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Municipal Corporation of Delhi Vs. Daulat Ram (Died) - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 358D of 1962
Judge
Reported inILR1971Delhi711
ActsDelhi Municipal Corporation Act, 1957 - Sections 348(1)
AppellantMunicipal Corporation of Delhi
RespondentDaulat Ram (Died) ;represented by Lrs.
Advocates: D.D. Chawla and; Sagar Chand, Advs
Cases ReferredLalbhai Tricamlal v. The Municipal Commissioner
Excerpt:
.....law rightly or wrongly. but when the administrative authority has formed an opinion on a technical question courts will be reluctant to be persuaded that the opinion is not soundly based. - - - (1)the notice was issued at the instance of the landlord gujrati samaj, (2) it was against the letter and spirit of the compromise entered into between the landlord and the tenants, and (3) the pemises were in good condition and did not require demolition. the corporation was only discharging its statutory duties under the act for the public good. one party may complain, for instance, that the premises being in a ruinous condition are a public nuisance which cause special damage to the plaintiff. shaw and brothers [1951]2scr145 ,to have entrusted the controller with a jurisdiction which included..........floors were actually demolished, the tenants entered into an agreement in the presence of the municipal commissioner on 4-12-1958 (exhibit d-1) by which the landlord agreed to reconstruct the building after demolition in such a manner as to provide shop-accommodation to the existing tenants. the tenants agreed to co-operate with the landlord in the construction of the building according to plan to be approved by the delhi municipal corporation. it appears that the premises bore several municipal numbers and the initial notice of demolition had not contained the municipal number of the part of the premises occupied by the respondents. fresh notices under section 348(1) were, thereforee, issued to the respondents on 2-2-1959 specifically denoting the municipal numbers 864 to 869......
Judgment:

V.S. Deshpande, J.

(1) Under section 348(1) of the Delhi Municipal Corporation Act, 1957 (hereinafter called the Act), 'If it appears to the Commissioner at any time that any building is in a ruinous 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 neighborhood of such building, the Commissioner 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.' Initially when the premises belonging to the Gujrati Saina, Delhi part of the ground-floor of which was occupied by the respondents as tenants, were ordered to be demolished by an order under section 348(1) and after the first and the second floors were actually demolished, the tenants entered into an agreement in the presence of the Municipal Commissioner on 4-12-1958 (Exhibit D-1) by which the landlord agreed to reconstruct the building after demolition in such a manner as to provide shop-accommodation to the existing tenants. The tenants agreed to co-operate with the landlord in the construction of the building according to plan to be approved by the Delhi Municipal Corporation. It appears that the premises bore several municipal numbers and the initial notice of demolition had not contained the municipal number of the part of the premises occupied by the respondents. Fresh notices under section 348(1) were, thereforee, issued to the respondents on 2-2-1959 specifically denoting the municipal numbers 864 to 869. Another notice for vacating the premises was also issued to them under section 349 on the same date. The tenants, however, refused to accept the notices which were, thereforee, pasted on the site as per report (Exhibit D-l 8) dated 12-2-1959. The predecessor-in-title of the respondents thereupon filed a suit alleging that the notice of demolition (presumably referring to notices dated 2-2-1959) was illegal and ultra vires. The reasons urged against the demolition order in the plaint were that:-

(1)The notice was issued at the instance of the landlord Gujrati Samaj, (2) It was against the letter and spirit of the compromise entered into between the landlord and the tenants, and (3) The pemises were in good condition and did not require demolition.

The plaintiff sought a permanent injunction restraining the Corporation from demolishing the premises.

(2) The defense was that the tenants had themselves agreed to the demolition of the premises when they entered into the compromise of December 1958 and that the order of demolition was legal. The Corporation was only discharging its statutory duties under the Act for the public good. The proposed demolition was in the interest of public and was legal. The question as to whether the disputed building needed demolition was to be judged by the Corporation and the civil courts had no jurisdiction to sit in judgment on the act done or purported to be done by the Corporation in exercise of its statutory power.

(3) In this second appeal we are not concerned with the other points of dispute between the parties. The relevant issue framed by the trial Court was Issue No. 4 which ran as follows:

'WHETHERthe action of defendant No. 1 in demolishing the premises in possession of the plaintiff is illegal, invalid and ultra virus for the reasons given in the plaint ?'

