P L D 1961 Supreme Court 157 (PLP)

S. A. RAHMAN, J.‑This is a certificated appeal from a judgment and decree of the High Court of West Pakistan; by which the decision of the trial Court was partly reversed and partly varied, on appeal. The facts giving rise to the litigation may be briefly summarized as follows. The appellant owned a building, situate at the corner of Bazar Kalan and Bazar Khatikan in Sialkot City. Due to exceptionally heavy rains in the third week of September 1950, the building in question was damaged and was condemned as dangerous by the Municipal Authorities. On the 24th of September 1.950, two notices, one purporting to be based on section 113 and the other on section 114 of the Punjab Municipal Act, were issued under the signatures of the Executive Officer of the Municipal Committee, calling upon the appellant to demolish tie building within one day. These notices were duly served on the appellant on the 26th of September 1950. He made an endorsement on the back of each of the notices to the effect that the building in question was in a perfectly sound condition and that if the Committee took action by way of demolishing it, he would claim damages. These two notices were followed up by two others under section 220 of the Punjab Municipal Act, on the 28th September 1950, demanding that as the previous notices had not been complied with the plaintiff should now carry out the demolition of the building within six hours of the receipt of the notices, failing which the Committee would itself take the neces?sary action at the expense of the appellant. As the notices were ignored, the Committee had the building demolished on the 30th of September 1950. On the following day, the appellant sent an application to the Municipal Committee, Sialkot, for permission to re‑erect the building on the old site. This application was turned down by the Executive Officer on the 15th February 1951, on the ground that it offended against a sanctioned scheme for the widening of the street. The suit, out of which the present appeal arises, was then instituted by the appellant in which he claimed Rs. 10,000 as damages for the alleged illegal demolition of his building and prayed for a perpetual injunction, restraining the Municipal Committee from preventing reconstruction of the building on its old foundations. The grounds set out in the plaint for the reliefs claimed were, inter alia, that the action of the Municipal Committee in pulling down the building was ultra vires, illegal and capricious, as the building was not in a dangerous condition and that the rejection of the plaintiff's application for permission to re‑build on the foundations of the demolished structure had also no legal sanction because the owner of the site‑ could not be prevented from re?-erecting the building, unless the Committee offered him compensa?tion for the land which they intended to include in the widened street. The suit was contested on behalf of the Municipal Committee on all grounds and a number of issues were settled by the trial Court on the pleadings of the parties. On the material issues, that have been canvassed in this appeal, the trial Judge found that the notices, issued to the plaintiff, were illegal and were not binding on him as they failed to give an option to repair the building as an alternative to its demolition, that the building was not in a dangerous state, that the demolition was effected for ulterior motives, namely, in the interest of widening the street, and that the order of the Executive Officer refusing permission to the plaintiff to reconstruct the building on the old foundations was unjustified and illegal. In pursuance of these findings, the plaintiff's prayer for compensation was decreed to the extent of Rs. 3,966 on account of the alleged illegal demoli?tion of the building and a perpetual injunction was also granted to him as prayed. The decision was challenged in appeal before the High Court on behalf of the Municipal Committee, and Sheikh Ata Elahi, the present appellant, also filed cross‑objections with the object of having the damages decreed in his favour, enhanced by Rs. 1,500. After a careful consideration of the evidence on the record, the High Court reached the conclusion that the building in ques?tion was, in fact, in a dangerous state and that its demolition under orders of the Municipal Committee was a bona fide act. This being the position, the plaintiff appellant was held to be disentitled to any compensation on account of the demolition of his building and the suit was ordered to be dismissed in respect thereof. As it was conceded in the Courts below that a valid scheme for the widening of the main street was in existence, the rejection of the appellant's plan for re‑erection of‑ the building on the old site, was held to be justified by virtue of section 193 of the Punjab Municipal Act. At the same time, the learned Judges found that section 174 of the Act enjoined on the Municipal Committee the obligation to make full compensation to the owner of the building for any damage he might sustain in consequence of the new construction being set back in accordance with the sanctioned scheme. In consequence, the injunction granted by the trial Court was substituted by a declaration in this sense. The cross‑objections were also dismissed. The first question that arises for consideration is whether, in fact, the building owned by the appellant had, on account of damage by excessive rains in 1950, become so dangerous that its demolition alone was consistent with the safety of the public. Learned counsel for the appellant has taken us through the relevant evidence on this point. After giving due consideration to the reasoning of the learned trial Judge and the grounds on which the High Court differed from him we have come to the conclusion that the view taken by the High Court is eminently sustainable on the basis of that evidence. The witnesses called by the defendant‑respondent to prove this point were independent persons, who were not actuated by malice against the appellant, and their testimony received indirect support from certain admissions made by two of the plaintiff‑appellant's own witnesses. The