{"id":194530,"date":"1972-08-08T00:00:00","date_gmt":"1972-08-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-jammu-and-kashmir-ors-vs-haji-wali-mohammed-and-others-on-8-august-1972"},"modified":"2016-04-03T15:20:16","modified_gmt":"2016-04-03T09:50:16","slug":"state-of-jammu-and-kashmir-ors-vs-haji-wali-mohammed-and-others-on-8-august-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-jammu-and-kashmir-ors-vs-haji-wali-mohammed-and-others-on-8-august-1972","title":{"rendered":"State Of Jammu And Kashmir & Ors vs Haji Wali Mohammed And Others on 8 August, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Jammu And Kashmir & Ors vs Haji Wali Mohammed And Others on 8 August, 1972<\/div>\n
Equivalent citations: 1972 AIR 2538, \t\t 1973 SCR (1) 801<\/div>\n
Author: A Grover<\/div>\n
Bench: Grover, A.N.<\/div>\n
           PETITIONER:\nSTATE OF JAMMU AND KASHMIR & ORS.\n\n\tVs.\n\nRESPONDENT:\nHAJI WALI MOHAMMED AND OTHERS\n\nDATE OF JUDGMENT08\/08\/1972\n\nBENCH:\nGROVER, A.N.\nBENCH:\nGROVER, A.N.\nPALEKAR, D.G.\n\nCITATION:\n 1972 AIR 2538\t\t  1973 SCR  (1) 801\n CITATOR INFO :\n RF\t    1988 SC 624\t (5)\n\n\nACT:\nJammu  and Kashmir Municipal Act, Samvat 2008, ss. 129,\t 238\nand  239-Notice\t affixed to property-No proof  of  attempted\nservice-If  sufficient-Grant  of 24 hours time\tto  demolish\nstructures  in\twhich  business\t was  being  carried   on-No\nopportunity given to repair-If time given reasonable.\n\n\n\nHEADNOTE:\nBuildings  and\tstructures  in which  the  respondents\twere\ncarrying  on  their business were ordered to  be  demolished\nunder s. 129 of the Jammu and Kashmir Municipal Act,  Samvat\n2008.\tOnly 24 hours time was given to the  respondent\t for\ndismantling  the structures.  The notices were never  served\nupon the respondents but were affixed on the premises.\t The\nmunicipality  demolished the properties.  In  writ  petition\nfiled by the respondents the High Court held that the orders\npassed by the appellants were illegal.\nDismissing the appeal to this Court,\nHELD : Owing to the noncompliance with the provisions of ss.\n238 and 239 of the Act, the action taken by the municipality\nin  the\t matter of demolition must be held  to\tbe  entirely\nillegal and contrary to law. [811A-B]\n(1)  Section 239 of the Act gives the procedure relating  to\nauthentication\tof service of a valid notice.  Under  sub-s.\n(i)  every notice may be served in the manner  provided\t for\nthe  service  of  summons in the C.P.C. so  far\t as  may  be\napplicable.  Even accepting the contention of the  appellant\nthat the respondents refused to accept the notices and\tthat\nwas  the  reason for affecting service\tby  affixation,\t the\nprovisions of O. 5, r. 9 of the Code were not complied with.\nNo  proof was adduced by way of an affidavit of the  process\nserver or any other officer regarding the attempts to  serve\nthe  notices.  Production by the respondents of the  notices\nor admission that there was affixture did not dispense\twith\ncompliance with the requirements of the statutory provisions\ncontained  in s.. 239 in the matter of service, of  notices.\n[809F-G; 810A-C]\n(2)  (a)  Section  238 of the Act provide-&  that  when\t any\nnotice under the Act requires any act to be done, for  which\nno time is fixed by the Act, a reasonable time for doing the\nsame shall be specified in the notice.\tSection 129 does not\nspecify or fix any time for complying with the notice issued\nunder that section.  Therefore, a reasonable time for  doing\nthe  acts  required  to\t be done by the\t notice\t had  to  be\nspecified  [809F; 810C D]\n(b)  Section  129  also contemplates that the owner  may  be\nrequired either\t    to remove the structure or to cause such\nrepairs to be made to it as may be considered necessary\t for\npublic safety.\tBut, in the present case, no time was  given\nfor repairing and the owner or occupier of the Property\t was\nstraight  way  required.  