PETITIONER: STATE OF JAMMU AND KASHMIR & ORS. Vs. RESPONDENT: HAJI WALI MOHAMMED AND OTHERS DATE OF JUDGMENT08/08/1972 BENCH: GROVER, A.N. BENCH: GROVER, A.N. PALEKAR, D.G. CITATION: 1972 AIR 2538 1973 SCR (1) 801 CITATOR INFO : RF 1988 SC 624 (5) ACT: Jammu and Kashmir Municipal Act, Samvat 2008, ss. 129, 238 and 239-Notice affixed to property-No proof of attempted service-If sufficient-Grant of 24 hours time to demolish structures in which business was being carried on-No opportunity given to repair-If time given reasonable. HEADNOTE: Buildings and structures in which the respondents were carrying on their business were ordered to be demolished under s. 129 of the Jammu and Kashmir Municipal Act, Samvat 2008. Only 24 hours time was given to the respondent for dismantling the structures. The notices were never served upon the respondents but were affixed on the premises. The municipality demolished the properties. In writ petition filed by the respondents the High Court held that the orders passed by the appellants were illegal. Dismissing the appeal to this Court, HELD : Owing to the noncompliance with the provisions of ss. 238 and 239 of the Act, the action taken by the municipality in the matter of demolition must be held to be entirely illegal and contrary to law. [811A-B] (1) Section 239 of the Act gives the procedure relating to authentication of service of a valid notice. Under sub-s. (i) every notice may be served in the manner provided for the service of summons in the C.P.C. so far as may be applicable. Even accepting the contention of the appellant that the respondents refused to accept the notices and that was the reason for affecting service by affixation, the provisions of O. 5, r. 9 of the Code were not complied with. No proof was adduced by way of an affidavit of the process server or any other officer regarding the attempts to serve the notices. Production by the respondents of the notices or admission that there was affixture did not dispense with compliance with the requirements of the statutory provisions contained in s.. 239 in the matter of service, of notices. [809F-G; 810A-C] (2) (a) Section 238 of the Act provide-& that when any notice under the Act requires any act to be done, for which no time is fixed by the Act, a reasonable time for doing the same shall be specified in the notice. Section 129 does not specify or fix any time for complying with the notice issued under that section. Therefore, a reasonable time for doing the acts required to be done by the notice had to be specified [809F; 810C D] (b) Section 129 also contemplates that the owner may be required either to remove the structure or to cause such repairs to be made to it as may be considered necessary for public safety. But, in the present case, no time was given for repairing and the owner or occupier of the Property was straight way required. to demolish the building or the structure. Considering that at no previous stage the officers of the municipality had formed the opinion that the Structures were in such a dangerous condition that they should he demolished, the drastic step of demolition directed to be taken in 24 hours, appears, on the face of it, to be harsh and unusual [810D-G] 2--L172Sup.CI/73 802 Therefore, the notices issued to the respondents did not comply with the provisions of s. 238 and the time granted was so short that it was not possible for the respondents either to comply with the notices or to take any effective steps in the matter of filing an appeal or revisions to the appropriate authorities. [810H] [The conclusions and observations of the High Court relating to collusion between various government officers for dispossessing the respondents from their properties and demolishing them and the mala fide nature of their action have not been dealt with by this Court in view of the decision regarding the illegality and invalidity of the demolition carried out pursuant to the notices issued under s. 129. Hence, the observations made by the High Court or the conclusions reached by it on all those other points would not be binding in any proceedings which may be initiated or taken or continued either by the respondents or the appellants under law [808H; 811B-C] JUDGMENT:
CIVIL APPELLATE JURISDICTION : C. A. Nos. 144 to 147 of
1969.
Appeal ‘by certificate from the judgment and order dated
19th July 1969 of Jammu and Kashmir High Court in Writ
Petition No. 216 of 1968.
L. M. Singhvi, P. C. Bhartari, Ravinder Narain and J. B.
Dadachanji, for the appellant.
A. S. R. Chari, K. R. Chaudhuri, K. Rajendra Chowdhary
and H. N. Tiku, for respondent (in C.A. No. 144 of 1969)
V. A. Seyid Muhammad, K. R. Nagaraja, S. K. Mehta and
M. Qamaruddin, for respondents (in.C.A. Nos. 145-147 of
1969).
The Judgment of the Court was delivered by
Grover, J. These appeals arise out of a common judgment of
the Jammu & Kashmir High Court-given in four writ petitions
filed by the respondents.
The respondents are stated to be purchasers of certain
premises which were originally owned by Dewan Bishan Das who
was a former Prime Minister of the State of Jammu & Kashmir.
