Delhi District Court
) M/S Mangal Das Vishamber Lal Jain vs North Delhi Municipal Corporation Page ... on 22 July, 2015
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
MCA - 7/2015
Unique I. D. No. 02401C0137692015
1) M/s Mangal Das Vishamber Lal Jain,
Partnership firm through its partner
Sh. Mohan Lal Jain,
Plot No. 35North, Ground Floor,
583032 (Earlier known as 5728),
Basti Harphool Singh, Sadar Thana Road,
Sadar Bazar, Delhi110006.
2) Sh. Mohan Lal Jain,
Partner of M/s Mangal Das Vishamber Lal Jain,
Plot No. 35North, Ground Floor 583032
(earlier known as 5728) Basti Harphool Singh
Sadar Thana Road, Sadar Bazar, Delhi110006.
3) Sh. Vikas Jain,
Partner of M/s Mangal Das Vishamber Lal Jain,
Plot No. 35North, Ground Floor 583032
(earlier known as 5728) Basti Harphool Singh
Sadar Thana Road, Sadar Bazar, Delhi110006.
......Appellants
MCA7/2015
M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 1 of 16
Versus
North Delhi Municipal Corporation,
Through its Commissioner,
Civic Centre, Minto Road,
Dr. S.P. Mukherjee Marg,
New Delhi
.......Respondent
Date of institution of appeal : 12.03.2015
Date of reserving the judgment : 29.06.2015
Date of pronouncement of judgment : 22.07.2015
O R D E R
1. The present appeal under Section 104 read with Order XLIII Rule 1 of the Code of Civil Procedure (in short CPC) is directed against the impugned order dated 09.02.2015 of Ld. Additional Senior Civil Judge, Central District, Tis Hazari Courts, thereby dismissing the application under Order XXXIX Rule 1 & 2 read with Section 151 of CPC filed in the suit of appellants/plaintiffs for declaration and permanent injunction, bearing Suit No. 17/2014, titled "M/s Mangal Das Vishamber Lal Jain & Ors. Vs. North Delhi Municipal Corporation." MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 2 of 16
2. Feeling aggrieved with the impugned order of the trial court, present appeal was preferred by the appellants/plaintiffs on the premise that (i) the impugned order was bad, void, illegal and based on extraneous grounds; (ii) the impugned order was based on assumption and presumptions and was not passed on the facts of the case; (iii) impugned order is against all canons of justice, equity and proprietary; (iv) impugned order is based on whims and fancies and is in total ignorance of wellestablished principles of law; (v) impugned order was not reasoned order and had not given any findings as to how the suit property including the entire building is unsafe and was likely to collapse; (vi) Ld. Trial Court had passed the impugned order with close mind; (vii) Ld. Trial Court overlooked the fact that respondent/defendant had miserably failed to state in orders dated 17.10.2014 as well as in the written statement as to how and in what manner the suit property including the entire building was unsafe and was on the verge of collapsing; (viii) the entire opinion of the respondent/defendant was hypothetical and based on figment of imagination without having any substantial proof or evidence; MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 3 of 16
(ix) as per law respondent was duty bound to get the premises inspected by qualified structural engineer, who after inspection was to prepare the report mentioning the density of the walls, age of building, material used in the construction of the building, cracks, if any available therein; (x) no physical inspection of the suit property was carried out by the respondent before declaring the building as dangerous; (xi) opinion of official of respondent was not final nor binding so far as the structural safety and building construction was concerned; (xii) report of respondent dated 16.10.2014 was totally conspicuous of the fact as to how and in what manner building was unsafe and there was imminent danger of building collapsing; (xiii) simply on the basis of report of structural engineer provided by one Mohd. Mursaleen, respondent termed building including suit property as dangerous; (xiv) suit property was safe and healthy, there was no minor/major cracks in the suit property so there was no danger of suit property collapsing; (xv) on one hand, respondent issued order directing appellant to repair the building within 15 days, whereas on the other hand respondent issued order to appellant to vacate the building within 7 days, the anomaly demonstrated malice; (xvi) Mohd. Mursaleen after purchase of the property got it declared dangerous from respondent; MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 4 of 16 (xvii) act of respondent was in violation of principles of audialtram partem and appellant was not provided any personal hearing before passing of orders by respondent.
