Bualchhuak Darchhinga v. State of Mizoram and Ors.
2015-02-13
M.R.PATHAK
body2015
DigiLaw.ai
Heard Mr. B. Lalramenga, learned counsel for the petitioner and Mr. A. K. Rokhum, learned Additional Advocate General for the State Respondent Nos. 1, 2 & 3. 2. The Respondent No.3, the District Magistrate & Chairman of District Disaster Management Authority, Aizawl District, Aizawl, in the interest of public safety, issued an order under Section 133 (d) of the Criminal Procedure Code, 1973 and under Section 34 (K) of the National Disaster Management Act, 2005 vide No. C.16011/90/2012-DC (A) dated 27.06.2013 directing the petitioner to vacate his building, situated at above the Temple to Vaivakawn Road, Dawrpui West, Aizawl, within 1 (one) month from the date of issue of the order and also to complete the execution of dismantling the said building within a period of 4 (four) months from the date of issuance of the same, so as to prevent disaster and any untoward incident in future. 3. Hence this petition by the petitioner for quashing and setting aside the said order dated 27.06.2013 as well as for quashing and setting aside all other consequential actions contemplated thereunder. 4. The court on 31.07.2013, at the motion stage of this case, suspended the said impugned order dated 27.06.2013 and other consequential actions contemplated in pursuance of the said order, which is still in force. 5. The petitioner submitted that the Land Revenue & Settlement Department of the Government of Mizoram, in terms of Section 11 of the Mizo District (Land and Revenue) Act, 1956 vide LSC (Land Settlement Certificate) No. AZL-82 of 1984 duly allotted him a plot of land for dwelling purpose at Bazar Bungkawn within Dawrpui West locality, popularly known as Bazar Bungkawn, Dawrpui. Over the said land, the petitioner with his life’s savings and liquidating his other assets, constructed a 10 (ten) storied R.C.C. building (herein after referred to as the said building/building in question), which was completed in the year 2000. The petitioner is regularly paying all the Government dues/cess etc. for the said land and building and there was no objection from any quarter, including any authority concerned with regard to construction, structure or stability of the said building. 6.
The petitioner is regularly paying all the Government dues/cess etc. for the said land and building and there was no objection from any quarter, including any authority concerned with regard to construction, structure or stability of the said building. 6. The petitioner submitted that his said building has been designed structurally to withstand the load of the building and has more than sufficient foundation strength, which is being maintained properly and even after more than thirteen years of its existence, the same is one of the strongest structure in the city of Aizawl. 7. The petitioner further submitted that during the time of construction and completion of the said building, there was neither any building regulation in existence or in force in the State of Mizoram nor there was any regulatory authority to grant or refuse/reject permission for construction of any building and therefore, there was no occasion for the petitioner either to apply for or to get any permission for constriction of the said building and that the State respondents after considering his application granted water and electricity connection to his said building, which is rented out to more than 30 (thirty) tenants and the petitioner with his other family members, are surviving from such rental income. 8. The petitioner challenged the impugned order on the ground that the purported order issued by the respondent No. 3 in exercise of his powers conferred under Section 133 (d) of the Cr.P.C. and Section 34(K) of the Disaster Management Act, 2005 is bad in law as the same was issued without issuing any prior notice to the petitioner to show cause as to why his said building should not be vacated and demolished and the said action of the State respondents is in utter violation of the fundamental rights of the petitioner and in violation of the provisions of natural justice. The petitioner further alleged that by the said action, the State respondents are going to deprive him from his landed property and that his said building is going to be vacated and demolished without making any payment of adequate compensation. The petitioner further urged that the entire action of the state respondents in issuing the impugned order dated 27.06.2013 is in total disregard to the law in force and as established and the same being illegal and untenable in law is liable to be set aside and quashed. 9.
The petitioner further urged that the entire action of the state respondents in issuing the impugned order dated 27.06.2013 is in total disregard to the law in force and as established and the same being illegal and untenable in law is liable to be set aside and quashed. 9. The petitioner stated that on 24.05.2013, a spot verification of the building in question was made in his absence and without issuing any prior notice to him. Thereafter, petitioner went to the office of the Deputy Commissioner, Aizawl to enquire into the matter and then he learnt that on the basis of private complaints of a non-governmental organization and the Chairman of the Tuikual North Local council in his personal capacity, a proceeding was initiated against his building in question. On coming to know the same, the petitioner requested the authority concerned to conduct a fresh verification by competent Engineers of an independent agency. The petitioner alleged that instead doing the same the state respondents conducted an ex- parte survey on their own, by a team of Geologist, without any prior intimation to him and on the basis of the said survey report, the impugned order dated 27.06.2013 was issued by the respondent No. 3. 10. The writ petitioner contented that Section 133 Cr.P.C. empowers the District Magistrate to pass only a conditional order requiring the person owning, possessing or controlling such building to remove, repair or support such building or if he objects to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner as provided in the said Code, as to why the order should not be made absolute. The petitioner submitted that the impugned order dated 27.06.2013 is a final and absolute order and it has been issued in disguise of powers vested under Section 133 (d) of the Cr.P.C. without considering the provisions of section 135 to 141 of the Cr.P.C. 11. The petitioner further submitted that as per Section 133(d) Cr.P.C., a conditional order needs to be preceded by taking evidence which naturally includes the right of the petitioner to testify and to challenge the veracity of evidence in the said proceeding and in absence of such procedure by the state respondents while issuing the impugned order the same suffers from infirmities in law. 12.
