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First Appeal No. 1 of 1954, decided on 15^th May 1956, from the order of David Fazal‑ud‑Din, Senior Civil Judge, Sialkot, dated the 8^th December 1953.

Ss. 113, 114 Option to owner of dangerous building to repair not necessary before Committee itself takes action to avert danger.

Sections 113 and 114, Punjab Municipal Act, do not provide that the owner or occupier of a dangerous building has to be given the option to repair it before the Committee itself takes steps necessary to avert danger. Moreover, from the fact that the provision about repairs precedes that which gives the Committee the power to take the necessary steps it cannot be inferred that the second part becomes operative only if the first is not efficacious.

Byramji Pudumji v. Emperor 52 I C 665, Emperor v. Bastiao Andradez A I R 1934 Bom. 213 and Dwarka Mahton v. Patna City Municipality A I R 1936 Pat. 282 approved.

Petman v. King Emperor 23 P R 1905 (Cr.), Hazuri Mal v. King Emperor 18 P R 1908 (Cr.) and Mian Musharaff Shah v.Emperor A I R 1940 Pesh. 16 dissented from.

S. 3 and Sch. First, Art. 2‑Suit praying two reliefs‑Each relief governed by its own prescribed period.

Two reliefs had been asked for by the plaintiff: (1) com pensation for wrongful demolition of plaintiff's house by the Municipal Committee, (2) permanent injunction restraining the Committee from preventing the plaintiff from re‑building the house on its old foundations.

Held, that each relief was governed by its own period prescribed in the Limitation Act.

The period prescribed by Article 2 of the Act applied only to that part of the claim of the plaintiff which related to compensation for the demolition and had no application to the suit in so far as it sought a perpetual injunction to restrain the defendant.

S. 193 read with S. 174‑Scheme for widening street‑Suit for injunction res training Committee from withholding sanction to re‑build demolished building abutting on street, not competent‑Private owner to be compensated for land taken for the scheme. Although an owner of site of a demolished building, abutting in a street for which there exists a scheme for widening the same, is not entitled, because of section 193, to a perpetual injunction restraining the Committee from with holding sanction to the owner's plan to re‑build the building, he was entitled, under section 174, to compensation for loss of that part of his land on which he could not now build because of the scheme.

Sardar Muhammad lqbal for Appellant.

Sh. Bashir Ahmad for Respondent.

Dates of hearing: 10^th, 11^th November 1955, 10^th, 13^th and 14^th February 1956.

‑A suit for recovery of Rs. 1000 and for perpetual injunction instituted by Sheikh Ata Ilahi, a retired Senior Civil Judge residing at Sialkot, against the Municipal Committee of Sialkot was decreed to the extent of Rs. 3,966 together with the perpetual injunction prayed for by Mr. D. Fazal‑ud‑Din, the then Senior Civil Judge of Sialkot, on the 8^th of December 1953. Both the parties have attacked the decree; the Municipal Committee by an appeal to have the decree set aside and Sheikh Ata Elahi by cross‑objections with a view to having the amount of money granted to him as damages increased by Rs. 1,500. Both these matters will be disposed of by this judgment.

