Dismissed

Nigar Sultana v. State of U.P. and 3 Others

Allahabad HC18 Jul 2023WRIC/23255/2023

Case brief

AI extract

What is this about?

Petitioner tenant challenged eviction order declaring building dilapidated. Court held mandatory Section 263 notice was ignored. Eviction quashed; petition treated as notice; status quo maintained pending demolition query.

What did the court decide?

Impugned communication of 6.6.2023 quashed; petition treated as notice for Section 263; status quo maintained until fresh order.

Nigar Sultana Vs State of U.P. and 3 Others — Landlord and Tenant | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:142931-DB

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Court No. - 46

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Case :- WRIT - C No. - 23255 of 2023

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Petitioner :- Nigar Sultana Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Vinod Shankar Tripathi,Vijai Shanker Tripathi

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Counsel for Respondent :- C.S.C.,Kuldeep Johri

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Hon'ble Ashwani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.

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This writ petition is directed against a notice/order dated 6.6.2023, whereby the Executive Officer, Nagar Palika Parishad, Bisalpur, District Pilibhit, has called upon the petitioner to vacate the shop in his possession within a month, failing which the dispossession would be secured with the help of police. This communication also contains a recital that the building itself was constructed in 1928, and as about 100 years have expired since then, therefore, the structure has become dilapidated and is liable to be demolished. A subsequent notice has also been issued on 7.7.2023, which is also questioned.

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Learned counsel for the petitioner submits that the petitioner is a tenant of the shop for long and being the occupant the petitioner is entitled to be heard on the question as to whether the building is rendered dilapidated so as to require demolition or not?

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Reliance is placed upon Section 263 of the U.P. Municipalities Act, 1916, which reads as under:-

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"263. Power for the prevention of danger from ruinous buildings, unprotected wells, etc. - (1) A [Municipality] may require by notice the owner or occupier of any land or building, -

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(a) to demolish or to repair in such manner as it deems necessary any building wall, bank or other structure, or anything, affixed thereto, or to remove any tree, belonging to such owner or in the possession of such occupier which appears to the [Municipality] to be in a ruinous condition or dangerous to persons or property; or

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(b) to repair, protect or enclose, in such manner as it deems necessary, any well, tank reservoir, pool or excavation belonging to such owner or in the possession of such occupier, which appears to the [Municipality] to be dangerous by reason of its situation, want of repair or other such circumstances.

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(2) Where it appears to the [Municipality] that immediate action is necessary for the purpose of preventing imminent danger to any person or property, it shall be the duty of the [Municipality] itself to take such immediate action, and in such case, notwithstanding the provisions of Section 287, it shall not be necessary for the [Municipality] to give notice, if it appears to the [Municipality] that the object of taking such immediate action

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would be defeated by the delay incurred in giving notice."

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It is submitted that being the occupier of the building petitioner is entitled to be heard on the aspect relating to status of the building to be dilapidated. Contention is that since no such notice has been given and the determination of building being dilapidated is ex-parte, as such all consequential proceedings are rendered bad in law.

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A short counter affidavit is filed by Sri Kuldeep Johri on behalf of Municipality questioning the petitioner's right to occupy the building. It is also submitted that the notice period of one month since has expired, the petitioner is not entitled to remain in occupation. Certain photographs have also been annexed in order to demonstrate that building is dilapidated.

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On behalf of petitioner it is urged, in rejoinder, that as status of petitioner in the impugned communication is already shown as tenant, the Municipality cannot take a contrary stand now before this Court.

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We have heard learned counsel for the parties and have perused the materials on record.

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Since the notice under challenge clearly records the petitioner's status as a tenant of Nagar Palika Parishad, Bisalpur, therefore we are not inclined to examine the status of the petitioner as being the tenant only on the ground that such an issue is raised by way of a short counter affidavit filed today in the matter. The limited ground on which petitioner is proposed to be evicted is that the building itself is dilapidated.

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Section 263 of the Act of 1916, quoted above, clearly lays down the procedure to be followed where the Municipality finds the building to be dilapidated/ruinous. Sub-section (1) of Section 263 of the Act of 1916 stipulates issuance of service of notice upon the owner or occupier of any land or building. As the petitioner admittedly is recognized as tenant in the impugned communication, his status would be that of an occupier. A notice in terms of Section 263 of the Act of 1916 would thus have to be served upon the petitioner before holding the building itself to be dilapidated. Since no such notice has been served, we find the determination made by Municipality of building as dilapidated to be illegal and contrary to law. Consequential direction of the Municipality to vacate the premises on the premise that construction is dilapidated also cannot be sustained. In such circumstances, the impugned communication dated 6.6.2023 cannot be sustained and is, accordingly, quashed.

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In the facts of the case, we direct the impugned communication to be treated as a notice to the petitioner in terms of Section 263(1) of the Act of 1916. The Municipality shall also ensure that all the supporting materials in support of its opinion that building is dilapidated be also furnished to the petitioner, within a week from today. In the event such materials are supplied/furnished to the petitioner, he shall be at liberty to submit a reply within a further period of two weeks, thereafter. The Municipality shall be at liberty to proceed further, in accordance with law, and determine the question as to whether the building/construction requires demolition on the ground of it being dilapidated and proceed further, in accordance with law. Till a fresh order is passed, in accordance with law, the authorities shall maintain status quo with regard to the building in question.

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In light of the observations and directions contained above, this writ petition stands disposed of.

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Order Date :- 18.7.2023 Anil

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Digitally signed by :- ANIL KUMAR PATEL High Court of Judicature at Allahabad

Nigar Sultana v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Nigar Sultana v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

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