JUDGMENT : Rajesh H. Shukla, J. The present First appeal has been filed by the appellant-Ahmedabad Municipal Corporation against the respondents nos. 1 to 6, who are the heirs of the deceased viz., Haribhai Koshti, who died as a result of collapsed of the wall at Kamdar Kalyan Medan run by the Gujarat Welfare Board. The respondents nos.1 to 6-original plaintiffs filed Civil Suit No. 3674/1989 in City Civil & Sessions Court, Ahmedabad. On appreciating the material and evidence on record and after considering the rival submissions, the Learned Judge, City Civil Court, Ahmedabad dismissed the Suit qua respondent no.7-original defendant no.2 and allowed qua appellant-Corporation vide Judgment & Order dated 16.01.1995. It is this judgment and order, which has been assailed in the present First Appeal by the appellant-Corporation on the grounds stated in the memo of appeal inter alia that the judgment and order passed by the Ld. Civil Court is contrary to law and evidence on record. It is specifically contended that the Court below failed to appreciate that there was absolutely no evidence showing that there was any negligence and carelessness on the part of the appellant. It has been contended that place was meant for general public to pass through and it was not meant for anybody to sit there for doing business and, therefore, the deceased was unauthorisedly occupying the said place carrying on business and, therefore, he cannot claim any compensation as he is in the nature of trespasser. It is also contended that the appellant-Corporation had given building along with playground on rent to the defendant no.2-respondent no.7 herein being Gujarat Welfare Board and, therefore, the Court below has failed to appreciate that the maintenance of compound wall, which was in possession of the respondent no.7-original defendant no.2 as a tent, was required to be done by the respondent no.7. He, therefore, contended that the Court below has failed to appreciate the standard of conduct accepted of a reasonable man and has failed to appreciate the material and evidence. It is also contended that the Court below has also erred in accepting earning of Rs.3,000/- per month, otherwise, he would have been income tax payer, however, no such evidence is produced. 2. Heard learned counsel, Mr. Dipak Raval appearing for the Anand Advocates for the appellant-Ahmedabad Municipal Corporation and learned counsel, Ms. Megha Jani for the respondent nos.1 to 6. 2. Heard learned counsel, Mr. Dipak Raval appearing for the Anand Advocates for the appellant-Ahmedabad Municipal Corporation and learned counsel, Ms. Megha Jani for the respondent nos.1 to 6. None for the respondent no.7-original defendant no.2. 3. Learned counsel, Mr. Raval has referred to the facts of the case and submitted that the premises was owned by the appellant-original defendant no.1, which was leased out to the respondent no.7 herein-Gujarat Welfare Board, Kalyan Kendra, Outside Raipur Darwaja, Ahmedabad. He has referred to the issues, which have been framed at Exh.16 as well as evidence on record and submitted that the Court below has failed to consider the aspect of negligence as well as conduct of the deceased. It was submitted that the premises in question was leased out to the respondent no.7 and, therefore, it was the obligation of the respondent no.7 to maintain the said wall. He further submitted that in any case, the deceased, Hirabhai was doing business with small cabin on road side near the wall and thereby he was the encroacher or unauthorized occupant and he was doing such work on public street, therefore, no legal duty to exercise any care was cast upon the appellant-Corporation. It was the deceased, who himself was liable for carrying on such business sitting besides the wall, which was in dilapidated condition to his knowledge. Learned counsel, Mr.Raval has also referred to the conduct of the deceased and submitted that it is not as per the standard of conduct expected of a reasonable man in such a circumstances. Learned counsel, Mr. Raval has therefore strenuously submitted that unless there is legal duty or obligation cast as it is a case of nonfeasance, no amount could be claimed towards the compensation as there was no negligence on the part of the appellant-Corporation. He strenuously submitted that as there is no negligence, which can be said to have been committed in discharge of any obligation or duty cast upon the appellant-Corporation, the learned Judge has failed to appreciate this aspect on material and evidence. He, therefore, submitted that the present Appeal may be allowed. 4. In support of his submissions, he has referred to and relied upon the judgment in case of Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum & Ors., reported in (1997) 9 SCC 552 and pointedly referred to the observations made in Para Nos.57, 59 & 60. 5. He, therefore, submitted that the present Appeal may be allowed. 4. In support of his submissions, he has referred to and relied upon the judgment in case of Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum & Ors., reported in (1997) 9 SCC 552 and pointedly referred to the observations made in Para Nos.57, 59 & 60. 