Bherulal Shrivansh vs Indore Municipal Corporation And Another

This writ petition under Article 226 of the Constitution of India is preferred by the occupant of house No.52-53 (New No.62), Nagar Nigam Road,

Indore challenging the legality, validity and propriety of the impugned notices dated 14.6.2019 and 21.6.2019 (Annexures P/1 and P/2) issued by the

Building Officer, Indore Municipal Corporation, Indore under Sections 310 and 372 of Municipal Corporation Act (hereinafter referred to as “the

Actâ€​) respectively.

Shri Pushyamitra Bhargava, learned counsel for the petitioner submits that;

(i) impugned notice Annexure P/1 under the signature of Building Officer, Municipal Corporation, Indore is without authority and jurisdiction.

According to him Section 310 of the Act empowers the Commissioner to exercise jurisdiction in the matter of removal of buildings in dangerous state

and not the Building Officer;

(ii) even otherwise Section 310 of the Act contemplates formation of opinion by the Commissioner before reaching a conclusion that building in

question is in a dilapidated condition for which notice as contemplated under Section 310 of the Act is warranted;

(iii) the respondent-Corporation has acted on reports of private architect to ascertain that the building in question is in dilapidated condition and not

habitable which cannot be relied upon as relevant material for the purposes of Section 310 of the Act.'

(iv) petitioner has not been served with notice and adequate opportunity against proposed action under Section 310 of the Act, therefore, the entire

exercise is vitiated; and

(v) as a consequence, the notice dated 21.6.2019 (Annexure P/2) with reference to the notice issued on 14.6.2019 (Annexure P/1) calling upon the

petitioner to remove dilapidated portion of the building and upon failure, the respondent/Corporation shall remove the same under section 372 of the

Act, is bad In law. Hence, the same also deserves to be set aside.

He has placed reliance on the decision of Division Bench in bunch of writ appeals, lead case being W.A.No.294/2019 (Dharmendra & others Vs.

Dhanajay Sharma and others) decided on 10/05/2019 to bolster his submissions.

In the alternative, learned counsel submits that if for any reason this Court is not inclined to interfere in the contemplated action initiated by the

Corporation under Sections 310 and 372 of the Act, then at least during the period of rainy season, the respondents be directed to provide alternative

residential accommodation to the petitioner and his family members to tied over the crisis of no shelter after demolition of the house in question.

Per contra, Shri Rishi Tiwari, learned counsel for the Corporation, submits that;

(i) section 69(4) of the Act provides that any 'Municipal Officers' may be empowered to exercise the powers of “Municipal Commissionerâ€

subject to superintendence and control of the Commissioner. He also refers to Section 5(11) of the Act, which defines 'Commissioner' and includes

any 'Municipal Officer' empowered under this Act to exercise, perform or discharge any of the powers, duties or functions of the Commissioner to the

extent to which such Officer is so empowered;

(ii) the Building Officer has been authorized to discharge the functions of the Commissioner in relation to Section 310 of the Act as per the delegation

placed on record as Annexure R/9 duly approved by the Commissioner dated 20.5.2019. As such impugned notice dated 14.6.2019 issued under

signatures of the Building Officer in exercise of the powers under Section 310 of the Act cannot be faulted with as the same is within his jurisdiction

and competence under law;

(iii) as many as 17 such notices were served upon the owner of the building but, he remained indifferent and did not care to reply;

(iv) there is no illegality in the notice dated 21.6.2019 (Annexure P/2) issued under Section 372 of the Act with reference to and in the context of the

notice issued on 14.6.2019 (Annexure P/1) calling upon the petitioner to remove dilapidated portion of the house, failing which removal was proposed

on 26.6.2019 by the Corporation in public interest;

(v) learned counsel further refers to photographs marked as Annexure R/8 colly., to show the interior and exterior dilapidated condition of the house,

as it is standing on wooden logs (Ballis). In that behalf, he relied upon the inspection report prepared by the Building Officer on 13.6.2019 (Annexure

R/6). The same is quoted below :-

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and submits that the Building Officer after inspection formed an opinion that the building since is in dilapidated condition, therefore, not habitable and

liable for demolition. Hence, the contention of the petitioner that no opinion was formed by the Commissioner before issuance of notice as provided

under Section 310 of the Act is factually incorrect and cannot be sustained under law.

Before adverting to rival contentions, this Court thought it apposite to call upon Shri Rishi Tiwari, learned counsel for the respondent-Corporation, to

find out whether alternative temporary residential accommodation can be provided to petitioner and his family members after demolition of the house

in question, so that during rainy season they may not be left without shelter.

Shri Tiwari, on instructions from the OIC of the case, made a statement at Bar that temporary residential accommodation shall be made available to

inhabitants of the house in question to tied over the immediate crisis during rainy season on such terms and conditions permissible under law. Further,

the petitioner is also free to apply for accommodation on permanent basis under the relevant 'housing schemes' in vogue being implemented by the

Municipal Corporation.

This Court appreciates the offer so made by the respondent-Corporation. However, the same is subject to outcome of the writ petition.

