Allowed

Israr Ahmad and 2 Others v. State of U.P. and 6 Others

Allahabad HC19 Sept 2022WRIC/4202/2022

Case brief

AI extract

What is this about?

This writ petition challenged a demolition notice issued without supplying the inspection report or a hearing to occupied tenants. Relying on a prior binding order, the High Court held that strict adherence to reporting and notification procedures under Section 331 is mandatory and directed the Nagar Nigam to supply records and treat the notice as a show-cause notice.

What did the court decide?

Petitioners were directed to receive the inspection report; the notice was treated as a show-cause notice allowing them two weeks to reply before further orders passed.

Israr Ahmad and 2 Others Vs State of U.P. and 6 Others — Property and Title | Allahabad HC (2022)

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Court No. - 21

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Case :- WRIT - C No. - 4202 of 2022

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Petitioner :- Israr Ahmad And 2 Others Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Gaurav Singh,Rajnish Sahai Saxena,Sr. Advocate

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Counsel for Respondent :- C.S.C.,Manoj Kumar Singh,Ram M. Kaushik

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Hon'ble Manoj Kumar Gupta,J. Hon'ble Jayant Banerji,J.

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The instant petition is directed against the notice dated 30.12.2021 issued by respondent no.3 i.e. Nagar Ayukt, Nagar Nigam, Prayagraj in purported exercise of power under Section 331 of the U.P. Municipal Corporations Act, 1959.

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Relevant part of Section 331 of the said Act is reproduced below:-

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"(l) If it shall at any time appear to the Municipal Commissioner that any structure (including under this expression any building, wall, parapet, pavement, floor, steps, railing, door or window frames or shutters or roof, or other structure and anything affixed to or projecting from or resting on, any building, wall, parapet or other structure) is in a ruinous condition or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, the Municipal Commissioner may, by written notice, require the owner or occupier of such structure to pull down, secure, remove or repair, such structure or thing or do one or more of such things and to prevent all cause of danger therefrom."

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The impugned notice refers to a joint inspection report by Engineers and Architect opining that the building in question is in ruinous condition and is likely to fall. Respondent no.5, the owner of the building, to whom it is addressed, has been called upon to demolish the said building, failing which, he will be responsible for any mis-happening.

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The main ground of attack is that the alleged inspection was made exparte; that the inspection report was not supplied to the petitioners, who are lawful tenants. It is submitted that the petitioners have not been given any opportunity to submit their response, as the alleged inspection was made on 29.12.2021 and on the next date, the impugned order was passed.

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The Nagar Nigam, Prayagraj as well as respondents 5 and 6, the owners of the building have filed their counter affidavits. They have taken stand that the building is in ruinous conditions and needs demolition. However, it is not disputed that the alleged inspection was made on 29.12.2021 and on the very next date, the impugned notice was issued. It is also not in dispute that the petitioners are occupying the building as tenants.

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Sub-section (1) mandates that the Municipal Commissioner, by written notice, shall require the owner or occupier to pull down the structure or secure or repair it if it is in ruinous condition.

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A Division Bench of this Court in Writ-C No.20283 of 2017 decided on 12.5.2017, issued the following directions:-

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"Before parting, we observe that, if an application is made by the landlord or the landlady for seeking action, as contemplated by Section 331 of the Act, the Municipal Commissioner shall constitute a Committee consisting of an architect and the Executive Engineer concerned which shall verify the correctness of the statement made by the landlord or the landlady in their application seeking action under this provision and shall act on the same only after receiving a report from the said Committee. Whenever a notice is issued to the occupiers under Section 331 of the Act, the concerned authority shall also serve a copy of the report along with the notice before taking any further action under the said provision. We are of the considered view that these safeguards are necessary in order to ensure that the provisions of section 331 are not misused. We are further of the view that the procedure formulated hereinabove must bind and be replicated in all Municipal Corporations and bodies constituted under the U.P. Municipal Corporations Act, 1959 throughout the State. We accordingly direct Mrs. Subhash Rathi the learned Standing Counsel to cause a copy of this order to be placed before the Principal Secretary Nagar Vikas Government of Uttar Pradesh for issuance of appropriate circulars/directives to all municipal bodies ensuring that the above procedure is duly complied and followed in proceedings under Section 331 of the Act."

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Since it is not in dispute before us that the petitioners were not given copy of inspection report nor notice or opportunity of hearing, we dispose of the instant petition as follows:-

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(a) The respondent Nagar Nigam shall provide a copy of the inspection report or any adverse material on which it seeks to rely upon, to the petitioners within a week.

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(b) The impugned notice will be treated to be a show cause

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notice and it shall be open to the petitioners to file reply to the same within two weeks.

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(c) The third respondent shall thereafter proceed to pass order, after considering the reply submitted by the petitioners, within a week.

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(d) The impugned notice will abide by the order that is passed by respondent no.3 in compliance of the instant order.

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In the meantime, the petitioners, who are opposing the demolition, shall remain liable for the consequences as well as obligations under sub-section (2) of Section 331 of the Act.

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(Jayant Banerji, J.) (Manoj Kumar Gupta, J.)

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Order Date :- 19.9.2022 SL

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Digitally signed by SHYAM LAL Date: 2022.09.20 14:01:56 IST Reason: Location: High Court of Judicature at Allahabad

Israr Ahmad and 2 Others v. State of U.P. and 6 Others

Case brief

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Israr Ahmad and 2 Others v. State of U.P. and 6 Others

Case brief

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