Reserved On: 10.03.202 vs State And Ors
2021 Latest Caselaw 341 j&K

      IN THE HIGH COURT OF JAMMU AND KASHMIR
                     AT JAMMU

                                              LPA 236/2019
                                              CM Nos. 7361/2019,
                                              8681/2019 & 3930/2020 c/w
                                              LPA No. 284/2019
                                              CM Nos. 7579/2020,
                                              8470/2020, 8471/2020



                                            Reserved on: 10.03.2021
                                            Pronounced on: 19 .03.2021
Avtar Singh and another
Satpal Sharma and ors                  ... Petitioner(s)
                  Through: - Mr. Parveen Kapahi Advocate in LPA
                                No. 236/2019
                                Mr. Vikas Magotra and Mr. Sachin Sharma
                                Advocates in LPA No. 284/2019


Vs.

State and ors                              ...Respondent(s)
                   Through: - Mr. Rajnish Raina Advocate for
                                R-2 to 4.
                                Mr. Pranav Kohli Sr. Advocate with Mr. Arun
                                Dev Singh Advocate for R-5

CORAM:      HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
            HON'BLE MR JUSTICE SANJAY DHAR, JUDGE



                            JUDGMENT

Sanjeev Kumar-J

1 By a common order and judgment dated 19.09.2019, two writ

petitions i.e OWP Nos. 494/2018 and 929/2018, one filed by Avtar

Singh and Vinod Sharma and the other filed by Satpal Sharma and

three others, have been dismissed by a Single Bench of this Court.

Feeling dissatisfied and aggrieved, the writ petitioners have filed two

separate Letters Patent Appeals i.e LPA Nos. 236/2019 and 284/2019

which are being disposed of by this common order and judgment.

2 Before we advert to the grounds of challenge urged by the

appellants (writ-petitioners), we deem it appropriate to give brief

resume of factual antecedents, leading to filing of these appeals.

3 The dispute, which was subject matter of adjudication in the twin

writ petitions, relates to a building being House No. 1, Pacca Danga,

Jammu. The appellants before us are the old tenants in the shops on the

ground floor of the said building which is owned by respondent No.5.

As per the appellants, respondent No.5 for the past some time had been

pressing upon them and other tenants in the building to vacate the

premises under their occupation, so that he could rent out these shops to

the new tenants for higher premium and rentals. Having failed to coerce

the appellants into vacation of the said shops under their tenancy,

respondent No.5 devised a plan to get rid the tenants of the shops. As is

the allegation of the appellants, the respondent No.5 in connivance with

the District Administration and the Jammu Municipal Corporation (for

short 'JMC') Authorities managed to declare the whole building in

which the shops under occupation of the appellants are housed as

unsafe. This was done by the Commissioner, Jammu Municipal

Corporation vide his order No. JM/PS/Com./1640 dated 06.11.2017

whereby the Commissioner granted permission for demolition of the

said building and, as a consequence whereof, the Executive Engineer,

JMC, Division Trikuta Complex, Dogra Hall, Jammu vide a public

notice No. MJ/Tech/T/4636 dated 27.02.2018 notified to all the

occupants of the aforesaid building including the appellants herein to

vacate the premises under their occupation within 15 days so that the

operation of demolishing the existing building is carried out on behalf

of the Commissioner, JMC, Jammu.

4 Faced with the aforesaid public notice, the appellants herein filed

two separate writ petitions seeking, inter alia, a Writ of Certiorari for

quashing the order of the Commissioner, JMC Jammu dated

16.11.2017 (supra) and a public notice dated 27.02.2018 (supra) issued

by respondent No.4. They also sought a Writ of Mandamus declaring

the aforesaid building which houses the shops under their tenancy as

safe or at least safe with respect to the shops under the occupation of

the appellants. The appellants also sought a direction to the respondents

not to demolish the said building.

