Om Prakash Pathak v. The State of Bihar & Ors.

Kumar challenged the allocation of share to the petitioner and the earlier determination, dated 11.9.1999 by filing Partition Suit No. 188/1997, denying the existence of the Will cum Trust executed by Late Bishundeo Narain. The facts aforesaid are not denied by any of the parties. It would, thus, appear that Jitendra Narain 4 prima facie is the owner and holds the title of the aforesaid two plots. This finding is subject to the title suit filed by the respondent. As far as possession is concerned, his possession is through the tenants who are paying rent to Jitendra Narain. Om Prakash Pathak, petitioner of CWJC No. 9109/2008 describes himself as the Karpardaz of Jitendra Narain. Jitendra Narain who is in Government service and lives in Delhi and as such his affairs are being looked after by Om Prakash Pathak. It has been specifically pleaded that another Karpardaz of Jitendra Narain got a report prepared by registered Civil Engineers regarding the deteriorating condition of the building. On the basis of the aforesaid reports, the petitioner asked the tenants to vacate the premises as it was unfit for habitation. Before going any further it is essential to mention here that this court by order, dated 29.7.2011 directed that respondents 2 and 5, the Collector, Begusarai and the Executive Officer of the Nagar Parishad, Begusarai Municipality to make a spot inspection and enquiry and act as per the findings recorded during the enquiry. A counter affidavit has thereafter been filed on

7.5.2011 by the Nagar Executive Officer of Begusarai annexing the enquiry report. After making a spot enquiry of the premises, the Executive Officer found that the building is not fit for occupation and can fall down at any time. The inspection of the shops also indicated that some of the shops were badly damaged and were not in a fit condition to be utilized. The Executive 5 Officer of the Municipal Corporation also issued notices to about nine shop keepers with respect to the enquiry that was to be conducted. As per the order of this court there was a direction that respondents 2 and 5 were to act in accordance with their findings. It may be stated here that the Collector has also filed an affidavit stating that the house in question was in a dilapidated condition. Notices were also issued after the enquiry was conducted to the tenants to vacate the shops on 29.7.2011. In effect, therefore, it is established that the building standing on plot nos. 1331 and 1334 is in dilapidated condition. The issuance of notice to the tenants resulted in the tenants‟ appearing in the writ petitions and filing intervention applications to be added as party respondent in the case. IA No. 6242/2011 has been filed by Kanhaiya Prasad, Dinesh Agrawal and Santosh Kumar Agrawal in CWJC No. 9109/2008. IA No. 6162/2011 has similarly been filed in the aforesaid writ petition by Balmiki Sah. IA No. 7455/2911 has been filed by Sanjiv Kumar Agrawal, brother of Rajiv Kumar Agrawal claiming that he is a co-sharer and will be affected by the out come of the writ petition. His case is that as a result of Probate Caste No. 35/2008 he too was allotted 1/4th share from the north and west portion of the disputed land. He supports the writ petition to the extent that he accepts that the building is in dilapidated condition. The only objection made by this intervener is that according to him the writ 6 petitioner, who is Karpardas, has no claim over the lands. It is a fact that the writ petitioner has no claim, rather, he is acting on behalf of Jitendra Narain who was allotted the said property in dispute by virtue of the probate case by which the intervener Sanjiv Kumar Agrawal was allotted his share. Similarly in CWJC No. 768 of 2009, certain interlocutory applications have been filed. IA No. 1647/2010 has been filed by the writ petitioner for staying the notice, dated 27.1.2010 issued to the tenants. IA No. 834/2011 has been filed by respondent no.7 under section 209 of the Penal Code read with sections 340 and 195(3) of the Cr. P. C. IA No. 833/2011 has been filed by respondent no.7 seeking leave of the court to serve interrogatories upon the writ petitioner Rajiv Kumar Agrawal. These two applications are not being considered separately as it is not required since the court is disposing of the writ petition finally. As far as the intervention applications for being added as parties, this court allows the applications and have heard the interveners on two consecutive dates i.e. 14.11.2011 and

15.11.2011. Counsel appearing for the interveners have conceded that they do not wish to file any further affidavits in this matter. Coming back to the sequence of events which led to the filing of the writ petition, the following facts are relevant. Due to dilapidated condition of the building over Khesra nos. 1331 and 1334 a petition was filed for initiating a proceeding under section 7 133 (D) of the Cr.P.C. The Subdivisional Officer initiated a proceeding under section 133(D) on 22.11.2007 and called for a report from the Circle Officer and the Officer Incharge of the concerned area. After submission of the reports the matter remained pending although steps were taken on behalf of Jitendra Narain to expedite the matter. In the mean time, an application was filed by some of the residents of the area before the Subdivisional Officer, Begusarai with respect to the condition of the building. On receipt of the aforesaid petition, the District Magistrate directed the Executive Engineer, Building Division, Begusarai to verify the averments made in the application. In compliance with the direction of the District Magistrate vide his letter, dated 24.3.2008, the Executive Engineer visited the spot and made a physical verification of the building and reported on