5. Learned counsel, Ms.Jani appearing for the respondent nos.1 to 6, who are the heirs of the deceased, has referred to the papers including the impugned judgment and order, issues and the correspondences, which have been produced on record. She has referred to the deposition of one Bachubhai at Exh.55 and referring to the correspondences regarding the letters addressed by the respondent no.7-original defendant no.2 to the appellant-Corporation with regard to dilapidated condition of the wall and urgent need of repairs, copies of said letters have been referred in his deposition, she has stated that he has specifically stated that in spite of such correspondences, the appellant-Corporation failed to undertake the repairing, which led to the incident of collapsed of the wall. Learned counsel, Ms. Jani has referred to the provisions of Sections 264 to 266 of the Bombay Provincial Municipal Corporation Act, 1949, which refers to the danger structures. She had emphasised Section 264 of the said Act, which reads as under:- “264.Removal of structures, etc. which are in ruins or likely to fall. (1) If it shall at any time appear to the Commissioner that any structure (including under this expression any building wall, parapet, pavement, floor, steps, railings, door or window frames or shutters or root, or other structure and anything affixed to or projecting from or resting on any building, wall, parapet or other structure) is in a ruinous condition or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to pull down, secure, remove or repair such structure or thing or do one or more of such things and to prevent all cause of danger there from” 6. Therefore, learned counsel, Ms. Jani submitted that it was the obligation or the duty of the appellant-Corporation to pull down while it was in dilapidated condition and to the knowledge of the appellant, which cannot be disputed. Therefore, learned counsel, Ms. Jani submitted that it was the obligation or the duty of the appellant-Corporation to pull down while it was in dilapidated condition and to the knowledge of the appellant, which cannot be disputed. She submitted that powers are conferred upon the Corporation to pull down any such danger structure for the purpose of public safety and it was their own wall, which was not pulled down in spite of the repeated letters by the lessee-respondent no.7. Learned counsel, Ms.Jani, therefore, submitted that it cannot be argued that there was no obligation or duty cast upon the appellant-Corporation as sought to be canvassed. She further submitted that the submissions, which have been advanced with regard to the conduct of the deceased that it was required to be judged from that standard of reasonable man is also erroneously. Learned counsel, Ms.Jani submitted that though there is no issue framed with regard to contributory negligence, such arguments are advanced that the deceased himself was liable while carrying on his work/vocation sitting besides such dilapidated wall and, therefore, he is not entitled to claim any compensation. She also submitted that in fact, no witnesses have been examined on behalf of the Corporation and as discussed above, the defendant no.2 has examined one witness, Bachubhai at Exh.55, who has clearly stated about the repeated requests made to the appellant-Corporation for pulling down the wall, which was in dilapidated condition. Ms.Jani, therefore, strenuously submitted that dilapidated condition was within the knowledge of the appellant-Corporation and it has failed to discharge his obligation or duty deliberately as provided under Section 264 of the BPMC Act as well as under the common law liability. Learned counsel, Ms. Jani has submitted that the Corporation has failed to discharge the statutory duty as per Section 264 of the BPMC Act and is also liable for negligence under the Law of Torts due to failure in discharge of the duty. Therefore, it was submitted that the present Appeal may not be entertained. She has also submitted that income has been taken as a meagre amount of Rs.1,500/- only and, therefore, it may not be interfered. 7. Learned counsel, Ms. Therefore, it was submitted that the present Appeal may not be entertained. She has also submitted that income has been taken as a meagre amount of Rs.1,500/- only and, therefore, it may not be interfered. 7. Learned counsel, Ms. Jani has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Municipal Corporation of Delhi v. Sushila Devi (Smt.) & Ors., reported in (1999) 4 SCC 317 and made observations referring to the accident caused due to falling of tree. It has bee observed that “the Municipal Corporation has been negligent in discharging such duty as is owed to the road users by the adjoining property owners”. She emphasised the observations made in this judgment that “when a tree, which had been dying for some years and should have been known to be dangerous by an ordinary landowner, fell and caused damage, the owner was held liable”. She has, therefore, submitted that the owner cannot escape the liability for the injury caused by such dangerous dilapidated structure or the premises. 8. She has also referred to and relied upon the judgment in case of Ramesh Kumar Nayak v. Union of India & Ors., reported in AIR 1994 Orissa 279. 9. In view of the rival submissions and having perused the material and evidence on record, it is required to be appreciated whether the contentions raised by the appellant-Corporation are well-founded. 