Punjab National Bank Circle Office v Kozhikode Municipal Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946 WP(C) NO. 26688 OF 2023** ## **PETITIONER/S:** **PUNJAB NATIONAL BANK CIRCLE OFFICE, SHATABDHI BHAVAN, MINI BYPASS ROAD, GOVINDAPURAM P.O., KOZHIKODE DISTRICT, REPRESENTED BY ITS CHIEF MANAGER, PIN - 673016 BY ADV K.P.SUDHEER** ## **RESPONDENT/S:** - **1 KOZHIKODE MUNICIPAL CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, NEAR AKASHVANI, KOZHIKODE, PIN - 673032** - **2 SUPERINTENDING ENGINEER KOZHIKODE MUNICIPAL CORPORATION, CORPORATION OFFICE, NEAR AKASHVANI, KOZHIKODE, PIN - 673032** - **3 SAKEER HUSSAIN S/O. MAMMAD KOYA, PROPRIETOR, M/S. UNITED TIN WORKS, ROSANS, VETTUVANKANDY PARAMBA, KALOOR ROAD, MANKAVU P.O., KOZHIKODE, PIN - 673007 BY ADVS. V KRISHNA MENON V.V.SURENDRAN P.A.HARISH(K/000392/1991) DONA PAUL(K/001661/2018)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.02.2024, THE COURT ON 09.04.2024, DELIVERED THE FOLLOWING:** W.P.(C) No.26688 of 2023 -2- ## **JUDGMENT** Dated this the 09[th] day of April, 2024 The petitioner is a Bank constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970. In the year 2003, the erstwhile Nedungadi Bank Ltd amalgamated with the petitioner bank and thereupon, the assets of the Nedungadi Bank Ltd, including its buildings situated on KPK Menon Road in Kozhikode city, got vested with the petitioner. One of the buildings on KPK Menon Road is in a highly dilapidated condition. The ground floor of that building had been given on rent to various tenants by the erstwhile Nedungadi Bank Ltd. After amalgamation, the petitioner decided to demolish the building and requested the tenants to vacate. As some of the tenants refused to vacate, rent control proceedings were initiated. Thereupon, all tenants, except the third respondent, vacated the W.P.(C) No.26688 of 2023 -3- building. As the building is on the verge of collapse, its structural stability was assessed with the help of experts. After conducting detailed inspection, the experts opined that, repair, restoration or rehabilitation of the building is not advisable as the building is under distress and there being possibility of sudden and brittle failure of various elements. The experts also reported that the building does not comply with the safety and serviceability requirements and tenancy or occupancy of the building is not advisable. In view of the alarming situation pointed out by the experts, the petitioner addressed Ext.P3 letter to the Secretary of the first respondent Corporation, requesting to inspect and ascertain whether the building is liable to be demolished. Accordingly, an Overseer of the Corporation inspected the building and submitted a report recommending its demolition. Consequently, the Superintending W.P.(C) No.26688 of 2023 -4- Engineer of the first respondent Corporation issued Ext.P4 communication to the petitioner directing to demolish the building within seven days. Thereupon, the petitioner sent Ext.P5 letter requesting the third respondent to vacate from the premises immediately. Surprisingly, the third respondent refused to vacate the tenanted premises even after receipt of the letter. While so, the petitioner was served with Ext.P6 notice, directing to demolish the building and report to the Corporation. Faced with such a situation, this writ petition was filed, seeking the following reliefs; _“(a) issue a writ of Mandamus or any other appropriate writ, order or direction commanding the first respondent to consider Exhibit P3 in the light of Exhibits P2, P4 and P6 notices and take appropriate steps under Section 411 of the Kerala Municipality Act, 1994 as expeditiously as possible;_ _(b) direct the 1[st] respondent to forthwith take appropriate action in terms of Sec.411(3) of the Kerala Municipality Act, 1994 in respect_ W.P.(C) No.26688 of 2023 -5- _of the building covered by Exhibit P4.”_ 2. Heard Adv.K.P.Sudheer for the petitioner Bank, Adv.V.Krishna Menon for the Kozhikode Municipal Corporation and Adv.P.A.Harish for the third respondent. 