12. The petitioner stated that the power to make any action under section 34 (k) of the Disaster Management Act, 2005 is vested only on the District Disaster Management Authority and the impugned order dated 27.06.2013 clearly shows that the same has been passed by the Chairman of the Board, who is also the District Magistrate and not by the Members of the Board in their collective wisdom & power and the members of the said District Disaster Management Authority could not have issued the impugned order dated 27.06.2013, since it do not have any powers vested under Section 133 (d) of the Cr.P.C. 13. The petitioner submitted that as per the Disaster Management Act, 2005, ‘Disaster’ means a catastrophe, mishap, calamity or grave occurrence in any area arising from natural or man-made causes etc, resulting in substantial loss of life or damage to and destruction of property etc. of such magnitude beyond the coping capacity of the community of the affected area and in the present case as no such situation has either occurred or any imminent possibility of such grave situation either exist in reality or in papers thus invoking powers under section 34(k) of the said 2005 Act while passing the impugned order is uncalled for. The petitioner also argued that in the assumption that the Disaster Management Authority passed the impugned order under Section 34(k) of the 2005 Act, which gives an extreme powers to it, are designed and contemplated only for the use in extreme circumstances, protecting, assisting and providing relief to the community in response to any threatening disaster situation or disaster and as per the said 2005 Act. 14. The petitioners other part of the contention is that the building in question is his source of livelihood and the State respondents by issuing the impugned order without complying with the provisions Article 300A of the Constitution of India cannot direct for vacating and dismantling the building in question and moreover, the Aizawl Municipal Council assessed the building in question of the petitioner for Municipal Taxes in the year 2011 and the petitioner is regularly paying the same as per assessment made. 15.
15. The petitioner also stated that with regard to the structural safety and stability of the building in question along with six other buildings of the area, including two buildings owned by the petitioners, situated in the same locality at Dawrpui West; a team comprising of qualified Engineers of the PWD of the State, inspected the buildings and the said team, after verification of the building in question of the petitioner, vide their inspection report only suggested that the walls of the buildings should be replaced with lighter materials and it did not suggest for complete demolition of the building in question as directed by the impugned order dated 27.06.2013. 16. The state respondents, contesting the matter, have filed their affidavits in the matter. Though the respondent No.3, the Deputy Commissioner, Aizawl submitted a separate affidavit in the matter, but the contentions of the said two affidavits of the State respondents are same. 17. The state respondents stated that the demolition of the building in question, though shall deprive of the petitioner from his rental income, but it will no way affect his maintenance towards livelihood as he has other properties and assets and the petitioner is not residing in the building in question and that he has another residential building of his own. The respondents also stated that in addition to the said building, petitioner has another 11 storeyed building with a near proximity to the building in question. 18. The respondents submitted that as per the provisions of Section 33 (1) (k) of the Mizoram (Land Revenue) Act, 2013, the Collector or the Settlement Officer or the Assistant Settlement Officer can cancel an allotment of land or rights conferred on the land holder, if there is sufficient reason to believe that that use of land is against public health or public safety or general public good. In the present case the state respondents have not cancelled the Land Settlement Certificate issued earlier in favour of the petitioner, where the petitioner may construct another building in the same site with non heavy materials, subject to Building Bye Laws of the Aizawl Municipal Council in force. The respondents clarified that on 24.05.2013, a joint inspection team comprising of experts, qualified engineer of PWD inspected the building in question. 19.
The respondents clarified that on 24.05.2013, a joint inspection team comprising of experts, qualified engineer of PWD inspected the building in question. 19. According to the respondents, the owner of the building i.e. the petitioner herein, was given numerous opportunities for hearing of the matter and he was present when the joint inspection team inspected the building on 24.05.2013 and it is the petitioner only who had shown the team around the building. Thereafter, the petitioner attended the meeting held on 03.06.2013, for which a call letter was issued and on the said date petitioner was given patient hearing as reflected in the minutes of the said meeting, which also carries the signature of the persons who attended the same, including the petitioner and on the basis of outcome of the said meeting, a fresh inspection of the building in question was made separately on 05.06.2013 and 12.06.2013 by a team of four Geologist and four Engineers of PWD. 20. The respondents submitted that on the basis of the complaint lodged by the local Councillor, which equivalent to a panchayat and Young Mizo Association, both representing the public in the locality, with regard to the building in question, the District Magistrate of Aizawl took up the matter for necessary consideration. The respondents denied that it has violated the provisions of Section 133 (d) Cr.P.C. as the petitioner i.e. building owner was given numerous call for hearing and ultimately he could be heard only on 03.06.2013. The respondents also stated that as it appears from the various inspection reports that the building in question is extremely dangerous for any occupation, the District Magistrate, Aizawl by applying the provisions Section 2 (d) read with Section 34 (k) of the Disaster Management Act, 2005 issued the impugned order dated 27.06.2013 for demolition of the said building. The respondents submitted that the District authority while issuing the impugned order not only considered about the life and properties in the vicinity of the building in question, which is in a hazardous condition as per the reports submitted by the concerned authorities, but also for the life of the inmates/tenants living in the said building.
