BANGSHIDHAR BYSACK Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) THERE are three petitioners in this case. They say that they are tenants of a portion of premises No. 9, Gupta Lane situated in the town of Calcutta. The respondents Nos. 7 and 8 are also tenants of portion of the said premises. The respondents Nos. 4, 5 and 6 are owners of the said premises. The said premises is within the jurisdiction of the Corporation of Calcutta. It appears that sometime in January, 1964 intimation was received in the office of the City Architect that the building constituting the said premises is in a very insecure condition. On the 6th February, 1964 the premises was inspected by the Insecure Building Surveyor. It is necessary to set out the report below: -

(2.) ON the 26th February, 1964 the Chief Insecure Building Surveyor inspected the said premises. It is also necessary to set out his report as made to the City Architect: -

(3.) ON the 25th March, 1964 the City Architect certified demolition of a portion of the said premises marked 'abcd' in a sketch prepared for the purpose (Ex. A to the petition), under rule 5 (4) of the Schedule XVII of the Calcutta Municipal Act, 1951. On the 11th April, 1964 the Commissioner to the Corporation of Calcutta personally inspected the building together with the City Architect and the Chief Insecure Building Surveyor. On the 16th April, 1964 the Commissioner made an order of demolition under rule 5 (4) of the Schedule XVII of the said Act. On the 5th May, 1964 the intimation of the said order was given to the owners and occupiers of the said premises. Now this application has been made asking for a writ directing the respondents to recall, cancel and withdraw the said order of demolition dated 16th April, 1964 and the notice served thereunder and to forbear from giving effect to it in any manner whatsoever. The grounds made out in support of the application are as follows: The first ground is that in fact no part of the said premises is in any danger of collapse now or in the near future. Secondly, it is said that the respondent No. 2 the Commissioner to the Corporation had no materials before him on the basis whereof he could possibly come to the conclusion that the demolition of the said premises was necessary for the safety of the public or the inmates of the building and, therefore, the order dated 16th April, 1964 was arbitrary. The third and last ground is that the order of demolition was not made bonafide. The matters to be taken into consideration in such an application have been set out by me in (1) Ajoy Kumar Ghose v. Corporation of Calcutta and anr. , A. I. R. (1956) Cal. 410. I have pointed out there that the city of Calcutta abounds in ancient structures and there were many buildings which were on the verge of collapse and yet, owing to acute housing shortage, the residents therein were clinging to them, although in normal circumstances they would never dream of living amongst such dilapidation. These ancient structures were, in fact, in such state of dilapidation, that many of them have collapsed and others were cm the very verge of collapse, and it was to meet the situation that sub-rule (4) in rule 5, of Schedule XVII was promulgated. In such cases, the main point to be considered is as to whether, cm the materials placed before the court, it is satisfied that there is such imminent danger of a wall or building collapsing, with dire consequences to the inmates thereof and to the public generally, that the authorities were justified in invoking this particular provision of law. In arriving at this conclusion, the certificate of the City Architect is of prime importance. Under the English law it is accepted as conclusive. Whether we should accept it as conclusive or not, it is of the highest evidentiary value. The City Architect of the Corporation of Calcutta has a department to deal with insecure buildings and when it is found that there has been proper inspection, and materials are on the record to satisfy the court that the conclusions reached by the City Architect and the Commissioner to the Corporation are reasonable, then the court should not lightly interfere with the discretion given to the Commissioner to exercise his power under the provisions of sub-rule (4) of rule 5 in schedule XVII. Where the court is asked to interfere with the exercise of such discretion, it has a great responsibility. Because of the delay in enforcing demolition, dilapidated buildings often collapse with fatal consequences to the inmates of such buildings as well as the members of the public in the vicinity. Such carders cannot therefore, be lightly made. In this case, as in most applications of the same nature, a report is obtained from an Engineer stating that the premises in question is not in a dilapidated state and does not require immediate demolition. In this particular case, there is a report by Mr. P. C. Chatterjee, an Engineer on the panel of this Court, according to which the present condition of the premises in question is "quite safe and secure". In my opinion, this report cannot be accepted. I may mention that the petitioners have themselves annexed photographs of the premises to the affidavit of Bangshidhar Bysack affirmed on the 30th May, 1964. A glance at the photographs would show that the premises is in an advanced stage of dilapidation. In my opinion, it should have been demolished years ago and not a moment's delay is warranted. The report of Mr. Chatterjee does not deal with some of the important facts appearing in the reports of the Insecure building Surveyor, In the report dated 6-2-1964, it is stated that upon an