ORDER
Manmohan Sarin, J.
Rule.
With the consent of the parties writ petition is taken up for disposal.
1. The petitioners have filed this writ petition seeking a writ of mandamus against the Municipal Corporation of Delhi and its functionaries i.e. respondent No.s 1 and 2, to carry out their statutory obligation of demolishing the remaining portion of the front part of the building bearing municipal No. 4217, Mohd. Ahiran, Pahari Dhiraj, Sadar Bazar, Delhi. Respondent No. 3 is the tenant in the premises and carriers on his business there from.
2. This case has a chequered history. It would be necessary to briefly recapitulate the same.
3. The writ petition had come up before a learned Single Judge of this court on 27.9.1999. Learned Single Judge on the petitioner's submission that the property was more than 100 years old and that a substantial portion had collapsed, directed MCD to inspected the premises and if found to be in ruinous condition, it would take steps for demolition of the property. A status report was filed by the MCD in October 1999. As per the said report, the outer walls at ground floor had fallen down partly. Hanging portion had been removed and there was no danger to the property at that time.
4. On 29.11.1999, counsel for the petitioner stated that petitioner does not have requisite sum to carry out repairs to the property. Respondents NO. 3, tenant, undertook to bear the costs of constructions/repairs. Learned Single judge disposed of the writ petition directing that the reconstruction/repair of the property shall be carried out under the supervision of the MCD, who shall ensure that the reconstruction conforms to the existing structure. It was further ordered that respondent No. 3 shall not acquire any ownership rights in the property in question by carrying out the repair/reconstruction. Respondent No. 3 shall have only tenancy rights, as existing.
5. The petitioners preferred an LPA against the order dated 29.11.1999, passed by the learned Single Judge. The Division Bench allowed the appeal and set aside the order. The Division Bench took the view that the learned Single Judge had not decided the entitlement of the petitioner to the reliefs claimed. In the exercise of jurisdiction under Article 226 of the Constitution of India, the direction for carrying out the repairs, simply on the undertaking by respondent No. 3 to bear the cost of repairs, could not have been given. Division Bench directed disposal of the writ petition on merits in accordance with law afresh. This is how this writ petition came up before this Bench for consideration.
6. Learned counsel for the petitioner has urged before me that the structure is more than 100 years old. It is built of soil and ash. It is claimed that it is in a highly precarious and ruinous condition, as a substantial portion of the structure collapsed on 6.9.1999. Ms. Luthra submits that it is thus evident that the respondent MCD has failed to discharge its statutory obligations. She assailed the report of the Assistant Engineer of MCD to the effect that there was no imminent danger to the building after two front walls had collapsed and the hanging portion had been removed.
She further places reliance on the report of the Local Commissioner appointed by the Division Bench in the course of the proceedings in appeal. She submits that the local commissioner, Mr. Rajesh Lakhanpal is an advocate, practicing in this Court and is a qualified engineer. No objection had been filed against the said report and thereforee credence should be given to the said report. The local commissioner found that the front of the building with chajjas at the roof level was in a precarious state on account of some settlement of the foundation having taken place. Gaps between the projection from the wall and the stone slabs placed over it were noticeable. He also concluded that the portion which has fallen down does not exist and there is no question of any repair being carried out, as it would be new construction, if raised. In brief, the local commissioner reached the conclusion that certain portions of the premises were beyond repairs, including the front projection, while the structures in portion marked 1 and 2 in site plan in possession of tenant was capable of being repaired.
7. Learned counsel for the petitioner submits that since no objection has been filed to this report, it stands established that the building was not capable of being repaired and hence the only option was for its demolition. She submits that the petitioner is not joining issue with the respondent No. 3, but is pressing for a direction to the respondent MCD to perform it statutory obligation in terms of Sections 348 and 349 of the Delhi Municipal Corporation Act, and demolish the premises.
8. Learned counsel for respondent No. 3 submitted that this petition was a malafide attempt by unscrupulous landlord to evict the tenant, with ulterior motives. Learned counsel for respondent No. 3 submits that it was the petitioners' duty to maintain the premises in goods and tenantable repairs. The petitioner far form carrying out the repairs i preventing even the answering respondent form carrying out the repairs. The petitioner has deliberately given a go by to the remedies available under the Delhi Rent Control Act for securing possession of the tenanted premises in case they have become unfit or unsafe for human habitation, for the purposes of carrying out repairs. Petitioner could also seek vacation of tenanted premises for building or rebuilding. However, the petitioner has not taken recourse to the remedies under section 14(1)(f) and (g) of the Delhi Rent Control Act, since, the respondent would be entitled to be re-inducted in the premises in terms of Section 20 of the Delhi Rent Control Act. The petitioners' sole object is to evict respondent No. 3 by getting the premises demolished. Counsel urges that petitioner should not be permitted to abuse the legal process under Article 226 of the constitution of India.