The approach of the trial Court in its own words was as follows: 'It is, thereforee, essential for the purposes of this issue to determine as to whether this building is in a dangerous condition'. The approach of the lower appellate Court in its own words was as follows: 'With regard to this issue, the main question that arises for consideration is whether the premises in dispute occupied by the plaintiff respondent were in a ruinous or dangerous condition so as to justify the demolition action taken by the defendant Corporation under the provisions of the Act'. None of the two learned lower Courts took any notice of the contention of the Corporation that the question whether the building needed demolition was to be judged by the Corporation and not by the Courts.

(4) The contrast between the language of section 348(1) and the language of the isue No. 4 framed by the trial Court which shaped the approach of the Courts shows the fundamental error committed by both the learned lower Courts. The question for decision was whether the Commissioner had formed the opinion that the premises were in a ruinous condition. But the learned lower Courts thought that the question for decision was whether, in fact, the premises were in a ruinous condition and that this fact was to be decided by the Courts and not by the Commissioner. The concurrent findings of the learned lower Courts that in fact the premises were not in a ruinous condition are, thereforee, completely irrelevant for the decision of the question whether, in the opinion of the Commissioner, the premises were in a ruinous condition. In view of the wrong approach of the learned lower Courts to the construction of section 348(1), it would be useful to understand the precise nature of the power of the Commissioner under section 348(1) and the nature of judicial review exercised by the civil Courts either in trying suits or writ petitions under Article 226 of the Constitution challenging the exercise of such a power by the Commissioner. Let us consider the different types of suits which may come before the Courts in such a context.

(5) Firstly, there are the ordinary suits between two private parties. One party may complain, for instance, that the premises being in a ruinous condition are a public nuisance which cause special damage to the plaintiff. In a suit by such a plaintiff against the owner or the occupant of the premises, the plaintiff has to prove the public nuisance and the special damage to him. The question whether the public nuisance exists and what damage is suffered by the plaintiff is essentially for the Court to decide. We A are not dealing with this type of suit.

(6) In a second category of cases, administrative action may be taken under a statute which gives jurisdiction to the administrative authority to act only if certain collateral conditions giving it the jurisdiction to act are fulfillled. The existence of such collateral jurisdictional conditions may be decided in a preliminary way for its own purpose by the administrative authority. But such a decision is not final and the civil Courts are entitled to examine on merits whether the jurisdictional collateral conditions exist or not. A second type of suits can, thereforee, be filed in a civil Court disputing the existence of the collateral jurisdictional conditions. The civil Courts can decide on merits the question whether such collateral jurisdictional conditions exist or not. For example, under the Delhi Rent Control Act, 1958, the relationship of a landlord and tenant or the question of title to the premises is a jurisdictional condition, on the existence of which the Controller proceeds to decide the issues arising under the said Act. But the civil Court's jurisdiction to decide these jurisdictional matters is preserved. (Mrs. D. David v. Miss R. Makha 1970 All India Rent Cont. Journal 579.) . This cannot be said of section 348(1). We, thereforee, come to the last category of cases which itself may be sub-classified into three varieties, namely:

(A)The administrative authority itself is given the power to decide the existence of the conditions giving it the jurisdiction to act under a statute. For instance, the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 was held by the Supreme Court in Rai Rrij Raj Krishna v. Mis. S. K. Shaw and Brothers : [1951]2SCR145 , to have entrusted the Controller with a jurisdiction which included the jurisdiction to determine whether there was non-payment of rent or not, as well as the jurisdiction, on finding that there is non-payment of rent, to order eviction of a tenant. thereforee, even if the Controller wrongly decided the question of non-payment of rent and ordered eviction of the tenant his order cannot be questioned in a civil Court. (b) The determination of a question by the administrative authority shall not be called in question in any court of law as was provided by section 4(4) of the Foreign Compensation Act, 1950 construed by the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 A C 147 . Or the passing of an order by the administrative authority may be made conclusive evidence of its correctness as was done by sections 5 and 6 of the Bombay Land Requisition Act, 1948 construed by the Supreme Court in Lilavati Bai v. The State of Bombay : [1957]1SCR721 In such a case, the finding of the administrative authority cannot be reviewed by the Courts as to its merits. If, however, the administrative authority makes a fundamental misconstruction of the statute or acts in contravention of the fundamental provisions of a statute, then the finding of the administrative authority would be without jurisdiction and ultra virus and could be challenged in a civil Court on those grounds as was held in the Anisminic Ltd. case by the House of Lords and in Dhulabhai v. State of Madhya Pradesh : [1968]3SCR662 by the Supreme Court. and (c) The administrative or the quasi-judicial authority may be given the power to act if it is satisfied or is of the opinion that certain circumstances exist or are of such a nature as to call for a particular action. Section 348(1) is such a provision.

