State of Jammu and Kashmir & Ors Vs.
Haji Wali Mohammed & Ors  INSC 165 (8 August 1972)
CITATION: 1972 AIR 2538 1973 SCR (1) 801
RF 1988 SC 624 (5)
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
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
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]
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 803 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
provisions 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 storied 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 804
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 805 "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 passersby. 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 ultimately 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
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 municipality 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 noncompliance 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
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
(4) That after issuing notice under section 4
sometime 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
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 correctness 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
Municipality 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.