Case: State of Jammu &amp;Kashmir &amp; Others Vs. Haji Wali Mohammed &amp; Others

2. 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 and 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 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 and 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 followspetitioner 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 petitioners, 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 petitioners 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 followsyour 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 Municipality will get it demolished through its employees and will recover the charges thereof fromletter 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.3. By means of a petition dated February 18, 1968 Haji Wali Mohammed sought to introduce some additional grounds in the writ petition. These were"That the proceedings taken against the petitioner by respondent No. 2 under sections 4 and 5 of 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 ofadditional prayer was introduced to the effect that the writ be issued against the Estate Officer and the State of Jammu and Kashmir quashing proceedings under the Public Premises Eviction Act pending before the Executive Officer.4. 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, 13 and 14 may be reproducedThat 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 snowfall 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. 1 after the structure was demolished.14. The contents of para are denied. The petitioner failed to comply with the notice under S. 129 of Municipal Act 2088 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 thewas firmly claimed that the dilapidated house had been demolished under S. 129 of the Municipal Act.

Reasoning:
11. 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 accept what Dr. Singhvi says that there was a refusal to accept the summons and that was the reasons 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.12. Furthermore we entirely fail to see how the requirement of Section 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 straightway 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. Singhvis 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 grated 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 any appeal or revision to the appropriate authorities.13. 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 proceeding 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.