Gauhati High Court
Bualchhuak Darchhinga vs The State Of Mizoram & 2 Ors on 26 May, 2016
Author: Suman Shyam
Bench: Suman Shyam
WA No.34 of 2015
BEFORE
HON'BLE MR. JUSTICE AJIT SINGH, THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUMAN SHYAM
26.05.2016
(Ajit Singh, C.J.)
Mr. SS Dey, M Nath and Mr. DP Borah, learned counsel for the appellant.
Mr. A Sarma, learned Addl. Advocate General, Mizoram for Respondents.
This writ appeal is directed against the judgment and order dated 13.2.2015 passed by the learned Single Judge of this Court, whereby he has dismissed appellant's WP(C) No.82/2013.
2. In the year 1984, Department of Land Revenue & Settlement, Government of Mizoram, allotted a plot of land under Section 11 of the Mizo District (Land and Revenue) Act, 1956 to the appellant. The land is situated at Bazar Bungkawn, popularly known as Bazar Bungkawn, falling within Dawrpui West locality. The plot was allotment for dwelling purpose. The State Government, however, reserved the right to cancel the allotment of land in public interest. After allotment, the appellant constructed 10 storied RCC building sometime in the year 2000. He then rented the building to 30 tenants and is now earning huge rent of Rs.60,000/- per month.
3. Mizoram is highly earthquake prone. It is for this reason, Mizoram has been kept in earthquake Zone 5 category.
4. On 16.5.2013, a complaint was made by the Chairman, Tuikual North Local Council & Secretary, YMA Branch, Tuikual North to the District Magistrate & Chairman, District Disaster Management Authority, Aizawl District, alleging therein that the building, in question, is hazardous to public. A Joint Inspection Page 1 of 6 Team was, therefore, constituted to inspect the site and building on 22.5.2013. The Team comprised of 7 members, all experts in the field, including Senior Geologists. After inspection, the Joint Inspection Team, in its report, concluded that the site is very prone to geological hazard and is very vulnerable for the inmates of the building, lives and properties and the passerby of the road below it since the rock formation is found unsuitable to withstand such heavy building. The inspection was carried out in presence of appellant and he was immediately informed about the observation and findings of the Team.
5. The appellant, then, requested for further investigation of the site and also to explore the possibility of partial dismantling of the lower portion of the building, instead of complete demolition. Having regard to the request of appellant, the matter was referred to Director, Geology & Mineral Resources Department, vide letter dated 4.6.2013, with a request to constitute a Team of Geologists to have a detail geological investigation of the area and to explore the possibility of partial demolition.
6. The Team of Geologists again visited the site on 5.6.2013 and submitted its report on 19.6.2013. According to this report, all the members agreed with the first report and concluded that no further comment was needed. It is on this report, the District Magistrate & Chairman, District Disaster Management Authority, Aizawl District constituted under the provisions of National Disaster Management Act, 2005, while exercising powers under Section 34(k), vide order dated 27.6.2013, directed the appellant to vacate the building within 1 month and also to dismantle the same to prevent disaster and any untoward incident in future within 4 months. Aggrieved, the appellant filed WP(C) No.82 of 2013, which the learned Single Judge has dismissed by the impugned order. It is in this background, the appellant has filed the present appeal. Page 2 of 6
7. For ready reference, we deem it proper to reproduce herein below the above mentioned order dated 27.6.2013 of the District Magistrate & Chairman, District Disaster Management Authority, Aizawl District directing the appellant to vacate and dismantle the building:-
"OFFICE OF THE DISTRICT MAGISTRATE & CHAIRMAN DISTRICT DISASTER MANAGEMENT AUTHORITY, AIZAWL DISTRICT.
ORDER U/S Sec. 34(K) OF NATIONAL DISASTER MANAGEMENT ACT, 2005 & Sec. 133 of Cr.P.C.