12.4.2008 that some portions of the building is already falling apart and portion of the upper floor can collapse any time and as such the building was not fit for human habitation. The report was sent to the Subdivisional Officer as well as the Executive Officer, Nagar Parishad, Begusarai. After receiving the report, ultimately vide order/notice no. 975, dated 2.5.2008 (Annexure 7), Jitendra Narain was asked to demolish the building within fifteen days or else the authorities would take steps for demolition of the building. In reply to the notice issued by the Executive Officer of the Municipality, the petitioner stated that he did not have the resources to demolish the building, rather, he expressed his willingness to bear the costs of demolishing the said building if it 8 were done by the Magistrate / State authorities. For one reason or the other, no action was taken. In the mean time the shop keepers filed their objections before the Executive Officer claiming that since they are on rent in the aforesaid shops, they object to the demolition of the building. The Executive Officer thereafter wrote to the District Magistrate, Begusarai asking for directions in view of the fact that he had received objections from the tenants housed in the said building. On the basis of the aforesaid facts, it has been prayed on behalf of Jitendra Narain through his Karpardaz in this writ petition to quash the order of respondent no.5, the Executive Officer and to take steps for demolition of the building. Rajiv Kumar Agrawal claiming to be co-sharer filed CWJC No. 768/2009 for quashing the order, dated 2.5.2008 by which the Executive Officer of the Municipality had asked Jitendera Narain to demolish the building as it was unfit for habitation. Briefly stated the case of Rajiv Kumar Agrawal is that he has filed Partition Suit No. 188/1987 for carving out his share as per the description in the plaint. The court below rejected his plaint under Order 7 Rule 1 of the C.P.C. Against the order rejecting the plaint he has filed F.A. No. 475/1999. The facts also reveal that respondent no.7 i.e. Karpardaz of Jitendra Narain has filed Eviction Suit Nos. 7/2002, 8/2002, 9/2002, 4/2007 and 5/2007 against the tenants seeking their eviction from the shops situated on plot nos. 1331 and 1334 which was pending final 9 adjudication. It has also been alleged that respondents 5 and 6 have filed several criminal cases against the tenants. These criminal cases were quashed by this court on 11.5.2007. On the basis of the aforesaid facts Rajiv Kumar Agrawal claims that he is co-owner of the property in question and no order could have been passed without imp leading him as a party. The factual backgrounds that I have given regarding the manner in which title passed to the sons of Arvind Kumar and Ravindra Narain Agrawal, for the present, does not substantiate the claim of Rajiv Kumar Agrawal. It is also obvious that at present there is no partition suit by Rajiv Kumar Agrawal. In fact, even if the partition suits were to be restored by allowing the First Appeal, Rajiv Kumar Agrawal will not suffer as he would get his share ultimately, if the suit succeeds. However, at present the claim of Rajiv Kumar Agrawal, on the ground that he is co-sharer and, thus, must be heard or noticed before demolition takes places, does not appear to be justifiable claim. In any event the claim of Rajiv Kumar Agrawal has been considered by this court as would be obvious from the order. The intervener tenants and Rajiv Kumar Agrawal have raised objections to the demolition of the building. According to Rajiv Kumar Agrawal, apart from the stand that the intervener tenants are not the tenants of Jitendra Narain, it is argued that he, even according to the case of Jitendra Narain, has also been allotted certain shares in the property. This aspect is disputed by Jitendra Narain. In order to support his case, maps of the building 10 have been annexed which would indicate that there is a road between the damaged building and the share and building allocated to Sanjiv Kumar Agrawal. The case that the building is in a very bad shape has been supported by photographs of the building annexed to CWJC No. 768/2009 which leaves no doubt regarding the condition of the building. I, therefore, hold that the building in question must be demolished as it is unfit for habitation. Senior counsel for the respondent has argued that the entire proceeding is vitiated on the ground that no notice was served on the tenants under section 277 of the Bihar Municipal Act, 2007. It has also been argued that the procedure as laid down under sections 277 and 278 has not been followed. Section 277 reads as follows: “277. Power to require improvement of building unfit for human habitation.- (1) If, upon information in his possession, the Chief Municipal Officer is satisfied that any building is in any respect unfit for human habitation, he may, unless, in his opinion, the building is not capable of being rendered fit at a reasonable expense, serve on the owner of the building a notice requiring him, within such period, not being less than thirty days, as may be specified in the notice, to execute the works of improvement specified therein, and stating that in his opinion such works will render the building fit for human habitation. “(2) In addition to the notice served on the owner of the building under (2 sub-section (1), the Chief Municipal Officer may also serve a copy of the notice on any other person having an interest in the building, whether as a lessee or as a mortgagee or otherwsie. “(3) In determining whether a building can be rendered fit for human habitation at a reasonable expense, regard shall be had to the estimated cost of the works necessary to render the building so fit and the estimated value which the building will have on completion of the works. 