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Nand Kishore Vs. Municipal Corporation of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 106 of 1967
Judge
Reported in5(1969)DLT214
ActsDelhi Municipal Corporation Act, 1957 - Sections 348
AppellantNand Kishore
RespondentMunicipal Corporation of Delhi and ors.
Advocates: B. Kirpal and; R.N. Tikku, Advs
Cases ReferredRosenbaum v. Burgoyne. It
Excerpt:
.....good faith. 3 was a poor man, that he had to fight a litigation up to the supreme court, that the house owner wanted to evict him, that his eviction would be now brought about by the demolition of the house and that respondent no. it would be a fair presumption, thereforee, that tile owner of the house would have like to build upon the site if the corporation were to demolish the old house. but, once -the corporation is satisfied that a building is in a dangerous condition, the discretionary part of its power ends. the criteria, by which the apparent power or discretion given by a statute may be construed, to be a duty, are well known particularly, when a capacity or a power is given to a public authority, there may be circumstance which couple with the power a duty to exrcise it. the..........the house, declared dangerous. he is a poor man. he has to fight up to supreme court against the house owner who wanted to evict him. now the corporation has stepped in with demolition. he is ready to carry out repairs of his portion to make it fit for habitation. will you please hear him and help in the matter thanking you, yours sincerely, (sd.) shiv charan gupta, 27/10'respondent no. 2 gto the matter re-examined by the corporation engineers. the engineers, at first were of the view that the entire building was old and had practically out-lived its life and though title tenant had replaced' some beams yet the portions under his occupation was nto out of danger, when the rooms on its top are to be demolished. it would nto, thereforee, be advisable to leave these two rooms.....
Judgment:

V.S. Despandey and I.D. Dua, JJ.

(1) This Letters Patent Appeal lias pointedly raised questions about the proper construction and application of Section 348 of the Delhi Municipal Corporation Act 1957. The Appellant (whose writ petition was dismissed by the learned Single Judge) owned a three-storeyed building, of which a part on the ground floor was occupied by respondent No. 3 as a tenant. Respondent No. 2 was the Deputy Commissioner of the respondent No, I, Delhi Municipal Corporation, invested with the powers of the Commissioner exercisable under Sections 349 and 348. As certain portions of the building, nto including the portion in the occupation of respondent No. 3, were found to be in a dangerous condition two ntoices, one after the toher, were issued on 25th May, 1965 and 29th May, 1965, under Section 349 for the vacation of the dangerous portions. The petitioner challenged the validity of the action by filing a suit in a Civil Court. Subsequently, title Corporation issued a ntoice under Section 349 in respect of the whole house, including the portion occupied by respondent No. 3, on 5th June, 1965. The petitioner then did nto pursue the suit, which was dismissed on 21st September, 1966.

(2) The Corporation delayed .taking action to demolish the house under Section 348 for some time upon which some people of the locality requested the Corporation to carry out the demolition of the house. The Corporation, thereafter, started, the demolition of title house and demolished about 5/6th of the same. At this stage, one Shri Shiv Charan Gupta, then a Member of Parliament, wrtoe the following letter to respondent No. 2:-

'MYDear Shri Tandon, Shri Ram Kishan Das tenant of H. No. 6022, Gali Arya Samaj, Naya Bans, Delhi is coming to you in connection with demolition of the house, declared dangerous. He is a poor man. He has to fight up to Supreme Court against the house owner who wanted to evict him. Now the Corporation has stepped in with demolition. He is ready to carry out repairs of his portion to make it fit for habitation. Will you please hear him and help in the matter Thanking you, Yours sincerely, (Sd.) Shiv Charan Gupta, 27/10'

Respondent No. 2 gto the matter re-examined by the Corporation Engineers. The Engineers, at first were of the view that the entire building was old and had practically out-lived its life and though title tenant had replaced' some beams yet the portions under his occupation was nto out of danger, when the rooms on its top are to be demolished. It would nto, thereforee, be advisable to leave these two rooms undemolished. However, the tenant ultimately persuaded the Corporation to leave undemolished 1/6th portion of the building in his occupation on the ground that he had repaired it and that the said portion was for the time being out of danger.