10. The impugned judgment read with the material and evidence including the deposition of witnesses like Bachubhai at Exh.55 as well as correspondences from Exh.57 to 62 suggest that premises has been in dilapidated condition to the knowledge of the Corporation. It is required to be mentioned that admittedly there is a tender notice, which has been issued in local daily newspaper, which is at Exh.64 and it was intimated to the respondent no.7-original defendant no.2 vide Exh.65 that the tender has been invited for carrying out such repairing work. Further there is a subsequent correspondences also, which are produced on record at Exhs.70 to 73, 78 & 79. These clearly refer to the fact that wall was undisputedly in dilapidated condition within the knowledge of the appellant-Corporation; the premises in question belonging to the appellant-Corporation, which was leased out to the respondent no.7-original defendant no.2. The respondent no.7 had time and again brought it to the notice of the appellant-Corporation for repairing it. These clearly refer to the fact that wall was undisputedly in dilapidated condition within the knowledge of the appellant-Corporation; the premises in question belonging to the appellant-Corporation, which was leased out to the respondent no.7-original defendant no.2. The respondent no.7 had time and again brought it to the notice of the appellant-Corporation for repairing it. In fact, acknowledging and accepting the responsibility and liability for such reports, tenders were invited by the appellant-Corporation also. Again as provided under Section 264 of the BPMC Act, it is the obligation, which is cast upon the Municipal Corporation as a civic body to pull down any structure or wall which is danger in public interest. Therefore, if the obligation is cast upon him to pull down any structure, which is in dilapidated condition and for which repeated requests have been made by the lessee the respondent no.7 herein, there is a failure in discharge of statutory duty. 11. Another facet of arguments is that apart from this statutory duty, even under common law liability of duty to take care towards public and failure of which amounts to negligence. Word 'negligence' with different objectives like criminal negligence, hazardous negligence, gross negligence has also been defined in the dictionary. Word 'negligence' defines in Black's Law Dictionary (7th Edition) that “The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or wilfully disregardful of others' rights.” The culpable negligence is defined as negligent conduct that, while not intentional, involves a disregard of the consequences likely to result from one's action. 12. The Law of Torts refers to the negligence as the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. This definition provides three standards (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the formers conduct within the scope of the duty; (2) Breach of the said duty; and (3) consequential damage. This definition provides three standards (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the formers conduct within the scope of the duty; (2) Breach of the said duty; and (3) consequential damage. The discussion on the aspect of negligence with regard to various constituent whether is it of institution like hospital, professional or other, therefore, has to be considered in background of the facts and while considering the duty and the aspect of negligence, normally the proximate principles is considered. As this principles suggests the relations between the parties as just and reasonable, law of negligence may be imposed. 13. Another facet of arguments, which has been much emphasised by learned counsel, Mr.Raval that the deceased was carrying on business as unauthorized occupant on the road side with cabin besides the wall in question without any permission at his own risk and cost is required to be considered. It was, therefore, submitted that the Corporation cannot be saddled with liability without any permission carries on his work/vocation knowing it that wall is in dilapidated condition. He submitted that case of a passer, who is passing, would stand on a different than who is sitting besides the wall knowing it to be in a dilapidated condition and, therefore, the conduct is also required to be considered whether it would match with the conduct accepted of a reasonable man while considering negligence of the appellant-Corporation. Though the submissions have been made, same are without any merits as whether a person carries on business or vocation sitting besides such wall on a footpath is not an issue. It is well accepted that right of hawkers to carry on business to earn likelihood has been accepted subject to any reasonable restriction and, therefore, when the deceased was carrying on such work sitting on footpath besides the dilapidated wall, it cannot be said to be a negligence or his conduct cannot be said to be a conduct, which would not expected of a reasonable man. In any view of the matter, if the business was carried on and statutory duty as discussed above is cast upon the Corporation over and above the common law duty, which it has failed, it cannot be argued that there was no negligence or duty owned to the deceased. In any view of the matter, if the business was carried on and statutory duty as discussed above is cast upon the Corporation over and above the common law duty, which it has failed, it cannot be argued that there was no negligence or duty owned to the deceased. A useful reference can be made to the observations made on the judgment in case of Municipal Corporation of Delhi (supra) relied upon by the learned counsel, Ms. Jani. The Hon'ble Apex Court in this very judgment in Para No.11 has observed that :- “11. In Charlesworth & Percy on Negligence (8th, 1990 ed., at page 668) the law is stated in these terms : "........when a tree, which had been dying for some years and should have been known to be dangerous by an ordinary landowner, fell and caused damage, the owner was held liable. (Brown v. Harrison (1947) W.N.191).” 