The respondents submitted that the District authority while issuing the impugned order not only considered about the life and properties in the vicinity of the building in question, which is in a hazardous condition as per the reports submitted by the concerned authorities, but also for the life of the inmates/tenants living in the said building. The respondents stated that observing the serious incident of landslide at Laipuitlang that occurred on 11.05.0213, wherein 17 innocent people lost their life and the recent disaster in the State of Uttrakhand, the expectation of the public in general on the District Disaster Management Authority is very high and that the disaster at Laipuitlang could have been averted or would not have been so sever, if the PWD Mechanical Office Building had been demolished in time. The respondents stated that the State Government and the District Authority being very much concerned with such mistake, does not want to commit or repeat the same mistake again and therefore, the question of misuse or abuse of the power by the Disaster Management authority does not arise. The Chairman of the District Disaster Management Authority, Aizawl after receipt of the reports dated 20.06.2013 from the team of the Geologist, directed the Additional Deputy Commissioner(G), Chief Executive Officer of District Disaster Management, Aizawl to inform the building owner to ask his tenants to find out alternate accommodation urgently and accordingly the said Deputy Commissioner(G) informed the petitioner around 02.15 p.m. about the inspection report of the team of Geologist. 21. The respondents have produced the records. It is seen that on 11th & 12th October 2012 due to incessant rain landslide occurred at Tuikual South, Aizawl due to which foot path slide down in to the nearby stream. The bridge connecting the said foot path also slide down many houses fell down and crack occurred in the upper part of PWD road. Similar incident occurred again on 11th May, 2013. Due to torrential rain several concrete and semi- pucca building at Aizawl has collapsed and due to land slide at Laipuitlang, in Aizawl 17 persons had lost their life and may were injured. The tragedy occurred due to collapse of a PWD building which was declared unsafe by the Department of Geology and Mining and recommended for demolition way back in 2012. However, process for the formal demolition, tenders etc. were done recently.
The tragedy occurred due to collapse of a PWD building which was declared unsafe by the Department of Geology and Mining and recommended for demolition way back in 2012. However, process for the formal demolition, tenders etc. were done recently. The Disaster Management of the State and the Aizawl District have been made responsible for their failure to prevent such disaster. In this regard a Suo-Moto matter being W.P. (C) (Taken up) No. 55 of 2013 is presently pending before the High Court, wherein Chief Secretary of the State has been specifically asked by the Court to reply what steps have been taken by the State for carrying out a survey of all the buildings situated within Aizawl City which may be unsafe and may be susceptible to such collapse. 22. As a preventive measure, the State respondents more particularly the District Disaster Management Authority, Aizawl District, Aizawl inspected the high rise and such other buildings, at Aizawl which are in vulnerable locations prone to such disasters. As per the decision taken in a joint meeting of the Local Council of Tuikual North, Aizawl and Young Mizoram Association held on 16.05.2013, the Chairman of the said Local and the Secretary of Young Mizoram Association on 16.05.2013 itself submitted a representation before the Deputy Commissioner, Aizawl District, Aizawl stating that the building of the petitioner in question, which is quite big & very tall, being located on a steep hill, is in an hazardous position, with a threat to the nearby houses, causing serious risk to the local public and people walking on the road below the said building and therefore requested the authority to inspect and examine the said building and to take necessary action before it causes any catastrophe. The Chairman of the Local Council of Tuikual North, Aizawl also made such request before the concerned Minister of the State in the Disaster Management Department and the said Minister on 23.05.2013, forwarded it to the Deputy Commissioner, Aizawl. 23.
The Chairman of the Local Council of Tuikual North, Aizawl also made such request before the concerned Minister of the State in the Disaster Management Department and the said Minister on 23.05.2013, forwarded it to the Deputy Commissioner, Aizawl. 23. In the meanwhile, the Additional Deputy Commissioner, Aizawl District, Aizawl, Office of the Deputy Commissioner, Aizawl in the Disaster Management & Rehabilitation Branch vide order under Memo No. C.16011/90/2012-DC(A)/52 dated 22.05.2013 constituted a team comprising of (i) Sub-Deputy Commissioner & Zonal Officer as Team Leader, (ii) Senior Geologist of Geology & Mineral Resources Department, (iii) Sub-Divisional Officer of PWD Building Sub-Division, (iv) Sub-Divisional Officer of PWD, Roads, South, (v) Junior Engineer of Aizawl Municipal Council, (vi) Local Council Chairman of Tuikual North and (vii) Local Council Chairman of Dawrpui and directed the said team to make spot inspection the building in question of the petitioner on 24.05.2013 and to submit their findings with recommendation to the Deputy Commissioner, Aizawl without delay. Accordingly, the said team on 24.05.2013 made a joint spot verification of the building in question and on 30.05.2013 submitted the ‘Joint Verification Report’ signed by aforesaid seven member team including the individual observations and findings of the Technical Members of the Team i.e. (a) Senior Geologist, Geology & Mineral Resources Department, Aizawl (b) Sub- Divisional Officer, PWD, Building Sub-Division, Aizawl (C) Sub-Divisional Officer, PWD, Road, South, Aizawl and (d) Junior Engineer, Aizawl Municipal Council, Aizawl and the ‘conclusion’ of the said team. The individual findings of the Technical Members of the team and the conclusion of the team after their inspection on 24.05.2013 are as follows: (a) Report of Sr. Geologist, Geology & Mineral Resources Deptt., Aizawl – “From field investigation it is concluded that considering the rock formation, Geological structures and topographic slope of the area, the house site is very prone to Geological hazards like rock fall and wedge failure even without mentioning earthquake of 4 magnitudes and above etc. Hence it is concluded that the house of Pu Darchhinga is very vulnerable for the inmates of the building, surrounding area and passer’s by of the road below this multi-storey building since the rock formation on which the building stand is unsuitable to withstand heavy load.” (b) Report of Sub-Divisional Officer, PWD, Building Sub-Division, Aizawl – “1.