to demolish the  building  or\t the\nstructure.   Considering  that\tat  no\tprevious  stage\t the\nofficers of the municipality had formed the opinion that the\nStructures  were  in such a dangerous  condition  that\tthey\nshould\the  demolished,\t the  drastic  step  of\t  demolition\ndirected  to be taken in 24 hours, appears, on the  face  of\nit, to be harsh and unusual [810D-G]\n2--L172Sup.CI\/73\n802\nTherefore,  the\t notices issued to the respondents  did\t not\ncomply\twith the provisions of s. 238 and the  time  granted\nwas  so short that it was not possible for  the\t respondents\neither\tto comply with the notices or to take any  effective\nsteps in the matter of filing an appeal or revisions to\t the\nappropriate authorities. [810H]\n[The conclusions and observations of the High Court relating\nto   collusion\tbetween\t various  government  officers\t for\ndispossessing  the  respondents from  their  properties\t and\ndemolishing  them and the mala fide nature of  their  action\nhave  not  been\t dealt with by this Court  in  view  of\t the\ndecision  regarding  the illegality and\t invalidity  of\t the\ndemolition carried out pursuant to the notices issued  under\ns.  129.  Hence, the observations made by the High Court  or\nthe  conclusions  reached by it on all\tthose  other  points\nwould  not  be\tbinding\t in any\t proceedings  which  may  be\ninitiated or taken or continued either by the respondents or\nthe appellants under law [808H; 811B-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : C. A. Nos. 144\t to  147  of
\n1969.\n<\/p>\n
Appeal\t‘by  certificate from the judgment and\torder  dated
\n19th  July  1969  of Jammu and Kashmir High  Court  in\tWrit
\nPetition No. 216 of 1968.\n<\/p>\n
L.   M.\t Singhvi, P. C. Bhartari, Ravinder Narain and J.  B.
\nDadachanji, for the appellant.\n<\/p>\n
A.   S.\t R. Chari, K.  R. Chaudhuri, K.\t Rajendra  Chowdhary
\nand H.\tN. Tiku, for respondent (in C.A. No. 144 of 1969)
\nV.  A.\tSeyid  Muhammad, K. R. Nagaraja,  S.  K.  Mehta\t and
\nM.   Qamaruddin,  for respondents (in.C.A. Nos.\t 145-147  of
\n1969).\n<\/p>\n
The Judgment of the Court was delivered by
\nGrover,\t J. These appeals arise out of a common judgment  of
\nthe Jammu & Kashmir High Court-given in four writ  petitions
\nfiled by the respondents.\n<\/p>\n
The  respondents  are  stated to be  purchasers\t of  certain
\npremises which were originally owned by Dewan Bishan Das who
\nwas a former Prime Minister of the State of Jammu & Kashmir.
\nHe  had constructed several buildings and structures on\t the
\ndisputed  property which was situated in Magharmal  Bagh  in
\nSrinagar.  The respondents Haji Abdul Aziz Shah and his wife
\nAbdul  Salem  Shah and Haji Mohammed Ramzan  Shah  purchased
\nrights in 8 Kanals 9 Marlas and 10,000 sq. feet of the\tarea
\nbearing Khasra Nos. 885 and 890 by two sale deeds which were
\ngot registered in July 1967.  Respondent Haji Wali  Mohammed
\npurchased rights in the land measuring 25,704 sq. feet along
\nwith  buildings and garages situated in Sarai Pain near\t the
\nExhibition  Grounds.   According  to  the  respondents\tthey
\nstarted ‘their own business establishments in the properties
\nwhich  had  been purchased.  It may be\tmentioned  that\t the
\nproperties  had been sold by Purmesh Chander and others\t who
\nwere heirs
\n\t\t\t    803<\/span>
\nof Dewan Bishan Das to the respondents.\t For the purpose  of
\nmore  detailed facts we may refer to the petition  filed  by
\nthe  respondent Haji Wali Mohammed.  It was alleged  therein
\nthat  in the month of December 1967 municipal  buildings  in
\nHari   Singh  High  Street,  Srinagar  caught\tfire.\t The
\nMunicipality  cleared the debris and took possession of\t the
\nlands  which  became  vacant as a result  of  the  buildings
\nhaving been destroyed by the fire.  It was alleged that\t the
