S.K. Kapur, J.
(1) Paradoxical though it may seem that a bulidiag, which according to tile Municipal Engineer's report recorded on April 8, 1958, was considered to be so dangerous as to call for demolition immediately, stands till today after the lapse of about eleven years, yet, in spite of the emphasis in this behalf by the learned counsel for the respondent I do nto propose to let my mind be influenced by this factor in deciding the question that arises in this Letters Patent Appeal, directed against the order of D.K. Mahajan, J. dated January 19, 1965. The fight between the parties is about the validity of an order by the appellant directing demolition of the building in question.
(2) .ON April 7, 1958, the Commissioner, Delhi Municipal Corporation, in purported exercise of powers conferred on him by section 491 of the Dilhi Municipal Corporation Act, 1957, directed that 'all the powers conferred on mi under the various provisions of the Act shall be exercised also by Shri Ishwar Dayal, Deputy Commissioner, subject to my supervision, control and revision.' On April 8, 1958, the Municipal Engineer after inspecting the building recorded a note, the relevant part of which reads:-
'THEroof of one of the room has collapsed. The beams etc. are completely worn out. The building should be vacated immediately; particularly the portion in which the school is being run. I spoke about this to the Head Mistress at the site. I have also 'talked about this to C. E. 0. and D. M. C and in my opinion a notice should be served to vacate the whole building and to demolish the dangerous structure immediately. In the meantime, I am having the details of the dangerous portion of the building prepared.'
(3) From this note I deduce that the Municipal Engineer recommended vacation of the entire building and demolition of 'the dangerous structure.' My reading of this note does nto persuade me to accept that the recommendation was to demolish the entire structure and that clearly appears from the concluding portion of the note that he was 'having the details of the dange- rous portior of the building prepared. On the Foto of that very noie the Deputy Commissioner wrote:-
'ISSUEnotice under sections 348 and 349 of the D.M.C. Act and deliver at once.'
In the order the Deputy Commissioner gave no indication as to whether the notice under section 348 should be for cemolition or securing or repair of the building, the three alternatives provided in the section for preventing danger. On the same day, lhat is, April 8, 1958, the Personol Assistant to the Municipal Enginneer also made a report stating, inter alia. that be had inspected the building which is actually in the imminent danger of collapse. Rough sketch plans of each floor are under preparation and will be submitted along with detailed report I suggest that in the meantime notice to C.E.O. be forthwith sent to get the whole building evacuated at once. In my opinion the whole building needs to be demolished. Roof of one room has very dangerously collapased.' The report was marked to the Municipal Engineer and on the foto thereof is an order reading: -
'I have spoken to you about this-will you kindly have this building vacated at once. You may consult D M.C. to whom I have spoken'.
Neither the name nor the designation of the officer signing the order appears on the copy filed in Court. I his need not, however, detain me since the order refers only to the vacation of the building as visualised by the section 349 of the said Act.
(4) The Assistant Enigineer also recorded a detailed description on April 8 1958, about the condition of the building after inspection of the same 'at about 5 P.M.'. He dealt separately with the ground-floor, second-fioor and top floor. His opinion, inter aha. was-
(1)'The condition of roofs in almost 'all these rooms excepting the front shops and the main hall is very bad (2) On the second-floor the -'terrace verandah and room with balcony abutting the courtyard are dilapidated'. (3) Regarding the construction on the top floor 'the entire structure, with the exception of few rooms on main ball and three shops on the ground-floor, have outlived their lives'; and (4) It would nto be advisable to allow the retention of the main hall and the shops even as with the extensive dismantlement all-around, these would also be unsafe The entire structure should be declared as dangerous under the relevant section of Delhi Municipal Corporation Act 1958 and action taken for dismantling the entire building.'
There is yet another note by the Personal Assistant to the Municipal Engineer of the same date by which he submitted the rough sketch plans ''segregating the portions in order of priority in danger'. This note also recommended demolition of the entire building nto because the whole of it was dangerous but because 'the little remaining portion although nto promising imminent danger has in my opinion outlived its utility and should a demolished'.