3. Learned Counsel for the petitioner contended that, since the building in question is posing imminent threat to the occupants and the passers-by, it is highly essential to demolish the building without further delay. Referring to the findings in Ext.P2 report of the Department of Civil Engineering, Government Engineering College, Kozhikode, it is submitted that the expert body having reported the building to be under distress, with the possibility of sudden and brittle failure of various elements, the Corporation ought to have demolished the building, by invoking its power under Sections 411(2) and (3) of the Kerala Municipality Act, 1994 ('the Act' for short). Relying on the W.P.(C) No.26688 of 2023 -6- ## decision in _**Sunder Raj v Corporation of Cochin**_ _**[2001 KHC 139]**_ , it is contended that, action under Section 411 can be initiated even if petition for eviction is pending before the Rent Control Court. 4. Learned Counsel for the Corporation also admitted that the building was inspected and found to be in a dilapidated condition. Therefore, the Corporation had issued Ext.P4 notice with a direction to the petitioner to demolish the building within seven days. As the petitioner failed to comply with the direction, Ext.P6 notice was issued, reiterating the direction to demolish. As the third respondent, who is a tenant in the building was refusing to vacate from the building, thereby obstructing its demolition, notice dated 07.12.2023 was issued, directing him to vacate tenanted premises forthwith. According to the Standing Counsel, under Section 411 of the Act, the responsibility W.P.(C) No.26688 of 2023 -7- of demolishing a building in ruinous state is of its owner or occupier and therefore, a writ of mandamus cannot be issued, directing the Corporation to demolish the building. 5. On the other hand, learned Counsel for the third respondent would submit that the building is still fit for human habitation. It is contended that, having failed to evict his client through due process of law, the petitioner and the officials of the Corporation had colluded and made up the story of the building being in a dilapidated condition, requiring its immediate demolition. It is submitted that the damage sustained to the building was only because of the deliberate failure of the petitioner to effect timely maintenance and repair. This, according to the Counsel, is clear from the condition of the building occupied by the third respondent and the adjacent building, where the branch and treasure chest of the petitioner bank is functioning. W.P.(C) No.26688 of 2023 -8- Finally it is contended that Ext.P2 report is a self-serving document and the building being structurally stable, it can be demolished, retaining the portion occupied by the third respondent. ## 6. As held by this Court in _**Sunder Raj**_ _(supra)_ , pendency of rent control proceedings is not a fetter for the Corporation invoking its power under Section 411, if the building is found to be in a ruinous state and dangerous to the passers-by or the occupiers of neighouring structures. In the case under consideration, an expert body has already opined that the building is on the verge of collapse. The Overseer of the Corporation has also recommended demolition of the building. It was based on the report/recommendation that Ext.P4 notice was issued by the Secretary calling upon the petitioner to demolish the building. The petitioner was not able to comply with the ## W.P.(C) No.26688 of 2023 -9- direction, since the portion of the building was occupied by the third respondent. It is also pertinent to note that, in spite of the Corporation issuing a notice to the third respondent, asking him to vacate the premises immediately, he has refused to do so. Facts being as above, Section 411(3) empowering the Secretary of the Corporation to remove any person disobeying an order for immediate evacuation assumes relevance. Moreover, as per Section 411(1), the Secretary can require the owner or occupier to demolish a building which is deemed to be in a ruinous state and dangerous to passers-by or to the occupiers of neighbouring structures, while under Section 411(2), the Secretary can demolish such a structure, even without giving notice, if the condition of the building warrants immediate action. Thus, it is the responsibility of the Secretary to first ascertain the actual condition of the building W.P.