5 The impugned action of JMC was assailed primarily on the

following grounds:

(i) That the impugned notification issued by respondent No.2 and a public notice issued by respondent No.4 are bad in the eye of law, in that, they have been issued without adopting due process of law;

(ii) That the decision to declare the building as dangerous and unsafe has been taken by the Municipal Authorities at their back, in that, they were never associated with any inspection claimed to have been undertaken by the said Authorities to asses the condition of the building;

(iii) That the building where the source of livelihood of the petitioners i.e shops are situated, has been declared unsafe by the Municipal Authorities without serving upon them any prior notice and, therefore, they were deprived of a fair opportunity of being heard; and

(iv) That the decision to declare the aforesaid building unsafe has been taken by the Municipal Authorities not on the basis of any relevant material, but only to give wrongful benefit to respondent No.5 and to enable him to throw out the appellants from the shops under their tenancy without following the due process of law. The action of the Municipal Authorities is, therefore, vitiated by arbitrariness and mala fides.

6 The writ petitions were resisted not only by the JMC, but

also by respondent No.5. In the objections filed by JMC, it was

contended that the building was declared unsafe after following due

process. The building was got inspected from the experts and it is in

pursuance of the report received from the concerned Executive

Engineer on 27th October 2017, the building was declared unsafe

and the order was conveyed to the owner. Since owner of the

building i.e respondent No.5 had shown reluctance to undertake the

demolition operation, accordingly, an estimate was prepared by the

Municipal Authorities and an intimation was given to respondent

No.5 to deposit the estimated amount. Respondent No.5 complied

with the orders and the amount was deposited by him. Similarly, it

was the stand of respondent No.5 before the Writ Court that the

building, which has been declared unsafe, was constructed more

than 100 years back and was in dilapidated condition for the last

several years. Some portion of the ground floor was repaired in the

year 1974 and that was also more than four decades back. It was

pleaded that since the building had become the potential hazard, not

only for the inmates of the building, but also to the neighbouring

structures and passers-by, as such, an application was moved before

the JMC. The inspection was conducted by the expert Engineer of

the JMC and a decision on the basis of technical advice was taken

by the competent authority to demolish the aforesaid building.

7 The writ Court having considered the rival versions and

perused the record, came to the conclusion that there was no legal

infirmity in the decision of the Jammu Municipal Corporation

declaring the building unsafe and, accordingly, vide order and

judgment impugned, dismissed both the writ petitions. While

dismissing the writ petitions, the Writ Court also expressed hope

that the Jammu Municipal Corporation would carry out some

exercise to find out if there were more such dilapidated buildings in

the city which posed danger to the lives of the people living therein

or in the neighbourhood thereof and take appropriate steps to

prevent any untoward incident. It is this common order and

judgment of the Writ Court which is assailed in these appeals.

8 Having heard learned counsel for the parties and perused

the record produced by Mr. Rajnish Raina, learned counsel

representing the JMC, it is necessary to first set out the provisions of

Section 258 of the Jammu and Kashmir Municipal Corporation Act,

2000 (for short 'the Act').

"258. Restrictions on user of buildings and removal of dangerous buildings:

(1) No person shall, without the written permission of the Commissioner, or otherwise than in conformity with the conditions, if any of such permission;

(a) use or permit to be used for human habitation any part of a building not originally erected or authorized to be used for that purpose or not used for that purpose before any alteration has been made therein by any work executed in accordance with the provisions of this Act and of the bye-laws made thereunder ;

(b) change or allow the change of the use of any land or building;

(c) convert or allow the conversion of one kind of tenement into another kind.

(2) If it appears to the Commissioner at any time that any building is in ruinous conditions, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such building or any other building or place in the neighborhood of such building, the Commissioner may, by order in writing, require the owner or occupier of such building to demolish, secure or repair such building or do one or more of such things within such period as may be specified in the order, so as to prevent all cause of danger therefrom.

(3) The Commissioner may also, if he thinks fit, require such owner or occupier by the said order either forthwith or before proceeding to demolish, secure or repair the building so set up a proper and sufficient board or fence for the protection of passers-by and other person, with a convenient platform and hand rail wherever practicable to serve as a footway for passengers outside of such board or fence.