\nDeputy\t Commissioner  who  was\t also  the  Estate   Officer
\npurported  to issue certain notices in terms of\t the  provi-
\nsions  of the Land Grants Act 1960 and the Jammu  &  Kashmir
\nPublic\tPremises (Eviction of (Unauthorised  Occupants)\t Act
\n1959.  These notices, however, were never served on the writ
\npetitioners.  Para 9 of the petition was as follows
\n\t      “That   petitioner  is  not  liable   to\t any
\n\t      proceedings   under  any\tprovision   of\t the
\n\t      aforementioned   laws.   That  matter   being,
\n\t      however,\tbefore\tthe Estate Officer  will  be
\n\t      dealt with in terms of law”.\n<\/p>\n
It  was\t further  alleged  that\t on  January  9,  1968\t the
\nAdministrator  of  the Srinagar Municipality  got  a  notice
\naffixed\t  near\tthe  petitioner’s  property.   This   notice
\npurported  to  have been issued in terms of s.\t129  of\t the
\nMunicipal  Act\tof Samvat 2008.\t The said notice  was  never
\nserved upon the petitioner according to law.  Only 24 hours’
\nnotice was given for dismantling the huge structures on\t the
\npetitioners’ land.  This was followed by a very large number
\nof  police personnel and municipal employees coming  to\t the
\nproperty   of  the  petitioner\ton  January  11,  1968\t who
\ndemolished  the\t properties  of the  petitioner.   Even\t the
\nmovable properties like iron pipes, timber and fixtures were
\neither\tdamaged\t or removed.  The  Administrator  also\ttook
\nillegal possession of the petitioner’s property without\t any
\nauthority of law.  It was prayed that a writ or direction be
\nissued to the Administrator of the Municipality\t prohibiting
\nhim  from  interfering with the physical possession  of\t the
\npetitioner  and\t commanding  him  to  forbear  from   taking
\npossession  of the property without authority of  law.\t The
\nnotice\tissued under the signature of the  Administrator  of
\nthe Municipality which was annexure B to the petition was as
\nfollows :-\n<\/p>\n
\t      “Whereas\tyour one storeyed garage  without  a
\n\t      roof  situate  at\t Bagh  Magharmal  is  in   a
\n\t      dilapidated condition and there is a danger of
\n\t      an  accident u\/s 129 of the Municipal  Act  of
\n\t      2008,  therefore,\t you  are  hereby   informed
\n\t      through this notice of twenty four hours under
\n\t      the   said  section  to  dismantle  the\tsaid
\n\t      structure within the said period.\t In case  of
\n\t      non-compliance the
\n\t      804<\/span>
\n\t      Municipality  will get it\t demolished  through
\n\t      its  employees  and will recover\tthe  charges
\n\t      thereof from you”.\n<\/p><\/blockquote>\n
A letter as well as a telegram were sent by the Advocate  of
\nHaji   Wali  Mohammed.\ton  10th  and  12th   January\t1968
\nrespectively  to the Administrator calling upon\t him,  inter
\nalia  to  stop\tall  illegal action  of\t demolition  of\t the
\nbuilding as also the structures on the property of Haji Wali
\nMohammed.   It\twas  also pointed out  that  property  worth
\nseveral lakhs had been damaged or destroyed.
\nBy  means  of a petition dated February 18, 1968  Haji\tWali
\nMohammed sought to introduce some additional grounds in\t the
\nwrit petition.\tThese were :\n<\/p>\n
\t      (a)   “That the proceedings taken against\t the
\n\t      petitioner by respondent No. 2 under  sections
\n\t      4\t and 5 of the Public Premises  Eviction\t Act
\n\t      are ultra vires the Constitution and violating
\n\t      fundamental rights and liable to be quashed.\n<\/p><\/blockquote>\n
\t      (b)   That Sections 4 and 5 of the Act violate
\n\t      Article 14 of the Constitution of India”.\n<\/p><\/blockquote>\n
An  additional prayer was introduced to the effect that\t the
\nwrit  be issued against the Estate Officer and the State  of
\nJammu  &  Kashmir  quashing  proceedings  under\t the  Public
\nPremises Eviction Act pending before the Executive Officer.