The suit out of which the appeal and the cross‑objections arise, was instituted on the 28th of November 1951. Some of the previous events may be briefly stated. In the third week of September 1950, there were very heavy rains in Sialkot and the authorities were naturally anxious that old and dilapidated buildings should cause no loss of human life by falling down because of the rains. A committee was, there fore, set up to inspect the possibly dangerous buildings. As this committee had no power under law to call upon the owners or occupiers of buildings to take the requisite steps with regard to them, officers competent to do so took appropriate action. On the 21st of September 1950, the Municipal Engineer, Sialkot, made a report to the Municipal Committee that a building, belonging to Sheikh Ata Ilahi plaintiff, situated in the main bazar of Sialkot City, was in a dangerous condition, and as there was an imminent danger of its falling down and thereby causing loss of human life, immediate action under sections 113 and 114 of the Punjab Municipal Act was called for. On the 28th of September 1950, the Executive Officer of Sialkot Municipal Committee recorded a note that immediate action was necessary with regard to the building and sought the permission of the Municipal Committee to take such action. The President of the Municipal Committee agreed with the Executive Officer and authorised him to take action. On the 24th of September 1950, two notices, one under section 113 and the other under section 114 of the Punjab Municipal Act, were issued by the Municipal Committee under the Signatures of the Executive Officer calling upon the plaintiff, who was owner of the buildings to demolish it within one day. These notices were served on the plaintiff on the 26th of September 1950 and he noted on the back of each that the building in question was in a perfectly sound condition and if the Municipal Committee demolished it, he will be entitled to damages. On the 28th of September 1950, the Municipal Committee issued two notices under section 220 of the Punjab Municipal Act stating therein that, as the notices under sections 113 and 114 had not been complied with, the plaintiff must demolish the building within six hours of the receipt of the notices, otherwise the Committee will be constrained to demolish the building at the expense of the plaintiff. The plaintiff did not comply with these notices with the result that on the 30th of September 1950, the Municipal Committee had the building demolished. On the 31st of January 1951, the plaintiff put in an application to the Municipal Committee, Sialkot, for permission to re build the building demolished by the Municipal Committee on the 30th of September 1950. This application was refused by the Executive Officer of the Municipal Committee on the 15th February 1951, on the ground that the proposed con struction contravened a scheme sanctioned for the widening of the main street. It was after this refusal that Sheikh Ata Ilahi instituted his suit. He claimed Rs. 10,000 as damages for the unjustified and illegal demolition of his building and a perpetual injunction to restrain the Municipal Committee from preventing him to re‑build a building on the same foundations as those of the demolished one.

In the plaint, it was pleaded, inter alia, that the action of the Municipal Committee in pulling down the building was ultra vires, illegal and capricious, because the Committee had no ground or material for believing that the building was in a dangerous condition. It was added that the rejection of the plaintiff's‑application to re‑build on the foundations of the demolished building was illegal, because he, as the owner of the site, could not be prevented from building thereon unless the Committee offered him compensation for the land which they sought to be made a part of the street. The defendant controverted the pleas of the plaintiff by pleading that the building which was demolished was in a dangerous state and, therefore, the Committee acted within its rights in demolish ing it. It was also pleaded that the rejection of the application of the plaintiff to build on the foundations of the demolished building was perfectly legal as otherwise a scheme which had been sanctioned for the widening of the street would be defeated. It was also pleaded that the suit was bad because of the non‑joinder of the Executive Officer as a defendant. On the pleadings o the parties the following issues were framed:‑

(1) Were the notices concerned in this case issued by the Municipal Committee or the Executive Officer to the plaintiff illegal, un-authorised, void and 'not binding on the plaintiff O. P. on the plaintiff.

(2) Was the condition of the building at the time of the notices or demolition of the building, sound and not dangerous to the persons residing therein or frequenting it or its neighbourhood

(3) Was the act of demolition of the building in dispute not done by the defendant in good faith

(4) If issues Nos. 1 and 2 go in favour of the plaintiff, has the Civil Court no jurisdiction to interfere in the matter

(5) Is the suit bad for non‑joinder of the Executive Officer

(6) Was the order of the Committee or Executive Officer in refusing permission to the plaintiff to construct a building on the property in dispute passed on insufficient ground and was unjustifiable or illegal, wanton, oppressive, mala fide etc., etc.

(7) If the above issue goes in favour of the plaintiff, cannot the said order be challenged in a Civil Court

(8) Is the suit within time

(9) Has the plaintiff a right to claim damages against the defendant If so, how much

(10) What is the correct interpretation of the scheme mentioned in the plaint and with what effect on the suit

(11) Could the Committee not refuse permission to the plaintiff in view of the scheme mentioned above.

(12) Relief.

