Writ Petition No. 2244 of 2010 · Andhra Pradesh High Court

Heard Sri E. Sambasiva Pratap, Learned Counsel for the petitioners and Sri S.Nageswara Reddy, Learned Standing counsel for the Chittoor Municipality and, at their request, the writ petition is being disposed of at the stage of admission. The petitioners, three in number, are tenants of shops belonging to the Chittoor Municipality. They claim to have an existing lease of the shops for a period of three years from

1.4.2008 till 28.2.2011. The 1st respondent issued proceedings dated 5.12.2009 informing the petitioners that the Municipal Shopping complex, located at Doctor Pathi Veedi and near the Gandhi Statue, was in a dilapidated condition and was not useful for habitation. In accordance with the Council Resolution the petitioners were directed to vacate the shops within 30 days from the date of receipt of the proceedings. The petitioners were further informed that, after completion of 30 days, the building would be demolished without any further notice. Aggrieved thereby, the present writ petition. In the counter affidavit, filed on behalf of the Chittoor Municipality, it is stated that by proceedings dated 9.5.2008 the lessees were informed that they would have to vacate the shops in case of repairs; it was clear from the soundness certificate, issued by the Roads and Buildings Department, that the building was not sound enough to take the load of additional floors; the RCC roof was exposed at some locations; Bank of India, which was hitherto

occupying the first floor, had vacated the building as its roof was damaged; the Municipal Council passed a resolution that the building be demolished as it was located in a over-crowed area; a large number of students and passers by were waiting for buses the Gandhi Statute; and it was dangerous necessitating the dilapidated building to be demolished. It is further stated that a notice was issued on 5.12.2009 calling upon the tenants to vacate their shops; the Municipality had decided to take up construction of a multi-storied building, in the place of the existing shops, on a Build Operate and Transfer basis, or a Public Private Partnership, so that revenues, generated thereby, would increase. Sri E.Sambasiva Pratap, Learned Counsel for the petitioners, would contend that, since the petitioners have a valid lease from 1.4.2008 to 28.2.2011 they cannot be asked to vacate the premises in question.

I see no reason to enforce contractual obligations, arising under a non-statutory contract, in Writ proceedings under Article 226 of the Constitution of India. The remedy of the petitioners, if any, is to approach the Competent Civil Court by way of a Civil Suit. Sri E.Sambasiva Pratap, Learned Counsel for the petitioners, would further contend that, in case the Commissioner is satisfied that the building is in a dilapidated state, he is required to put the occupiers on notice calling upon them either to fence off, take down or secure or repair such structures so as to prevent any danger arising therefrom and that demolition can only be resorted to where the building cannot otherwise be secured or repaired to obviate any danger arising therefrom. Chapter V of the A.P. Municipalities Act, 1965 relates to dangerous structures and trees and places. Section 231 provides for demolition in the case of dangerous structures.

Under sub- section (1) thereof, if any structure appears, to the Commissioner, to be in a ruinous state and dangerous to passers-by, or to the occupiers of neighbouring structures, he may, by notice, require the owner or the occupier to fence off or take down or secure or repair such structures so as to prevent any danger therefrom. Under sub-section (2), if immediate action is necessary, the Commissioner may, before giving such notice or before the period of such notice expires, fence off, take down, secure or repair such structure or fence off a part of any street or take such temporary measures as he thinks fit to prevent danger and the cost of doing so shall be recoverable from the owner or occupier. Under sub- section (3) if, in his opinion, such structure is imminently dangerous to the inmates thereof, the Commissioner shall order immediate evacuation and any person disobeying the order may be removed with the help of police officers.

The impugned proceedings neither reflects that the structures in question are in an imminently dangerous condition necessitating evacuation of its inmates, nor does the notice mention that immediate action under Section 231(2) is necessary. Even if the Commissioner was satisfied that the structure is in a ruinous state, and is dangerous to passers by or to occupiers of neighbouring structures, he ought to have put the occupier of the building (petitioners) on notice, as stipulated under Section 231(1), calling upon them to prevent danger from the structure either by fencing, taking down, securing or repairing it. Demolition of the building can only be resorted to where the building, which is sought to be demolished, is in a ruinous state, dangerous to the passers -by, and cannot otherwise be secured or repaired so as to prevent any danger arising therefrom. The impugned notice does not satisfy the ingredients of Section 231(1) of the A.P. Municipalities Act and is, accordingly, quashed.

Needless to state that this order shall not prelude the 2nd respondent from putting the occupiers of the building on notice, and thereafter take action in accordance with Section 231(1) of the Act. The writ petition is, accordingly, disposed of. However, in the circumstances, without costs. ____________ 6-4-2010