1. Heard Sri H.P.Pandey for the petitioner, learned Standing Counsel for respondents No.1 and 2, Sri Govind Krishna for respondent No.3 and Sri Jamil Ahmad for respondent No.4.
2. The writ petition is directed against the order dated 10th June, 2004 (Annexure 8 to the writ petition) passed by Executive Officer, Nagar Palika Parishad, Azamgarh directing for demolition of House No.96 and the order dated 12th July, 2005 passed by District Magistrate, Azamgarh (Annexure 1 to the writ petition) dismissing appeal of petitioner against aforesaid order of demolition.
3. The petitioner, claiming himself to be a tenant of the property in question, has said that he is living therein for the last more than 30 years. The property in question is owned by respondent No.4 Rafeeque Ahmad, Son of Waqeel Ahmad. The portion wherein the petitioner is residing is a Kaccha house. It require certain repairs and therefore, petitioner sent notice under Section 28 of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P.Act No.XIII of 1972) (hereinafter referred to as "1972 Act") requesting respondent No.4 to get the accommodation repaired failing which petitioner himself would take steps for its repair and expenses shall be the ultimate liability of respondent No.4.
4. Having failed to receive any response, petitioner filed P.A. Case No.03 of 1998 before Prescribed Authority/Civil Judge (Junior Division) Azamgarh on 30th March, 1998 seeking a direction for repair of accommodation in question. The application was registered on 31st March, 1998 and notice was issued to the owner i.e. respondent No.4. Since then the proceedings are pending.
5. On 20th May, 1998, Court permitted the petitioner to cover up the accommodation in question using polythene sheets for safety purposes. Further, respondent No.4 did not accept rent from April, 2004, as a result whereof petitioner deposited the rent for the period 21st April, 2004 upto March, 2005 in the Court of Civil Judge (Junior Division), Azamgarh. The Suit No.03 of 1998, however, was dismissed for non prosecution on 13th December, 2002 whereafter a restoration application was filed, which is pending.
6. The respondent No.4 filed an application dated 26th May, 2004 before respondent No.3 praying for inspection of the house (occupied by the petitioner) and permit him to demolish the same as it is a 'Kaccha house' and is in a dilapidated condition. A Junior Engineer was deputed for enquiry but without any spot inspection, he submitted a report verifying that condition of house is not fit for residential purpose and hence be demolished. The Executive Officer, consequently, passed order on 10th June, 2004 directing respondent No.4 to demolish the accommodation in question within a week.
7. The said order was passed without any notice to the petitioner, who was actually residing in the said rented house. As soon as he got the knowledge of this order, preferred appeal No.35/38/2005 under Section 318 of Nagar Palika Adhiniyam, 1959 (hereinafter referred to as "1959 Act") before the District Magistrate, the respondent No.2, which was dismissed on 12th July, 2005.
8. It is said that both the orders are illegal, in utter violation of principles of nature justice, having been passed without any spot inspection of the premises in question and in collusion to help and assist the landlord to get the accommodation in question vacated by evicting the petitioner in a circumventing manner.
9. The writ petition has been mainly contested by respondents No.3 and 4. The respondent No.4 i.e. the owner of house in question has said that it is in ruinous condition, unfit for human dwelling and therefore, the two orders, impugned in this writ petition, warrants no interference. It is also said that the house in question has already fallen down, walls are in ruinous condition and as such there is no accommodation in existence.
10. Though petitioner's tenancy in the accommodation in question is not disputed, but it is said that he has not paid rent for the last ten years and is endeavouring to grab illegal money from the owner by raising vexatious and frivolous objections. About the notice under Section 28 of 1972 Act, it is said, that the same was not received by respondent No.4. It is also said that Mohammad Maroof, the petitioner, has shifted to Bombay long back in search of employment and entire attempt is only to somehow or the other continue to occupy the accommodation in question so as to extract money from respondent No.4. It also says that the order of demolition was passed after inspection and report of Junior Engineer. He also filed certain documents showing that respondent No.4 took steps for eviction of petitioner from premises in question whereagainst he made complaint to the District Magistrate as well as the local police authorities.
11. On behalf of respondent No.3, a counter affidavit sworn by Sri Kailash Nath Rai, Executive Officer, Nagar Palika Parishad, Azamgarh has been filed through Sri Govind Krishna, Advocate. It is said that the notice dated 10th June, 2004 was issued under Section 263 of 1959 Act after being satisfied by the inspection report submitted by Junior Engineer to this effect. The notice was issued to protect any causality likely to occur due to dilapidated condition of the house in question, which was in public interest. It is also said that earlier several notices were issued i.e. 9th August, 1999, 8th June, 2000, 8th June, 2001 and 5th July, 2001.