The finding of the Court below on the first issue was that the notices issued to the plaintiff were not binding. Dealing with the second and third issues together, the learned judge of the Court below held that the demolished building was not in a dangerous condition and the demolition was not in good faith. Issue No. 4 was not pressed in the Court below and with regard to issue No. 5 it was held that it being unneces sary to implead the Executive Officer, his non‑joinder was immaterial. The finding on issue No. 6 was that the order of the Executive Officer in refusing the plaintiff to re‑construct a building on the foundations of the demolished building was unjustified and illegal. With regard to issue No. 7, it was held that the Civil Courts had jurisdiction to grant the plaintiff the reliefs he had claimed in his suit. On issue No. 8, the finding was that the suit was within time. As the questions that arose under issues Nos. 10 and 11 had been discussed by the Court below while dealing with issue No. 1, no separate finding was given on those issues. In the result, the suit of the plaintiff was partly decreed to the extent already mentioned.

The first question that calls for determination is whether or not the finding of the learned trial judge on issue No. 2 was correct. The defendant produced Imtiaz Muhammad Khan (D. W. 1) who was the Executive Officer of the Municipal Committee, Sialkot, on the relevant date, Mian Akbar Ali (D. W. 2) who was the President of the Sialkot Municipality at the time of the demolition of the building, Muhammad Yusuf (D. W. 3) who was a tenant in a shop situated in the ground floor of the demolished building, Abdullah Shah (D. W. 4) who had a shop adjacent to the demolished building, Abdul Hameed (D. W. 5) who too had a shop in the neighbourhood, Abdur Rehman (D. W. 6), Municipal Engineer, Sialkot, .and Muhammad Aslam (D. W. 7), Overseer of the Municipal Committee, Sialkot, as its witnesses. The gist of the statements of the above witnesses was that the demolished building was in a dangerous condition and some of its walls, which had cracks in them had bent a little. With regard to the condition of the building at the relevant time, the plaintiff produced Sheikh Muhammad Hussain, retired Engineer (P. W. 1), Jan Muhammad (P. W. 2) who had a shop in the neighbourhood of the demolished building, Ali Muhammad Shah, retired Overseer and Building Supervisor of the Municipal Committee, Sialkot (P. W. 6), Mr. Muhammad Aslam (P. W. 7), who was in those days A. R. P. Officer, Sialkot, and Mistri Ibrahim (P. W. 8) besides himself going into the witness‑box. The learned trial Judge came to the conclusion that the evidence given by the witnesses produced by the defendant was not reliable. He went on to say that in view of the unsatisfactory nature of the evidence led by the defendant with regard to the condition of the building, he would accept the solitary statement of the plaintiff on that point without reference to the other evidence produced by him, and as the plaintiff had deposed that the building was in a good condition issues Nos. 2 and 3 must be decided for the plaintiff. It appears to me that the evidence led by the defendant with regard to the condition of the building was not at all unsatisfactory as it appeared to the learned trial judge to be and there was no justification for overlooking the relevant evidence given by the witnesses produced by the plaintiff with regard to the condition of the building and relying on his statement alone especially when the evidence given by some of the witnesses of the plaintiff went quite some way to support the case of the defendant. For example Ali Muhammad Shah (P. W. 6) stated that about one week after the rains of September 1950, he had seen the demolished building at the request of the plaintiff with a view to determining if it required any repairs and that after the inspection he told the plaintiff that half of the second storey should be demolished in order to decrease the load. The plaintiff accepted. his advice and employed Mistri Ibrahim to work under his instructions and had the roof of the second storey and some walls removed by the mistri. In this statement, however, P. W. 6 was not supported by Ibrahim (P. W. 8) who said that he had removed only the mamti and a chhaja, the former of which was on the third storey and had merely effected some petty repairs to the rest of the building. The statement of Ali Muhammad Shah (P. W. 6) makes it clear that the building, the demolition of which by the Committee the plaintiff characterises as an oppressive act, was not as safe as he would have one believe. The statement of P. W. 6 leaves no room for doubt that the second storey required considerable pruning so that the load may decrease, but as would appear from the statement of Ibrahim (P. W. 8) that pruning did not take place. I find it difficult to agree with the learned judge of the Court below that the building was not in a dangerous condition. The learned trial Judge appears to have been of the opinion that it was with a view to carrying out the scheme which had been sanctioned for the widening of the street that the defendant had demolished the building of the plaintiff, but I find no evidence direct or circumstantial to justify that suspicion. It is in evidence that a number of other buildings which interfered with the carrying out of the scheme still stand, and I can think of no reason and his learned counsel could suggest none, why the building belonging to the plaintiff should have been singled out especially when its demolition would but advance the scheme to an insigni ficant extent. I would, therefore, reverse the finding of the Court below on issues Nos. 2 and 3 and hold that the demolished building was in a dangerous condition on the 30th September 1950, and the Committee acted in good faith when demolishing it.