(3) The petitioner found himself in an absurd position. The major prtoions of his building had been demolished, but he could nto build a new house, in as much as, 1/6th of the old house was kept in the occupation of the tenant respondent No. 3. He, thereforee, filed a writ petition against the respondents, mainly on the following grounds :-

1.That the Corporation, having decided to demolish the building as a whole, had no power to vary its decision and to allow l/6th portion of the building to remain standing after repairs ; 2. That this change in the decision regarding a part of the house was made on extraneous consideration ; and 3. That the said change in the decision was malafide.

(4) The learned single Judge negatived all the contentions holding that the Corporation had the discretion under Section 348 to demolish 5/6th of the house, while being satisfied with the repairs of the remaining of l/6th. The learned Judge further held that the intervention of Shri S. C. Gupta did nto amount to any improper influence on the Corporation and the action of the Corporation was nto malafide.

(5) It is true that Section 348(1) gives the Municipal Commissioner the discretion to demolish, secure or repair a building or do one or more of such things, according to what appears to him to be the proper thing to do. It is also true that the decision of the Commissioner cannto be reviewed by this Court on the ground of insufficiency of evidence on which it is based. It is to be borne in mind however, that the power given by Section 348 to the Corporation is a grave invasion of the right of property of the owner and the discretion has, thereforee, to be exercised by the Corporation judicially and nto arbitrarily. In a long line of cases of demolition orders, beginning with Cooper V. Wandsworth 1863 14 C.B. 180, the rule said to be universal application and founded on the plainest principle of justice was laid down that public authorities must give the person concerned ntoice of the proposed action to give him an opportunity of showing cause against the same. Such opportunity is given under Section 348(1), which requires that the order requiring the owner or occupier to demolish, secure or repair the building, has to be complied with, within such period as may be specified in the order. Presumably, during this period, the owner or the occupier has to take steps to show cause against the proposed action. The nature of the power of demolition was considered by Wills, J. in Hopkins v. Smethwick Local Board of Health, in the following words :-

'INcondemning a man to have his house pulled down a judicial act is as much implied as in fining him and as the Local Board is the only tribunal that can make such an order, its act must be judicial act and the party to be affected should have a ntoice given to him.'

It is true that there is no lis and no expressed duty to act judicially in the proceeding which the Corporation takes against the house owner under Section 348. The existence of a lis or of the words expressly imposing a duty to act judicially is however, nto always essential for holding that the power exercised is of a quasi-judicial nature. In Ridge v. Baldwin'- H L. Lord Reid stated that the necessity to follow judicial procedure and to observe the principles of natural justice flows from the nature of the decision, which tlic watch committee in that case was authorised to reach. This view has been also expressed by the Supreme Court in Associated Cement Conpanies v. P. L. Sharma

(6) An important consequince follows from the fact that the order of demolition passed by the Corporation under Section 348(1) was a quasi-judicial nature. It is well-known that a judicial order or a quasijudicial order, having been arrived at after proper learing and consideratior, is final so far as the authority passing the order is conceined, Such authority cannto unilterally v revise its own order. The only exception to this rule is that an order which is obviously void, may perhaps be corrected in circumstances analogous to those, under which a civil Court may correct a judicial older under Section 151 of the Code of Civil Procedure. Examples, when an order vitiated at its inception could be corrected, will he fourd in Keshav Dev v. Radhakishen and in Jagir Singh v. Settlement Commissioner The order passed by the Corporation for the demolition of the whole louse was nto, however, wrong, void or vitiated by any error at its inception. It was a valid order arrived at after full consideration and after the parties concerned had ntoice to show cause against the implementation of the same.