11 “(4) If the notice under sub-section (1) requiring the owner of the building to execute the works of improvement is not complied with, then, on the expiration of the period specified in the notice, the Chief Municipal Officer may himself do the works required to be done by the notice and recover the expenses incurred in connection therewith as an arrear of tax under this Act.” The aforesaid section deals with the power of the Chief Municipal Officer, to declare a building unfit for human habitation. If the Chief Municipal Officer is of the opinion that the building may be restored, he may order the land holder to restore the building to make it fit for human habitation. The section also envisages that notice ought to be served, not only on the land holder but also on other persons having interest in the property. It is accordingly argued that the decision to demolish the premises (shops) without notice to the petitioner is in the teeth of principles of natural justice. I may point out here that in the present case notice was served on the tenants as would be obvious from paragraph 5 of the counter affidavit in which it has been stated that at the time of inspection the building was made, notice was duly issued to the tenant, none of them it appears filed objection. This court may, however, points out that the decision to demolish was taken under section 236 of the Act on an application filed by the petitioner on the instructions of his Master, Jitendra Narayan. Section 236 of the Act reads as follows: “236. Acquisition of lands and buildings for public streets, public to the other provisions of this Act, require to be acquired- parking places and transportation terminals.- (1) the 12 Municipality may, subject to the other provisions of this Act, require to be acquired- (a) any including together with structure building, if any, standing thereon for the purpose of opening, widening, extending or otherwise street, parking or improving transportation terminal, square, park or garden or of making a new one or for enforcing the regular line of street, any public (b) in relation to any land or any structure including building as aforesaid, such land or structure including building as the Municipality may think expedient, outside the regular line or projected regular line of the public street as aforesaid, and © any land for the purpose of laying out, or making, a public parking place. “(2) Where any land or structure including building is required to be acquired under sub-section (1) and the Municipality is satisfied that the remaining portion of the land will not be suitable or fit for any beneficial use to the owner, it shall, at the request of the owner, proceed for the acquisition, in addition, of such remaining portion of the land which shall, on acquisition, vest in the Municipality. “(3) Where any land or structure including building is required to be acquired under sub-section(1) or sub- section (2), the procedure for such acquisition as provided in this Act shall apply.” The section envisages that once Chief Municipal Officer comes to the conclusion that a building or wall or anything affixed thereto is likely to fall or in any way dangerous, he shall forthwith cause a notice, in writing to be served on the occupier. The Chief Municipal Officer may also get the occupier to provide temporary protection to the inmates occupying the building. After perusal of both the sections, it is quite obvious that notice ought to be given to those persons who are in occupation of the building as landholders, tenants, or in whatever 13 other capacity. The tenants and others have now appeared before this court, their objections have been considered in some detail, and it is patently apparent from the records that the building in question is not fit for human habitation which is further fortified by the affidavit of the District Magistrate and respondent no.2, who inspected the site on the directions of this court, and as such the objections raised on behalf of the tenants cannot be entertained by this court. At the cost of repetition I may clarify that the stand of some of the interveners that they are tenants of Rajiv Kumar Agrawal, is of no consequences, as it has been stated on behalf of the owner in court that he gives an undertaking that he will accommodate his tenants, after he has demolished and rebuilt the market, provided they are ready to take the shops at the going market rate. This court finds that the offer is reasonable and as the intervener tenants can have no objection to the demolition of the building which is obviously unfit for human occupation. An argument was raised on behalf of the respondents that Om Prakash Pathak is not the owner of the damaged building and as such he has no right to file this writ application. There are no pleadings by the respondent denying the fact that Om Prakash Pathak is the Karpardaz of Jitendra Narain and that Om Prakash Pathak was not acting on behalf of Jitendra Narain. This argument was raised near the closure of the arguments. Petitioner Om Prakash Pathak has pleaded before this court in the writ petition, as well as at various stages of the proceedings for demolition that 14 he was acting in the interest, on instructions and on behalf of Jitendra Narain. The concept that only the person aggrieved can apply to the court has been given a wider meaning by various judgments of the Supreme court, and will depend on the facts of each case. In the present case, there is no denial regarding the fact that the „Karpardas‟ was pursuing the matter on behalf of his master and as such the oral objection raised on behalf of the respondents is rejected by this court, especially in view of the fact that there is finding that the building is unfit and dangerous for human habitation. This court, therefore, finds there was no justification for the Executive Officer, Begusarai to take any instructions from the Collector on the basis of the applications filed by the tenants, rather , the Executive Officer is directed to act in accordance with the earlier decision and inform the tenants that they should vacate the premises within a fortnight so that the authorities / petitioner may demolish the building in question. The authorities are further directed to act in accordance with the order of this court, dated 29.7.2011. The tenants may be given notice to vacate the premises within a period of one month. Annexure 9 is quashed and the Municipal Officer, Begusarai is directed to take steps in ensuring that the building in question is demolished. CWJC No. 9109/2008 is allowed, whereas CWJC No. 768/2009 is dismissed. ( Sheema Ali Khan, J .)