3. I have heard the arguments of Sh. Rohit Jain, Ld. counsel for appellants/plaintiffs, Sh. Ashutosh Gupta, Ld. counsel for respondent/defendant, perused the record of this appeal, the entire record of the trial court received on requisition and have given my thoughts to the rival contentions put forth. Ld. counsel for appellants/plaintiffs argued in terms of averments of appeal seeking setting aside of impugned order. Ld. Counsel for respondent/defendant argued in terms of averments of written statement filed before Trial Court seeking dismissal of appeal stating impugned order suffered no infirmity and was a reasoned order.
4. Appellants had pressed before Ld. Trial Court their prayer for interim injunction, seeking restraint of defendant from demolition of the suit property i.e. ground floor measuring 1000 sq. ft. of the property in question situated at Sadar Thana Road, Sadar Bazar, Delhi and staying MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 5 of 16 the operation of the impugned orders (i) under Section 348 of Delhi Municipal Corporation Act, 1957 (in short DMC Act); and (ii) under Section 349 of DMC Act, both dated 17.10.2014. Said suit property was stated by appellants/plaintiffs under their tenancy from almost five decades ago, rent being paid to the landlord.
5. Respondent/defendant Corporation in its written statement inter alia averred suit property to be in a ruinous condition and said fact being duly established on the basis of survey report dated 08.07.2014 as conducted by Executive Engineer (Project) on basis of office order No. 499/SE/SPZ/2014 dated 30.06.2014 and No. 417/DC/SPZ/14 dated 04.07.2014. Said survey report finds mention of 12 other properties besides the suit property of Ward No. 85, which was surveyed on 05.07.2014, 06.07.2014 and 07.07.2014 and were found in dangerous/ ruinous condition. Said report was prepared and sent to concerned DC, SPZ; SE, SPZ and to Executive Engineer Building, SPZ, as per the DMC Act, 1957. Thereafter, suit property was inspected by JE building on 16.10.2014 and the photographs thereof were also taken, which prima facie established that order dated 17.10.2014 was just, appropriate and as MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 6 of 16 per law. It is also the contention of the Respondent Corporation that besides that complaint regarding dilapidated condition of suit property duly supported with report of 15.10.2014 of MCD approved Structural Engineer was also considered before passing the impugned order.
6. Sections 348 and 349 of DMC Act read as under : "348. Removal of dangerous buildings (1) If it appears to the Commissioner at any time that any building is in a ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such building or any other building or place in the neighbourhood of such building, the Commissioner may, by order in writing require the owner or occupier of such building to demolish, secure or repair such building or do one or more of such things within such period as may be specified in the order, so as to prevent all cause of danger therefrom.
(2) The Commissioner may also, if he things fit, require such owner or occupier by the said order either forthwith or before proceeding to demolish, secure or repair the building, to set up a proper and sufficient hoard or fence for the protection of passersby and other persons, with a convenient platform and handrail wherever practicable to serve as a footway for passengers outside of such hoard or fence.
MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 7 of 16 (3) It it appears to the Commissioner that danger from a building which is in a ruinous condition or likely to fall is imminent, he may, before making the order aforesaid, fence off, demolish, secure or repair the said building or take such steps as may be necessary to prevent the danger. (4) If the owner or occupier of the building does not comply with the order within the period specified therein, the Commissioner shall take such steps in relation to the building as to prevent all cause of danger therefrom. (5) All expenses incurred by the Commissioner in relation to any building under the section shall be recoverable from the owner or occupier thereof as an arrear of tax under this Act.