(5) There is nothig to suiggest that the Deputy Commissioner applied his nun.I to the various other notes except the note of the Municipal Engineer at the foto of which he had directed issue of notice under sections 348 and 319, a reference to which has already been made by me A positive assertion was made in the writ petition that Commissioner did nto form an opinion that the building was in a dangerous condition the only answer given in the reply affidevit is that tems of section 348 and 349 of the Municipal Corporation Act were duly complied with No attempt was made to show that the Deputy Commissioner, acting as a delegate of the Commissioner cosidered the material and came to the conclusion thagt demolition of the building alone could prevent all cause of danger from the building.
(6) 0NE more document needs mention and thit is another order dated April 8, 1958, wherein the Deputy Commissioner wrote:-
'I have read the Municipal Engineer's note dated 8-4-58. In my opinion the 'building is in a dangerous condition and the vacation of the building forth with is necessary in the interest of public safety.'
This order was also confined to the necessity of getting the building vacated and did nto touch on the question of demolition or repair.
(7) The petitioner was served with an order under section 348, dated April 8, l-)58 by the Deputy Commissioner in which it is, inter alia, stated that the building 'is in ruinous condition and is dangerous to the residents of the locality and to the passers by. l, lshwarDayal, Deputy Comnissioner......... ..........hereby require you to demolish the said building within 3 days of the service of this notice'. The petitioner filed a writ petition challenging the said order and by judgment, dated January 19, 1965, O.K.. Mahajan, J. allowed the petition. He decided that the Commissioner had nto been made the sole judge of the methol by which the danger could be removed. It was observed: -
'THEREis no yardstick provided in section 348 whereby or on the basis of which the Commissionr can, in a given case, come to the conclusion whether the building could be secured and the danger prevented there from by repairs or by demolition. The object of section 348 of the Act is to confer power on the Commissioner to see that there is no ruinous or dangerous building in existence within the Corporation area. Power is given under this provision to the Commissioner to remove this danger and the m-)ies how the danger could be removed are demolition, repair or to secure that building in such a manner so as to avoid the danger or to remove the ruinous condition of the building. In this situation, an order merely asking the owner to demolish the building would nto be justified.'
In coming to this conclusion the learned Single Judge folloved Hazuri Mal v. King Enperor (Punjab Record Septr. 1908, Criminal Judgment No. 48 page 55). in that case it was decided that anotice under a similar provision in the Punjab Municipal Act 1891, requiring the owner peremptorily to demolish a ruinous building without giving the option to repair it was bad. The learned Single Judge also appears to have been influenced by the Fact that in spite of notices to demolish and vacate the building the Corporation took no steps to remove their own Girl's School located in the building for nearly eighteen years. The School was still functioning in the building when the matter was decided by the learned Single Judge. I do nto know whether it has now been removed.
(8) Mr. Bishmber Dayal, learned counsel for the appellant cinvassed before us for reversal of the learned Single Judge's view on the interpretation of section 348 and relied on Emperor v. Bastiao Andraez' and Dwarka Makton v. Pitna City Municipaltty He contended that the paramount object of the section being to enable the Commissioner to protect the occupiers and others aganist the perils that may result from the collapse of a house the option to either demolish or secure or repair must rest subjectively with the Commissioner and the Courts cannto scrutinise the subjective opinion except on limited grounds. In the view that I am taking of this case it is, I think, unnecessary to pronounce on this aspect of the controversy. It cannto be disputed that even in arriving at a subjective decision the authority concerned must nto act mula fids and must apply its mind. In taking decisions of grave importance like demolition of a building the authority concerned has a vital function to perform and I would expect nto only application of mind but application with a dedicated devotion. I will, thereforee proceed to enquire whether the test of application of mind was satisfied in this case. I shall nto apologies for elaborating and having elaborated on certain facts to demonstrate that the application of mind has been lacking in this case.
(9) There are two ways of looking at it. It may be said that on the note of the Municipal Engineer the Deputy Commissioner ordered issue of notice under sections 348 and 349 without applying his mind to the other notes already mentioned hereinbefore. In that order there is no indication whether the notice should direct demolition or repair. The fact that his order is recorded on the Municipal Engineer's note itself shows that at that time the Deputy Commissioner did nto have the details of the dangerous portions of the building with him. The Municipal Engineer had in his note stated that he was having such details prepared. The details prepared also show that the milter required consideration as at least some parts of the building were nto in that dangerous condition. Had the appropriate authority applied its mind to the entire material he may have come to the conclusion that demolition of the entire building was nto necessary. In the circumstances one should have expected an order by the Deputy Commissioner indicating his satisfaction that nothing short of demolition of the entire building could avoid the danger. If the Deputy Commissioner recorded his order on the foto of the Municipal Engineer's note without looking at the details contained in the other reports and without directing his attention to the question of making a choice betwen demolition, securing and repair, the conclusion would be unescapable that there was no necessary application of mind on the relevant aspects.
