RAMPAL JOSHI Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this application under Article 226 of the Constitution, the petitioner has prayed for quashing the order dated 30.3.95 passed by the Tezpur Municipal Board and for issuance of a writ of Mandamus on the respondents forbearing them from demolishing the building occupied by the petitioner as a tenant for the purpose of his business and residence in pursuance of the said order dated 30.3.95.

(2.) The facts briefly are that the petitioner is a tenant under the respondents Nos. 4 and 5 in respect of a portion of the building standing on the land under periodic patta Nos. 769(New) /310(Old) of Tezpur town bearing Municipal Holding No. 1335 of Ward No. 6 of the Tezpur Municipality. Besides the petitioner there are four other tenants in the said building belonging to the respondent 'Nos.4 and 5. The Chairman of the Tezpur Municipal Board, issued a notice dated 21.7.94 to the respondent No. 4 stating therein that the aforesaid building under Holding No,1335 of Ward No.6 of Tezpur Municipality was not fit and safe for dwelling purpose and directing him to demolish, the building immediately failing which the Tezpur Municipal Board would be compelled to take drastic action under Section 183 of the Assam Municipal Act, 1956, ( for short, 'the Act, 1956'). Coming to learn Of the said notice dated 21.7.94, one Sri Dependra Joshi, the constituted Attorney of the petitioner, submitted a representation dated 3.9.94 before the Deputy Commissioner, Tezpur, alleging therein that the respondents Nos. 4 and 5 have been harassing the petitioner by adopting unlawful pressure tactics and have surreptitiously obtained an order from the Tezpur Municipal Board for demolition of the building, and making a prayer for suspending the said order for demolition under Section 296 of the Act, 1956. When the said representation of the petitioner was not considered, he filed Civil Rule No. 3471/94 before this Court and this Court while issuing Rule on 5.9.94 directed that pending disposal of the Rule, the said notice dated 21.7.94 issued by the Chairman, Tezpur Municipal Board would stand suspended. Thereafter, the Civil Rule was heard and disposed of by judgment and order dated 1.3.95 by this Court setting aside the said notice dated 21.7.94 and directing the Tezpur Municipal Board to make a fresh inspection after giving 10 days' notice to the petitioner and other tenants who were in occupation of the building and the owners fixing the date and time for joint inspection with the help of experts, and thereafter to take a decision as to whether any action as contemplated under Section 183 of the Act could be taken. In the said judgment and order dated 1.3.95 the High Court further directed that the directions must be complied within a month and observing that the parties would extentfull co-operation to the Tezpur Municipal Board in taking a decision in the case. The petitioner's grievance is that despite the aforesaid directions of the Court in the said judgment and order dated 1.3.95 in Civil Rule No. 3471/94 to make a fresh inspection with the help of the experts after giving notice to all the tenants of the building in question including the petitioner, a fresh order has been passed by the Tezpur Municipal Board on 30.3.95 behind the back of the petitioner directing the respondent No. 4 to demolish the building, if necessary, by taking police help. In pursuance of the said order, the respondent No. 5 alongwith other members of the family and with the help of 30/40 lured hands have resorted to demolition of the building including the residential house of the petitioner on 2.4.95. When the present Civil Rule was moved before this Court on 4.4.95, this Court while issuing Rule passed an interim order directing that the building in which the petitioner is carrying on business under the name and style M/s Uzala shall not be demolished.

(3.) An affidavit-in-opposition has been filed on behalf of respondents 4 and 5 stating, inter alia, that pursuant to the judgment and order dated 1.3.95 passed by this Court in Civil Rule No. 3471/94, notices for joint inspection were issued by the Tezpur Municipal Board on 15.3.95 to the all tenants as well as the respondent No.4 by Registered Post intimating them that a joint inspection by experts would be conducted in respect of the building on 27.3.95 at 10.30 a.m. and requesting them to be present on that date. In the said affidavit-in-opposition, it has been categorically stated that the notice on the writ petitioner was issued to his constituted Attorney Sri Dipendra Joshi as the writ petitioner was residing in Delhi at that point of time. In the affidavit-in-opposition, it has further been stated that on 27.3.95 a fresh joint inspection of the building in question was carried out in the presence of the Landlord and all the tenants including the writ petitioner who was represented by his wife, Smti. Puspa Joshi, and his son, Birendra Joshi, and thereafter an inspection report was submitted by the Executive Engineer, P.W.D. (Tezpur Building Division) to the Chairman, Tezpur Municipal Board, and the Chairman of the Tezpur Municipal Board then sent the same to the Additional District Magistrate for his views and after getting the views of the Additional District Magistrate, the Chairman, Tezpur Municipal Board issued the notice dated 30.3.95 to the respondent No.4 directing him to demolish the building in question. In the said notice dated 30.3.95, it has further been stated that copies of the same be sent to all the tenants occupying the building. Accordingly, the respondent Nos. 4 and 5 started demolishing the building on 2.4.95 at 9.00 a.m. after giving sufficient time to all the tenants to suitably vacate the building and remove their belongings. But after about 4 hours, the constituted Attorney of the petitioner produced before the authority present at the demolition site an order of the Deputy Commissioner staying the demolition which was passed by the Deputy Commissioner on the basis of a petition filed by the said constituted Attorney of the petitioner. On 3.4.95, the respondents 4 and 5 represented to the Deputy Commissioner when he summoned both the parties to appear before him on 4.4.95 and on 4.4.95 the Deputy Commissioner passed an order withdrawing the stay order that had been passed by him on 2.4.95 and allowing the Tezpur Municipal Board to take necessary action as per the directions of the High Court. The respondents 4 and 5 have alongwith their affidavit-in-opposition filed Xerox copies of receipts granted by the Postal Department to show that they have despatched the notices by Register post with A/D to all the five tenants of the building including Sri Dipendra Joshi, the constituted Attorney of the petitioner.