Hence it is concluded that the house of Pu Darchhinga is very vulnerable for the inmates of the building, surrounding area and passer’s by of the road below this multi-storey building since the rock formation on which the building stand is unsuitable to withstand heavy load.” (b) Report of Sub-Divisional Officer, PWD, Building Sub-Division, Aizawl – “1. The building is eleven (11) storeyed high towering above Tuikual to Vaivakawn road and resting on top of natural rock formation. The owner Pu Darchhinga’s said that he has not engaged Engineers during the construction of the building, therefore there is no structural details, drawing of the building. This being the case whether the RCC column has a foundation footing or not cannot be known. However, the lowest floor of the building block on Vaivakawn side, there is one exposed column which seems to be resting only on the rock and does not seem to have a foundation footing. Considering the number of storey, it is viewed that a slight disturbance in the rock formation can cause overturning of the building. 2. The building is eleven (11) storeyed high and was built without proper design or supervision. The RCC Columns are mostly 320mm x 320mm, and Beams are of 180mm x 300mm after plastering. So, the actual RCC member is smaller than above, therefore, seismic safety factor does not seem to be considered in the structure. 3. Some of the cantilever portion of the building are taking weight of building brick walls, and the building is widen slightly as the building floor gets higher, which is not favourable. 4. Some cracks are seen on the floor and columns and some on stairs. Since the mode of inspection is visual only, the concrete strength of R.C.C members are within the specified strength or not is not known, however one exposed R.C.C. Column on the North East side shows dilapidated condition of concrete.” (C) Report of Sub-Divisional Officer, PWD, Road, South, Aizawl – “1. The building is eleven (11) storeyed high and constructed on a very steep natural rock formation above Temple to Vaivakawn road. Since, the building is constructed in conformed to the natural rock strata, the natural rock bed / strata have been utilized as walling at the uphill side for the whole building up to eighth (8th) floor level. The said building is presently occupied by about 30 Nos. of families. 2.
Since, the building is constructed in conformed to the natural rock strata, the natural rock bed / strata have been utilized as walling at the uphill side for the whole building up to eighth (8th) floor level. The said building is presently occupied by about 30 Nos. of families. 2. No technical persons have been engaged before and during construction period of this building (as told by Pu Darchhinga). The size of columns and beams after plastering are mostly 320mm x 320mm and 180 mm x 300mm respectively and these are found to be very much small for a place like Mizoram which falls under Seismic Zone – IV and not suitable for high storeyed structures having eleven (11) nos. of floors especially from seismic point of view. Since, the actual present concrete strength cannot be ascertained through visual inspection and may be referred to EE., PWD Quality Control Division as soon as possible. 3. The staircase is resting on top of the cliff which is also protruding over the road area i.e. Temple to Vaivakawn. Though staircase is the only means of communication available for the whole building, however workmanship were very hazardous manner and this lead to development of many cracks at landings and waist slab portions. No proper foundations were provided for staircase, it has been directly erected from cantilever beam itself at the lowest basement floor level. 4. Since, the building is constructed many years back without proper design and plan, it is obvious that there would have been no detailed structural drawing for this building and in absence of structural detail drawing it is very difficult to ascertain the actual position of column foundations. However, at the lowest floor level of this building on Vaivakawn side, there is one exposed column foundation footing which appears to be simply sitting on natural rock plate without proper RCC foundation footing. Considering the number of storey, Dead load and Live loads of building with numerous numbers of tenants, it may happen that a slight disturbance in the rock formation may lead to overturning of this building”. (d) Report of Junior Engineer, Aizawl Municipal Council, Aizawl – “This building is constructed over an overhanging rock. The stability of the foundation rock can be determined by Geology and Mineral Resources department.
(d) Report of Junior Engineer, Aizawl Municipal Council, Aizawl – “This building is constructed over an overhanging rock. The stability of the foundation rock can be determined by Geology and Mineral Resources department. The soundness of the building structure can be tested and determined by the quality control division of the state PWD. This building was examined by the Aizawl Development Authority’s Technical Committee & Safety of building. However, no action seems to have been taken so far”. (e) Reprt& & Conclusion of the Joint Verification Team dated 30.05.2013 – “1. The lower part of the protruded hanging rock formation just above temple to Vaivakawn road is lined by conglomerate bed of about one and half thick and this bed formation is very weak and susceptible for weathering. It is therefore, suggested that the protruding rock, which is bulging outward encroaching the space above the road and which is likely to decline in bulk abruptly on the road in future, may be removed so as to prevent any untoward incident in future. The execution of this work may be done carefully and manually without deploying machine and with taking heed not to cause shocks and vibration at the time of execution of the work. 2. Proper Drainage system is a must. In this connection, an instruction may be issued to various owners of the buildings at the place namely Pu Darchhinga, Pi G.Rotluangi, Pu VL Ruata and Lianchhawna etc., of Dawrpui to do the needful immediately. 3. According to the Geological investigation, it is concluded that considering the rock formation, geological structure and topographic slope of the area, the house site is very prone of geological hazard like rock fall and wedge failure even without mentioning earthquake of 4 magnitude and above. Hence, it is concluded that the house of Pu. Darchhinga is very vulnerable for the inmates of the building, lives and houses below it, surrounding area and the passerby of the road below it since the rock formation on which the building stands is unsuitable to withstand heavy load. Since Pu Darchhinga’s buildings and its surroundings building are very heavy and the site is very prone to geological hazards, an appropriate immediate action, which may be dismantling of the building, may be taken immediately. 4.
