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2023 DIGILAW 395 (JHR)

Chiranjilal Tibrewal v. State of Jharkhand

2023-03-22

RAJESH SHANKAR

body2023
ORDER : 1. The present writ petition has been preferred for quashing the order as contained in memo no. 106/6-5 dated 25.01.2020 passed by the Executive Officer, Nagar Parishad, Madhupur-respondent No. 4, whereby the respondent No. 5 has been directed to demolish the building, situated at Holding No. 0080001923000 XI (New), corresponding to Holding No. 74(Old), ward No. 13, Bhagat Singh Chowk, Madhupur, District- Deoghar (hereinafter referred as the said building) from where, according to the petitioners, they have been carrying on their business as tenants for about 40 years. 2. Learned counsel for the petitioners submits that the petitioners have been in possession of rented shops in the said building for about 40 years on payment of monthly rent regularly. The building was originally owned by Mohan Lal Keshab Prasad Gutgutia. The respondent no. 5 being son of late Mohan Lal Keshab Prasad Gutgutia served a notice dated 03.01.2020 to the tenants including the petitioners for vacating the rented premises on the ground that the said building was in dilapidated condition and was required to be demolished. The petitioners replied the said notice on 20.01.2020 stating that the part of the building under their occupation was in good and habitable condition and there was no apprehension of loss of life and property. The respondent no. 5 had already made an application before the respondent no. 4 on 21.09.2019, seeking permission to demolish the said building due to its shabby condition. Pursuant to the said application, the respondent no. 4 vide letter no. 1445/6-5 dated 30.09.2019 requested the Executive Engineering, Building Construction Department, Building Division, Deoghar-respondent no. 3 to enquire the condition of the said building and to submit a report. The respondent no. 3 vide letter no. 1399 dated 02.12.2019 informed the respondent no. 4 that the building of the respondent no. 5 (building in question) in which the petitioners were tenants, was in dilapidated condition and, therefore, permission to demolish the same might be given. Thereafter, the respondent no. 4 passed the order as contained in memo no. 106/6-5 dated 25.01.2020, directing the respondent no. 5 to demolish the building in question due to its dilapidated condition. 3. It is further submitted that only some portion of the said building is in bad shape and damaged condition, whereas the portion of the building occupied by the petitioners is in good condition which is not required to be demolished. 106/6-5 dated 25.01.2020, directing the respondent no. 5 to demolish the building in question due to its dilapidated condition. 3. It is further submitted that only some portion of the said building is in bad shape and damaged condition, whereas the portion of the building occupied by the petitioners is in good condition which is not required to be demolished. 4. It is also submitted that the impugned order dated 25.01.2020 is dehors the provisions of section 387(1) of the Jharkhand Municipal Act, 2011 (hereinafter to be referred as ‘the Act, 2011’), which provides that if on information received, the Municipal Commissioner or the Executive Officer is satisfied that any building is unfit for human habitation and is not capable of being rendered fit at a reasonable expense, he shall serve upon the owner of the building and upon any other person having an interest in the building, whether as a lessee or as a mortgagee or otherwise, a notice to show cause within such time as may be specified in the notice as to why an order of demolition of the building should not be made. Therefore, in view of the aforesaid provision, notice was also required to be served upon the petitioners who are the tenants of the said premises before passing the order of demolition. The order dated 25.01.2020 passed behind the back of the petitioners should not be given effect to, as they being the tenants of the premises owned by the respondent no. 5 are the interested persons, who were supposed to be heard by the respondent no. 4 before passing the order of demolition. The petitioners being the tenants of the building in question were in better position to inform the respondent no. 4 about the condition of the building in question, however, the same was not taken into account by the said respondent. The respondent nos.3 and 4 came to an erroneous conclusion to demolish the building in question without any proper enquiry. 5. It is lastly submitted that the respondent no. 4 cannot be allowed to by-pass the provisions of Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2011 for eviction of the petitioners from tenanted premises. 6. On the contrary, learned counsel for the State respondents submits that though the petitioners have been running their business from the premises in question since long, but as per the report of respondent no. 6. On the contrary, learned counsel for the State respondents submits that though the petitioners have been running their business from the premises in question since long, but as per the report of respondent no. 3, the said building is in dilapidated condition causing serious threat to the life of the occupants as well as the neighbours and general public who use the road passing beside the said building and, therefore, the petitioners cannot be allowed to run their business from a building which is unfit for its inhabitants on the pretext of long tenancy, as the public equity prevails over private equity. The existence of the said building is causing danger and thus the respondent no. 3 submitted specific report regarding dilapidated condition of the building which has already been vacated by some tenants pursuant to the demolition order. 