(7) A proper reading of section 348(1) will show that the issue arising there under is not between two private persons. On the other hand, it is one between a public authority acting there under and the individual affected by the administrative action. The law does not place the public authority and the individual on the same footing. Section 348(1) expressly confers a statutory discretion on the Commissioner by the words 'if it appears to the Commissioner'. The discretion is to decide whether 'any building is in a ruinous condition'. The reason is that the question whether a building is in a ruinous condition is of public interest and is not a matter only of the private interest of its owner or of its tenant. This is why the power is given to the Commissioner to form the opinion whether the building is in a ruinous condition or not. By giving this power exclusively to the Commissioner, the Legislature has correspondingly withdrawn the question whether the building is in a ruinous condition or not from the jurisdiction of the Courts.

(8) The discretion given to the administrative authority in such language was regarded almost as unreviewable in certain decisions after the first and the second World Wars and the Courts were reluctant to interfere with the action of the Executive under Emergency legislation. (Bhagat Singh v. King-Emperor 1931 L.R. 58 IndAp, , Liversidge v. Sir John Anderson (1942) A.C. 206 and King-Emperor v. Benoarilal Sarma, 1945) A.C. 14 . But the pendulum has since then swung and the exercise of the discretion is now reviewable not on its merits but with a view to see that the discretion is exercised within the four corners of the statute. The extent of the judicial review of the exercise of such discretionary power has been laid down by the Supreme , Court in Barium Chemicals Ltd. v. Company Law Board (1966) Supp. S.C.R. 311, Rohtas Industries Ltd. v. S. D. Agarwal & Anr., : [1969]3SCR108 , and Rampur Distillery Company Ltd. v. Company Law Board (1970) 2 S. C. R. 11. The result of the law so laid down is that the public authority is not made the final arbiter of the existence of the grounds on which its opinion or satisfaction is based. When, thereforee, section 348 says 'if it appears to the Commissioner' it does not mean 'if the Commissioner himself thinks that it so appears to him'. On the other hand, it means that circumstances, grounds or material in fact exist from which 'it appears to the Commissioner...... that any building is in a ruinous condition'. While the opinion of the Commissioner is his own and is, thereforee, subjective in that sense, it has to be based on facts which are objective-capable of being judged by the Courts. The Courts are, thereforee, entitled to know in judicially reviewing the administrative act whether the material, grounds or circumstances actually existed on which the opinion of the Commissioner could be based. The mere fact that the Commissioner may recite the language of the statute 'it appears to the Commissioner' will not be conclusive that the opinion of the Commissioner was validly formed. The recital of such an opinion may be displaced by the aggrieved individual by showing that the conditions or circumstances on which the opinion could be based did not exist at all or that the conditions were such that no reasonable person could have reached the opinion arrived at by the Commissioner. If, however, the existence of the conditions or grounds on which such opinion could be formed is proved, then the Courts cannot go further and enquire whether the grounds or the conditions were sufficient to support the opinion. The assessment whether the grounds were sufficient or not was essentially in the discretion of the Commissioner. It is the very reason why section 348(1) is so phrased. Of course, the aggrieved party is entitled to show that in arriving at the opinion, the Commissioner took extraneous or irrelevant materials into consideration or ignored relevant materials which he ought to have taken into consideration. He can also show that the authority acted bala fide.

(9) The material on which the opinion of the Commissioner was based in the present case and which was admissible in evidence under section 493 of the Act and also under sections 32(2) and 35 of the Evidence Act was as follows:

(1)The report of the Municipal Engineer dated 14-11-1957 reproduced in Exhibit D-5. He stated therein that 'on inspection it was revealed that in the ground floor from time to time some support has been given in the form of pillars and relieving joists. Most of the building is showing the sign of cracks specially under the arches and below joists. The cracks indicate that the building has outlived its life. Some of the portions may collapse at any time. There is question of displacement of some shop-keepers but as the building is dangerous in view of safety, I suggest that the building be demolished.' (2) The Municipal Commissioner along with the Municipal Engineer and the Deputy Municipal Engineer also visited the building shortly before the compromise of December 1958. In his inspection report, the Municipal Commissioner stated 'we had also gone on the ground floor area. The rear portion is in a damaged condition and a demolition notice can be justifiably issued. This should be done. The front shops are also partly damaged and in any case it would be ineconomical to have them along on so valuable a plot.'

