Dwarka Mahton vs Patna City Municipality

This is an application in revision against a conviction u/s 194(2), Bihar and Orissa Municipal Act, 1922, with a sentence of a fine of Rs. 25 or in default a week''s simple imprisonment. On 14th February 1934, a notice was served by the Patna City Municipality on the petitioner, as the owner of a holding, requiring him within 7 days to demolish the front portion of his house (makan he samne ha hissa), and intimating as required by Section 359(2) of the Act that if he had any objection to make to the requisition he should prefer it within five days, failing which the demolition will be carried out by the Municipality and the expenses recovered from him. The notice also added that the person addressed would, if he failed to comply or prefer an objection, be prosecuted. The petitioner did not comply with the notice but filed an objection on 20th February explaining, as he says in para. 4 of his petition in revision, that demolition was unnecessary as the damage done to the building by the earthquake was in no way dangerous and repairs would be sufficient for which a month''s time was prayed for, and further praying

that an expert might be called after a month to inspect the repair and thereupon, if anything still remained to be done, the petitioner expressed his readiness to carry them out.

On 10th April 1934 the Municipality issued another notice to the petitioner requiring him to be in attendance on the spot on 12th of April 1934 at 9-30 in the morning so that the dangerous portion of the holding could be pointed out to him. This was doubtless in response to the petitioner''s representation of the 20th February, and the Municipal Engineer inspected the house in the presence of the petitioner on 12th April and recorded a note that the first floor was to be dismantled totally and the two central pillars to be rebuilt after the dismantling, but that if the owner wanted to keep the first floor, he should dismantle the main wall of the eastern verandah from the very foundation and rebuild it on another foundation etc. On this report the Municipal Engineer appears to have been asked whether the petitioner had complied with the requisition or not, as the Sectional Officer had reported on 27th March that the petitioner had not removed the dangerous portion. The Municipal Engineer reported on 21st April that the petitioner had not complied with the requisition, and he was thereupon prosecuted. There was and is no dispute that the petitioner received the notice u/s 194(2) on 14th February and failed to comply with it either by demolition or by preferring an objection within five days. It was contended before the trying Magistrate that no demolition was in fact necessary. This defence was rightly held to be no answer to the charge, for Section 194 authorizes the Municipality to make a requisition

when it appears to the Commissioners that any building, part of a building, wall, ... is in a ruinous condition and dangerous to persons or property.

It is not necessary for the legality of the requisition that the building should be found by the Courts to have been in a ruinous condition and dangerous to persons or property. Should the house-owner be disposed to dispute the question whether the building is in such a condition, he is entitled u/s 360 to prefer an objection within five days and the Chairman or Vice-Chairman or the Commissioners at a meeting as the case may be, are to dispose it of u/s 362, and record an order withdrawing, modifying or making absolute the requisition, and if such order does not withdraw the requisition, it has to specify the time within which the requisition is to be carried out. That is the procedure provided by the Act, and it is not open to the petitioner to urge before the Courts that the requisition for demolition should be held to have been unnecessary in view of the condition of the building. It is for the Municipal Commissioners to decide whether the issue of a requisition is necessary: this was held on a construction of the similar provisions of Section 64, Bengal District Municipal Improvement Act, (Bengal Council) Act 3 of 1864, in Gopee Kishen v. H.W. Ryland (1868) 9 WR 279. It has been contended on behalf of the petitioner that the notice u/s 194 was illegal because it required him merely to demolish the building, whereas it is said he should have been given the choice of one of the alternatives implied in the wording of the sub-section "to demolish, secure or repair such building, wall, etc." The notice was on a printed form which spoke of demolishing or repairing for dijiye ya maramviat kardijiye, but the alternative of repairing was penned through.