12. The alleged report of Junior Engineer, which was referred to in para 7 of the counter affidavit, was not placed on record. Hence this Court passed an order on 25th May, 2011 as under:
"The respondent no. 3 in its counter affidavit in para 7 has said that notice was issued on 10.06.2004 after being satisfied by the inspection report submitted by Junior Engineer. However, no such report has been placed on record. In the counter affidavit filed by respondent no. 4 the alleged inspection report has been submitted which is not of Junior Engineer but of Revenue Inspector.
The respondent no. 3 shall produce record of this entire matter by tomorrow.
Sri Govind Krishna, learned counsel appearing for respondent no. 3 states that it will not be possible for him to ensure the record by tomorrow.
In the circumstances, I direct learned Chief Standing Counsel appearing on behalf of respondents no. 1 and 2 to ensure that record of present case relating to report of demolition of premises in question from the office of respondent no. 3 shall be produced before this Court by informing the District Magistrate, Azamgarh on telephone. The record shall be produced by tomorrow alongwith an officer not below the rank of Additional District Magistrate. Learned Standing Counsel shall ensure compliance of this order.
Put up tomorrow for further arguments."
13. Pursuant to the said order, record of Nagar Palika Parishad has been produced before this Court for perusal. It shows that on 27th July, 1998, a letter was submitted by respondent No.4 to Executive Officer, respondent No.3 whereupon an order was passed on 27th July, 1998:
"JE d` vk[;k nsaosa A^^
14. Of the same date i.e. 27.07.1998, a report of one Shobnath addressed to Executive Officer is given on the said letter itself, which reads as under:
^^ekSds ij x;k vkSj ns[kk fd fnoky dqN bZaV dh gS vkSj dqN feV~Vh dh gSA vkSj fd edku [kiMbyk dk gS tks fd cgqr iqjkuk ekywe gksrk gS vkSj fnoky ttZj ekywe gksrh gS tks fd dHkh Hkh fxj ldrh gSA vr% lsok esa fjiksVZ izsf"kr gSA^*
15. Thereupon, on 9th August, 1999, Executive Engineer issued a letter addressed to respondent No.4 referring to his letter alleging that house is likely to cause any mishap. Therefore, he is directed to get proper repair of the aforesaid accommodation as per rules and if any loss occurred in future, responsibility shall be that of respondent No.4. This letter was served upon respondent No.4 on 11th August, 1999. Reminder to the same effect was given on 27th May, 2000, which reads as under:
^^vkidks dk;kZy; i= fnukad 09-8-99 ls voxr djk;k x;k fkk fd vkidk edku dkQh iqjkuk vkSj ttZj gkyr esa gSA blds dkj.k nq?kZVuk gksus dh laHkkouk gS mDr ttZj Hkou dh vko';d ejEer ,oa iqu% fuekZ.k fu;ekuqlkj djk, ;fn Hkfo"; esa Hkou fxjus ls tu /ku dh gkuh gksrh gS rks lkjk mRrj nkf;Ro vkidks gksxk ijUrq vkius vHkh rd bl i= ds vuqlkj dksbZ dk;Z ugha fd;k vkidks iqu% Lej.k djk;k tkrk gS fd vki mDr ttZj edku dh vko';d ejEer ,oa iqu% fuekZ.k djkdj dk;kZy; uxj ikfydk dks voxr djkus dk d"V djsaA**
16. Further reminder was issued on 8th June, 2001 wherein for the first time it says that accommodation is being used by a tenant. Moreover, it refers to the northern part of the house, which requires repair and directed that respondent No.4 should get northern part of the house demolished and clear the debris. The contents of the letter are reproduced as under:
^^Jh jQhd vgen iq= Jh odhy vgen eqgYyk igkM+iqj] vktex<+A ikfydk dk;kZy; ds iwoZ fuxZr uksfVl fnukad 9-9-99 ,oa 23-5-2000 dk lUnHkZ ysa ftlds }kjk vkils vis{kk dh x;h Fkh fd vki vius iqjkus ttZj vkoklh; edku ds mRrjh Hkkx dh ;Fkkvko';drk ejEer @ fuekZ.k 'kh?kz djk ysaA fdUrq [ksn gS fd vkt rd vki }kjk mDr dk vuqikyu ugha fd;k x;k rFkk vkt Hkh Hkou ds ttZj Hkkx dk jgk;'kh iz;ksx [email protected] fdjk;snkj }kjk fd;k tk jgk gS] ;g fLFkfr vR;f/kd [krjukd gSA vr,o iqu% vkidks vfUre :i ls lwfpr fd;k tkrk gS fd vki vius Hkou ds mRrjh ttZj Hkkx dks fu;ekuqlkj fu;r izkf/kdkjh dk;kZy; ls /oLrhdj.k vkns'k izkIr dj gVok dj lkQ djk nsosaA vU;Fkk Hkfo"; esa Hkou ds /oLr gksus o tu /ku dh gkfu gksus ij mldh lkjh ftEesnkjh vkidh Lo;a gksxhA g0 vLi"V vf/k'kklh vf/kdkjh] uxj ikfydk ifj"kn] vktex<+A**
17. The respondent No.3, it appears, sought opinion from Prescribed Authority about action to be taken under Regulation of Building Operation Act but the Prescribed Authority, by letter dated 22nd June, 2001, informed respondent No.3 as under:
^^d`i;k vkids dk;kZy; i= la0 305 ¼1½ fnukad 8-6-2001 ds dze esa voxr djkuk gS fd eksgYyk igkM+iqj esa fLFkr ttZj Hkou ds ejEer ds laca/k esa gSA bl laca/k esa dk;kZy; ds voj vfHk;Urk ls Lfkyh; tkap djk;k x;kA ftlus vkj0ch0vks0 ,sDV ds v/khu fofu;fer {ks= ds ?kks"k.kk @ vf/klwpuk ls iwoZ ds fd;s x;s fuekZ.kksa ds fo:) vkj0ch0vks0 ,sDV ds v/khu dksbZ dk;Zokgh ugha dh tk ldrh gSA**
18. This letter was received in the office of respondent No.3 on 22nd June, 2001, whereupon he made following endorsement:
^^J.E.