examination of the attached northern wall which has been exposed as a reason of dismantlement of a part of the premises, it was found to have been constructed of Bengal bricks with mud mortar, about a century old. The northern wall at ground floor has been dangerously hollowed and honeycombed, beams and bargas are in a dangerous state of dilapidation. In the report dated 26-2-64 it is stated that the mud morter has lost all its adhesive strength ; there are cavities in the walls; bricks of arches have become loose and displaced; most of the horizontal supporting are worn out and damaged. Floors have sagged beyond the permissible limit and the excavation of foundation for a new building on the south has aggravated the insecurity of the building. The report of Mr. P. C. Chatterji gives a completely different picture. He does not however deal with most of the points raised in the two reports above mentioned. He says that lime, surky mortars used in the building have got sufficient adhesive power. It may be that such mortar has been used in some portion, but he has not even mentioned the use of mud mortar and the cavities. He says that he did not "notice any horizontal or vertical crack damaging to the building". This is a very qualified statement. First of all, he does not say that there are no such cracks and secondly, he does not say whether there are other kind of cracks and what was the effect thereof. I have come to the conclusion that the report does not give a true picture of the state of the premises and I am unable to accept it. I think that the reports of the Insecure Building Surveyors, which have been found to be correct by the personal inspection by the City Architect and the Commissioner of the Corporation should be accepted as presenting the true picture of the state of the premises. It will be remembered that only a portion of the premises has been recommended for demolition. In my opinion, the discretion has been rightly used and that part of the premises should be forthwith demolished for the safety of the residents as well as the members of the public. In the facts and circumstances of the case, the second ground taken is also without substance. There were sufficient materials placed before the respondent No. 2 on the basis of which he took action. In fact, he himself inspected the premises together with the City Architect and the Chief Insecure Building Surveyor before making the order of demolition. I now come to the third point namely, that the order has not been made bonafide. As regards this ground, two points have been raised. The first point is that this is an attempt on the part of the landlords to evict the tenants and is not a genuine attempt to have a demolition order made in the interests of the inmates and the public in general. Since on the first point I have come to the conclusion that in fact the premises is in imminent danger of collapse, it is irrelevant to consider the conduct of the landlord. However, I shall consider the complaint which has been made. It is said that the landlords have submitted a plan for construction and reconstruction in respect of the said premises which has been allowed by the Standing Building Committee. This fact is nowhere stated in the petition. However, an affidavit has subsequently been filed. I find from the plan which has been submitted that the entirety of that part of the premises which is to be demolished is being reconstructed. In other words, new walls are to be made as well as new floors and roof, the floors and roof being of re-inforced concrete, I do not see how this establishes the absence of bonafides. When a plan is submitted for sanction what has to be seen is whether the building rules of the Corporation under the said act are complied with. The state of premises which will have to be dismantled before building a new one does not come up for consideration. In any event, I do not see how this establishes any mala fides on the part of the landlords. The proposed reconstruction, according to the sanctioned plan, cannot be made unless the existing structure is demolished. If the landlord merely wanted to repair the premises, he would not have supported the order of demolition as he is doing now. Therefore, what is in fact happening is that a premises which is in the last stage of dilapidation, being cover hundred years old, is being demolished and in its place a new construction with reinforced floors and roofs is being constructed. In my opinion, it would be absurd to hold that this denotes maladies on the part of any one. The next point taken is that one of the tenants made an application before the Rent Controller complaining of the want of repairs and thereupon an order was made for inspection of the premises and there was an order of the Rent Controller directing repairs. This again is a point which was not originally taken in the petition but has been subsequently put forward. Be that as it may, I do not see how this affects the question. A tenant made an application to the Rent Controller for repairs and certain repairs were directed. Even in the report before the Rent Controller, it was stated that the premises was 'very old'. Under the Premises Rent Control Order, only a limited order of repairs can be made. The issue as to whether the entire premises should be demolished or not, does not come up for consideration. To these proceedings, the municipal authorities are not parties, so that they cannot be governed by such orders with regard to the exercise of their powers under sub-rule (4) of rule 5 of Schedule XVII. This does not in any way establish the want of bonafides on their part.