Since Pu Darchhinga’s buildings and its surroundings building are very heavy and the site is very prone to geological hazards, an appropriate immediate action, which may be dismantling of the building, may be taken immediately. 4. The size of columns and beams of the building after plastering are mostly 320mm x 320mm and 180mm x 300mm respectively and these are found to be very much small for a place like Mizoram which falls under Seismic Zone – IV and not suitable for high storey structures having eleven (11) nos. of floors especially from seismic point of view. Since the actual strength of the building as of now could not be ascertained through visual observation, the matter may immediately be referred to PWD, Quality Control Div. so as to identify the actual state of the building with suitable testing equipments and after that, the question on whether all the whole building/which building, or which parts of the buildings needed to be dismantled for ensuring safety of the occupants, the lives, properties and houses below it, may also be able to be resolved. (Note:-The other two building i.e., one owned by Pu VL Ruata and other owned by Pu Darchhinga & the main structure of Pu Lalthuama Building (only column and beams), Dawrpui may also be examined simultaneously by Quality Control, PWD. 5. It is found at the time of inspection that there is one exposed column which seems to be resting only on the rock without having a proper foundation footing at the lowest floor of the building block at Vaivakawn side. Considering the number of storey, dead load and live loads of the building with numerous numbers of tenants, it is the view of the team that a slight disturbance in the rock formation can cause overturning of the building. In addition to this, some of the cantilever portion of the building are taking weight of building brick walls, and the building is widen slightly as the building floor gets higher, which is not favourable. Again, some cracks are seen on the floor and columns and some on the stairs and one exposed R.C.C. Column on the North east side shows dilapidated condition of its concrete.” 24.
Again, some cracks are seen on the floor and columns and some on the stairs and one exposed R.C.C. Column on the North east side shows dilapidated condition of its concrete.” 24. The said report and observations clearly shows that the inspection of the building in question was made in presence of the petitioner and he accompanied the team all along during the inspection, guided the team in his building during its inspection and also replied the queries made by various members of the team. 25. It is seen from the record that on receipt of the aforesaid report dated 30.05.2013 and after discussing the matter with the Deputy Commissioner, Aizawl; the Additional Deputy Commissioner, Aizawl vide communication dated 03.06.2013 asked the petitioner to attend the office of the Deputy Commissioner at 03:00 p.m. on 03.06.2013 itself and accordingly, the petitioner attended the meeting and signed the attendant sheet. In the said meeting on 03.06.2013, the members present, including the petitioner decided that the site of the building in question be inspected in detail by a team of Geologist and a team of Engineers (with experts from quality control, PWD) at the earliest and they will submit their reports with suggestions to the Deputy Commissioner, Aizawl immediately. As such, the Deputy Commissioner, Aizawl in the Disaster Management & Rehabilitation Branch vide letter No. C.16011/90/2012-DC(A)/70 dated 04.06.2013 requested the Engineer-in-Chief, PWD, Aizawl to detail a team of Engineers including an Engineer from Quality Control Division to have an in depth study of the building of the petitioner in question and four other persons named in the said communication and to submit the report on or before 06.06.2013. The said the Deputy Commissioner vide No. C.16011/90/2012-DC(A)/71 dated 04.06.2013 made similar requests to the Director, Geology & Mineral Resources, Aizawl to detail a team of for an in depth study of Geological condition of the ground where the building of the petitioner in question is constructed and to submit the report on or before 06.06.2013. Pursuant to the same, the Engineer-in-Chief, PWD, Aizawl constituted a team of four Engineers of the department to inspect the buildings of the persons named in the aforesaid communication dated 04.06.2013 including the building of the petitioner in question.
Pursuant to the same, the Engineer-in-Chief, PWD, Aizawl constituted a team of four Engineers of the department to inspect the buildings of the persons named in the aforesaid communication dated 04.06.2013 including the building of the petitioner in question. Similarly, a Geological team comprising of two senior Geologist and two junior Geologists of the Geology & Mineral Resources Department, Aizawl visited the sites on 05.06.2013, inspected the building in question and after detail discussion it concluded and agreed upon with the report submitted by the Senior Geologist earlier on 24.05.2013 (cited above). In addition to that, in terms of the earlier communication of the Deputy Commissioner, dated 04.06.2013, a team of Engineers from the PWD that was constitutes by the Engineer-in-Chief on 07.06.2013, inspected the building in question and other buildings of the owners mentioned in the said letter on 12.06.2013 and the Engineer-in-Chief vide his letter dated 19.06.2013 submitted the said inspection report dated 12.06.2013 which was forwarded to him on 14.06.2013 by the Superintendent Engineer, PWD, Project Circle, Aizawl. With regard to the two buildings of the petitioner, the said report dated 12.06.2013 disclosed that both the buildings of the petitioner are 11 storied buildings, though the amount of rod used in pillars cannot be seen, it is believed to be unreliable for such a big building, the stair constructed on the protruding rock on the south building is constructed badly and it’s demolition is suggested and even if the geologist believe that demolition of the building is not required, for the safety of the occupants, it is suggested that the walls be replaced with lighter materials. 26. On 21.06.2013 the petitioner requested the Deputy Commissioner, Disaster Management Committee, Aizawl not to dismantle his said building in question otherwise his family members will be deprived of their main source of livelihood. By the said letter, the petitioner also requested to alter the order of demolition of the building in question and to allow him to demolish the stair case of the said building and in the event of demolition of said building it will cause hardship to him, his family and tenants living in it.