d`- i=koyh ds lkFk vk[;k nsosaA**
19. Another letter, almost similarly worded as that 8th June, 2001, was issued by respondent No.3 to respondent No.4 on 5th July, 2001 and this time, copy of this letter was endorsed to the petitioner also mentioning House No.96, Mohalla - Pahadpur, Azamgarh as the address. For next three years, the record does not contain any order or further correspondence to throw light as to what happened in the meantime.
20. On 26th May, 2004, respondent No.4 submitted another letter to respondent No.3, which reads as under:
^^fuosnu gS fd ejs edku ds mRrjh Hkkx esa ¼esjs edku dk½ ,d fgLlk tks [kijSy gS mlesa tks fdjk;s nkj jgk og nks o"kksZa ls rkyk cUn dj Qjkj jgrk gS mldk ,d cM+k yM+dk dHkh dky fn[kkbZ iM+rk gS] edku foYdqy ttZj fLFkfr esa gS fdlh le; dksbZ Hk;kud nq?kZVuk gks ldrh gS ftlds fy, edku ekfyd dh dksbZ ftEesnkjh ugha gksxhA vr% Jheku th ls lknj izkFkZuk gS fd bldh tkWap djkdj edku dks /oLr djkus dk d"V fd;k tk; rkfd nq?kZVuk ls cpk tk ldsA**
21. Again, respondent No.3 made following endorsement on the said letter on the same date:
"A.E. / J.E.
EkkSdk ns[kdj vk[;k izLrqr djsA**
22. It appears that the Assistant Engineer concerned on 8th June, 2004 directed one Yadav, J.E. to inspect the site and report. Thereafter following report was submitted by Junior Engineer on 8th June, 2004 itself, which was countersigned on the same date by the Assistant Engineer as well as Executive Officer:
^^Jh jQhd vgen ds izkFkZuk i= ij v/;{k egksn; ds Lihfdax vkns'k dk voyksdu djus dk d"zV djsa] ekSds dk fujh{k.k fd;k jQhd vgen ds edku dk mRrjh Hkkx tks fd [kijSy gS] fnokjs dPps xkjs dh gSa] Nr dbZ LFkkuksa ls cSB pqdh gS rFkk edku dh fLFkfr ttZj izrhr gksrh gSA edku ds bl Hkkx ij fdjk;snkj jgrk gS ekSds ij rkyk yxk FkkA cjlkr ds ekSle esa edku fxjus dh lEHkkouk gSA vk[;k lsok esa izsf"kr gSA**
23. It is in reference to the aforesaid report dated 8th June, 2004, respondent No.3 passed the order dated 10.6.2004 impugned in the writ petition directing respondent No.4 to demolish the house in question, whereagainst the petitioner initially filed an objection before respondent No.3 on 24th July, 2004 stating that matter is pending before the Civil Judge, hence he ought not to have passed any order and raised other objections. Simultaneously, he filed a complaint before the District Magistrate also whereupon he sought comments from respondent No.3. Later on he filed an appeal under Section 318 of 1959 Act, which has been rejected by District Magistrate by another impugned order in this writ petition.
24. It is thus clear that, from the very beginning, entire exercise was undertaken by respondent No.3 pursuant to the application submitted by respondent No.4. The pleadings of respondent No.4, therefore, that he had not submitted any application is incorrect. Pleadings in para 10 of counter affidavit of respondent No. 4 to this effect is clearly false and incorrect.