He had constructed several buildings and structures on the
disputed property which was situated in Magharmal Bagh in
Srinagar. The respondents Haji Abdul Aziz Shah and his wife
Abdul Salem Shah and Haji Mohammed Ramzan Shah purchased
rights in 8 Kanals 9 Marlas and 10,000 sq. feet of the area
bearing Khasra Nos. 885 and 890 by two sale deeds which were
got registered in July 1967. Respondent Haji Wali Mohammed
purchased rights in the land measuring 25,704 sq. feet along
with buildings and garages situated in Sarai Pain near the
Exhibition Grounds. According to the respondents they
started ‘their own business establishments in the properties
which had been purchased. It may be mentioned that the
properties had been sold by Purmesh Chander and others who
were heirs
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of Dewan Bishan Das to the respondents. For the purpose of
more detailed facts we may refer to the petition filed by
the respondent Haji Wali Mohammed. It was alleged therein
that in the month of December 1967 municipal buildings in
Hari Singh High Street, Srinagar caught fire. The
Municipality cleared the debris and took possession of the
lands which became vacant as a result of the buildings
having been destroyed by the fire. It was alleged that the
Deputy Commissioner who was also the Estate Officer
purported to issue certain notices in terms of the provi-
sions of the Land Grants Act 1960 and the Jammu & Kashmir
Public Premises (Eviction of (Unauthorised Occupants) Act
1959. These notices, however, were never served on the writ
petitioners. Para 9 of the petition was as follows
“That petitioner is not liable to any
proceedings under any provision of the
aforementioned laws. That matter being,
however, before the Estate Officer will be
dealt with in terms of law”.
It was further alleged that on January 9, 1968 the
Administrator of the Srinagar Municipality got a notice
affixed near the petitioner’s property. This notice
purported to have been issued in terms of s. 129 of the
Municipal Act of Samvat 2008. The said notice was never
served upon the petitioner according to law. Only 24 hours’
notice was given for dismantling the huge structures on the
petitioners’ land. This was followed by a very large number
of police personnel and municipal employees coming to the
property of the petitioner on January 11, 1968 who
demolished the properties of the petitioner. Even the
movable properties like iron pipes, timber and fixtures were
either damaged or removed. The Administrator also took
illegal possession of the petitioner’s property without any
authority of law. It was prayed that a writ or direction be
issued to the Administrator of the Municipality prohibiting
him from interfering with the physical possession of the
petitioner and commanding him to forbear from taking
possession of the property without authority of law. The
notice issued under the signature of the Administrator of
the Municipality which was annexure B to the petition was as
follows :-
“Whereas your one storeyed garage without a
roof situate at Bagh Magharmal is in a
dilapidated condition and there is a danger of
an accident u/s 129 of the Municipal Act of
2008, therefore, you are hereby informed
through this notice of twenty four hours under
the said section to dismantle the said
structure within the said period. In case of
non-compliance the
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Municipality will get it demolished through
its employees and will recover the charges
thereof from you”.
A letter as well as a telegram were sent by the Advocate of
Haji Wali Mohammed. on 10th and 12th January 1968
respectively to the Administrator calling upon him, inter
alia to stop all illegal action of demolition of the
building as also the structures on the property of Haji Wali
Mohammed. It was also pointed out that property worth
several lakhs had been damaged or destroyed.
By means of a petition dated February 18, 1968 Haji Wali
Mohammed sought to introduce some additional grounds in the
writ petition. These were :
(a) “That the proceedings taken against the
petitioner by respondent No. 2 under sections
4 and 5 of the Public Premises Eviction Act
are ultra vires the Constitution and violating
fundamental rights and liable to be quashed.
(b) That Sections 4 and 5 of the Act violate
Article 14 of the Constitution of India”.
An additional prayer was introduced to the effect that the
writ be issued against the Estate Officer and the State of
Jammu & Kashmir quashing proceedings under the Public
Premises Eviction Act pending before the Executive Officer.