By the said letter, the petitioner also requested to alter the order of demolition of the building in question and to allow him to demolish the stair case of the said building and in the event of demolition of said building it will cause hardship to him, his family and tenants living in it. After considering all the aforesaid reports, the District Magistrate and Chairman of the District Disaster Management Authority, Aizawl, in the interest of public safety passed the impugned order under memo No. C.16011/90/2012-DC(A) dated 27.06.2013 directing the petitioner, i.e. the owner of the said building, to vacate it within one month from the date of issue of the order and also directed him to dismantle the building in question to prevent disaster and any untoward incident in future and further directed him to complete the execution work of demolition of said building within four months from the date of issue of the said order. 27. The petitioner again submitted a representation dated 27.06.2013 signed on 10.07.2013 before the District Magistrate and Chairman of the District Disaster Management Authority, Aizawl, requesting the authority that if the inspection team re-inspects his said building for which demolition order had already been passed and to verify whether steps can be taken to make the said building free from danger and if it is not possible, he submitted that he is not in a position to dismantle the building in question as his said house is situated between two busy roads and there is a motorable road below it, there are building adjacent to it and in its surroundings. He submitted that he does not have the fund and expertise to dismantle the said building. He also stated that while dismantling the said building nearby public may be put to grave danger and therefore, requested the authority to make appropriate plan and consider it accordingly and to take responsibility in dismantling the building properly and safely. By the said representation the petitioner also demanded for compensation for his heavy loss for dismantling the building which is his source of livelihood. 28. On the request made by the petitioner through his said representation dated 27.06.2013 signed on 10.07.2013, the Deputy Commissioner & Chairman of the District Disaster Management Authority, Aizawl District, Aizawl had a meeting on 16.07.2013 in the presence of the petitioner; his son Mr.
28. On the request made by the petitioner through his said representation dated 27.06.2013 signed on 10.07.2013, the Deputy Commissioner & Chairman of the District Disaster Management Authority, Aizawl District, Aizawl had a meeting on 16.07.2013 in the presence of the petitioner; his son Mr. Zohmingthanga; the Additional Deputy Commissioner, Aizawl and two other Engineers from PWD and it was decided for auctioning the building in question and to give it to the highest bidder and also decided that the amount to be realised from the highest bidder shall be kept at the disposal of the Aizawl District Disaster Management Authority. Petitioner and his son are signatory to the attendance sheet of the said meeting dated 16.07.2013. As per the aforesaid decision dated 16.07.2013, the Executive Engineer, PWD, Aizawl Building Division by his Notice dated 26.07.2013 issued a public auction notice to dispose of the building in question of the petitioner by public auction fixing 01.08.2013 as the date of said auction. The said Auction Notice was also published in the local daily ‘the Aizawl Post’. 29. Further, the Deputy Commissioner & Chairman of the District Disaster Management Authority, Aizawl by his order dated 26.07.2013 granted two more weeks to the tenants of the petitioner to vacate the building in question from the date of issue of the said letter. By the said letter dated 26.07.2013 the petitioner was also asked whether he will dismantle the building or the respondents shall auction it and clarified that even if the building is to be auctioned, he will continue to be the owner of the land where the building is standing. 30. Mizo District (Land and Revenue) Act, 1956 was enacted to provide for the recognition of rights on land and assessment of revenue on such land by the District Council. Section-7 of the said 1956 Act provides for Settlement holders right over land and it provided that – The settlement holder shall have heritable and transferable right of use on or of sub-letting on his land subject to – (a) The payment of all revenue and taxes from time to time legally assessed or imposed in respect of the land; (b) Such terms and condition as are expressed in his settlement lease and the rules made thereunder.
Section 13 of the said 1956 Act provides that if a settlement holder violates any term of the lease, the lease shall be liable to be cancelled. 31. It is seen that the Clause-3 of the ‘Terms and Conditions of Settlement’ of the LSC No. AZL 82 of 1984 by which the Land Revenue and Settlement Department of Mizoram settled the land to the petitioner, over which he constructed the building in question; clearly stipulates that – “the Government of Mizoram or Officer so authorised may at any time order for the demolition or alteration of any new building or extension of any building either completed or under construction, if, in the opinion of the said authority, such new building or extension would go against the public interest, and the holder shall comply with the order”. Further, Clause-9 of the said ‘Terms and Conditions’ specified that “Violation of any of the terms and conditions may entail cancellation of the settlement lease under Section 13 of the Mizo District (Land and Revenue) Act, 1956, or reduction of the area of holding as deem fit by the Government of Mizoram or Officer so authorised. 32. The Mizoram (Land Revenue) Act 2013 came into force in the State of Mizoram with effect from 02.05.2013 and the Mizo District (Land and Revenue) Act, 1956 which was in force earlier was repealed under Section 131 of the aforesaid 2013 Act. Section-33 of the said 2013 Act provides for cancellation of allotment or rights over land. Section 33 (1) of the 2013 Act prescribes that – “the Collector or the Settlement Officer or the Assistant Settlement Officer or any other Revenue Officer may cancel an allotment of land or the rights conferred on the land holder for any of the grounds (a) to (k) mentioned under it”. Sub-Section (1) (k) of Section 33 is one of the ground for cancellation of allotment or rights over land which prescribes that -– “if there is sufficient reason to believe that the use of land is against public health or public safety or general public good, the Collector or the Settlement Officer or the Assistant Settlement Officer or any other Revenue Officer may cancel an allotment of land or the rights conferred on the land holder”. 33.