14. Reference is also made to the Law of Torts by Winfield and Jolowicz (13th, 1989 ed., p.415) in these words, which reads as under :- "If damage is done owing to the collapse of the projection on the highway or by some other mischief traceable to it, the occupier of the premises on which it stood is liable if he knew of the defect or ought, on investigation, to have known of it. At any rate this is the rule with respect to a thing that is naturally on the premises e.g. a tree." 15. Thus, failure to exercise the standard of care expected of a prudent person would amount to a negligence and any such conduct, which fall short of such normal legal yardstick would be negligence and the reckless negligence, gross negligence or wilful negligence further attribute referring to further conduct or manner of negligence. 16. Therefore considering this, if the appellant-Corporation has failed to discharge duty, it cannot be said that the impugned judgment and order is erroneous, by which, the issue regarding the negligence is decided against the appellant and in favour of the heirs of the deceased. 17. Similarly, though learned counsel, Mr. 16. Therefore considering this, if the appellant-Corporation has failed to discharge duty, it cannot be said that the impugned judgment and order is erroneous, by which, the issue regarding the negligence is decided against the appellant and in favour of the heirs of the deceased. 17. Similarly, though learned counsel, Mr. Raval has referred to and relied upon the judgment in case of Rajkot Municipal Corporation (supra), a close scrutiny of facts and discussion would make it very clear that the law has been clearly discussed and it has been clearly observed in Para No. 60 as under :- "The exercise of power/omission must have been such that duty of care had arisen to avoid danger. Foreseeability of the danger or injury alone is not sufficient to conclude that duty of care exists. The fact that one could foresee that a failure of the authority to exercise a reasonable care would cause loss to the passers-by itself does not mean that such a duty of care should be imposed on the statutory authority. The statutory authority exercises its public law duty or function. It would be wrong to think that the local authority always owes responsibility and continues to have the same state of affairs. It would be an intolerable burden of duty of care on the authority; otherwise it would detract the authority from performing its normal duties. If he were to gauge the risk of litigation, he would avoid doing public duty of planting and nurturing the trees thinking that it would be a have burden on the local authority. It would always cause heavy financial burden on the statutory authority. If the duty of maintaining constant vigil or verifying or testing the healthy condition of trees at public places with so many other functions to be performed, is cast on it, the effect would be that the authority would omit to perform statutory duty. Duty of care, therefore, must be carefully examined and the foreseeability of damage or danger to the person or property must be co-related to the public duty of care to infer that the omission/non-feasance gives rise to actionable claim for damages against the defendant." 18. Duty of care, therefore, must be carefully examined and the foreseeability of damage or danger to the person or property must be co-related to the public duty of care to infer that the omission/non-feasance gives rise to actionable claim for damages against the defendant." 18. Even it is co-related as discussed above, it is a statutory duty which the Corporation has failed and in this very judgment also, the observations have been made that “The negligent act or omission must be specifically directed to safeguard the public or some sections of the public to which the plaintiff was a member, from the particular danger which has resulted.” 19. In the facts of the present case also, the deceased was member of public and incident occurred due to a particular danger collapsed of dilapidated wall, which the Corporation was under an obligation to pull down or remove. It is in these circumstances, the submissions made by the learned counsel, Mr. Raval regarding the negligence cannot be accepted. 20. Therefore, the present First Appeal cannot be entertained/allowed and deserves to be dismissed. Accordingly the present appeal stands dismissed. Interim relief, if any, stands vacated. 21. After the judgment was pronounced, learned counsel, Mr. Raval for the appellant requests for stay of the operation of the judgment and order, which is refused in the facts of the case. Appeal dismissed.