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2020 DIGILAW 565 (ALL)

Ramchandra Verma v. State Of U. P.

2020-02-20

AJIT KUMAR, RAMESH SINHA

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JUDGMENT : 1. Heard Sri S.K.Tripathi, learned Advocate holding brief of Sri N.K.Mishra, learned counsel for the petitioners, Sri A.K.Pandey, learned counsel for the respondent nos. 3, 4 and 5 learned Standing Counsel for the State respondents and perused the record. 2. By means of present writ petition, the petitioners have assailed the order dated 27th January, 2020 passed to vacate the premises of the shop in question on the ground that it become 30 years' old and has reached to dilapidated condition. 3. Assailing the order impugned, it has been argued by learned counsel for the petitioners that on 27th January, 2020 notices were served upon the petitioners to which they had submitted a detailed reply on 07th February, 2020. However, same has remained in unheard and respondents have in a hurried manner proceeded to demolish the shops on the ground that the passage of the civil court building has to be cleared. 4. Sri Pandey, learned counsel for the respondent was directed to have instructions in the matter and he has placed instructions before the Court, which are taken on record. 5. From the instructions, it transpires that some inspection was carried out of the disputed shop on 16th January, 2020 and report was prepared on 17th January, 2020 which was forwarded to the authority concerned, namely, City Magistrate, Ballia. However, it appears that before getting order from City Magistrate in the matter, respondents have proceeded to pass impugned order. We have also noticed that earlier notice issued to the petitioners on 17.01.2020 and then report of inspection conducted on 16th January, 2020, were not supplied to the petitioner. 6. We have carefully gone though the provisions of U.P. Municipalities Act, 1916 which deal with such power of a municipality to enter into demolition of buildings that have arrived in a dilapidated condition. Sections 263 and 287 are relevant for the purpose and while power has been exercised under Municipalities Act, 1916, Section 263 provides procedure for the said purpose and 287 provides specifically that before arriving at a conclusion that building has arrived in a dilapidated condition, an inspection has to be carried out of the building and that too in the presence of the occupier. 7. For ready reference and better appreciation of the provisions and powers of the municipality in this regard, Section 287 is reproduced in its entirety:- "287. Ordinary inspection. 7. For ready reference and better appreciation of the provisions and powers of the municipality in this regard, Section 287 is reproduced in its entirety:- "287. Ordinary inspection. -(1) The President, the executive officer and, if authorised in this behalf by resolution, any other member, officer or servant of the [Municipality], may enter into or upon a building or land, with or without assistants or workmen, in order to make an inspection or survey or to execute a work which a [Municipality] is authorised by this Act, or by rules or bye-laws, to make a execute, or which it is necessary for a [Municipality], for any of the purposes or in pursuance of any of the provisions of this Act or of rules or bye-laws, to make or execute : (2) Provided that, - (a) except when it is in this Act or in rules or bye-laws otherwise expressly provided, no entry shall be made between sunset and sunrise; and (b) except when it is in this Act or in rules or bye-laws otherwise expressly provided, no building which is used as a human dwelling shall be so entered, except with the consent of the occupier thereof, without going the said occupier not less than four hours previous written notice of the intention to make such entry; and (c) sufficient notice shall in every instance by given even when any premises may otherwise be entered without notice, to enable the inmates of an apartment appropriated for females to remove to some part of the premises where their privacy need not be disturbed; and (d) due regard shall always be had to the social and religious usages of the occupants of the premises entered." (Emphasis added) 8. From a bare reading of clause (b) of Sub-Section 2 of Section 287, it is quite explicit that if inspection has to be carried out of a building that has human dwelling it has to be in presence of its occupier and that too with at least four hour's, advance notice. 9. In the present case it has not been disputed by the respondent authority that the petitioners are in occupation of the shop/building and, therefore, in our considered opinion the provision as contained under Section 287 is required to be complied with. 10. 9. In the present case it has not been disputed by the respondent authority that the petitioners are in occupation of the shop/building and, therefore, in our considered opinion the provision as contained under Section 287 is required to be complied with. 10. We are conscious of the fact that under Section 263 of the Uttar Pradesh Municipalities Act, 1916, power can be exercised without complying with provisions under Section 287 but that power is not only to be exercised sparingly but there has to be a case of imminent danger of the building falling. 11. The provisions as contained under Section 263 of the U.P. Municipalities Act, 1916 is reproduced hereunder: “263. Power for the prevention of danger from ruinous buildings, unprotected wells, etc. -(1) A [Municipality] may require by notice the owner or occupier of any land or building, - (a) to demolish or to repair in such manner as it deems necessary any building wall, bank or other structure, or anything, affixed thereto, or to remove any tree, belonging to such owner or in the possession of such occupier which appears to the [Municipality] to be in a ruinous condition or dangerous to persons or property; or (b) to repair, protect or enclose, in such manner as it deems necessary, any well, tank reservoir, pool or excavation belonging to such owner or in the possession of such occupier, which appears to the [Municipality] to be dangerous by reason of its situation, want of repair or other such circumstances. (2) Where it appears to the [Municipality] that immediate action is necessary for the purpose of preventing imminent danger to any person or property, it shall be the duty of the [Municipality] itself to take such immediate action, and in such case, notwithstanding the provisions of Section 287, it shall not be necessary for the [Municipality] to give notice, if it appears to the [Municipality] that the object of taking such immediate action would be defeated by the delay incurred in giving notice.” (Emphasis added) 12. From a bare reading of the provisions as quoted hereinabove, we can safely conclude that it clearly speaks of an emergent situation for there being an imminent danger from a ruinous building and for which giving time to the occupier will only contribute to the danger of such a building falling at any time causing loss to human life and property. So sub section 2 of Section 263 carves out an exception to the mandatory provisions of Section 287 (supra) meaning thereby, building which is claimed to be in a dilapidated condition or in a ruinous condition, should be in such form that an exercise under Section 287 will be such a long drawn one that before such proceeding arrives at its logical end, the ruinous building will fall endangering life of the people and the property. 13. Applying the above provisions to the facts of this case as the order impugned herein is in purported exercise of power under Section 263 of the Act, we notice that neither the alleged notice cum order dated 27th January, 2020 nor, earlier notice issued in this regard contain any fact to give an impression that building had arrived at such a condition that municipality needed to exercise power under Section 263 urgently and, therefore, we are of the considered opinion that exceptional clause has wrongly been applied in the present case. 14. In such above view of the matter for non compliance of the provisions as contained under Section 287(2)(b), notice/order dated 27th January, 2020, cannot be sustained in law and the matter is required to be revisited by the authority concerned in consonance with principles of the natural justice and with due compliance of the provisions as contained under Section 287 of the U.P. Municipalities Act, 1916. 15. Accordingly, the orders passed in respect of respective petitioners dated 27th January, 2020 (filed as annexure 2 to the writ petition) are hereby quashed. 16. We further observe and direct that the authority, if desire to get the building demolished on the ground that building has arrived in dilapidated condition, it shall follow the procedure prescribed for under Section 287 of the Act, 1916 by giving notice to the respective petitioners fixing a date to be present on the spot on the day of inspection. The inspection shall be carried out in the presence of the occupier and every occupier shall sign inspection memo. It is thereafter, notices for eviction shall be issued to the respective petitioners. Thus, if authority arrives at a conclusion that building has arrived in a dilapidated condition in the manner as observed hereinabove, an appropriate order shall be passed in the matter. 17. With the aforesaid liberty to the concerned respondent, the writ petition is allowed.