33. The Disaster Management Act, 2005 have been enacted to provide for effective management of disasters and for matters connected therewith or incident thereto. Chapter IV of the said 2005 Act provides for District Disaster management Authority. Section 25 of the 2005 Act provides for constitution of District Disaster Management Authority and Section 25 (4) of the said Act provides that – “The State Government shall appoint an officer not below the rank of Additional Collector or Additional District Magistrate or Additional Deputy Commissioner, as the case may be, of the district to be the Chief Executive Officer of the District Authority to exercise such powers and perform such functions as may be prescribed by the State Government and such other powers and functions as may be delegated to him by the District Authority”. 34. Section 29 of the said 2005 Act provides for appointment of officers and other employees of District Authority and it reads as – “The State Government shall provide the District Authority with such officers, consultants and other employees as it considers necessary for carrying out the functions of District Authority”. 35. Further Section 34 of aforesaid 2005 Act relates to Powers and functions of District Authority in the event of any threatening disaster situation or disaster and Section 34(k) provides that – “The District Authority may construct temporary bridge or other necessary structures and demolish structures which may be hazardous to public or aggravate the effect of the disaster”. 36. The Government of Mizoram in the Relief & Rehabilitation Department vide Notification No. B.13011/17/2006 REH dated 06.06.2006 constituted the ‘District Disaster Management Authority’ for every District in Mizoram comprising of (I) Chairperson: Deputy Commissioner (Ex-officio), (II) Co-Chairperson: project Director DRDA (CEM MADC/LAD/CADC for Sixth Schedule Areas), (III) Members : (i) Superintendent of Police (ii) Chief Medical Officer, (iii) Executive Engineer (PWD) (Govt. nominated) (iv) Executive Engineer (PHE) (Govt. nominated) and (IV) Chief Executive Officer: Additional Deputy Commissioner. 37. By the aforesaid Notification dated 06.06.2006 the State Government provided that – “Subject to the provisions under the Disaster Management Act, 2005 and in accordance with the guidelines laid down by the National Authority and the State Authority, the District Authority shall act as the planning, coordinating and implementing body for disaster management in the District”.
37. By the aforesaid Notification dated 06.06.2006 the State Government provided that – “Subject to the provisions under the Disaster Management Act, 2005 and in accordance with the guidelines laid down by the National Authority and the State Authority, the District Authority shall act as the planning, coordinating and implementing body for disaster management in the District”. The said Notification also prescribed the ‘Powers of the Chairperson’ and Clause (2) under the said caption prescribes that – “Subject to the expost facto ratifications by the District Authority, the Chairperson of the District Authority, in the case of an emergency, have the power to exercise all or any of the powers of the District Authority”. 38. In the present case on receipt of the Joint verification Report dated 30.05.2013 with regard to the building in question of the petitioner from the committee constituted so by the Additional Deputy Commissioner, Aizawl on 22.05.2013, the petitioner on the basis of communication dated 03.06.2013appeared before the Deputy Commissioner, Aizawl on the same day after noon, he was heard by the said Deputy Commissioner and at his request and as per his suggestion and acceptance, his said building was individually assessed by two groups of technical experts – (a) a group consisting of four Engineers comprising of (i) Superintending Engineer, Project Circle, PWD; (ii) Executive Engineer, Project Division-I, PWD, (iii) Executive Engineer, (W-1), PWD & (iv) Executive Engineer, PWD, Quality Control Division and (b) a group consisting of four Geologist comprising of two Senior Geologist and two Junior Geologist of Geology and Mineral Resources Department of the State. The technical experts from PWD on their spot inspection opined that 11 storey building of the petitioner in question is required to be demolished and that if the Geologist believed that demolition of said building is not required, then for safety of the occupants it was suggested that the walls of the building should be replaced with lighter materials. On the other hand Geological experts clarified that the multi- storeyed building of the petitioner in question is very vulnerable for the inmates of the building, surrounding area and passer’s by of the road below since the said building is standing on a rock formation which is not suitable to withstand heavy load.
On the other hand Geological experts clarified that the multi- storeyed building of the petitioner in question is very vulnerable for the inmates of the building, surrounding area and passer’s by of the road below since the said building is standing on a rock formation which is not suitable to withstand heavy load. In the present case the said building of the petitioner was inspected at site by technical and geological experts on 3 (three) different occasions and after their said three visits they submitted their reports. 39. Considering all these reports and in the interest of public safety, the District Magistrate, Aizawl cum Chairman District Disaster Management Authority, Aizawl passed the impugned order under memo No. C.16011/90/2012-DC(A) dated 27.06.2013 directing the petitioner to vacate his said building, within one month from the date of issue of the order and to dismantle the said building to prevent disaster and any untoward incident in future and to complete the execution work of demolition within four months from the date of issue of the said order. Moreover, as seen from the above, the petitioner after the impugned order dated 27.06.2013 clearly allowed the respondents to auction his said building for its demolition by his representation dated 27.06.2013 signed on 10.07.2013 and further, on 16.07.2013 in the meeting he consented to such auction of his said building. 40. Hon’ble Supreme Court in N. D. Jayal & Another -Vs- Union of India & Others, reported in (2004) 9 SCC 362 has observed as follows – Disaster Management: 56. Disaster Management means all aspects of planning, co- ordinating and implementing all measures which are necessary or desirable to prevent, minimize, overcome or to stop the spread of a disaster upon the people or any property and includes all stages of rescue and immediate relief. It is a proven fact that lot of human suffering and misery from large number of disasters can be mitigated by taking timely actions, planning and preventive measures. It is possible only through well functioning disaster management framework. This will enable us to minimize, control and limit the effects of disaster and will streamline the disaster management exercises. Our present relief centred re-active approach after the striking of disaster need to be changed into preparedness oriented pro-active attitude. This is the aim of pre- disaster preparations. Disaster Management Plans has to play an integral role In this exercise.