(10) It is true that the observation that it would be uneconomical to have these damaged shops on such a valuable plot without demolition is not a relevant consideration under section 348(1). If this consideration would have been at the basis of the opinion formed by the Commissioner, then the opinion would have been vitiated as being based on an irrelevant consideration. But in view of the notes first recorded by the Municipal Engineer and then by the Commissioner both coming to the conclusion that the building was in such a dangerous condition as to be demolished, it must be said that this observation was only an additional ground and not the main ground on which the opinion of the Commissioner was based. As the opinion could be based on the main grounds alone, the additional ground does not vitiate the opinion. Further, the Municipal Commissioner had to take into account the human side of the problem and this was why he tried to bring about an agreement between the tenants and the landlord. That was only with a view to prevent avoidable hardship caused by the demolition. That action is not relevant in judging whether material or grounds existed on which the opinion of the Commissioner could be based.

(3)The Deputy Municipal Engineer Shri Chakravarti who recorded a note dated 29-1-1959 and who later appears to have become the Special Engineer and the Municipal Commissioner Shri P. R. Nayak, I.C.S., were both examined as witnesses. Both of them stated that they visited the building and were of the view that it was in a dangerous condition and was fit to be demolished.

(11) It is to be noted that the evidence of Shri Chakravarti was only to show that his inspection and the inspection made by the other engineers formed the material. The evidence of Shri Nayak, Municipal Commissioner, was relevant only to show that be had applied his mind to the case and formed his own opinion on the basis of the material furnished by the municipal engineers as well as by his own inspection. The evidence of these municipal officers is not like the evidence of a private party to be rebutted by other evidence. The error committed by the learned lower Courts was to regard the dispute as a private dispute in which the issue was to be decided by the Court by assessing the evidence of both the parties. The learned lower Courts forgot that it was not the satis- faction of the Court but only of the Commissioner which was relevant. The satisfaction of the Commissioner being based on ample material could not itself be subjected to judicial review as regards its correctness. The Courts have proceeded to enquire whether the material on which the Commissioner based his opinion was sufficient and concluded that it was not sufficient. This is precisely what is prohibited by the restriction on the scope of the judicial review imposed by section 348. The approach of the learned lower Courts was fundamentally wrong inasmuch as they thought that the question for decision by them was whether the building was in a dangerous condition or not. This certainly was not a question for the decision of the Courts. That was a question on which the opinion of the Commissioner was unreviewable by the Courts if the opinion was based on relevant material. This wrong approach has vitiated the decisions of both the learned lower Courts. The case is, thereforee, to be viewed de novo in the light of the true meaning of section 348(1). When the trial Court, thereforee, referred to the evidence of the Secretary of the Gujrati Samaj and to his own spot inspection note and to the fact that the ruinous condition of the premises was brought to the notice of the authorities initially not by the technical staff but by the Gujrati Samaj and when the trial Court purported to decide the question according to the opinion of the layman as well as technical experts, it went wholly wrong. It purported to assess for itself the evidence as to whether the building was in a dangerous condition or not. It was precluded from doing so by section 348(1). The approach of the lower appellate Court was also wrong in precisely the same way and for the same reasons.

(12) A further consideration restricting the scope of judicial review of administrative action taken under section 348(1) of the Act is the nature of the problem as to which the opinion has to be formed by the Commissioner. The Commissioner with the help of the Municipal Engineers was in a much better position to form opinion as to whether the premises were in a ruinous condition or not as compared to the Courts. The Municipal Engineers and the Commissioner had the technical and administrative expertize which was not possessed by the Courts. The scope of review by Courts is quite wide when the Courts have to consider whether the administrative authority has construed a provision of law rightly or wrongly. It is easy for the Courts to know whether the construction by the authority was unreasonably wrong. Similarly, if a simple question of fact provable by ordinary evidence was determined by the administrative authority, the Courts could also see whether the conclusion arrived at by the administrative authority was such as no reasonable person could arrive at. But when the administrative authority has formed an opinion on a technical question. Courts will be reluctant to be persuaded that the opinion is not soundly based. For instance, section 38(3)(b)(iii) of the Banking Companies Act, 1949, gave the Reserve Bank of India the power to make an application for the winding up of a banking company if in the opinion of the Reserve Bank the continuance of the banking company is prejudicial to the interests of its depositors, and the Court had no option but to make an order winding up the banking company. This provision was challenged as ultra virus in Joseph Kuruvilla Vellukunnel v. The Reserve Bank of India and another, (1962) Supp. 3 S.C.R. 632, but was upheld by the Supreme Court with the following observation at page 673:-

'THElegislature may, with reason, think that the determination of an issue may be left to an expert executive like the Reserve Bank rather than to Courts without incurring the penalty of having the law declared void. The law thus made is justified on the ground of expediency arising from the respective opportunities for action'.

