Let us once again advert to the facts of the present case which speak for themselves and it appears that in order to overcome the hassle of eviction suit, respondent No.4 adopted a shortcut method by approaching RMC, whose officers seemed to be very eager to help him for the reasons best known to them. This could be a case in which some action could be initiated against the officers concerned, but, we, however, show our restraint in this regard, instead remit the entire matter back to the Executive Officer, RMC (respondent No.2) to deal with it afresh within the parameters of Section 449 of the Municipal Act only, certainly after serving the petitioner with a notice to put forth his stance, 8 oral/documentary. Needless to say that respondent no.4 shall also be at liberty to put forth his claim in the same manner for the purposes of strengthening his application already moved for demolition of the building. Ordered accordingly.
18) Resultantly, we hereby disturb the impugned Judgment/order dated 7 th October, 2014 by allowing the instant appeal and also quash the order dated 20th May, 2014 passed by respondent no.2 for demolition of the building as prayed for by the petitioner in his main writ petition i.e. W.P.(C) No.2792 of 2014.
19) Both the parties are directed to appear before the Chief Executive Officer, Ranchi Municipal Corporation, on 5th January, 2015, who would dispose of the entire proceedings expeditiously, preferably within three months from the next date i.e. 5th January, 2015.
20) I.A. No.5664 of 2014 stands disposed of accordingly.
(Virender Singh, C.J.) (D. N. Patel, J) Manoj/A.F.R.