The learned counsel for the plaintiff contended that even if the building was in a dangerous condition, the action of the Municipal Committee in pulling it down was not authorised by law. He contended that neither sections 113 and 114 gave the Municipal Committee the power to pull down a building unless the owner or occupier, as the case may be, had, in the first instance, been given the opportunity to repair the s; building in order to make it non‑dangerous. These two sections of the Municipal Act are in the following terms:‑

"113. Should any building, or any well, tank, reservoir, s pool, depression or excavation be, for want of sufficient A repair, protection or enclosure, dangerous to the persons dwelling or working therein or in the neighbourhood or to persons passing by, the committee may, by notice, require the owner or occupier thereof to repair, protect, or enclose the same; and should it appear to it to be necessary in order to prevent imminent danger, it shall forthwith take such steps to avert the danger as may be necessary."

"114. Should any building, wall or structure, or anything affixed thereto, or any bank or tree be deemed by the committee to be in a ruinous state or in any way dangerous, or there be any fallen building or debris or other material which is unsightly or is likely to be in any way injurious to health, it may, by notice, require the owner thereof either to remove the same or to cause such repairs to be made to the building, wall, structure or bank, as the com mittee may consider necessary for the public safety, and should it appear to be necessary in order to prevent imminent danger, the committee shall forthwith take such steps at the expense of the owner, to avert the danger as may be necessary.

In support of his contention the learned counsel for the respondent relied on Petman v. King‑Emperor (23 P R 1905 Cr) Hazuri Mal v. King‑Emperor (18 P R 1908 Cr.) and Mian Musharaf Shah v. Emperor (A 1 R 1940 Pesh. 16). These authorities no doubt support the contention of the learned counsel for the respondent, but with great respect to the learned judges who gave those decisions, I am of the view that they had not correctly interpreted the law contained in the relevant section of the Punjab Municipal Act. Nowhere do the sections provide that the owner or occupier of a dangerous buildings has to be given the option to repair it before the Committee itself takes steps it considers A necessary to avert danger, and from the fact that the provision about repairs precedes that which gives the Committee the power to take the necessary steps it cannot be inferred that the second part becomes operative only if the first is not efficacious. It is by no means inconceivable that a building may be beyond repair and as the owner or occupier of such a building cannot repair it so as to make it lose its dangerous character, it would be futile to give the person, to whom the notice is sent, the option to repair the building and to demolish it only in case he failed to carry out the necessary repairs. Yet, if the decision in the cases relied upon by the learned counsel for the respondent were to be accepted as correct law, the owner or occupier, as the case may be, must, even in the case of a building beyond repairs, be given the opportunity to repair it. The view taken by the Bombay High Court in Byramji Pudumji v. Emperor (52 I C 665) and Emperor v. Bastiao Andradez (A I R 1934 Bom. 213) and by the Patna High Court in Dwarks Mahton v. Patna City Municipality (A I R 1936 Pat. 282) that the owner or occupier is not entitled in the first instance to be given the option to repair the buildings runs contrary to that taken by the Punjab Chief Court and the Court of the Judicial Commissioner, Peshawar, in the cases mentioned above, and as the provisions of law, which the Bombay and the Patna High Courts had to interpret, were not materially different from those the interpretation of which came up before the Punjab Chief Court and the Court of the Judicial Commissioner, Peshawar, those authorities have relevancy. I am in respectful agreement with the view taken by the Bombay and the Patna High Courts because if that were not the intention of law, the whole object of those provisions of law which allow demolition of dangerous buildings by Municipal Com mittees will be frustrated. I would, therefore, reverse the finding of the learned trial judge on issue No. 1 also.