(4) If it appears to the Commissioner that danger from a building which is in a reunions condition or likely to fall is imminent, he may, before making the order aforesaid fence off, demolish, secure or repair the said building or take such steps as may be necessary to prevent the danger.

(5) If the owner or occupier of the building does not comply with the order within the period specified therein, the Commissioner shall take such steps in relation ot the building as to prevent all cause of danger therefrom.

(6) All expenses incurred by the Commissioner in relation to any building under this section shall be

recoverable form the owner or occupier thereof as arrears of tax under this Act".

9 From a reading of Section 258 (2) of the Act, it is evident

that the Commissioner, JMC, if it appears to him at any time that any

building is in a ruinous conditions, or likely to fall, or in any way

dangerous to any person occupying, resorting to or passing by such

building or any other building or place in the neighbourhood of such

building, may, by order, require the owner or occupier of such building

to demolish, secure or repair such building or do one or more of such

things within such period as may be specified in the order so that all

cause of danger emanating therefrom is prevented. It is, thus, not in

dispute that the competent authority to take such decision is the

Commissioner of Municipal Corporation concerned and the decision

must be in writing and after making an objective assessment with

regard to the condition of the building. Order for demolition of the

building shall be made only, if the Commissioner, on the basis of

material before him is of the view that the building is in ruinous and

dangerous condition which, if not demolished, may fall and cause loss

to the life and property of the inmates and those living in the

surrounding thereof. Neither the owner, nor the occupier of such

building can resist such action by the Municipal Corporation, unless the

decision of the Commissioner is perverse or made for oblique purpose.

Since the decision to declare a building unsafe and liable to be

demolished is a decision of technical nature and can be taken by the

authority concerned on the basis of expert opinion, as such, the same

may not be amenable to challenge in the writ jurisdiction, for, this

Court, while exercising its extraordinary jurisdiction under Article 226

of the Constitution does not sit in an appeal over the decision of the

authorities based upon expert opinion. This Court does not have any

wherewithal to find out, as to whether, on the basis of material

considered by the competent authority, a particular building ought or

ought not to have been declared unsafe. Unless the Court finds a

decision arbitrary, perverse or mala fide, the same shall not be

interfered with in the exercise of writ jurisdiction. The contours of

power of this Court under Article 226 of the Constitution are now well

defined and need no elaborate debate.

10 In the aforesaid backdrop, when we examine the case on

hand, we do not find that the decision of the Municipal Authorities to

declare the building unsafe is either arbitrary or perverse. We also do

not find any arbitrariness in the decision making process. On the other

hand, from a perusal of the record, we find that before declaring the

aforesaid building unsafe, a Committee of experts headed by Executive

Engineer of JMC conducted the inspection of the said building and

reported that the building was unsafe and too old to be repaired. It is apt

to reproduce the technical report submitted by the Executive Engineer

concerned after inspection of the building which is reproduced as

under:

"As per the letter of Deputy Commissioner, Jammu received from higher authorities of Municipal Corporation after visiting the site of above said work, it has been seen that the building is totally unsafe as it is too old to repair. The over all condition of building is worsed and it may

collapse at any time and may damage the surrounding structures and also may cause loss of lives because it is very crowded place.

Keeping in view the above mentioned facts the estimate has been framed for accord of administrative approval."

11 It is true that the process for declaration of the building as

unsafe was initiated by the Municipal Corporation on the bidding of

Additional Deputy Commissioner, Jammu, who vide his

communication dated 29th August 2017 called upon the Municipal

Commissioner to look into the matter in the light of report furnished by

the Executive Engineer PWD (R&B) Construction Division-II Jammu

certifying that the building belonging to respondent No.5 i.e House No.