349. Power to order building to be vacated in certain circumstances (1) The Commissioner may be order in writing direct that any building which in his opinion is in a dangerous condition or is not provided with sufficient means of egress in case of fire or is occupied in contravention of section 346 be vacated forthwith or within such period as may be specified in the order :
PROVIDED that at the time of making such order the Commissioner shall record a brief statement of the reasons therefor.
(2) If any person fails to vacate the building in pursuance of such order the Commissioner may direct any police MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 8 of 16 officer to remove such person from the building and the police officer shall comply with such direction accordingly.
(3) The Commissioner shall, on the application of any person who has vacated, or been removed from any building in pursuance of an order made by him, reinstate such person in the building on the expiry of the period for which the order has been in force according as the circumstances prevailing at that time permit."
7. In the case of Municipal Corporation of Delhi Vs. Daulat Ram (Died) represented by LRs, ILR (1971) 2 Del 711: 1971 SCC online Del 130, it was held by Hon'ble Mr. Justice V.S. Deshpande that "348 (1) expressly confers a statutory discretion on the Commissioner by the words "if it appears to the Commissioner". The discretion is to decide whether "any building is in a ruinous condition". The reason is that the question whether a building is in a ruinous condition is of public interest and is not a matter only of the private interest of its owner or of its tenant. This is why the power is given to the Commissioner to form the opinion whether the building is in a ruinous condition or not. By giving this power exclusively to the Commissioner, the Legislature has correspondingly withdrawn the question whether the building is in a MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 9 of 16 ruinous condition or not from the jurisdiction of the Courts."
8. In the case of Municipal Corporation of Delhi Vs. Ramesh Chander & Anr., ILR (1979) 2 Del 499 : 1979 SCC online Del 160 Hon'ble Mr. Justice Avadh Behari Rohatgi inter alia held in paras11, 12, 13 and 14 as follows : "The Municipal Corporation of Delhi is a statutory body constituted under the Delhi Municipal Corporation Act, 1957. It is a public body. There is a positive public duty on the Corporation "to prevent all cause of danger" from buildings which are "in a ruinous condition, or likely to fall or in any way dangerous to any person occupying, resorting to or passing by such building or any other building or place in the neighbourhood of such building." To this end the public authority is clothed with statutory powers contained in sections 348 and 349. The Commissioner is a public authority armed with statutory powers. This means that there is a public duty imposed upon him by law. If there is a duty arising from the statute those who act negligently in the performance of that public duty cannot be relieved of their liability in damages.
An action for damages for breach of a statutory duty cannot be accurately described as statutory negligence. An action for breach of a statutory duty MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 10 of 16 which involves the notion, of taking care not to injure is for the purpose of action for damages equivalent to negligence.
That there is a statutory duty to maintain buildings and repair them is also clear from section 461 which provides for punishment for contravention of the provisions of the Act or for failure to comply with the order of direction lawfully given. The penalties are set out in the Twelfth schedule to the Act. This is a criminal sanction for any disobedience, whether or not it causes any injury to anyone. The common law provides a remedy in damages for noncompliance with the statutory rule. The scope, purview and structure of sections 348 and 349 clearly show the intention of the legislature to provide a civil remedy for breach of statutory duties."
9. Impugned order is well reasoned, speaking order and taking care of all the contentions of the parties to the lis. Respondent Corporation under statutory obligation was performing its duty through officials not only to prevent danger from building in a ruinous condition but as an act of awareness to social responsibility as legislature had made it accountable as it owed a duty of care for want of which it could have suffered damages due to negligence. In the case of Daulat Ram (supra) MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 11 of 16 also had been held that the question as to whether the disputed building needed demolition was to be judged by the Corporation and civil courts had no jurisdiction to sit in judgment on the act done or purported to be done by Corporation in exercise of its statutory power. In the course of arguments counsel for Respondent Corporation assisted by the ALO of Respondent Corporation informed that floors upper than ground floor of the property in question stand already demolished. Opinion formed by Respondent Corporation that building in question was in dangerous condition and should be demolished was formed about whole of the building. In the case of Daulat Ram (supra) it was also held that even if it is assumed for the sake of arguments that few portions in the ground floor were not in a ruinous condition, it cannot be the meaning of Section 348 of DMC Act that some portions of the premises may be allowed to stand while others should be demolished and the opinion has to be about the whole of the building. In the case of Nand Kishore Vs. MCD, (1969) DLT 214, it was held by a Division Bench of High Court of Delhi that the Corporation having first decided to demolish whole of the building and had given effect to the decision for 5/6th of it, it could not later change its mind and order repairs only to the remaining 1/6th. The same remarks MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 12 of 16 would meet the arguments that some good portions of the ground floor should be preserved. Also the fact that the building has not fallen down till now does not mean that the opinion formed by the Commissioner was not based on existence of grounds or circumstances. Correctness of the opinion is not to be canvassed before the Civil Court.