Macpheraon, J., who first heard this case, sitting singly, considered that this was a point of such general importance that it would be well to have it decided by a Bench. The case has accordingly come before us, but neither the Crown nor the Municipality have entered appearance to oppose the petition. The point is apparently one of first impression. We must, therefore, construe the section in the light of the general principles which are to be applied in the interpretation of statutes. The first principle is that the intention of the legislature is to be ascertained by reference to the words used (Beal''s Cardinal Principles of Legal Interpretation, Edn. 3, p. 314); and the grammatical and ordinary sense of the words is to be adhered [to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the statute (ibid. p. 343). Where the language of a statute is clear and unambiguous it must be interpreted in its ordinary sense. A reasonable interpretation is to be preferred to one that leads to unreasonable results; (ibid. p. 370). The state of the law at; the time a statute was passed is a matter material to be considered to arrive at! the intention of the legislature (ibid. 9.j 321). Section 194, Bihar and Orissa Municipal Act, takes the place of Section 210, Bengal Municipal Act, 1884, which (as amended in 1894) empowered the Commissioners, in a case like the present, to require the owner or occupier

within seven days to take down, secure or repair such building, wall or other structure as the case may require.

We feel no doubt on the language used in that enactment, that it was intended that the Commissioners should come to a decision both as to whether a building, wall or structure was in a ruinous state and dangerous and as to what action the case might require by way of remedy, and should issue a requisition accordingly. In the Bihar and Orissa Municipal Act, Section 194, the words "as the case may require" are omitted; but they may have been dropped merely as being unnecessary; it would not be safe to draw from that fact an inference that a substantial alteration in the law was intended; an alteration that might make the power entrusted to the Municipality for the public benefit largely ineffective. Such a construction is to be avoided if the language used will bear a meaning more in harmony with the general purpose of the statute, Ollivant v. Rahimtullah Nur Mohamed (1888) 12 Bom 474. As we have already seen, if the owner or occupier disputes the necessity of doing the thing he is called on to do, he has his remedy by objection under B. 360, and the orders which are to be passed on such objection may withdraw, modify or make absolute the previous requisition. The procedure seems nugatory unless at least the final order specifies some definite thing which is to be done; and consistency seems to demand that in issuing the original notice the Commissioners should have the power to call on the owner or occupier to do some definite thing and not merely to choose between several things. It seems to us that the Scheme of the Act is that it is for the Municipality to decide not only whether a building is in a ruinous condition or is dangerous to person or property, but also whether demolition is necessary or repairs would suffice. The decision of the Municipality is not one to be questioned in the Courts, but the rate payer is not absolutely helpless for he has the alternative of preferring an objection u/s 360 of the Act. We must, therefore, overrule the contention of the petitioner that the notice was contrary to law in that it did not give him the choice between demolition and repair.

It was also urged that the Municipality had virtually condoned the delay of the petitioner by issuing its notice of 10th April, and in this connection stress is laid on the fact that the trying Magistrate, after inspecting the house in the presence of both parties, recorded the opinion that the house was probably not so dangerous as to warrant its being demolished. Some repairs were apparently carried out by the petitioner, but neither this nor the condition of the house as it appeared to the Magistrate has any bearing on the question whether the petitioner is liable to be convicted and fined under Sub-section 2, Section 194 for failing to comply with the requisition under Clause (ii), Sub-section 1. It is clear that if the petitioner had made his objection one day earlier he would not have been liable to prosecution except for failure to comply with the final order passed u/s 362 disposing of the objection and would have been entitled to a further period of grace as provided in that section for compliance with the final order: see Ram Pratap Lal v. Barh Municipality 1922 Pat 183. The objection of the petitioner was in fact inquired into and the report of the Municipal Engineer is to the effect that instead of demolishing the entire front part of the house, it would suffice if the upper storey only were dismantled and the two central pillars rebuilt; it also indicates a possible alternative method of repair by which the first floor also need not disappear for over. It seems inconsistent that the Municipal authorities should entertain an objection and have before them a report from their own responsible expert showing that specified repairs other than demolition would suffice to render the building safe, that they should leave the petitioner under the impression that the carrying out of those specified repairs was all that was demanded of him, and that they should still prosecute him for non-compliance with the original requisition, taking advantage of the technical defect that the objection was a day late, a matter which appears to have escaped notice at the time. Though the Municipality has prosecuted the petitioner, it has not chosen to oppose the petition in revision. It seems to us that in the circumstances, we should not be straining the law unduly in favour of the petitioner if we were to hold that the procedure followed was not in accordance with law and that such a prosecution was not maintainable. The rule is accordingly made absolute, the conviction set aside and the petitioner acquitted. The fine if paid is to be refunded.