(C) No.26688 of 2023 -10- and then decide the future course of action. 7. There, even in spite of the report of the experts and recommendation of the Overseer, the Secretary of the Corporation is bound to independently assess the condition of the building. Such assessment can be done with the help of the experts from the Engineering Wing of the Corporation. Needless to say, if on such assessment, the building is found to be in a dilapidated condition or verge of collapse, thereby posing imminent threat and danger to the occupants and the passers-by, the Secretary can evacuate the third respondent and demolish the building. On the other hand, if the building is found to be in a dilapidated condition, without there being any imminent threat of its collapse, the Secretary can call upon the petitioner to demolish the building. While making the assessment, the Secretary can also consider the contention of the third respondent that the W.P.(C) No.26688 of 2023 -11- building can be demolished without affecting the portion occupied by him. The writ petition is accordingly disposed of directing the Secretary of the Corporation to inspect the petitioner's building on KPK Menon Road, Kozhikode with the assistance of the experts and take a decision on whether to demolish the building or not and proceed accordingly. The decision, as directed above, shall be taken within one month of receipt of a copy of this judgment. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.26688 of 2023 -12- ## **APPENDIX OF WP(C) 26688/2023** |**PETITIONER EXHIBITS**|**PETITIONER EXHIBITS**| |---|---| |**EXHIBIT P 1**|**TRUE COPY OF RENT CONTROL PETITION**| ||**ALONG WITH THE AMENDMENT PETITION IN**| ||**RCP NO. 144/2019 ON THE FILE OF THE**| ||**RENT CONTROL COURT (MUNSIFF COURT-I),**| ||**KOZHIKODE.**| |**EXHIBIT P 2**|**TRUE COPY OF REPORT SUBMITTED BY THE**| ||**ASST PROFESSOR, DEPARTMENT OF CIVIL**| ||**ENGINEERING, GOVERNMENT ENGINEERING**| ||**COLLEGE, KOZHIKODE TO THE PETITIONER**| ||**BANK**| |**EXHIBIT P 3**|**TRUE COPY OF REQUEST DATED 25/05/2022**| ||**SUBMITTED BY THE PETITIONER TO THE 1ST**| ||**RESPONDENT CORPORATION.**| |**EXHIBIT P 4**|**TRUE COPY OF NOTICE DATED 24/06/2022**| ||**BEARING NO. T.P9/42169/2022 ISSUED BY**| ||**THE SUPERINTENDING ENGINEER, KOZHIKODE**| ||**MUNICIPAL**<br>**CORPORATION**<br>**TO**<br>**THE**| ||**PETITIONER.**| |**EXHIBIT P 5**|**TRUE COPY OF LETTER DATED 31/08/2022**| ||**ISSUED BY THE PETITIONER TO THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P 6**|**TRUE COPY OF LETTER NO. T.P9/42169/22**| ||**DATED 21/11/2022 ISSUED BY THE 1ST**| ||**RESPONDENT MUNICIPAL CORPORATION TO**| ||**THE PETITIONER.**| |**EXHIBIT P 7**|**TRUE COPY OF CASE DETAILS OF RCP NO.**| ||**144 OF 2019 DOWNLOADED FROM THE**| ||**WEBSITE OF MUNSIFF COURT, KOZHIKODE**| |**EXHIBIT P 8**|**TRUE**<br>**COPY**<br>**OF**<br>**LETTER**<br>**NO.**| ||**CN/425800/GAD/2023-24 DATED 05.01.2024**| ||**ISSUED BY THE BRANCH MANAGER, K.P.K.**| ||**MENON ROAD BRANCH TO THE PETITIONER.**| |**EXHIBIT P 9**|**TRUE COPY OF ORDER DATED 4.11.2023 IN**| ||**RCP NO. 144 OF 2019 PASSED BY RENT**| ||**CONTROLLER/**<br>**PRINCIPAL**<br>**MUNSIFF-I,**| ||**KOZHIKODE.**| |**EXHIBIT P 10**|**PHOTOGRAPHS (6 NOS.) SHOWING THE**| ||**PRESENT CONDITION OF THE BUILDING**| W.P.(C) No.26688 of 2023 -13- **RESPONDENT EXHIBITS Exhibit R3(a) True copy of the Photographs of the front portion of the building Exhibit R3(b) A true copy of the report of the Advocate Commissioner in RCP 144/2019 dated nil on the file of the Principal Munsiff Court- I, Kozhikode Exhibit R3(c) A true copy of the common order of the Estate Officer dated 26.06.2014 on O.P. 1/2014 under the Public Premises (Eviction of Unauthorised Occupants) Act**