(7) In this particular case. the order of demolition was nto only a quasi-judicial one but 5/6th of the house was demolished in pursuance of the order. The fact that the major part of the older has been implemented is an additional reason why the order could nto be revised by the Corporation at that late stage. On the most favorable view the Corporation could l.ave revises its dicision to demolish the house before the decision was acted upon. If the Corporation on further consideration was of the view that the order of demolition of the whole house was nto correct, then it could have passed a fresh older that the I e use' he repaired. One may go even further and assume for the sake of argument that before any pait of the house had been demolished and the whole matter was open for decision in a proper case where no injustice is caused thereby, the Corporation may even order a partial demolition of the house, while the rest of the house was only to be repaired. But, once the Corporation acts to implement its quasi-judicial decision, it would have no power to go back upon the decision, as the demolition had proceeded loo far.

(8) Apart from the fact that the order was a quasi-judicial one and that most of it had already been implemented, there are toher reasons Why the Corporation could nto go back on its decision at a late stage. Natural justice embodied in Section 348(1) required that the owner and the occupier of the house should have had an opportunity of showing cause against the action the order. The action. proposed was the demolition of the whole house. It is to he ntoed that the petitioner had felt aggrieved and had filed a civil suit against the previous decision for the demolition of the part of the house. For the petitioner was aggrieved by the previous order and had challenged it in a Court of law. But, when the Corporation decided to demolish the whole house, the petitioner reconciled himself to the new order apparently because he thought that he would at least be able to build a new house in place of the old one. He, thereforee, allowed his suit to be dismissed and waited for the demolition. The Corporation also acted upon the demolition order in respect of 5/6th of the house. The later action taken by the Corporation to stop the demolition of 1/6th of the house and to allow 1/6th to be repaired was inconsistent with the decision to demolish the whole house. The petitioner had the opportunity to show cause only against the decision to demolish the whole house. The petitioner did nto have any opportunity to show cause against the later decision of the Corporation that after the demolition of 5/6th of the house, 1/6th of the house should be allowed to remain in the position of respondent No. 3 As the Corporation took this later decision only after 5/6th of the house had been already demolished the principle of natural justice that the petitioner should have had the opportunity to show cause against the later decision could never be satisfied. The only way in which such an opportunity could have been given to the petitioner was that the Corporation should have arrived at the decision that 5/6th of the house was to be demolished and l/6th to be retained before any part of the house was demolished. The action of the Corporation is, thus, contrary to the principle of audi alteram partem.

(9) The change in the decision was objectionable on still antoher ground. As Lord Mr Naghten has said in West-Minister Corporation v. L. N. & W. Railways a public body invested with statutory powers affecting private rights must keep within the 'authority committed to it. It must act in good faith. And it must act reasonably' In this case, the action of the Corporation seems to be demostrably outside the authority within the meaning of section 348(1) in as much as it has landed the petitioner in a most uneviable position in which he is disabled from using his own property for the construction of a new house. though he laid submitted to the order of the demolition of the whole house in the expectation that he would be able to build a new house on his own land. But, as observed by S. De Smith, in his Judicial Review- on Judicial Administration Action, page 214, 'the reasonableness of administrative action is often indirectly impugned by means of contentions that an authority has paid regard to extraneous factors an I disregarded relevant factors.' In the present case, the proper consideration brfore the Corporation was whether the house as a whole was in a dangerous condition and if so, whether it should be demolished. The Corporation was nto to consider which particular person would suffer by such action and whether any important political person was interested in helping the occupant of the house. Unfortunately, in the present case, the then Member of the parliament asked respondent No. 2 to consider the question of demolition of the house from a wrong approach, The considerations urged by the M. P. were that respondent No. 3 was a poor man, that he had to fight a litigation up to the Supreme Court, that the house owner wanted to evict him, that his eviction would be now brought about by the demolition of the house and that respondent No. 2 should help him. All these considerations were irrelevant in taking action under Section 348(1). One relevant consideration urged by the M. P. was that respondent No. 3 was willing to carry out repairs of the house, but even this consideration had lost its relevancy, in as much as it had been urged after 5/6th of the house had been demolished. It is undisputed that the only reason why the Corporation was persuaded to change its decision was the intervention of the M. P. It needs no arguments to show that respondent No. 2 was influenced to re-open the question of demolition after 5/6th of the house had been demolished, only because Sh.S. C. Gupta was an M. P., and that too, of the party which then formed the majority in the Corporation At this stage, the action of the Corporation in reopening the question could nto be justified on the ground that initially, before any part of the house was demolished, the Corporation had the discretion under Section 348(1) to decide that 5/6th of the house should be demolished and l/6th should be retained. If such a decision had been made before any part of the house had been demolished, the petitioner would have had an opportunity of showing cause why such a decision should nto be implemented. This opportunity was never given to the petitioner and can now never be given to the petitioner, This is why the rule of natural justice is bound to be violated, if the Corporation is now allowed to change its decision.