This brings one to the question whether or not the finding on issue No. 8 to the effect that the suit was within time was correct. If the building was properly demolished it is obvious that the act of the Municipal Committee was authorised by law and if the plaintiff questions it and claims compensation for the act, Article 2 of the Limitation Act, which prescribes a period of one year from the date of the act complained of for the institution of a suit, would be applicable, and the suit instituted on the 28^th of November 1951, to assail the demolition which took place on the 30^th of September 1950, would be clearly barred by time. The period of limitation prescribed by Article 2 of the Limitation Act will, however, apply only to that part of the claim of the plaintiff which relates to compensation for the demolition and will have no application to the suit in so far as it seeks a perpetual injunction to restrain the defendant.

I will now deal with the injunction granted to the plaintiff by the Court below to the effect that the defendant shall not stop him from building, on the foundations of the demolished building. It is proved by the evidence on the record that a valid scheme for the widening of the streets of the Sialkot City is in existence and it is, therefore, obvious that the Executive Officer could not but have rejected that plan which contravened the scheme because section 193 of the Municipal Act enjoins such rejection on the Executive Officer of the Municipal Committee, as the case may be. The question, however, arises whether the plaintiff could be deprived of a part of his property without being compensated for that deprivation. The law applicable to matters of this kind is contained in section 174 of the Punjab Municipal Act which reads as follows:‑

"Should any house, shop wall or other building or part of a building project beyond the regular line of a street, either existing or determined on for the future, or beyond the front of the building on either side thereof, the com mittee may, whenever, such house, shop, wall or other building or part thereof, has been either entirely or in greater part taken down or burned down, or has fallen down, by notice require such building or part when being re‑built to be set back to or towards the said regular line or the front of the adjoining buildings; and the portion of the land added to the street by such setting back or removal shall become part of the street and shall vest in the com mittee:

Provided that the committee shall make full compensation to the owner of the buildings, or of the land thus vacated for any damage he may sustain in consequence of his building or any part thereof being set back".

This section makes it clear that the Municipal Committee has to make adequate compensation to an owner whom it deprives him of his land for the purpose of carrying out a scheme, and section 193 of the Punjab Municipal Act provides that if the Committee is unable to pay the compensation mentioned in this section, the existence of the scheme is not to be a ground for rejection of the plan. There is no evidence that the Committee is unable to pay the compensation mentioned in section 174 of the Punjab Municipal Act nor that such compensation was offered to the plaintiff, and there is, conseq uently, no doubt that he is entitled to some relief: But in spite of what I have said, the plaintiff was not entitled to the perpetual injunction which has been granted to him because the rejection of the plan was in accord with law and should not be defeated by the issue of an injunction by a Court of law. On the facts established on the record, the plaintiff would be entitled to a declaration that he was entitled to be compensated for the loss of that part of his land on which he cannot now build because of the scheme of the Municipal Committee to widen the streets in the locality. I have no doubt in may mind that the plaintiff will be paid adequate compensation within a reasonable time and will not have to have recourse to a Court of law to obtain that relief.

In view of what I have said above, none of the questions, which form the basis of the other issues, requires determina tion, and I need say nothing about them. The result is that, while the appeal is accepted to this extent that the suit in so far as it relates to compensation is dismissed and in so far as it relates to the grant of injunction the decree of the trial judge is modified to the extent indicated above, the cross‑objections are dismissed. In view of the circumstances of the case, however, I would leave the parties to bear their own costs throughout.

I agree.

A. H. Order accordingly.

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