opinion expressed by the trial Judge that the Municipal Committee, in ordering the building to be pulled down was actuated by their anxiety to ensure facility for widening the street, seems to rest on mere conjecture. Indeed, there are indications in the evidence to the contrary. It was mentioned by some witnesses that certain buildings, that projected beyond the building line envis?aged by the sanctioned scheme, still exist in the bazar in the vicinity of the appellant's site. As the learned Judges of the High Court have pointed out, there was no particular reason for the Municipal Committee to single out a building owned by the appellant for demolition as it would not have advanced their scheme to any significant extent. In the circumstances, the finding, recorded by the High Court, that the building was in a dangerous condition and its demolition was a reasonable act, does not appear to be open to exception. It was contended on behalf of the appellant with some force that section 113 of the Punjab Municipal Act had no relevancy to the issue of notice for demolition of a building, as, in terms, it merely provided for repairing or otherwise securing a building, so as to avoid danger to the public. The notice under section 113 of the Act may, however, be regarded as a mere surplusage, con?sidering that the admittedly appropriate provision in section 114 was also invoked by the Municipal Committee for issuing the second notice to the appellant. Section 114 of the Municipal Act is expressed in these terms :‑ "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 committee 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. The argument was advanced in the Court below and has been reiterated before us that this section required an option to be given to the owner of the building, either to repair it or to demolish it, and that it was not open to the Committee to decide which one of the two alternatives should be adopted. In support of this proposition, reliance was placed on two decisions of the Punjab Chief Court and another of the Peshawar Judicial Commis?sioner's Court, which undoubtedly seem to favour this contention. These decisions are Petman v. King‑Emperor (23 P R 11905 Cr.), Hazuri Mal v. King Emperor (18 P R 1908 Cr.) and Mian Musharaf Shah v. Emperor (A I R 1940 Pesh. 16). The two later decisions merely purported to follow the authority of the first and it would be necessary only to examine the reason?ing in that case. In Petman v. King‑Emperor, Reid J. of the Punjab Chief Court in a brief order accepted the recommendation made by a learned Sessions Judge in revision and set aside the conviction of the convict in that case under section 94 of the Cantonment Code of 1899. The words of the relevant enactment were somewhat similar to those of section 114 and the learned Judge was of the opinion that as the section did not run "may by notice in writing either require the owner . . . . . . to remove the same or require him to cause such repairs, etc.", the owner or occupier was to have the option of removal or repair. As no such option had been given in the notice that fell for consideration in that case, it was held that it had no validity in law and that its contravention did not constitute an offence. With respect, it seems to us that the relevant provision of law as it existed was susceptible of the same construction as in the opinion of the learned Judge would have been permissible with the drafting change suggested by him. The view taken by the learned Judge apparently proceeds on an inadequate analysis of the language employed in the section. The High Court agreed with the view taken by the Bombay and Patna High Courts in almost parallel cases reported as 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 R 1936 Pat. 282). In the first Bombay case, section 149 of the Bombay Municipal Boroughs Act, 1925, and in the second case, section 97 of the Cantonment Code 1912 required interpretation. The material words of the two provisions of law were on a par with those of section 114 of the Punjab Municipal Act and it was held in both cases that the construction which vested the right of choice of one of the alternative modes of proceeding, envisaged by those provisions, in the public' authority rather than in the private owner, was more likely to be in accord with the intention of the framers of the relevant Acts. In the Patna case too a similar construction of section 194 (2) of the Bihar & Orissa Municipal Act 1922 was the ground of decision. This view, as the High Court points out, has the merit of being consistent with the final part of section 114 of the Pun jab Municipal Act, which enables the Committee to take action even without a notice in a case of imminent danger. We have not been shown any cogent ground such as could persuade us to take different view of the meaning of this section. This provision has been apparently inserted in the Act, in the public interest and that interpretation should be favoured which, in accordance with the well‑recognized a rule of construction, suppresses the mischief aimed at and advances the remedy therefore. The construction adopted by the High Court satisfies that test. It must follow that the action taken by the Committee in this case was justified by the circumstances, and the law applicable. The claim for compensation on account of the alleged illegal demolition, was, therefore, rightly negatived. It is common ground between the parties that there existed a validly sanctioned scheme for widening the main bazar in which the disputed property stood. After the structure has been pulled down, a new plan can obviously be sanctioned for re‑construction, only in accordance with such a scheme. The High Court has already granted to the appellant a declaration that he is entitled to compensation for the loss of that part of his land on which he cannot now build, in the face of the sanctioned scheme, as required by section 174 of the Act. No other point arises for consideration in this case. Interference with the decision of the High Court is not called for on any ground and we dismiss the appeal with costs. K. B. A. ????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.