\nThe  respondents  filed preliminary objections to  the\twrit
\npetition  saying that the Public Premises Eviction  Act\t had
\nbeen  held  to\tbe intra vires and  that  the  petition\t was
\nmisconceived  and because other efficacious remedies by\t way
\nof  appeal and suit were available the writ petition  should
\nbe  dismissed.\tThe Executive Officer filed a  return  dated
\nJune 7, 1968 denying most of the averments contained in\t the
\nwrit petition and it was not denied that the notice had been
\nissued\tunder s. 5 of the Public Premises Eviction Act.\t  It
\nwas,  however,\tclaimed\t that  the same\t had  been  done  in
\naccordance with law.  It was denied that the petitioner Haji
\nWali  Mohammed\thad  any locus standi  to  file\t a  petition
\nbecause the transaction by means of which he claimed to have
\nacquired  the rights was null and void.\t  The  Administrator
\nalso  filed a reply in which he maintained that\t the  Estate
\nOfficer was within his rights in the proceedings taken under
\nthe  Public  Premises Eviction Act as also  under  the\tLand
\nGrants Act 1960.  As regards the notice issued under s.\t 129
\nof the Municipal Act it was stated that its service had\t not
\nbeen  accepted by the petitioner and therefore the same\t had
\nto  be served under the provisions of the Municipal  Act  by
\nfixing\tit on the premises.  Paragraphs 12, 3 and 14 may  be
\nreproduced
\n805<\/span>
\n\t      “12.  That the contents of the para are denied
\n\t      as  incorrect.  The dilapidated  condition  of
\n\t      the structure was rendered more dangerous\t due
\n\t      to the heavy snowfall and as such the life  of
\n\t      the   inhabitants\t of  the  locality  was\t  in
\n\t      imminent\tdanger\tand as such a  notice  under
\n\t      section  129 Municipal Act 2008  Srinagar\t was
\n\t      warranted\t by the conditions obtained at\tthat
\n\t      time and the same was done bona fide.\n<\/p>\n
\t      13.   That  the  respondent has  no  knowledge
\n\t      about it.\t That the contents of this para\t are
\n\t      partly admitted inasmuch as the structure\t was
\n\t      already  removed as its dilapidated  condition
\n\t      was a positive threat to the life and property
\n\t      of  the locality and the passers by.  And\t due
\n\t      to  heavy snow fall the structure was  further
\n\t      damaged and in order to ward off any threat to
\n\t      life  and property to the inhabitants  of\t the
\n\t      locality\tthe petitioner and to the public  in
\n\t      general.\t The notice was served and  received
\n\t      by the Respondent No.  after the structure was
\n\t      demolished.\n<\/p>\n
\t      14.   The\t contents  of the para\tare  denied.\n<\/p>\n
\t      The  petitioner  failed  to  comply  with\t the
\n\t      notice under section 129 of Municipal Act 2008
\n\t      and  the respondent in exercise of the  powers
\n\t      conferred on him under the Act, after  getting
\n\t      fully  convinced by the technical\t and  expert
\n\t      opinion  to  avert danger to  human  life\t and
\n\t      property, demolished the structure”.\n<\/p>\n
It  was firmly claimed that the dilapidated house  had\tbeen
\ndemolished under s. 129 of the Municipal Act.
\nWe  have referred to the pleas in one of the writ  petitions
\nand  the  returns etc. filed on behalf of  the,\t respondents
\nbefore the High Court in some detail because one of the main
\ngrievances  of Dr. Singhvi, who appeared for the  appellants
\nin  this Court, relates to the High Court having  gone\tinto
\nand  decided  certain  points which did\t not  arise  on\t the
\npleadings.  The High Court in its judgment referred to\tsome
\nadmitted facts which had been concluded from the  unrebutted
\nassertions  made  by  the  petitioner  and  also  from\t the
\ngovernment file No. 561 produced by the Additional  Advocate
\nGeneral.   It  referred firstly to the law under  which\t the
\nland,  which  according to the State, had  been\t granted  to
\nDewan  Bishan  Das  on what is called  Wasidari\t tenure\t was
\nsubstantially  a lease-hold tenure.  The possession  of\t the
\nland could be resumed by the State on certain conditions one
\nof which was that the compensation was to be assessed by the
\nGovernment in accordance with paragraph 21 of the rules\t for
\ngrant of land in Jammu & Kashmir State for building purposes
\nand
\n806<\/span>
\nthe compensation was to be paid to the lessee.\tOn September
\n22,  1957  the\tGovernment decided to resume  the  lands  in
\nquestion  as they were required for constructing  the  tonga
\nand lorry stands.  Certain orders were passed later by which
\nthe  lands  sought to be resumed were to be  transferred  in
\nfavour\tof the Road and Building Department  for  government
\npurposes.   The orders were made that the possession was  to
\nbe taken only on payment of compensation.