In response to the complaint received from Chairman, Tuikual North Local Council & Secretary, YMA Branch, Tuikual North dt. 16.5.2013, a joint inspection team was constituted to inspect the site of Pu Darchhinga's building above Temple to Vaivakawn Road, Dawrpui West on 22nd May, 2013, which comprised of the following members:-
1. H. Lalbiakkima, Geologist Sr. Geology & Mineral Resources Dept
2. H. Lalnunpuia, SDO, PWD Road South Sub-Div-III
3. Lalawmpuii, SDO,PWD Building Hqrs. Sub Div.
4. Lallawmkima, JE, Aizawl Municipal Council
5. H. Malsawma, Chairman, Dawrpui Local Council
6. H. Lalramzauva, Chairman, Tuikual North Local Council
7. Zoremthara Ralte, SDC, Aizawl District The joint verification team conducted spot inspection with regard to the complaints on Pu Darchhinga's building and its site on 24.5.2013. The team then concluded that the site is very prone to geological hazard and is very vulnerable for the inmates of the building, lives and properties and the passerby of the road below it since the rock formation is found unsuitable to withstand such heavy building. The team also shared the opinion of Pu Lalbiakkima, Sr. Geologist, who opined that the house site is very prone to geological hazard like rock fall and wedge Page 3 of 6 failure and that the rock formation on which the building stands is unsuitable to withstand heavy load.
Discussing the report of the Joint Inspection Team, a meeting was convened in the office chamber of the Chairman, Aizawl District Disaster Management Authority on 3.6.2013, which was also attended by Pu Darchhinga, the owner of the building. The meeting informed him about the observation & findings of the verification team as well as possible actions that seem appropriate with a view to evading imminent disaster and threat. In this connection, the house owner requested the meeting for further investigation of his site and requested to explore the possibility of partial dismantling of the lower portion of the building instead of complete dismantling.
In regard to his request, the matter was referred to Director, Geology & Mineral Resources Dept. ( Vide letter No.C.16011/90/2012-DC(A)/71 dt. 4th June, 2013) requesting him to constitute a team of geologists to have a detail geological investigation of the area and to explore the possibility of partial demolition. The team of Geologists visited the site on 5.6.2013 and submitted their report to this office vide No.1.11014/1/2012/DGM dt.19/6/2013. In the report, all the members agreed upon the first report of Pu H. Lalbiakkima, Sr. Geologist and concluded that no further comment is needed in this regard (vide letter No.1.11014/1/2012/DGM dt. 19.6.2013). The Team of Geological Experts who conducted geological investigation comprised of the following members:-
1) H. Lalbiakkima, Geologist Sr.
2) R. Zirtluanga, Geologist Sr.
3) F. Lalnuntluanga, Geologist Jr.
4) P. Sanghnuna, Geologist Jr.
Whereas, the building of Pu Darchhinga is
considered unsafe by the team of Geological experts for the Page 4 of 6 occupants, the users of the road below it, the lives and properties below it and that the site is very prone to geological hazard.
Now, therefore, I Dr. Franklin Laltinkhuma, District Magistrate & Chairman, District Disaster Management Authority, Aizawl District, in exercise of the powers conferred upon me under Section 133 (d) of Code of Criminal Procedure, 1973 and under Section 34(k) of the Disaster Management Act, 2005, hereby order in the interest of public safety that the owner of the said building should vacate the building within one (1) month from the date of issue of this order and he should dismantle his building so as to prevent disaster and any untoward incident in future. This execution work of dismantling should be completed within four (4) months from the date of issue of this order."
8. As stated above, Mizoram is highly earthquake prone. The appellant has rented that building to large number of tenants and is earning huge rent from it. The experts, after visiting the site and inspecting the building, have unanimously reported that the building is hazardous to public. The appellant has not alleged any bias or malafide against the members of the inspecting team. It is to be noted that the Government of Mizoram, in all fairness, has not cancelled the allotment of land and instead, asked the appellant to reconstruct the house with light materials, as per bye-laws. But the appellant does not want to give up his source of income coming as rent from the building and therefore, he is reluctant to dismantle it. Interestingly, he himself is not living in the building. Apparently, the District Disaster Management Authority has acted essentially in public interest as the building has been found to be hazardous to public and it requires demolition. The District Disaster Management Authority is very much Page 5 of 6 empowered under Section 34 (K) of the Act to demolish the structure, which is hazardous to public. The appellant cannot be allowed to put the lives of his tenants and public in any threatening disaster situation.
9. For these reasons, we find no merit in the appeal. It is accordingly dismissed.
JUDGE CHIEF JUSTICE
santanu
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