7. It is further submitted that in exercise of power conferred u/s 387 (1) (2) (3) (4) of the Jharkhand Municipal Act 2011, the report was called from the respondent no. 3, who submitted the report to the respondent no. 4 regarding bad condition of the building. The impugned order dated 25.01.2020 is legal and justified, as welfare of general public is of prime importance. 8. Learned counsel for the respondent no. 5 submits that the respondent No. 5 being owner of the said building filed a petition seeking permission to demolish the same due to its dilapidated condition. Keeping in view the seriousness of the matter, the respondent no. 4 in exercise of power conferred U/s 387(1) (2) (3) (4) of the Jharkhand Municipal Act 2011 asked the respondent no. 3 vide letter No. 1445/6-5 dated 30.09.2019 to enquire into the matter and to submit a report whether the building in question was unfit for the inhabitants. The respondent no. 3 by due procedure submitted his report as contained in letter No. 1399 dated 02.12.2019 specifically and categorically mentioning that Building/Holding No. 0080001923000XI was in dilapidated condition and as such demolition of the said building could be permitted. 9. It is further submitted that the Building Construction Department is competent to give its report about the condition of the building which cannot be challenged by the tenants to put hindrance in demolition of the same, as it is causing serious threat to life of the neighbours as well as passers-by of road in general and the inhabitants in particular. It is further submitted that the Building Construction Department is competent to give its report about the condition of the building which cannot be challenged by the tenants to put hindrance in demolition of the same, as it is causing serious threat to life of the neighbours as well as passers-by of road in general and the inhabitants in particular. Some of inhabitants i.e. tenants have already vacated the premises following the impugned order dated 25.01.2020 passed by the respondent no. 4. The petitioners are causing hindrance in demolition of the building without any cogent reason. It is well settled that welfare of general public is the prime purpose for which the executive authorities should discharge their duties. The impugned order dated 25.01.2020 passed by the respondent no. 4 for demolition of the said building is in public interest and, thus, there is no reason to interfere with the same under the extra ordinary writ jurisdiction. 10. Heard the learned counsel for the parties and perused the materials available on record. Admittedly, the petitioners were inducted as the tenants in the said building and they are carrying on their respective business from the said premises. The respondents have contended that the building is in dilapidated condition which is unfit for the inhabitation as well as dangerous for public, whereas the petitioners have contended that the building is in inhabitable condition and the landlord (the respondent no. 5) has adopted a shortcut method to evict them by obtaining the order for demolition of the building in collusion with the concerned official respondents. The petitioners have further contended that the impugned order of demolition is in the teeth of the provision of section 387 of the Jharkhand Municipal Act, 2011, as no opportunity of hearing was given to them before passing the same. 11. The learned counsel for the petitioners has put much reliance on the judgment rendered by learned Division Bench of this Court in L.P.A. No. 423 of 2014 (Kishan Parasrampuria vs. The Ranchi Municipal Corporation and Others), relevant paragraphs of which are quoted herein-below: “(12) Admittedly, the petitioner, who is occupier of the building, has not been served with any notice, therefore, not been afforded an opportunity of putting forth his case. It is quite possible that he could convince the concerned authorities that it was not a case of demolition of building and that certain repairs could solve the purpose despite the fact that the building had gone very old age-wise. He could also submit some counter report in rebuttal to the report of the Engineers which admittedly is one-sided report. Whether it is prepared in a casual manner or not could be ascertained only if the petitioner was afforded an opportunity to project his case. Admittedly, all this is missing in the present case resulting into grave miscarriage of justice. (14) Let us now enter into little bit more elaborate discussion with regard to provisions of Section 449 of the Municipal Act. Prerequisite to the exercise of statutory power to remove dangerous building is a determination by the concerned officer/Executive Officer (Municipal Corporation) that the building is in a ruinous state and is likely to fall and in any way dangerous. It is inherent in this statutory provision that a brief recital has to be made with regard to the condition of such building to conclude as to how it is unsafe for human habitation. The statutory provision is clear and unambiguous that if there is an occupant, he has to be served with a notice and after the occupier is heard, then only an order of demolition can be passed. (15) Section 449 of Municipal Act requires Municipal Commissioner or Executive Officer of the Corporation to be vigilant enough to ensure that any building, if it is likely to fall on account of it being in a ruinous state or in any way dangerous, is either demolished, or, in the alternative, repaired depending upon the condition of an individual building. For this purpose he has not to wait for the application of the owner of the said building and can start with this exercise suo motu after serving notice upon the owner of the building and simultaneously to the occupier also, if any. However, the notice is required to be in writing only. What is expected of the Commissioner or the Executive Officer of the Municipal Corporation is that after the notice is served in writing on the owner, the said notice shall be put on some conspicuous part of the wall