\nThe  compensation,  according to the High Court,  was  ulti-
\nmately\tfixed at Rs. 1,39,260\/-.  After certain notices\t had
\nbeen  served regarding fresh assessment of valuation by\t the
\nDivisional  Engineer the lessees filed appeals to the  Chief
\nEngineer.  Those appeals were filed by the  predecessors-in-
\ninterest  of  the respondent, namely,  Purnesh\tChander\t and
\nothers.\t  The appeals were dismissed.  It was found  by\t the
\nHigh Court that while the correspondence between the  Deputy
\nCommissioner  and certain government  departments  concerned
\nwas  still continuing for payment of compensation  composite
\nnotices under ss. 4 & 5 of the Public Premises Eviction\t Act
\nwere served on the tenants on June 18, 1963.  Thereafter the
\nmatter was completely dropped and no steps either to pay the
\ncompensation  to  the lessees or to acquire the land  or  to
\ncontinue  the valuation proceedings under the aforesaid\t Act
\nwere  taken.   It is mentioned in the judgment of  the\tHigh
\nCourt  that  no\t reasonable explanation\t was  given  by\t the
\nAdditional  Advocate  General, for this silence for  a\tlong
\ntime  on  the part of the government or its  officers.\t The
\ninference   which  the\tHigh  Court  drew  from\t this\tlong
\nunexplained  silence  was  that\t the  government  on  second
\nthoughts did not want to pursue the matter.
\nOn  January 5, 1968 order of eviction was passed  under\t the
\nPremises   Eviction  Act.   The\t High  Court   noticed\t the
\nallegation of the parties with regard to the service of\t the
\nnotice as also the case of the petitioner that although\t the
\nnotice was dated January 8, 1968 it was ante-dated the\tdate
\nshown being January 5, 1968.  That was the day on which\t the
\ndevastating  fire broke out in the municipal building  which
\nwas  adjacent to the building in dispute and by which  large
\nportion\t of the municipal building was burnt down to  ashes.
\nThe  case of the writ petitioners before the High Court\t was
\nthat  since  lands had been resumed by\tthe  Government\t for
\npurposes of building flats for the municipality, the munici-
\npality\tthought\t it  a fit occasion to\tgrab  the  adjoining
\nlands.\t  Since\t  its\town  buildings\t were\tgutted\t the
\nAdministrator  of the Municipality acting in collusion\twith
\nthe  Estate Officer got a notice issued to  the\t petitioners
\nunder  ss.  4  &  5  of\t the  Premises\tEviction  Act.\t The
\nAdministrator, also issued a notice on January 9, 1968 under
\ns. 129 of the Municipal Act, giving only 24 hours’
\n807<\/span>
\nnotice\tfor  demolishing  the building\tif  there  was\tnon-
\ncompliance  with  the order.  A number of  contentions\twere
\nadvanced  on behalf of the writ petitioners before the\tHigh
\nCourt  with regard to the validity of the proceedings  under
\nss.  4\t& 5 of the Premises Eviction  Act.   The  Additional
\nAdvocate  General relied on the validating  legislation\t but
\nthe High Court, after referring to certain decisions of this
\nCourt took the view that s. 5 was ultra vires and could\t not
\nbe  revived by the validating or amending  legislation.\t  It
\nwas observed that the only alternative for the State was  to
\ntake  fresh  proceedings under the amended Act\tagainst\t the
\npetitioners.\n<\/p>\n
As  regards  the notice issued by the Administrator  of\t the
\nMunicipality  under  s. 129 of the Municipal  Act  the\tHigh
\nCourt expressed the view that there had been  interpolations
\nin  the notices issued on the various dates to\tthe  tenants
\nnor had the notices been properly served as required by\t the
\nprovisions  of the Municipal Act.  Furthermore the haste  in
\nwhich  the  notices  had  been\tissued\tand  the   buildings
\ndemolished  raise  “a  cloud of dust on the  nature  of\t the
\nproceedings taken by the Administrator”.  It was  emphasised
\nthat the notice issued by the Municipality did not  “specify
\nthe nature of the portion of the building which is dangerous
\nnor  does  it  give sufficient time to\tthe  petitioners  to