(10) Though the Corporation had the power to demolish or repair or to do one or more of these things under Section 348(1). their latter decision to allow 1/6th of the house to be repaired after 5/6th of it had been demolished was vitiated by the extraneous considerations urged by the M. P. On his intervention alone the Corporation changed its decision. It is established law that an action which was toherwise taken with jurisdiction is vitiated, if it was based on extraneous considerations 5. Pratap Singh v State of Punjab' and 5. C. Rowjee v. The State of Andhra Pradesh.

(11) Apart from the above reasons, negativing the power of the Corporation to go back on its demolition decision after 5/6th of it had been implemented, as a matter of statutory construction also. the Corporation does nto seem to have such a power under Section 348(1). Section 348 is a part of Chapter Xvi entitled 'Building regulations.' The provisions regarding the construction of buildings with the actual or deemed sanction of the Corporation are also a part of the same Chapter. The concerned house in this case is situated in a thickly populated locality. It is an old house. It would be a fair presumption, thereforee, that tile owner of the house would have like to build upon the site if the Corporation were to demolish the old house. Obviously, it would be in tile interest of the owner to build upon the site after demolition and this would also be in the general interest of the public, in so far as it is a step in meeting the general housing shortage in the city In dealing with the buildings, the Corporation is as much under a duty to permit and encourage the construction of buildings, as it is to afford prtoection against dangerous buildings. The nature of the powers of the Corporation under Chapter Xvi as also under Section 348 is, thereforee, such that they are to be exercised entirely for the benefit of the persons concerned. No part of the power is to be exercised by the Corporation for its own benefit. Section 337(1) would show that the Corporation cannto unreasonably withhold sanction to the construction of a building. Correspondingly, it would also be bound to afford prtoection under Section 348(1) after it has to come to the conclusion that action there-under is called for. This would mean that the discretion of the Corporation under Section 348(1) is confined to the process of arriving at a decision. That is to say, it is subjective satisfaction of the Corporation, which determines whether the building is in a dangerous condition. In this process of decision making no authority or person is entitle to partake. But, once -the Corporation is satisfied that a building is in a dangerous condition, the discretionary part of its power ends. Thereafter, the power would become a duty to act to afford prtoection against the dangerous building. The criteria, by which the apparent power or discretion given by a statute may be construed, to be a duty, are well known Particularly, when a capacity or a power is given to a public authority, there may be circumstance which couple with the power a duty to exrcise it. As observed by Lord Cairns ; 'There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so' (Julius v. Boshop of Oxford). It was further pointed out by Lord Cairns: ''Where a power is deposited with a public authority for the purpose of being used for the benefit of persons specifically pointed out with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised. ( I bid p. 49) 'Lord Blackburn stated in the same case 'The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right.' ( I bid p. 59).

(12) The power of demolition is in the nature of what is called a 'Police power' in the U.S.A., which infringes upon the right of property without the obligation to compensate the owner of the property. The reison is that the power is exercised, as in this case more as a duty in the public interest. The nature of the thing empowered to be done is the demolition of a house causing great loss to its owner. The object for which this is done is to prtoect the public from the dangerous building. The duty of the Corporation to act under Section 348(1) to clear the, site for the building of a new house by the owner, thereforee, clearly corresponds to the benefit that the public has been given at the cost of the,property owner by the demolition of the latter's house. In Section 348(1), thereforee, the word 'may' would have to be understood to mean 'shall'.