or building. This is in addition to serving of notice on the owner. What is expected of the Commissioner or the Executive Officer of the Municipal Corporation is that after the notice is served in writing on the owner, the said notice shall be put on some conspicuous part of the wall or building. This is in addition to serving of notice on the owner. The words “or served on the occupier” in this context, also assumes significance if read conjointly with the words “and to be put on some conspicuous part of the wall or building or served on the occupier.” This, in fact, is the inbuilt modes of informing the occupier of the building, if any, after the notice is served upon the owner of the said building. Therefore, in no case, the concerned official of Municipal Corporation can afford to skip serving the occupier of the building with a notice before demolishing the building or getting the same repaired, as the case may require. In this context, the words “as the case may require” have also their significance. (16) We are visualizing another situation also. If an order under Section 449 of Municipal Act is passed without putting the occupier to notice, possibility of misusing the provisions of this Section by the landlord/owner of the house in connivance with the officials of the Municipal Corporation especially in the case of a tenant occupying that building, cannot be ruled out. In this eventuality, Section 449 of Municipal Act would become handy substitution of eviction of an occupier at the hands of landlord who otherwise cannot get a favourable order under the Control Act, 2000. The statute, therefore, prescribes a procedure and power under a particular provision and it can be exercised only in the manner prescribed and in no other manner at all, otherwise it would tantamount to abuse of statutory power resulting into forceful demolition which again would be contrary to law.” 12. Thus, serving of notice to the occupier of a building is a mandatory requirement before passing an order under section 449 of the Jharkhand Municipal Act, 2011. The purpose of giving notice to the occupier is to provide him sufficient opportunity to convince the concerned authority that if certain repairs can solve the purpose, demolition of the entire building may be avoided despite the fact that it has gone age-old. The purpose of giving notice to the occupier is to provide him sufficient opportunity to convince the concerned authority that if certain repairs can solve the purpose, demolition of the entire building may be avoided despite the fact that it has gone age-old. Moreover, if an order under Section 449 of the Act, 2011 is passed without putting the occupier to notice, there is also a possibility of misusing the said provisions by the landlord/owner of a building in connivance with the officials of the Municipal Corporation/local bodies especially in the case it is occupied by a tenant. 13. In the case in hand, the specific case of the petitioners is that no notice was ever served to them before passing the impugned order of demolition of the building in question. The said contention of the petitioners has not been controverted by the respondents, however, they have claimed that the said building is unfit for habitation. Even if the said contention of the respondents is accepted in its entirety, then also the petitioners are required to be provided an opportunity to explain their stand and rule out the possibility of misuse of the power by invoking section 387 read with section 449 of the Act, 2011. The Jharkhand Building (Lease, Rent & Eviction) Control Act, 2011 lays down detailed procedure for eviction of a tenant from the leased/rented premises and the same is required to be followed while passing an order of eviction against the tenant. Though, section 449 of the Act, 2011 empowers the authority to pass an order of demolition of dangerous building, however, both the statutes operating in different fields should be harmoniously understood so as to protect the right of a tenant as well as the interest of the public at large. Section 449 of the Act, 2011 otherwise specifically provides for issuance of notice to the occupier before passing an order of demolition. 14. The manner in which the respondent no. 4 has issued the order of demolition of the said building cannot be said to have passed the test of fairness and reasonableness. The respondent no. 4 was required to exercise such power strictly in conformity with the provisions of section 387 read with section 449 of the Act, 2011. 14. The manner in which the respondent no. 4 has issued the order of demolition of the said building cannot be said to have passed the test of fairness and reasonableness. The respondent no. 4 was required to exercise such power strictly in conformity with the provisions of section 387 read with section 449 of the Act, 2011. It is well settled principle of law that action of the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions. Arbitrariness in State action, even where the statutes vest discretion in an authority is impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities particularly when they are vested with the powers to pass orders of determinative nature. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State will then differ from person to person and from situation to situation even if the determinative factors of the situations in question are identical and the same must be avoided. 15. Consequently, the impugned order, as contained in memo no. 106/6-5 dated 25.01.2020 passed by the respondent no. 4 directing the respondent no. 5 to demolish the building in question is set aside. The petitioners/their representatives as well as the respondent no. 5 are directed to appear before the respondent no. 4 on 18.04.2023, who after providing proper opportunity of hearing to the parties shall dispose of the proceeding preferably within one month thereafter. 16. The writ petition is allowed.