This will enable us to minimize, control and limit the effects of disaster and will streamline the disaster management exercises. Our present relief centred re-active approach after the striking of disaster need to be changed into preparedness oriented pro-active attitude. This is the aim of pre- disaster preparations. Disaster Management Plans has to play an integral role In this exercise. They are blue prints for the management of disasters. The Disaster Management Plans should contain the aspects of disaster prevention and of ways for its management in the untoward occurrence of a disaster. A proper plan will place the disaster management exercise on a more firm foundation. 41. In Municipal Corporation of Delhi –Vs– Association of Victims of Uphar Tragedy and others, reported in (2011) 14 SCC 481 The Hon’ble Supreme Court observed that – 73. The Parliament has enacted the Disaster Management Act, 2005. Section 1(3) thereof provides that it shall come into force on such dates as the Central Government may by notification in the Official Gazette appoint; and different dates may be appointed for different provisions of the Act for different States, and any reference to commencement in any provisions of the Act in relation to any State shall be construed as a reference to the commencement of that provision in that State. All the provisions of the Act have not been brought into effect in all the States. Having regard to the object of the Act, bringing the Act into force promptly would be in public interest. In so far as Delhi is concerned, by notification dated 19.3.2008, the Government of NCT of Delhi has established the Delhi Disaster Management Authority for the national capital territory of Delhi. A disaster management helpline number has been made operational. Emergency operating centre and relief centres have been established; a State Disaster Response Force has been established. Several volunteers have been given training in disaster management. Attempts are being made to hold regular mockdrills in regard to various types of disasters (like earthquakes, flood, fire, road accidents, industrial and chemical disasters, terrorists attacks, gas leaks etc.). Steps are taken to contact the public in regard to several natural and man-made disasters. 74. The key to successfully meeting the consequences of disasters is preparedness. There can be no complacency. Human tendency is to be awake and aware in the immediate aftermath of a disaster.
Steps are taken to contact the public in regard to several natural and man-made disasters. 74. The key to successfully meeting the consequences of disasters is preparedness. There can be no complacency. Human tendency is to be awake and aware in the immediate aftermath of a disaster. But as the days pass, slowly the disaster management equipment and disaster management personnel allowed to slip away from their readiness. Only when the next disaster takes place, there is sudden awakening. In regard to preparedness to meet disasters there could be no let up in the vigil. The expenditure required for maintaining a high state of alert and readiness to meet disasters may appear to be high and wasteful regarding `non-disaster periods' but the expenditure and readiness is absolutely must. 42. The Hon’ble Apex Court has settled the law that when constructions are unauthorised, hazardous to the safety of occupiers and residents of multi-storeyed buildings against the public interest, liable to be to be demolished. In the present case there is clear finding of the experts that the building in question is 11 storeyed, a heavy building standing on a rock formation which is not suitable to withstand heavy load. The experts both technical and geological inspected the building at the instance of the petitioner and gave their finding for demolishing the petitioner’s said buiding. The petitioner surrendered that he does not have the expertise and financial power to demolish the building in question and consented for auction of the said building. 43. In catena of decisions Hon’ble Supreme Court of India has held that - to bring in application of Section 133 of the Cr.P.C., there must be imminent danger to the property and consequential nuisance to the public. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public. 44.
The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public. 44. Learned counsel for the petitioner cited a decision of Hon’ble Bombay High Court in case of Bin K. Kuriakose & Others –Vs- The Commissioner, Municipal Corporation of Greater Mumbai & Others decided on 05.05.2010, which is not applicable in the present case, as in that case the impugned order was passed by an Assistant Commissioner, who is not a qualified member of District Authority under Section 25(2) of the Disaster Management Act, 2005. In the present case, it is seen from the records that orders have been issued by either by the Additional Deputy Commissioner or by the Deputy Commissioner/District Magistrate who are qualified members of District Authority under the said 2005 Act. 45. In the present case, the impugned order of vacation and dismantling the building in question of the petitioner dated 27.06.2013 have been passed by the District Magistrate, Aizawl cum Chairman District Disaster Management Authority, Aizawl only on the basis of reports of technical and geological experts and in the interest of public safety to prevent disaster and untoward incident in future and all such actions were taken with the knowledge and consent of the petitioner as disclosed from above. Moreover, the reports of the aforesaid inspection teams showed that there is an imminent danger with regard to the said building of the petitioner, causing consequential nuisance to the public, resulting in danger to the life or property which are likely collapse. There was urgency in the matter and on the basis of all the reports of the experts; the District Magistrate was of the belief that if he fails to take recourse immediately irreparable damage would be done to the public. Though the District Magistrate, Aizawl by the impugned order dated 27.06.2013, under the provisions of the Disaster Management Act, 2005, directed the petitioner to vacate his building in question and to demolish the same, but the petitioner continued to remain as the settlement holder of the land over which his said building in question is constructed. 46.
Though the District Magistrate, Aizawl by the impugned order dated 27.06.2013, under the provisions of the Disaster Management Act, 2005, directed the petitioner to vacate his building in question and to demolish the same, but the petitioner continued to remain as the settlement holder of the land over which his said building in question is constructed. 46. Moreover, in terms of the above noted Notification No. B.13011/17/2006 REH dated 06.06.2006 of the Government of Mizoram in the Relief & Rehabilitation Department, the Chairperson of the District Authority, in the case of an emergency, has the power to exercise all or any of the powers of the District Authority, subject to the expost facto ratifications by the District Authority. As such the District Magistrate, Aizawl cum Chairman District Disaster Management Authority, Aizawl accordingly passed the impugned order dated 27.06.2013 as it is necessary to prevent the disaster and to minimize the same to the extent possible, for the safety of people and their property at large. 47. For the reasons stated herein above, the Court is of the considered view that there is no infirmity or illegality in the impugned order No. C.16011/90/2012-DC (A) dated 27.06.2013 and other consequential order(s) passed by the respondent No.3, the District Magistrate & Chairman of District Disaster Management Authority, Aizawl District, Aizawl in the interest of safety of people. 48. Accordingly this petition, being devoid of merit, stands dismissed. Interim order dated 31.07.2013 passed earlier in this petition stands vacated. No order as to costs.