1, Pacca Danga, Jammu was unsafe and that there was every

apprehension of the building crumbling down any time resulting into a

mishap in and around the building premises. However, the

Commissioner, JMC did not pass the order on the basis of aforesaid

communication of the Additional Deputy Commissioner, Jammu, but

instead, asked the Executive Engineer and the Assistant Executive

Engineer concerned to inspect the building and report about its

condition. It is only after receiving the technical report from the

concerned Engineering Division of the Municipal Corporation, the

action was approved by the Commissioner on 06.11.2017. Accordingly

a formal order was issued by the Joint Commissioner (Works),

Municipal Corporation, Jammu on 10.11.2017 directing the owner of

the building to dismantle/demolish the same within a period of one

month. This is followed by a public notice which is impugned in both

the writ petitions.

12 The contention of learned counsel for the appellants that

the decision to declare the building unsafe was taken by the

respondents at their back is without any substance and deserves to be

rejected for the reason that Section 258(2) of the Act does not cast any

such obligation on the Commissioner to provide an opportunity of

being heard to the owner or the occupier of the building, sought to be

declared unsafe, nor given the nature of power given to the

Commissioner under Section 258 of the Act, the compliance with the

principles of nature justice before declaring a building unsafe could be

inferred. Otherwise also, in the instant case, the appellants, who are in

occupation of the shops as tenants, have been given ample opportunity

to put up their case.

13 It is true that the inspection preceding the decision taken

by the Municipal Corporation was without formally associating the

appellants in the process, but, later on, when the Commissioner

appointed by this Court, visited the spot for inspection, all the

imamates of the building including the appellants herein had been

intimated well in advance. The Writ Court has rightly declined to

accept the plea of the appellants that they have been condemned

unheard by the Municipal Authorities. To the similar effect is meritless

the plea of the appellants that the Commissioner passed the order in a

mechanical manner, in that, he did not consider or explore the

possibility of safeguarding the building by effecting necessary repairs.

But, for the material on record which unequivocally suggests that the

building as a whole is unsafe and is too old to be repaired, we could

have accepted this plea of the appellants.

14 As has come on record, the building is 100 years old and

the ground floor of the same was repaired somewhere in the year 1974

i.e more than four decades back and has developed cracks all around.

Not only the Engineering Division of the Municipal Corporation, but

also the Commissioner appointed by this Court twice, that too, of the

rank of Superintending Engineer has reported that the building is

ruinous and dangerous and poses threat to the life and property of the

inmates and those living in surrounding thereof . As we have observed

hereinbefore, we, in the exercise of writ jurisdiction, cannot sit over a

judgment of experts and the view of the experts, unless it is tainted by

mala fides or is based on no material, is required to be respected and

given effect to. This is exactly what has been done by the Municipal

Corporation Authorities.

15 We have perused the report submitted by the Executive

Engineer, PWD (R&B) Construction Division-II, Jammu to the

Additional Deputy Commissioner, Jammu, report submitted by the

Engineering Division of Municipal Corporation and the report by the

expert Dinesh Kumar Rampal, Superintending Engineer, who inspected

the building as a Court Commissioner and all these reports

unequivocally substantiate the fact that the building in question is

indeed unsafe and dangerous and if not pull down in time, may fall

down, causing immense loss to the life and property of the inmates of

the building and also those living in surrounding thereof.

16 Learned counsel for the appellants vehemently urged us to

critically examine the aforesaid reports to find out inherent

contradictions in the findings returned by the different experts. We are

afraid, we cannot do such exercise and deem it better to leave to the

domain experts. We are also not persuaded to accept the argument of

learned counsel for the appellants that the whole exercise culminating

into issuance of impugned public notice is vitiated by mala fide, in

that,the building has been declared unsafe only at the instance of

respondent No.5 to throw out the tenants from the building, otherwise

than in due course of law.

17 We shall be failing in our duty if we do not deal with the

judgment of Delhi High Court in the case of Municipal Corporation

of Delhi vs Hukam Chand Jain, (1970) 6 DLT 165 relied upon by the

learned counsel for the appellants. In the said judgment, the order of

demolition passed by the Commissioner was found fault with by the

High Court on the ground that there was no indication in the order as to

whether the notice should have been for demolition or securing or

repairing the building, the three alternatives provided in the Section for

preventing danger.