\nrepair\tthe  buildings\tor to  make  representation  to\t the
\nAdministrator”.\t  The  High  Court considered  that  it\t was
\nmanifestly  clear  that\t the  Deputy  Commissioner  and\t the
\nAdministrator of the Municipality had entered into an unholy
\nalliance  in order to forcibly and illegally  disposses\t the
\npetitioners  of\t their property at a time  when\t the  entire
\nvalley\twas  in the grip of heavy snowfall  and\t roads\twere
\ncompletely  blocked  and the government and the\t High  Court
\nwere functioning at Jammu.  The following circumstances\t and
\nreasons were set out for arriving at that conclusion :\n<\/p>\n
\t      (1)   “That  the petitioners and\tbefore\tthem
\n\t      their predecessors in interest were in  lawful
\n\t      possession  of the premises in dispute  for  a
\n\t      long time.<\/p><\/blockquote>\n
\t      (2)   That although the lands were ordered  to
\n\t      be  resumed,  the\t petitioners  could  not  be
\n\t      evicted  until  due compensation was  paid  to
\n\t      them  and\t the Dy.  Commissioner\thad  himself
\n\t      clearly adverted to this legal position in his
\n\t\t\t    letters   to   various  authorities
\nand   had
\n\t      requested the Govt. for making funds available
\n\t      for payment of compensation to the lessees.
\n\t      (3)   That  at  the  time\t when  notice  under
\n\t      section 4 and an order under section 5 of\t the
\n\t      old  Act were issued, the compensation  though
\n\t      assessed under the new Rules and not under the
\n\t      old
\n\t      808<\/span>
\n\t      Rules  which applied to the present  case\t was
\n\t      neither offered nor paid to the petitioners.
\n\t      (4)   That after issuing notice under  section
\n\t      4\t some time in 1963, no\tfurther\t proceedings
\n\t      were  taken for about five years and  suddenly
\n\t      an order under s.\t   5 was issued on 8-1-1968.<\/p>\n
\t      (5)   That  the  notice under S.\t129  of\t the
\n\t      Municipal\t   Act\t bore\tclear\t marks\t  of
\n\t      interpolation  and was not in accordance\twith
\n\t      s. 129 of the Municipal Act.\n<\/p>\n
\t      (6)   That  even\tthe  report  of\t the  Asstt.\n<\/p>\n
\t      Municipal\t Engineer on the basis of which\t the
\n\t      demolition was ordered merely showed that\t the
\n\t      shed  was in a dangerous condition and it\t did
\n\t      not  at  all refer to the buildings  being  in
\n\t      such  a  dangerous  condition  so\t as  to\t  be
\n\t      demolished.\n<\/p>\n
\t      (7)   That a major portion of the premises  in
\n\t      dispute were Demolished  on 1-2-1968 and\tsoon
\n\t      thereafter    these   very    premises\twere
\n\t      transferred   to\t the   Municipality    by-an
\n\t      executive\t order of the D.C. without  sanction
\n\t      of the Government”.\n<\/p>\n
The petitions were allowed and writs of certiorari  quashing
\nthe  order  of\teviction made against  the  petitioners\t and
\nrestraining the respondents from evicting them except in due
\ncourse\tof  law were issued.  Writs of\tMandamus  were\talso
\nissued\tdirecting the respondents to restore  possession  to
\nthe  petitioners  immediately of the properties\t from  which
\nthey had been dispossessed.\n<\/p>\n
Apart  from the grievance mentioned before on which a  great
\ndeal  of  stress has been laid by Dr. Singhvi  it  has\tbeen
\nstrenuously urged that the High Court has gone into  matters
\nwhich  were  not  germane or relevant  and  had\t taken\tinto
\nconsideration material which was not on the record by making
\nuse  of\t a file which had been produced\t by  the  Additional
\nAdvocate  General  with regard to which no  opportunity\t was
\ngiven  to either explain or rebut the inferences which\twere
\ndrawn  from  the documents and correspondence  contained  in
\nthat file.  It is pointed out that in view of the  pleadings
\nthere was no justification for going into the various points
\non which the High Court rested its judgment.