(13) In Sardar Gobind Rao v. State of M. P. Section 5(3) of the C. P. and Berar Revocation of Land Revenue Exemption Act, 1948 was as follows ;- .

'THEProvincial Government may make a grant of money or pension (i) for the maintenance or up keep of any religious, charitable or public institution or service of like nature, or (ii) for suitable maintenance of any family of descendant from a former Ruling Chief.'

It was held, firstly, that the passing of an order under Section 5(3) was a quasi-judicial act for which the Government must give reasons and, secondly, that the word 'may' used therein has the force of 'must', in as much as, once the Government was satisfied that there was a descendant of a former Ruling Chief, or there was religious or charitable institution, then the Government was bound to make the grant. The power of the Government to revoke the land revenue exemption was balanced by the duty of the Government to make a grant of money for pension to a person or an institution affected by the exercise of the power.

(14) Lastly, the provisions of Section 348 are of a penal nature, in as much as they empower the Corporation to cause loss to the owner of a building because the building is in a dangerous condition. A penal statute is strictly construed. The original reason of this rule was to mitigate the tyranny of monstrous sentence? for trivial offences. But, in modern times, more well-grounded justification for its existence has grown up. The welfare State has enacted Legislation to cover different aspects of the life of the people. The common man is now told by law to do or nto to numerous things. The need for a clear and comprehensive statement of the duties and powers of the public authorities has, thereforee, become increasingly pressing. In this new context this canon of strict construction limiting the statute to its obvious meaning, and excluding ptoentialities of uncertain application does much to prevent injustice. If, thereforee, the statute is capable of two constructions, a wider as al?o a narrower one , if there is no clear indication in the statute or in its policy or object that the words were used in the wider sense, they would be given a narrower meaning Dyke v. Ellito and Evans v. Cross.

(15) Section 348(1) is also capable of a wider and a narrower construction. The wider construction may mean that the Corporation acting under Section 348(1) may indiscriminately order that the building may be demolished or repaired or merely secured or may unreasonably order one or more of such things. That is to say, it may first order demolition, then it may stop the demolition and may order repair and it may stop even title repairs and may just order that the house be secured, from causing harm to tohers. If construed widely, Section 348(1) may also mean that the Corporation may first ask the owner to repair it and after its repair then may ask him to demolish it or merely to secure it. Such an interpretation would be unreasonable, in as much as the owner would be asked to spend money on repair as indicated by the Corporation and then the Corporation would be in a position to ebolish or secure the house after causing loss to the owner in spending for the repairs of the house. Similarly, a wider construction can sustain the argument that the Corporation may ask the house only to be secured from harm to tohers without allowing the owner either to repair it or to demolish it with a view to build a new house. Such a construction would also nto be tenable, in as much as securing the house from harm is the minimum that can be expected from the house owner. If the owner is, however, prepared to do the maximum, that is to say, to repair or to demolish the house to build a new one, the Corporation cannto refuse to order repair or demolition. The contension of the Corporation, in the present case is that after having ordered the demolition of the whole house and having carried it out for 5/6th of the house, the Corporation could later change its mind and decide to retain 1/6th of the house after repairs, is obviously based on the widest possibly construction of its powers under Section 348(1). Such a wide construction as shown by the examples above, would lead to unnecessary harm to individuals without any corresponding public benefit. This is why the rule of strict construction of penal statute prefers the narrower construction, which would favor the rights and the liberties of the subject and in case of an ambiguity enable the Court to resolve the doubt in favor of the subject and the legislature which has failed to express itself clearly. Rosenbaum v. Burgoyne. It would appear, thereforee, that under Section 348(1) the Corportoion having once decided to demolish whole of the house and having given effect to the decision for 5/6th of the house, had no power to change the decision at such a late stage and to use the toher power of ordering repairs only with respect of l/6th of the house.

(16) We, thereforee, allow the appeal with costs and direct respondent No. 1 to carry out the demolition of there remaining portion of the house bearing Municipal No. 6022, Gali Arya Samaj, Naya Bans, Delhi, as required by Section 348(1) of the Delhi Municipal Corporation Act, 1957 within a reasonable time.


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