10. Opinion was formed by Respondent Corporation for demolition of the building on the premise of survey report dated 08.07.2014 after the properties in question as well as 12 other properties were surveyed on 05.07.2014, 06.07.2014 and 07.07.2014 as well as the inspection done by JE (B) on 16.10.2014 and the dilapidated condition of the suit property supported with the report dated 15.10.2014 of MCD approved Structural Engineer annexed with the complaint received by Respondent Corporation.
11. Appellants/plaintiffs did not place on record any report of MCD approved Structural Engineer per contra to the above referred MCD approved Structural Engineer report received with complaint to Respondent Corporation and the survey reports elicited herein above. MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 13 of 16 Reasons for which building was declared to be beyond repairs and structurally unsafe find mention in report of Structural Engineer dated 15.10.2014. Photographs filed by Respondent Corporation were duly considered by the Trial Court in the impugned order and were found showing see through cracks on the walls of the suit property. Report of Structural Engineer was stated to be filed in October 2014 with the complaint before Respondent Corporation, whereas suit property as well as 12 other properties were surveyed in Ward No. 85 in July 2014, months before lodging of said report of Structural Engineer with the complaint. Impugned order also find mention that accordingly it cannot be said that action was initiated by malice at the instance of owner/landlord.
12. Report dated 13.11.2014 filed on behalf of plaintiff in support of their case was not prepared by any MCD approved Structural Engineer and bears no qualifications of the author of such report. It is admitted case of the parties that building in question is more than 100 years old.
13. The prime responsibility of Respondent Corporation of safety of citizens in case of dangerous buildings makes it crystal clear MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 14 of 16 that in case of any order of restraint of Respondent Corporation in demolition of the building in question declared dangerous, not only the life of citizens in or in vicinity of the building in question would be endangered but also it would tantamount to putting the Respondent Corporation at avoidable loss of damages which it may incur for the loss of life and limb of such citizens in event of fall of the dangerous building in full or in part. Trial Court has rightly found out plaintiff having failed to establish not only prime facie case but also balance of convenience also lying in favour of Respondent Corporation and that it would be Respondent Corporation and the citizens in or nearby dangerous building who would incur irreparable loss as compared to the loss of appellants/plaintiffs.
14. In the backdrop of the elicited provisions of Section 348 and 349 of DMC Act and law laid down in respect of these provisions in the cases of Daulat Ram (supra) and Ramesh Chander (supra), I find the elicited grounds of appeal not holding any merit to set aside the impugned order of the Trial Court or to restrain Respondent Corporation for implementation of its referred orders dated 17.10.2014 under Section MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 15 of 16 348 and 349 of DMC Act or to restrain the Respondent Corporation from demolition of the suit property. Consequently, appeal is found lacking merits and being not maintainable is accordingly dismissed. No order as to costs.
15. File of this appeal be consigned to record room and the requisitioned file of trial court be sent back against receipt. Copy of this order be also sent to the trial court.
Announced in open Court (GURVINDER PAL SINGH) on 22nd Day of July, 2015. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
(AD) MCA7/2015 M/s Mangal Dass Vishamber Lal Jain & Ors. Vs. North Delhi municipal Corporation Page 16 of 16