\nWe consider it wholly unnecessary to determine the  correct-
\nness  or  otherwise of all the findings given  by  the\tHigh
\nCourt,\tparticularly, the conclusion relating  to  collusion
\nbetween\t the various government officers  for  dispossessing
\nthe   respondents  before  us  from  their  properties\t and
\ndemolishing  them and the mala fide nature of their  action.
\nIt is common ground that the
\n809<\/span>
\nvalidity  of the provisions of the Premises.   Eviction\t Act
\nwhich  were struck down by the High Court can no  longer  be
\nimpugned in view of the decision of this Court in Hari Singh
\n& Others v. The Military Estate Officer & Another<\/a>(1) and the
\nconnected  appeal.  The question relating to the  resumption
\nof  all the properties in dispute by the government  on\t the
\nground\tthat  they were Wasidari lands Was  again  a  matter
\nwhich  had  not\t been  raised  with  any  precision  in\t the
\npleadings  of the parties and it was wholly unnecessary\t for
\nthe  High  Court to have gone into that question.  for\tthat
\nreason\tand  without relevant documents having been  made  a
\npart  of the record.  In our judgment the writs\t and  orders
\nissued by the High Court must be sustained on the  principal
\nground\twhich was taken up in the, writ petitions and  which
\nrelated\t to  the action taken by the  Administrator  of\t the
\nMunicipality  after issuing the notices under s. 129 of\t the
\nMunicipal Act.\tSection 129 is in the following terms :\n<\/p>\n
\t      “Should  any  building, wall or  structure  or
\n\t      anything affixed thereto, or any bank, or tree
\n\t      be  deemed by the Executive Officer to  be  in
\n\t      ruinous state or in any way dangerous or there
\n\t      be  any  fallen building or  debris  or  other
\n\t      material which is unsightly or is likely to be
\n\t      in  any  way injurious to health,\t it  may  by
\n\t      notice  require  the owner thereof  either  to
\n\t      remove the same or to cause such repair to  be
\n\t      made to the building, wall, structure or\tbank
\n\t      as   the\t Executive  Officer   may   consider
\n\t      necessary for the public safety and should  it
\n\t      appear  to  be necessary in order\t to  prevent
\n\t      imminent\tdanger, the Executive Officer  shall
\n\t      forthwith\t take such steps of the\t expense  of
\n\t      the  owner  to  avert the\t danger\t as  may  be
\n\t      necessary”.\n<\/p><\/blockquote>\n
Section 238 provides that when any notice under the said Act
\nrequires  any act to be done for which no time is  fixed  by
\nthe  Act  a  reasonable time for doing\tthe  same  shall  be
\nspecified  in the notice.  Section 239 gives  the  procedure
\nrelating to authentication of service of a valid notice.  It
\nis  provided  by sub-s. (1) that every such  notice  may  be
\nserved in the manner provided for the service of summons  in
\nthe  Civil Procedure Code so far as may be applicable.\t The
\nHigh  Court found that the notice under s. 129 had not\tbeen
\nserved\tin accordance with law and no proof was\t adduced  by
\nway  of\t an  affidavit of the process server  or  any  other
\nofficer\t of  the Municipality that any attempt was  made  to
\nserve the notices on the petitioners personally.