25. Similarly, contention on the part of respondent No.3 in para 9 of the writ petition that several notices were issued on 9th August, 1999, 8th June, 2000, 8th June, 2001 and 5th July, 2001, which were not complied with is also not correct, inasmuch as, all these notices except 5th July, 2001 were given only to respondent No.4 and that too basically for directing to repair the part of accommodation and not for its entire demolition. Even letter dated 5th July, 2001, which is addressed to respondent No.4, a copy thereof was endorsed to the petitioner for the first time and there also direction was only for repair of northern part of the accommodation. Thereafter the matter appears to have been dropped. It was resurrected on 26th May, 2004 on another application submitted by respondent No.4 and again this time everything took place with extra pace without noticing the presence of petitioner, who admittedly was a tenant in the premises in question. The alleged report dated 8th June, 2004 submitted by Junior Engineer clearly mentions that a tenant is residing and at the time of inspection, he had locked the premises yet he said that the roof of the accommodation has got damaged at several places.
26. Learned counsel appearing for respondent No.3 could not explain when the premises was locked, how such observation could be made by the Junior Engineer and in what manner he could examine the entire accommodation.
27. Be that as it may, once presence of a tenant also became known to respondent No.3, yet no notice or information was given to the said tenant and the impugned order dated 10th June, 2004 was passed and issued to respondent No.4, who himself has made a similar request. This is really strange. Lack of transparency and independence on the part of respondent No.3 and its other officials is writ large. The facts are speaking themselves that officials of respondent No.3 himself as well as respondent No.3 were acting in aid and assistance and more in the nature of collusion with respondent No.4 to get his desired result accomplished i.e. demolition of premises in question wherein the petitioner was a tenant and as a result of demolition, he would automatically got evicted. It is nothing but an unlawful and dirty scheme to evict a poor person residing in a Kaccha house so as to help landlord in a circuitous and illegal manner though purporting to exercise power under the statute.
28. Even if a power is vested in an authority and he pretend to exercise the same but if apparently such exercise of power is collusive and mala fide, the exercise of power is tainted and vitiated in law. It amounts to malice in law.
29. The Apex Court has summarised "malice in law " in (Smt.) S.R.Venkatraman Vs. Union of India and another, AIR 1979, SC 49 as under :
"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8)
30. The Apex Court further in para 9 of the judgment in S.R.Venkatraman (supra) observed:
"9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power."
31. In Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643 the Apex Court said :
"We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved."
32. In Somesh Tiwari Vs. Union of India and others 2009 (2) SCC 592 dealing with the question of validity of an order of transfer on the ground of malice in law , the Apex Court in para 16 of the judgment observed as under:
"16. .... Mala fide is of two kinds--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
33. In HMT Ltd. and another Vs. Mudappa and others JT 2007(3) SC 112 the Apex Court in paras 18 and 19 defined malice in law by referring to "Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989" as under:
"The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means ''something done without lawful excuse'. In other words, ''it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others."
"19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide."
34. In brief, malice in law is when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. (See Manager Govt. Branch Press and another Vs. D.B.Belliappa AIR 1979 SC 429; Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla Vs. State of U.P. and others AIR 2006 SC 898; P. Mohanan Pillai Vs. State of Kerala and others (2007) 9 SCC 497; M.P.State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198).
35. The discussion of various action of respondent No.3 and the officials in his office clearly show lack of bona fide and on the contrary a collusive exercise of power in favour of respondent No.4, which clearly satisfy the ingredients of malice in law and hence vitiates order of demolition passed by him, impugned in the writ petition. Since the Collector has miserably failed to look into the entire matter in correct prospective and has mechanically followed what has been said by respondent No.3, the appellate order of Collector also suffers in law. Both the aforesaid orders deserve to be set aside.
36. Considering the manner in which respondent No.3 has acted in this case showing lack of independence and impartiality but ex facie collusion with respondent No.4, in my view, here is a fit case wherein an exemplary cost be imposed against such officials so as not to dare in future to proceed in such manner, harass a poor resident by pretending to proceed in accordance with law though, as a matter of fact, in collusion and maliciously.
37. The writ petition is accordingly allowed. The impugned orders dated 10th June, 2004 passed by Executive Officer, Nagar Palika Parishad, Azamgarh and 12th July, 2005 passed by District Magistrate, Azamgarh (Annexure 8 and 1 respectively to the writ petition) are hereby quashed and exemplary cost against respondent No.3 is imposed, which I quantify to Rs.2 lacs.
38. It is, however, open to respondent No.3 to recover the said amount from the official concerned who were responsible for such collusive act in facilitating the desire of respondent No.4 by passing collusive order, quashed hereinabove, after holding such enquiry, as permissible in law.
Order Date :- 26.5.2011 KA