RAMNARAYAN RAMCHANDRA Vs. MUNICIPAL COMMISSIONER, INDORE

JUDGEMENT

(1.) THIS is an application by the Plaintiff from the judgment of the 1st appellate Court dismissing his suit in to. The points for decision are mainly two: (1) Whether the Courts are competent to consider the justification of the Municipal Commissioner in declaring any building to be in a ruinous or dangerous state for the purpose of Section 71 of the Indore Municipal Act ? and (2) Whether the structures found to have been put up by the Plaintiffs are really "new constructions" for the purposes of Section 45(5) of the Act or happened to be only "repairs not amounting to new constructions".

(2.) THOUGH the litigation has been protracted, the facts of the case are simple. The Plaintiff -Appellant is the owner of a house (which is admittedly old) within the Indore Municipal area. As long ago as 1952, the Commissioner of the Municipality received a report from his city engineer that this house was ruinous and in a dangerous condition. Therefore he noticed the owner under Section 71 of the Act to demolish it, cautioning him as usual that on his failure to do so the Municipality would itself get it demolished. Meanwhile the house owner did something which he obviously hoped would make the house safer; this certainly consisted of a few props fixed under certain beams, and according to the Municipality, reconstruction of parts of two walls. But these were according to the latter fresh construction, made without its sanction; so it ordered that these also should be removed, not as a dangerous structures under Section 71, but as unauthorised construction under Section 45(5) of the Act. Accordingly they noticed for the removal of this structure also. The practical effect would be the demolition of the entire house as it was practically impossible to remove the new structures only without getting down the house which in any case was old and shaky. The latter in any event had to be removed under the order under Section 71.

(3.) THE trial Court held that they were not proved to be dangerous because the City Engineer who had reported did not use instructions of measurement, but only gave his general impression. But in regard to the unauthorised construction it held that they were not merely repairs and accordingly held that the unauthorised constructions should be removed. There were two first appeals, one by the house owner and the other by the Municipality. The house owner's appeal was dismissed and the Municipal Commissioner's appeal was allowed on the ground that Section 71 left the matter entirely to his discretion and it is not for the Courts to decide whether or not the Commissioner was justified in coming to the conclusion that the building was ruinous or dangerous. The house owner has now come up in second appeal.