DWARKA MAHTON Vs. PATNA CITY MUNICIPALITY

JUDGEMENT

(1.) This is an application in revision against a conviction under Section 194(2), Bihar and Orissa Municipal Act, 1922, with a sentence of a fine of Rs. 25 or in default a week's simple imprisonment. On 14 February 1934, a notice was served by the Patna City Municipality on the petitioner, as the owner of a holding, requiring him within 7 days to demolish the front portion of his house (makan he samne ha hissa), and intimating as required by Section 359(2) of the Act that if he had any objection to make to the requisition he should prefer it within five days, failing which the demolition will be carried out by the Municipality and the expenses recovered from him. The notice also added that the person addressed would, if he failed to comply or prefer an objection, be prosecuted. The petitioner did not comply with the notice but filed an objection on 20 February explaining, as he says in para. 4 of his petition in revision, that demolition was unnecessary as the damage done to the building by the earthquake was in no way dangerous and repairs would be sufficient for which a month's time was prayed for, and further praying that an expert might be called after a month to inspect the repair and thereupon, if anything still remained to be done, the petitioner expressed his readiness to carry them out.

(2.) On 10 April 1934 the Municipality issued another notice to the petitioner requiring him to be in attendance on the spot on 12 of April 1934 at 9-30 in the morning so that the dangerous portion of the holding could be pointed out to him. This was doubtless in response to the petitioner's representation of the 20th February, and the Municipal Engineer inspected the house in the presence of the petitioner on 12 April and recorded a note that the first floor was to be dismantled totally and the two central pillars to be rebuilt after the dismantling, but that if the owner wanted to keep the first floor, he should dismantle the main wall of the eastern verandah from the very foundation and rebuild it on another foundation etc. On this report the Municipal Engineer appears to have been asked whether the petitioner had complied with the requisition or not, as the Sectional Officer had reported on 27 March that the petitioner had not removed the dangerous portion. The Municipal Engineer reported on 21 April that the petitioner had not complied with the requisition, and he was thereupon prosecuted. There was and is no dispute that the petitioner received the notice under Section 194(2) on 14 February and failed to comply with it either by demolition or by preferring an objection within five days. It was contended before the trying Magistrate that no demolition was in fact necessary. This defence was rightly held to be no answer to the charge, for Section 194 authorizes the Municipality to make a requisition when it appears to the Commissioners that any building, part of a building, wall, ... is in a ruinous condition and dangerous to persons or property.

(3.) It is not necessary for the legality of the requisition that the building should be found by the Courts to have been in a ruinous condition and dangerous to persons or property. Should the house-owner be disposed to dispute the question whether the building is in such a condition, he is entitled under Section 360 to prefer an objection within five days and the Chairman or Vice-Chairman or the Commissioners at a meeting as the case may be, are to dispose it of under Section 362, and record an order withdrawing, modifying or making absolute the requisition, and if such order does not withdraw the requisition, it has to specify the time within which the requisition is to be carried out. That is the procedure provided by the Act, and it is not open to the petitioner to urge before the Courts that the requisition for demolition should be held to have been unnecessary in view of the condition of the building. It is for the Municipal Commissioners to decide whether the issue of a requisition is necessary: this was held on a construction of the similar provisions of Section 64, Bengal District Municipal Improvement Act, (Bengal Council) Act 3 of 1864, in Gopee Kishen V/s. H.W. Ryland (1868) 9 WR 279. It has been contended on behalf of the petitioner that the notice under Section 194 was illegal because it required him merely to demolish the building, whereas it is said he should have been given the choice of one of the alternatives implied in the wording of the sub-section "to demolish, secure or repair such building, wall, etc." The notice was on a printed form which spoke of demolishing or repairing for dijiye ya maramviat kardijiye, but the alternative of repairing was penned through.