18 The aforesaid judgment is not applicable to the facts of the

instant case. This is so, because in the instant case, there is ample

material on record to indicate that the whole building is unsafe and

liable to be demolished. The different reports submitted by the experts

from time to time only indicate towards this fact. It is on the basis of

these reports, the Commissioner has taken a decision to demolish the

building, rather than securing the same by repairs.

19 It would be appropriate to wind up the controversy raised in

these appeals by having reference to a judgment of the Bombay High

Court passed in the case of the Commissioner, Thane Municipal

Corporation and ors vs. Jayantilal Dharmaji Sharma and orders

(Writ Petition No. 8706 of 2018, decided on 01.07.2019). A Single

Bench of Bombay High Court, in the aforesaid case was dealing with

the provisions of Section 264 of the Maharashtra Municipal

Corporations Act, 1949 which is, by and large in pari materia with

Section 258 of the Act. The Bench, relying upon the earlier Division

Bench Judgment of the Court in the case of Diwanchand Gupta v NM

Shah & Ors. AIR 1972 Bom. 316, rejected the argument of the tenants

of the building with respect to which the demolition order has been

passed that the demolition order was wholly unnecessary and the entire

situation had been contrived by the owners to get rid of the tenants. It

was, thus, held that all that the authority had to do was to act bona fide

and not capriciously or with an improper motive. But, if the authority

considered the facts objectively, honestly and bona fide, that authority's

satisfaction would not be open to challenge. Whether or not, a building

should be repaired or pulled down, is a matter of which the authority is

the sole judge. It is not open to the Court to sit in a judgment and to

substitute the opinion of competent authority with its own.

20 The power conferred under Section 258 is a power manifestly

in public interest and is a reasonable restriction on the right to carry on

trade or business within the meaning of Article 19(1)(g) read with

Article 19(6) of the Constitution. Thus, in the absence of a clear

demonstration of abuse of discretion, mala fides, caprice or perversity,

a Court will not interfere to set aside such a notice.

21 Having said that, it cannot be said that the tenants and

occupants vis a vis their tenancy or occupancy are without any remedy

but the remedy lies somewhere else. As is provided in Section 259 (3)

of the Act, the Commissioner, Municipal Corporation is under an

obligation to allow a person or persons who have vacated or have been

removed from any unsafe building in pursuance of any order made by

him to reoccupy the building, provided that the reasons on account of

which the vacation was ordered have been rectified or have ceased to

exist. Similar right is vested in the tenants under the Rent Control

Legislation as well.

22 Viewed in the totality of circumstances obtaining in the case,

we are of the view that no fault can be found with the otherwise well

reasoned judgment of the Writ Court. For the reasons given

hereinabove by us and those contained in impugned judgment, we are

of the considered view that the appeals are without merit and deserve to

be dismissed.

23 We are, however, of the view that the ends of justice would be

met, if, notwithstanding the dismissal of appeals, the interest of the

appellants could be safeguarded. We, therefore, pass the following

directions:

(i) The appellants, who have been ordered to vacate the shops under their tenancy shall be entitled to reoccupy the building once it is constructed by the landlord after demolition of the existing building under the orders of the Municipal Corporation;

(ii) It is made clear that any permission applied for by respondent No.5 for raising fresh construction on the site of the building to be demolished, shall be granted by the Municipal Corporation only if site plan makes a provision for re-erection of the shops demolished;

(iii) The Municipal Corporation shall obtain undertaking from respondent No.5 that he or his successor-in-interest would offer for renting out these shops to the appellants as and when constructed subject to re-fixation of fair rent under the provisions of Rent Control Legislation in force; and

(iv) On the appellants being put in possession of their respective shops, the relationship of the landlord and the tenant between the appellants and respondent No.5 shall revive and continue until determined in accordance with law.

The record is returned to the learned counsel for JMC.

                       (SANJAY DHAR)                (SANJEEV KUMAR)
                            JUDGE                        JUDGE
Jammu
19.03.2021
Sanjeev


                 Whether the order is speaking:             Yes
                 Whether the order is reportable:           Yes