Dr. Satyanand Sharma vs Reshmi Seth and Others

L.N.Mittal, J.—By this common order I am disposing of two Civil Revision petition i.e. CR No. 7834 of 2010 filed by Defendant No. 1 Dr. Satyanand Sharma and CR No. 7839 of 2010 filed by Defendant No. 2 Municipal Corporation, Amritsar, both challenging same judgment dated 30.03.2010 (Annexure P-19 in CR No. 7834 of 2010).

Respondents Nos. 1 to 4/Plaintiffs filed suit against both the Petitioners for declaration and permanent and mandatory injunction. Along with the suit, Plaintiffs moved application for temporary injunction. The Plaintiffs'' case is that they are owners/landlords of the suit property having purchased it from its previous owners Smt. Indu Talwar and others vide sale deed dated 27.12.2006. Defendant No. 1 is in possession of a shop out of the suit property as tenant. Suit property has become unfit and unsafe for human habitation and requires reconstruction. Plaintiffs have already filed ejectment petition against Defendant No. 1 inter alia on this ground. Said ejectment petition is pending. In order to defeat the said ejectment petition, Defendant No. 1 who was working as official with Defendant No. 2 devised a mechanism in collusion with Defendant No. 2 and got served notice dated -2 28.08.2007 by Defendant No. 2 on the Plaintiffs requiring the Plaintiffs to repair the disputed building, which is beyond repair. The Defendants were trying to effect repairs, additions and alterations in the suit property by raising fresh construction without any right to do so. The Plaintiffs sought temporary injunction restraining the Defendants from doing so during pendency of the suit.

Defendants by filing separate written statements/replies contested the suit and the application for temporary injunction. Defendant No. 1 claimed to be tenant in a part of the ground floor of the building since 01.10.1971. It was denied that the suit property is in dilapidated condition or has become unfit and unsafe for human habitation or that it requires reconstruction. On the contrary, the Plaintiffs want to sell the suit property after getting it vacated so that it may fetch higher price. The Plaintiffs and the previous landlord Parveen Kumar Talwar and others demolished a part of the roof and caused other intentional damage so as to create ground for ejectment of Defendant No. 1. Defendant No. 2 also received complaints regarding dangerous condition of the building and accordingly Defendant No. 2 issued notice u/s 254 of the Punjab Municipal Corporation Act, 1976 (in short, the Act), requiring the Plaintiffs to carry out necessary repairs. Previous owner Parveen Kumar Talwar had filed suit against the Defendants. Temporary injunction against the Defendant No. 2 was declined and appeal preferred against said order of the trial court was dismissed, and ultimately the said suit was also dismissed although counter-claim filed by Defendant No. 1 in the said suit is still pending. Defendant No. 2 claimed right to make immediate repairs in the building to protect loss of life and property, taking shelter u/s 254 of the Act.

Learned Additional Civil Judge (Senior Division), Amritsar vide order dated 16.04.2009 dismissed the Plaintiff''s application for temporary injunction. However, appeal preferred against the said order of the trial Court by the Plaintiffs has been allowed by learned Additional District Judge, Amritsar vide impugned judgment dated 30.03.2010 and thereby Defendant No. 2 has been restrained from carrying out repair in the disputed building till disposal of the suit. Feeling aggrieved, both Defendants preferred the instant separate revision petitions.

Learned Counsel for the Petitioners vehemently contended that the building in dispute is in dangerous condition and requires immediate repairs and it is not only within the power of Defendant No. 2 but also it is its duty u/s 254(2) of the Act to take temporary measures to prevent danger or inconvenience arising from such building and consequently Defendant No. 2 could not be restrained from exercising its statutory power and discharging its statutory duty.

6 .I have carefully considered aforesaid contention, which is apparently very attractive but in fact the same is devoid of substance. It is the case of Defendants that the first floor of the disputed building is in dangerous condition it is also the case of the Plaintiffs that the disputed property has become unfit and unsafe for human habitation. Admittedly the Plaintiffs have filed ejectment petition against Defendant No. 1 on this ground before the Rent Controller. It is prima facie manifest that in order to thwart and defeat the said ejectment petition, Defendant No. 1 in connivance with Defendant No. 2 has devised this mechanism of colourable exercise of power by Defendant No. 2 u/s 254 of the Act. Defendant No. 1 is ex-official of the Defendant No. 2 and is apparently exercising influence in -4 the impugned action of Defendant No. 2. Before proceeding further Section 254 of the Act, which is basis of the contentions of the counsel for the Petitioners, is being reproduced hereunder:

Commissioner to take steps for repairing or enclosing dangerous places.--(1) If any place is, in the opinion of the Commissioner, for want of sufficient repair or protection or enclosure, or owing to some work being carried on thereupon, dangerous or causing inconvenience to passengers along a street or to other persons including the owner or occupier of the said place, who have legal access thereto or to the neighbourhood thereof, the Commissioner may by notice in writing require the owner or occupier of such place to repair, protect or enclose the same or take such other steps as shall appear to the Commissioner necessary in order to prevent the danger or inconvenience arising there from.

(2) The Commissioner may before giving any such notice or before the period of any such notice has expired, take such temporary measures as he thinks fit to prevent the danger or inconvenience arising therefrom; and any expense incurred by the Commissioner in taking such temporary measures shall be recoverable from the owner or occupier of the place as an arrear of tax under this Act."

Perusal of the aforesaid statutory provision which is sought to be invoked by Defendant No. 2 reveals that u/s 254(2) of the Act, Defendant No. 2 Corporation can take only temporary measures to prevent danger and inconvenience. In other words, this provision is emergency provision requiring immediate action to prevent imminent danger or inconvenience. In the instant case, however, Defendant No. 2 is issuing notice u/s 254 of the Act since July, 2002 i.e. for more than eight years. It would depict that no such immediate measure was required to be -5 taken u/s 254(2) of the Act by Defendant No. 2 before giving notice u/s 254(1) of the Act or before expiry of period of any such notice. Period of notice issued u/s 254(1) of the Act has expired since long. Consequently no interim, immediate or temporary measure u/s 254(2) of the Act can be taken by Defendant No. 2. Learned Counsel for the Petitioners could not refer to any other provision of the Act conferring power on Defendant No. 2 to carry out repairs in the disputed building of the Plaintiffs.

It is to be noticed with significance that actually the grievance appears to be of Defendant No. 1-tenant. However, he can avail of appropriate remedy in accordance with law if any repair in the tenancy premises is required. Provisions of the East Punjab Urban Rent Restriction Act, 1949 provide remedy to the tenant for repair of the tenancy premises. Defendant No. 1 instead of availing of the said statutory provision resorted to the device of seeking repairs through Defendant No. 2. Apparently the Plaintiff would suffer irreparable loss and injury by this method resorted to by the Defendants because ejectment petition filed by the Plaintiffs against Defendant No. 1 would be defeated by this course of action. This cannot be permitted.

For the reasons aforesaid, I find no illegality or jurisdictional error in the impugned judgment of the appellate court. Defendant No. 2 has been rightly injuncted from carrying out any repair in the disputed building during the pendency of the suit. The revision petitions are devoid of merit and are accordingly, dismissed in limine.