\nIt  cannot  be\tand indeed it has  not\tbeen  disputed\tthat
\nnotices\t were  not served in accordance with  the  procedure
\nprescribed  for\t service of summons in the  Civil  Procedure
\nCode.  Even if we
\n(1)-(Civil Appeal No. 493 of 1967) decided on 3.5.1972.\n<\/p>\n
810<\/span><\/p>\n
accept\twhat Dr. Singhvi says that there was a\trefusal\t to,
\naccept\tthe  summons and that was the reason  for  effecting
\nservice\t by  affixation the provisions of O.5, R.19  of\t the
\nCode were not complied with by the filing of an affidavit of
\nthe  serving officer etc.  All that has been pointed out  by
\nDr. Singhvi is that the notices were produced along with the
\nwrit  petitions which showed that they had been\t affixed  to
\nthe premises and that in’ the writ petitions it was admitted
\nthat  notices  had been affixed on January 9,  1968  on\t the
\nproperties of the petitioners.\tWe do not consider that\t any
\nsuch   averment\t dispensed  with  the  requirement  of\t the
\nstatutory provision contained in S. 239 of the Municipal Act
\nin the matter of service of notices.\n<\/p>\n
Furthermore  we entirely fail to see how the requirement  of
\nS. 238 of the Municipal Act was satisfied.  Section 129 does
\nnot  specify or fix any time for complying with\t the  notice
\nissued under that section.  Under the provisions of S.\t238,
\ntherefore, a reasonable time for doing the acts required  to
\nbe  done by the notice was to be fixed.\t Taking\t the  notice
\nissued\tto Haji Wali Mohammed only 24 hours’ time was  given
\nfor  dismantling the structure which was stated to be  in  a
\ndilapidated  condition.\t It is extraordinary- that  no\ttime
\nwas  given  for\t repairing the structure and  the  owner  or
\noccupier  of  the  property was\t required  to  straight\t way
\ndemolish  the building or the structure.  Section  129\tdoes
\ncontemplate that the owner may be required either to  remove
\nthe structure which is considered dangerous or to cause such
\nrepairs to be made to it as may be considered necessary\t for
\npublic\tsafety.\t According to all the petitioners they\twere
\ncarrying  on their business in the buildings and  structures
\nwhich  were  ordered  to be demolished.\t  In  the  month  of
\nJanuary there is usually a snowfall in the Kashmir valley as
\nhas been pointed out by the High Court.\t Considering that at
\nno  previous  stage  the officers of  the  Municipality\t had
\nformed\tan opinion that the structures in question  were  in
\nsuch a dangerous condition or were so dilapidated that\tthey
\nshould\tbe demolished the notices which were given  and\t the
\ndrastic step of demolition which was desired to be taken  in
\n24  hours on the face of it appeared to be rather harsh\t and
\nunusual.   The\ttime  of  24  hours  which  was\t given\t for
\ndemolition  was\t so  short that in spite  of  Dr.  Singhvi’s
\narguments  we have not been persuaded to hold that it was  a
\nreasonable   time.   The  petitioners  had  to\t make\tsome
\narrangements  for removal of either their goods or  business
\nequipment  or  whatever articles that were  lying  in  these
\nbuildings  or structures.  We have no manner of\t doubt\tthat
\nthe  notices  issued to the respondents before\tus  did\t not
\ncomply\twith the provisions of s. 238 of the  Municipal\t Act
\nand the time which was granted was so short that it was\t not
\npossible  for  the  respondents either to  comply  with\t the
\nnotices or to take any
\n811<\/span>
\neffective,  steps  in  the matter of filing  any  appeal  or
\nrevision to the appropriate authorities.
\nOwing  to the non-compliance with the provisions of ss.\t 239
\nand 238 of the Municipal Act the action taken by the Munici-
\npality\tin  the\t matter of demolition must  be\theld  to  be
\nentirely  illegal and contrary to law.\tThe conclusions\t and
\nobservations of the High Court on all the points which\thave
\nnot  been  decided by us become unnecessary in the  view  we
\nhave  taken with regard to the illegality and invalidity  of
\nthe  demolition carried out pursuant to the  notices  issued
\nunder S. 129 of the Municipal Act.  The observations made by
\nthe  High Court or the conclusions reached by it on all\t the
\nother\tpoints\twould  naturally  not  be  binding  in\t any
\nproceedings  which  may be initiated or taken  or  continued
\neither by the present respondents or by the appellants under
\nthe  law.   However, we uphold the orders made by  the\tHigh
\nCourt and dismiss the appeals with costs.  One hearing fee.\n<\/p>\n
V.P.S.\t\t\t\t\t\t     Appeals\ndismissed.\n812<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Jammu And Kashmir & Ors vs Haji Wali Mohammed And Others on 8 August, 1972 Equivalent citations: 1972 AIR 2538, 1973 SCR (1) 801 Author: A Grover Bench: Grover, A.N. PETITIONER: STATE OF JAMMU AND KASHMIR & ORS. Vs. RESPONDENT: HAJI WALI MOHAMMED AND OTHERS DATE OF JUDGMENT08\/08\/1972 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-194530","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Jammu And Kashmir & Ors vs Haji Wali Mohammed And Others on 8 August, 1972 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-jammu-and-kashmir-ors-vs-haji-wali-mohammed-and-others-on-8-august-1972\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Jammu And Kashmir & Ors vs Haji Wali Mohammed And Others on 8 August, 1972 - 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