Sanjeev Kumar vs State Of Bihar

This matter has been taken up via video-conferencing.

The instant case has been assigned after being specially notified under orders of Hon’ble the Chief Justice.

Heard Mr. Ritesh Kumar, learned counsel for the petitioners; Mr. Uday Shankar Saran Singh, learned Government Pleader 19 along with Mr.

Rakesh Kumar Chandra, learned Assistant Counsel to GP 19 for the State and Mr. Prasoon Sinha, learned counsel for the Muzaffarpur Municipal

Corporation (hereinafter referred to as the ‘Corporation’).

The petitioners have moved the Court by preferring the present writ petition for the following reliefs:

“i. For quashing letter dated 05.04.2021 issued under the signature the Respondent no. 5, The Municipal Commissioner, Muzaffarpur

Municipal Corporation whereby and whereunder the petitioners have been directed to vacate their respective shops by 10.04.2021.

ii. For commanding the respondents to make alternative arrangement at some other place, since the petitioners are doing their business for

the last 20-30 years in the shops which are proposed to be demolished without any justifiable basis.

iii. For commanding and directing the respondents to not proceed with the demolition till alternative arrangements are made for

rehabilitating the petitioners, who have got no other source of income apart from present shops and to allot new shops to the petitioners in

the proposed Shopping Mart by giving preference to them.

iv. For any other relief/reliefs for which the petitioners may be found entitled to.â€​

Learned counsel for the petitioners submitted that they are the bona fide allottees of the shops which have now been directed to be vacated by

them and against which, order of demolition has been issued. He further submitted that on 12.06.2021, the Commissioner of the Corporation has

directed the Executive Engineer of the Corporation to start demolition of the shops of the petitioners from 21.06.2021. Learned counsel drew the

attention of the Court to the notices issued to them under Section 278(1) of the Bihar Municipal Act, 2007 (hereinafter referred to as the ‘Act’)

to which the petitioners have responded. It was submitted that such notice envisages that the owner or the person interested may be given an

opportunity to show that the premises in question which may be unsafe for habitation may be repaired to make it fit for such habitation. It was

submitted that in the reply to the show submitted by the petitioners, they have taken a categorical stand that whatever repair work is directed to be

undertaken, they are ready to execute the same to the satisfaction of the Authority of the Corporation. In this connection, learned counsel drew the

attention of the Court to Annexure 10 of the Supplementary Affidavit in which they have categorically undertaken to get the repair work done at their

cost under the supervision of the concerned authorities of the Corporation to make the premises safe for habitation or business purposes.

Learned counsel for the Corporation fairly submitted that in view of the legal provision, as enshrined under the Act, the authorities would consider

the reply to the show cause as well as the undertaking filed by the petitioners. Learned counsel stated that a final decision will then be taken in the

matter before ordering any precipitative action against the petitioners.

Section 278 of the Act is extracted below for ready reference:

‘278. Power to order demolition of building unfit for human habitation.â€" (1) Where, upon information in his possession, the Chief

Municipal Officer is satisfied that any building is unfit for human habitation and is not capable at a reasonable expense of being rendered

fit, 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.

(2) If the owner of the building, or other person, upon whom a notice has been served under sub-section (1), appears in pursuance thereof

before the Chief Municipal Officer and gives an undertaking that he shall, within a period specified by the Chief Municipal Officer, execute

such work of improvement in relation to the building as will, in the opinion of the Chief Municipal Officer, render the building fit for human

habitation or that the building shall not be used for human habitation, until the Chief Municipal Officer, on being satisfied that it has been

rendered fit for such habitation, cancels the undertaking, the Chief Municipal Officer shall not make an order of demolition of the building.

(3) If no such undertaking as is referred to in sub-section (2) is given, or if, in a case where any such undertaking has been given, the

works of improvement to which the undertaking relates are not carried out within the specified period or the building is used in

contravention of the undertaking, the Chief Municipal Officer shall forthwith make an order of demolition of the building requiring that the

building shall be vacated within a period to be specified in the order, not being less than thirty days from the date of the order, and

demolished within six weeks on the expiration of that period.

(4) Where an order of demolition of a building under this Section has been made, the owner of the building or any other person having an

interest therein shall demolish such building within the period specified in the order, and if such building is not demolished-within that

period, the Chief Municipal Officer shall demolish the building and shall sell the materials thereof.

(5) Any expenses incurred by the Chief Municipal Officer for carrying out the purposes of sub-section (4) which cannot be met out of the

proceeds of the sale of materials of the building, shall be recovered from the owner of the building or any other person having an interest

therein as an arrear of tax under this Act.

(6) In determining, for the purposes of this Section and Section 335, whether a building is unfit for human habitation, regard shall be had

to its condition in respect of the matters, such as,â€

(a) repair,

(b) stability,

(c) freedom from damp,

(d) natural light and air,

(e) water-supply,

(f) drainage and sanitary conveniences,

and

(g) facilities for storage, preparation and cooking of food and for the disposal of rubbish, filth and other polluted matter; and the building

shall be deemed to be unfit for human habitation only if it is so defective in one or more of the matters as aforesaid that it is not reasonably

suitable for occupation in that condition.

(7) For the purposes of this Section and Section 335, “works of improvementâ€, in relation to a building, shall include any one or more

of the following works, namely:â€

(a) necessary repairs,

(b) structural alterations,

(c) provision of light points and water taps,

(d) construction of drains, open or covered,

(e) provision of latrines and urinals,

(f) provision of additional or improved fixtures and fittings,

(g) opening up or paving of courtyard,

(h) removal of rubbish, filth and other polluted and obnoxious matters, and

(i) any other work including the demolition of any building or any part thereof which, in the opinion of the Chief Municipal Officer, is

necessary for executing any of the works as aforesaid.

(8) The provisions of this Section and Section 334 and Section 335 shall not apply in relation to any building in any area which has been

declared to be a slum area under any State law relating to improvement or clearance of slums.’

Having regard to the aforesaid, with the consent of parties, the writ petition stands disposed off with a direction to the Commissioner/Respondent

No. 5, to pass final order, as contemplated under Section 278 of the Act, after duly considering the reply to the show cause and the undertaking of the

petitioners.

Till the time such final order(s) are not passed, no coercive steps qua the shops in question will be taken, including with regard to demolition.