The respondents filed preliminary objections to the writ
petition saying that the Public Premises Eviction Act had
been held to be intra vires and that the petition was
misconceived and because other efficacious remedies by way
of appeal and suit were available the writ petition should
be dismissed. The Executive Officer filed a return dated
June 7, 1968 denying most of the averments contained in the
writ petition and it was not denied that the notice had been
issued under s. 5 of the Public Premises Eviction Act. It
was, however, claimed that the same had been done in
accordance with law. It was denied that the petitioner Haji
Wali Mohammed had any locus standi to file a petition
because the transaction by means of which he claimed to have
acquired the rights was null and void. The Administrator
also filed a reply in which he maintained that the Estate
Officer was within his rights in the proceedings taken under
the Public Premises Eviction Act as also under the Land
Grants Act 1960. As regards the notice issued under s. 129
of the Municipal Act it was stated that its service had not
been accepted by the petitioner and therefore the same had
to be served under the provisions of the Municipal Act by
fixing it on the premises. Paragraphs 12, 3 and 14 may be
reproduced
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“12. That the contents of the para are denied
as incorrect. The dilapidated condition of
the structure was rendered more dangerous due
to the heavy snowfall and as such the life of
the inhabitants of the locality was in
imminent danger and as such a notice under
section 129 Municipal Act 2008 Srinagar was
warranted by the conditions obtained at that
time and the same was done bona fide.
13. That the respondent has no knowledge
about it. That the contents of this para are
partly admitted inasmuch as the structure was
already removed as its dilapidated condition
was a positive threat to the life and property
of the locality and the passers by. And due
to heavy snow fall the structure was further
damaged and in order to ward off any threat to
life and property to the inhabitants of the
locality the petitioner and to the public in
general. The notice was served and received
by the Respondent No. after the structure was
demolished.
14. The contents of the para are denied.
The petitioner failed to comply with the
notice under section 129 of Municipal Act 2008
and the respondent in exercise of the powers
conferred on him under the Act, after getting
fully convinced by the technical and expert
opinion to avert danger to human life and
property, demolished the structure”.
It was firmly claimed that the dilapidated house had been
demolished under s. 129 of the Municipal Act.
We have referred to the pleas in one of the writ petitions
and the returns etc. filed on behalf of the, respondents
before the High Court in some detail because one of the main
grievances of Dr. Singhvi, who appeared for the appellants
in this Court, relates to the High Court having gone into
and decided certain points which did not arise on the
pleadings. The High Court in its judgment referred to some
admitted facts which had been concluded from the unrebutted
assertions made by the petitioner and also from the
government file No. 561 produced by the Additional Advocate
General. It referred firstly to the law under which the
land, which according to the State, had been granted to
Dewan Bishan Das on what is called Wasidari tenure was
substantially a lease-hold tenure. The possession of the
land could be resumed by the State on certain conditions one
of which was that the compensation was to be assessed by the
Government in accordance with paragraph 21 of the rules for
grant of land in Jammu & Kashmir State for building purposes
and
806
the compensation was to be paid to the lessee. On September
22, 1957 the Government decided to resume the lands in
question as they were required for constructing the tonga
and lorry stands. Certain orders were passed later by which
the lands sought to be resumed were to be transferred in
favour of the Road and Building Department for government
purposes. The orders were made that the possession was to
be taken only on payment of compensation.
The compensation, according to the High Court, was ulti-
mately fixed at Rs. 1,39,260/-. After certain notices had
been served regarding fresh assessment of valuation by the
Divisional Engineer the lessees filed appeals to the Chief
Engineer. Those appeals were filed by the predecessors-in-
interest of the respondent, namely, Purnesh Chander and
others. The appeals were dismissed. It was found by the
High Court that while the correspondence between the Deputy
Commissioner and certain government departments concerned
was still continuing for payment of compensation composite
notices under ss. 4 & 5 of the Public Premises Eviction Act
were served on the tenants on June 18, 1963. Thereafter the
matter was completely dropped and no steps either to pay the
compensation to the lessees or to acquire the land or to
continue the valuation proceedings under the aforesaid Act
were taken. It is mentioned in the judgment of the High
Court that no reasonable explanation was given by the
Additional Advocate General, for this silence for a long
time on the part of the government or its officers. The
inference which the High Court drew from this long
unexplained silence was that the government on second
thoughts did not want to pursue the matter.
On January 5, 1968 order of eviction was passed under the
Premises Eviction Act. The High Court noticed the
allegation of the parties with regard to the service of the
notice as also the case of the petitioner that although the
notice was dated January 8, 1968 it was ante-dated the date
shown being January 5, 1968. That was the day on which the
devastating fire broke out in the municipal building which
was adjacent to the building in dispute and by which large
portion of the municipal building was burnt down to ashes.