(10) The other approach may be that section 348 does rto talk of any notice but only of an order inwriting requiring the owner or occupier to demolish etc. the dangerous buildings. In that view it may be suggested that the 'notice under section 348 of the Delhi Municipal Corporation Act. 1957' dated April 8, 1958, was an order made by the Deputy Commissioner under section 348 after due consideration of all the reports and notes. The order directed the owner 'to demolish the said building within 3 days of the service of this notice' and must be presumed to have been passed after proper compliance with law and, thereforee, after considering whether demolition alone could serve the purpose. On consideration of the material on record. I am inclined to hold that the Deputy Commissioner did nto apply his mind. Before I give my reasons thereforee it is necessary to analyze section 348 of the said Act Sub-section (1) of the said section reads-
'IFit appears to the Commissioner at any time that any building is in a ruinors condition, 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 neighourhood of such building, the Con missioner 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 there from.'
The section requires that it must first appear to the Commissioner that the building is in a ruinous condition or likely to fall or in any way dangerous to any person occupying, etc. He must then proceed to decide upon the necessity of the situation and see what measures are necessary to prevent 'all cause of danger thereforem It folows that the authority concerned is expected to apply his mind whether or nto demolition of the building alone provides the solution. This appears more in accord with the legislative intent. I am nto prepared to hold that the I egislature intended to confer power on the Commissioner or his delegate to order demolition even when repair could avert danger to the occupants and others. I think the Commissioner or the delegate is expected to weigh on the one hand the rights of the owner and en the other hand the measure necessary to prevent 'all cause of danger'. These measures of necessity must be at the minimum damage to the house. I have already refeied to the various notes recorded by the officers of the Municipal Corporation and they clearly show that two views could have been possible (1) the building must be demolished., or (ii) it could be repaired or at least the whole of it need nto be demolished. That is so because though officers had recommended demolition yet they were of the opinion that certain parts were nto absolutely dangerous. That called for the discharge of duty by the Deputy Commissioner to the most of his ability. On the note of the Municipal Engineer the Deputy Comnaissioner ordered issue of notice under section 348. He did nto indicate what direction .should be sent to the owner as he required to demolish it or secure it or repair it?
(11) The point at issue is : Did the authority concerned consider the entire material in the light of the requirements of the section 348 and come to the conclusion that even nto unsafe portions should be demolished? I think he did nto Even in the notice issued to the owner section 338, which in terms of the section, I treat as an order there is no indication that he thought about this matter. The order does not, thereforee, on its face show that the requirements of section 348 were complied with. In that situation the least I should have expected of the Municipal Corporation was to state in the affidavit that the concerned authority had issued the order requiring demolition after attending to the requirements of law. The counter-affidavit is silent in this behalf in spite of an allegation in the petition that the Commissioner had nto applied his mind. The Deputy Commissioner in his counter-affidavit does say that 'the notices were issued after inspection of the spto by responsible officers of the Corporation'. But when it comes to the allegation regarding non-compliance with section 348 the counter affidavit merely asserts that the said provision was complied with.
(12) I need not, in the circumstances, answer the arguments of the learned counsel for the respondents that the action on the part of the Municipal Corporation was mala fide evidenced inter alias by the fact that Municipal Girls School run by the Municipal Corporation has been located in this very building for over twenty years and the Municipal Corporation never deemed it fit till today to vacate the said premises, as also the fact that the Head Mistress had been writing to the owner to repair the premises and the owner repaired it on several occasions in pursuance of the demands. One more fact I might mention. An affidavit was filed in the course of the hearing before us that in pursuance of another notice from the Municipal Corporation the dangerous part of the building has already been demolished.
(13) This discussion leads me to the conclusion that the power confided in the Deputy Commissioner has nto beeen exercised after required care and caution in the sense that he did nto direct his attention to the requirements of section 348 and the steps necessary for preventing the danger. I will, thereforee dismiss this Letters Patent Appeal but with no order as to costs.
M.R.A. Ansari, J.
(14) I agree