(13) The question whether the premises in the present case were in a ruinous condition or not was pre-eminently for the Municipal Engineers to consider. They had the expert knowledge as well as the impartial attitude of mind necessary to form the opinion whether the premises should be demolished in public interest. On the contrary, the witnesses examined by the tenants-respondents did not have in mind considerations of public interest. They were concerned only with the private interest of the tenants. Their evidence could not, thereforee, be placed on the same plane as that of the Municipal authorities who were interested not in opposing the interest of the tenants but only in protecting the public interest.

(14) Learned counsel for the respondents urged before me that the plot on which the premises stood was a large one covering about one thousand square yards. The building may have been dangerous in some places but may have been in a good condition in other places. The demolition of the whole building was not. thereforee, warranted under section 348. This argument overlooks the fact that the opinion by the Municipal Commissioner that the building was in a dangerous condition and should be demolished was formed about the whole of the building. Ordinarily it would be impracticable and unreasonable to demolish only the dangerous parts of the building and to preserve the good ones. The building was originally three-storeyed. The second floor and the first floor had already been demolished. The ground floor also has been found to be in a dangerous condition and has to be demolished. Even if it is assumed for the sake of argument that a few portions in the ground floor were not in a ruinous condition, it cannot be the meaning of section 348 that some portions of the premises may be allowed to stand while others should be demolished. The opinion has to be about the whole of the building. In Nand Kishore v. Municipal Corporation of Delhi. (1969) Delhi LT14 , it was held by a Division Bench of this Court that the Corporation having first decided to demolish whole of the building and having given effect to the decision for 5/6th of it, it could not later change its mind and order repairs only to the remaining 1/6th. The same remarks would meet the argument that some good portions of the ground floor should be preserved.

(15) Learned counsel for the respondents also relied on Lalbhai Tricamlal v. The Municipal Commissioner for the City of Bombay, I.L.R. 33 Bom 334, which was a case under section 354 of the City of Bombay Municipal Act which was in pari material with secton 348. The learned Sngle Judge at page 349 observed as follows :-

'If the owner can prove to the satisfaction of the Court that his house was not in such a dangerous condition as to warrant an order to pull down, that would be prima faice evidence that the person appointed by the Commissioner had not exercised his discretion'.

Insofar as the learned Judge thought that it was the satisfaction of the Court whether the building was in a dangerous condition which was required to decide the case, with great respect, the view was contrary to the language of section 354 of the City of Bombay Municipal Act which was being construed by the learned Judge. For, the language was 'if it shall at any time appear to the Commissioner' which meant the satisfaction of the Commissioner and not of the Court. It is this approach which is contrary to the statute and which, thereforee, makes all the difference in arriving at a correct conclusion. I am unable to agree, thereforee, the Court can itself decide on evidence taken by it whether the premises were in a ruinous condition or not.

(16) Learned counsel then said that the ground floor which was ordered to be demolished in 1958-59 is still standing in 1971 and, thereforee, it could not have been in a ruinous condition in 1957-58 as was thought by the Municipal Commissioner. The answer to this argument is that section 348 refers to a building in a 'ruinous condition'. This is to be distinguished from a building referred to in section 348 in which 'if it appears to the Commissioner that danger from a building which is in a ruinous condton or likely to fall is imminent'. While section 348 deals with a building in which the danger is imminent, section 348 apparently deals with a building in which the danger is not imminent. The action is taken not under section 348(3) but under section 348. The opinion formed by the Commissioner under section 348 does not mean that the danger from the ruinous condition of the building was imminent. The fact, thereforee, that the building has not fallen down till now does not mean that the opinion formed by the Commissioner was not based on existence of grounds or circumstances. As already stated above, the correctness of the opinion is not to be canvassed before the civil Court. We cannot sit in appeal over the correctness of that opinion. This is the difference between the power of this Court in an appeal or even in a wide judicial review as distinguished from the restricted judicial review which alone is available against action under section 348 of the Act.

(17) The decrees passed by the learned lower Courts are, thereforee, set aside and the suit filed by the predecessor-in-title of the respondents is dismissed. The appeal is allowed in the above terms. In the circumstances, however, I make no order as to costs.


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