The case of the writ petitioners before the High Court was
that since lands had been resumed by the Government for
purposes of building flats for the municipality, the munici-
pality thought it a fit occasion to grab the adjoining
lands. Since its own buildings were gutted the
Administrator of the Municipality acting in collusion with
the Estate Officer got a notice issued to the petitioners
under ss. 4 & 5 of the Premises Eviction Act. The
Administrator, also issued a notice on January 9, 1968 under
s. 129 of the Municipal Act, giving only 24 hours’
807
notice for demolishing the building if there was non-
compliance with the order. A number of contentions were
advanced on behalf of the writ petitioners before the High
Court with regard to the validity of the proceedings under
ss. 4 & 5 of the Premises Eviction Act. The Additional
Advocate General relied on the validating legislation but
the High Court, after referring to certain decisions of this
Court took the view that s. 5 was ultra vires and could not
be revived by the validating or amending legislation. It
was observed that the only alternative for the State was to
take fresh proceedings under the amended Act against the
petitioners.
As regards the notice issued by the Administrator of the
Municipality under s. 129 of the Municipal Act the High
Court expressed the view that there had been interpolations
in the notices issued on the various dates to the tenants
nor had the notices been properly served as required by the
provisions of the Municipal Act. Furthermore the haste in
which the notices had been issued and the buildings
demolished raise “a cloud of dust on the nature of the
proceedings taken by the Administrator”. It was emphasised
that the notice issued by the Municipality did not “specify
the nature of the portion of the building which is dangerous
nor does it give sufficient time to the petitioners to
repair the buildings or to make representation to the
Administrator”. The High Court considered that it was
manifestly clear that the Deputy Commissioner and the
Administrator of the Municipality had entered into an unholy
alliance in order to forcibly and illegally disposses the
petitioners of their property at a time when the entire
valley was in the grip of heavy snowfall and roads were
completely blocked and the government and the High Court
were functioning at Jammu. The following circumstances and
reasons were set out for arriving at that conclusion :
(1) “That the petitioners and before them
their predecessors in interest were in lawful
possession of the premises in dispute for a
long time.
(2) That although the lands were ordered to
be resumed, the petitioners could not be
evicted until due compensation was paid to
them and the Dy. Commissioner had himself
clearly adverted to this legal position in his
letters to various authorities
and had
requested the Govt. for making funds available
for payment of compensation to the lessees.
(3) That at the time when notice under
section 4 and an order under section 5 of the
old Act were issued, the compensation though
assessed under the new Rules and not under the
old
808
Rules which applied to the present case was
neither offered nor paid to the petitioners.
(4) That after issuing notice under section
4 some time in 1963, no further proceedings
were taken for about five years and suddenly
an order under s. 5 was issued on 8-1-1968.
(5) That the notice under S. 129 of the
Municipal Act bore clear marks of
interpolation and was not in accordance with
s. 129 of the Municipal Act.
(6) That even the report of the Asstt.
Municipal Engineer on the basis of which the
demolition was ordered merely showed that the
shed was in a dangerous condition and it did
not at all refer to the buildings being in
such a dangerous condition so as to be
demolished.
(7) That a major portion of the premises in
dispute were Demolished on 1-2-1968 and soon
thereafter these very premises were
transferred to the Municipality by-an
executive order of the D.C. without sanction
of the Government”.
The petitions were allowed and writs of certiorari quashing
the order of eviction made against the petitioners and
restraining the respondents from evicting them except in due
course of law were issued. Writs of Mandamus were also
issued directing the respondents to restore possession to
the petitioners immediately of the properties from which
they had been dispossessed.
Apart from the grievance mentioned before on which a great
deal of stress has been laid by Dr. Singhvi it has been
strenuously urged that the High Court has gone into matters
which were not germane or relevant and had taken into
consideration material which was not on the record by making
use of a file which had been produced by the Additional
Advocate General with regard to which no opportunity was
given to either explain or rebut the inferences which were
drawn from the documents and correspondence contained in
that file. It is pointed out that in view of the pleadings
there was no justification for going into the various points
on which the High Court rested its judgment.
We consider it wholly unnecessary to determine the correct-
ness or otherwise of all the findings given by the High
Court, particularly, the conclusion relating to collusion
between the various government officers for dispossessing
the respondents before us from their properties and
demolishing them and the mala fide nature of their action.