9. Learned counsel for respondent No. 3, Mr. Suresh Gupta, submits that respondent No. 3 has filed a civil suit for permanent injunction to restrain the petitioner from interfering with the repairs to be carried out by him, as required. Counsel further submits that the report of Local Commissioner is a procured once and no reliance could be placed on it. It was in conflict with the finding of MCD i.e. why the Division Bench did not in its Final order takes cognizance of the report filed by the local commissioner before it. As the Division Bench did not take cognizance of the report in its judgment, there was no question of respondent filing objections to the said report. he further joins issue with the petitioner that the premises is in ruinous or irreparable state. Reliance is placed on the photographs produced by him at pages 21-22 of his reply. Counsel submits that the petitioners themselves have deliberately not either repaired or reconstructed the portion, which had fallen down with the sole object of harassing the respondent No. 3. Learned counsel for respondent No. 3 also relies on the judgment of the Supreme Court in Civil Appeal No. 9987 and 9989 of 1995 i.e. Kondeti Suryanaryana & Others v. Pinninthi Seshagiri Rao. The Supreme Court while dealing with similar provision under the A.P. Building (Lease Rent Eviction) Control Act, 1960, where a landlord sought demolition of the building on account of dilapidated condition observed as under :-
'Therefore, when a landlord requires a building to be demolished, necessarily he has to reconstructed the building on the same site of the building and on reconstruction of new building the tenant has a right to re-enter in the said premises.'
The Court repelled the interpretation that after the demolition the landlord is not required to reconstruct the building, holding, 'If such interpretation is given, then it would encourage the unscrupulous landlord to get eviction of the tenants on the ground of demolition of the building which would be repugnant to the object of the Act which aims to prevent unreasonable eviction of the tenant from the premises. We are, thereforee, of the view that where the landlord requires demolition of the building, he has necessarily to reconstruct the same with a right to the tenant to re-enter in the premises.'
10. Learned counsel for the respondent/MCD refutes the allegations of any dereliction of duty or collusion with the respondent No. 3. Learned counsel for respondent No. 3 maintains that the premises were not found dangerous and the respondent/MCD still not averse to any direction being given.
11. Having heard the learned counsel for the parties and perused the affidavits and documents produced on record, I find that it is not the petitioner's case that he would reconstruct the building after demolition. On the other hand, counsel for the petitioner stated before the learned Single Judge that petitioner does not have requisite sums to even carry out repairs. I find considerable merit in the contention of the learned counsel for respondent No. 3 that the petitioner in this case instead of resorting to the provisions of the Rent control Act seeking repair or reconstruction of the building where sufficient safeguards are provided for protecting the tenant's interest is seeking to have the premises demolished on the plea of the failure of the MCD to carry out its statutory obligations. In this case part of the premises is in occupation of petitioner and the balance is in the occupation and tenancy of the respondent.
12. Counsel for the parties have also brought to my attention that room No. 2 shown in the site plan filed at page 23 of the paper book had fallen down since September 1999 and has collapsed i.e. a part of the tenanted premises has already collapsed. Counsel are agreed that the passage of the room shown in the site plan at point D and marked for convenience as '4' is in possession of the petitioner. Learned Counsel for the petitioner states that part of the side walls of this portion had fallen down and it has not been repaired by the petitioner. thereforee, for all practical purposes at the moment the premises, which are presently occupied and existing with respondent No.3/tenant are room Nos. 1 and 3 and the extensions and chajjas thereof.
13. Petitioner has neither repaired the premises nor permitted respondent No. 3 to carry out the repairs. Even the malba from the passage at room No. 4 has not been removed. Petitioner cannot take advantage of his own neglect and default. Petitioner is pressing for demolition of the entire premises on the ground of it being in a dilapidated condition and dangerous without any proposal for its repair or re-construction. In these circumstances, the motive and bonafide of the petitioner become suspect. Keeping in mind the observations of the Supreme Court in Kondeti Suryanarayana & Others v. Pinninthi Seshagiri Rao Supra. referred to in para 9, and in these facts and circumstances, I am not persuaded that petitioner is entitled to relief in the exercise of jurisdiction under Article 226 of the Constitution of India. Moreover, there are conflicting report s before the court with regard to the state of the building. The report of the Assistant Engineer, MCD was that after the wall of room No. 2 had fallen and the hanging portion had been removed; there was no imminent danger to the rest of the structure. The repot of the local commissioner, as discussed earlier, is to the effect that some portions are repairable while others are not.
14. Petitioner's grievance is that respondents are not discharge their statutory obligations by demolishing a dangerous building. In these facts and circumstances, I am of he view that a fresh inspection be carried out by Zonal Engineer (Building), Dangerous Building Cell, Sadar Bazar, Pahar Ganj to assess the present state. Let the inspection be carried out within one month from today. MCD thereafter proceed with the matter in accordance with law in terms of Section 348 of the Delhi Municipal corporation Act. Nothing stated herein would come in the way of the Civil Court, exercising its jurisdiction and disposing of the suit, pending before it, in accordance with law.
15. The writ petition stands disposed of with the above observations and directions.