Though submissions advanced by learned counsel for the parties revolved around provisions under the Municipal Corporation Act and exercise of

powers thereunder in the context of notices Annexures P/1 and P/2 but, this Court before addressing upon the same considers it apposite to observe

that local bodies like Municipal Corporation are engaged in various functions for welfare of the people at large, Be it health, safety, hygienic amenities,

social security, public utility services or maintenance of roads, light, drainage etc.,.. As such, activities of Corporation by and large are in public

interest, therefore, cannot be criticized for individual's inconvenience. It is gainsaid personal inconvenience shall have to give way for public good.

It is of paramount importance to observe that resort to the drive for demolition of dilapidated buildings with due observance of law is in public interest

intended to avoid human casualties, unforeseen catastrophic situations and disruption of public order. Therefore, this Court appreciates the steps being

taken by the Corporation in that behalf.

It needs no mention that in such extensive drives, the cooperation of local administration and of police force is inevitable and cannot be avoided. The

public authorities are expected to act in coordination for public good.

Turning to the facts in hand, this Court finds substantial force in the submissions advanced by Shri Tiwari combating contentions advanced by Shri

Bhargava while questioning legality, validity and propriety of the impugned notices.

Section 69(4) of the Act empowers delegation of powers by Commissioner to any Municipal Officer.

Commissioner's power under Section 310 of the Act has been delegated to Building Officer on 25.2.2019 with the approval of the Commissioner. As

such the Building Officer while issuing notice dated 14. 6.2019 under section 310 of the Act has acted as Commissioner within the meaning of section

5(11) of the Act. Hence, there is no illegality in the impugned notice dated 14.6.2019. Further, the impugned notice is addressed to the owner of the

building under section 310 of the Act. Undisputedly, the owner of the house has not responded to the said notice and also the previously issued notices.

Under the circumstances, the respondents had no option than to issue notice under Section 372 of the Act on 21.6.2019 again calling upon the

occupants to remove the structure, failing which the same was disclosed to be removed by them on 26.6.2019. As such, there is no illegality in

issuance of notices dated 14.6.2019 (Annexure P/1) and 21/06/2019 (Annexure P/2).

The architect, Sahyog Construction & Consultancy submitting the technical report dated 10.6.2019 (Annexure R/5) is a registered architect of the

Corporation. Hence, the building report submitted by it forms relevant material for formation of opinion under section 310 of the Act. Hence, the

report submitted by the registered architect of the Corporation is valid and cannot be faulted with. Besides, the photographs placed on record with

naked eyes do suggests that the building in question is really in a dilapidated condition and not in habitable condition and that too in this rainy season.

The formation of opinion of the Building Officer quoted above dated 13/06/2019 is found to be sufficient compliance under section 310 of the Act.

Consequently, this Court sees no reason to interfere in any manner whatsoever with the action of the respondent/Corporation initiated with the notices

under sections 310 and 372 of the Act.

The Division Bench order (supra) relied upon by learned counsel for the petitioner is found to be distinguishable on facts. In that case, there was no

delegation of powers upon the Officer allegedly issued notice under Section 310 of the Act. Besides, at the instance of the owner of the building,

tenants were allegedly harassed by the Municipal Corporation to achieve the collateral purpose of eviction. Under the circumstances this Court held

that the action for demolition of the houses in exercise of the power under Section 310 read with Section 372 of the Act is bad in law.

At this stage, it is important to advert to the last contention for providing shelter to displaced occupants of the building in question temporarily.

This Court finds substantial force in the submission so advanced. Human life is precious. Under the Constitution of India, every citizen has a right to

life; live with dignity. Therefore, it is the duty of the State to protect such right. Since occupants of the building shall be rendered without shelter after

demolition of the dilapidated building, it is held to be sacrosanct duty of the respondent/Corporation to ensure an alternative, adequate residential

accommodation to them with proper facilities of water, electricity with hygienic conditions for living temporarily.

Accordingly, this writ petition is disposed of with the following directions:

(i) the respondent/Corporation shall offer suitable alternative residential accommodation for occupation of the petitioner and his family members within

two days, on the terms and conditions of the Corporation as regards rental charges, etc.; for three months only;

(ii) thereafter, pursuant to the notices dated 14.6.2019 and 21.6.2019 (Annexures P/1 and P/2) issued by the Building Officer, Indore Municipal

Corporation, Indore under Sections 310 and 372 of the Act, the respondents are free to initiate action for demolition of the house in question for safety

of residents of the area;

(iii) respondents/Corporation shall also ensure removal of debris accumulated after demolition as early as possible, but not later than three days from

the date of demolition and ensure that no water logging or blockage of drains and severages in the area.

Before parting with the case, it is observed that as assured by learned counsel for respondent/Corporation on instructions, the petitioner/occupants in

due course of time may apply for the accommodation. The respondent-corporation shall consider the same as per their eligibility in accordance with

terms and conditions under the relevant 'housing scheme and the availability of the accommodation', in accordance with law.

With the aforesaid directions and observation, writ petition stands disposed of. No order as to cost.

Ordered accordingly.