It is common ground that the
809
validity of the provisions of the Premises. Eviction Act
which were struck down by the High Court can no longer be
impugned in view of the decision of this Court in Hari Singh
& Others v. The Military Estate Officer & Another(1) and the
connected appeal. The question relating to the resumption
of all the properties in dispute by the government on the
ground that they were Wasidari lands Was again a matter
which had not been raised with any precision in the
pleadings of the parties and it was wholly unnecessary for
the High Court to have gone into that question. for that
reason and without relevant documents having been made a
part of the record. In our judgment the writs and orders
issued by the High Court must be sustained on the principal
ground which was taken up in the, writ petitions and which
related to the action taken by the Administrator of the
Municipality after issuing the notices under s. 129 of the
Municipal Act. Section 129 is in the following terms :
“Should any building, wall or structure or
anything affixed thereto, or any bank, or tree
be deemed by the Executive Officer to be in
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 repair to be
made to the building, wall, structure or bank
as the Executive Officer may consider
necessary for the public safety and should it
appear to be necessary in order to prevent
imminent danger, the Executive Officer shall
forthwith take such steps of the expense of
the owner to avert the danger as may be
necessary”.
Section 238 provides that when any notice under the said Act
requires any act to be done for which no time is fixed by
the Act a reasonable time for doing the same shall be
specified in the notice. Section 239 gives the procedure
relating to authentication of service of a valid notice. It
is provided by sub-s. (1) that every such notice may be
served in the manner provided for the service of summons in
the Civil Procedure Code so far as may be applicable. The
High Court found that the notice under s. 129 had not been
served in accordance with law and no proof was adduced by
way of an affidavit of the process server or any other
officer of the Municipality that any attempt was made to
serve the notices on the petitioners personally.
It cannot be and indeed it has not been disputed that
notices were not served in accordance with the procedure
prescribed for service of summons in the Civil Procedure
Code. Even if we
(1)-(Civil Appeal No. 493 of 1967) decided on 3.5.1972.
810
accept what Dr. Singhvi says that there was a refusal to,
accept the summons and that was the reason for effecting
service by affixation the provisions of O.5, R.19 of the
Code were not complied with by the filing of an affidavit of
the serving officer etc. All that has been pointed out by
Dr. Singhvi is that the notices were produced along with the
writ petitions which showed that they had been affixed to
the premises and that in’ the writ petitions it was admitted
that notices had been affixed on January 9, 1968 on the
properties of the petitioners. We do not consider that any
such averment dispensed with the requirement of the
statutory provision contained in S. 239 of the Municipal Act
in the matter of service of notices.
Furthermore we entirely fail to see how the requirement of
S. 238 of the Municipal Act was satisfied. Section 129 does
not specify or fix any time for complying with the notice
issued under that section. Under the provisions of S. 238,
therefore, a reasonable time for doing the acts required to
be done by the notice was to be fixed. Taking the notice
issued to Haji Wali Mohammed only 24 hours’ time was given
for dismantling the structure which was stated to be in a
dilapidated condition. It is extraordinary- that no time
was given for repairing the structure and the owner or
occupier of the property was required to straight way
demolish the building or the structure. Section 129 does
contemplate that the owner may be required either to remove
the structure which is considered dangerous or to cause such
repairs to be made to it as may be considered necessary for
public safety. According to all the petitioners they were
carrying on their business in the buildings and structures
which were ordered to be demolished. In the month of
January there is usually a snowfall in the Kashmir valley as
has been pointed out by the High Court. Considering that at
no previous stage the officers of the Municipality had
formed an opinion that the structures in question were in
such a dangerous condition or were so dilapidated that they
should be demolished the notices which were given and the
drastic step of demolition which was desired to be taken in
24 hours on the face of it appeared to be rather harsh and
unusual. The time of 24 hours which was given for
demolition was so short that in spite of Dr. Singhvi’s
arguments we have not been persuaded to hold that it was a
reasonable time. The petitioners had to make some
arrangements for removal of either their goods or business
equipment or whatever articles that were lying in these
buildings or structures. We have no manner of doubt that
the notices issued to the respondents before us did not
comply with the provisions of s. 238 of the Municipal Act
and the time which was granted was so short that it was not
possible for the respondents either to comply with the
notices or to take any
811
effective, steps in the matter of filing any appeal or
revision to the appropriate authorities.
Owing to the non-compliance with the provisions of ss. 239
and 238 of the Municipal Act the action taken by the Munici-
pality in the matter of demolition must be held to be
entirely illegal and contrary to law. The conclusions and
observations of the High Court on all the points which have
not been decided by us become unnecessary in the view we
have taken with regard to the illegality and invalidity of
the demolition carried out pursuant to the notices issued
under S. 129 of the Municipal Act. The observations made by
the High Court or the conclusions reached by it on all the
other points would naturally not be binding in any
proceedings which may be initiated or taken or continued
either by the present respondents or by the appellants under
the law. However, we uphold the orders made by the High
Court and dismiss the appeals with costs. One hearing fee.
V.P.S. Appeals
dismissed.
812