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2002 DIGILAW 207 (JK)

Bhiku v. Chairman, J&K Special Tribunal, Jammu

2002-06-12

S.K.GUPTA, T.S.DOABIA

body2002
DOABIA, J.: - Jagan Nath respondent No. 4 in this appeal as also in the writ petition was proceed against under the provisions of the J. and K. Municipal Act. 2008. A notice was issued under Section 229 of the Municipal Act. This is dated 19-2-1992. This notice makes mention of the fact that the respondent has constructed one shop and started construction of two rooms. Further notice was issued under Section 229(3) of the Municipal Act on 27-2-1992. Both these notices were subject-matter of challenge before the J. and K. Special Tribunal. Before the Tribunal, the plea which were put across have been noticed in the appeal. It would be apt to reproduce the same below: - (i) the appellant is the owner of the land and he constructed the shop, two rooms and one kitchen many years ago and has been residing there and doing business; this construction was raised by the appellant with due permission; (ii) the appellant had" not violated any rules and provision of law or the Municipal Act in constructing the building; (iii) while issuing the impugned notice the respondent No. 1 had not afforded him an opportunity of being heard and the principles of natural justice has not been violated.� 2. The respondent-Municipality submitted a report. What was said in the report is also being reproduced below : (i) the nature and extent of violations is that the appellant has constructed shop under road set back. He has also erected two rooms, kitchen and store over the existing ground floor without keeping the prescribed set backs and building norms; (ii) the distance of the offending structures from the centre of the road is 18™-9� whereas the permissible building line from the centre of the road is 50™ and thus the unauthorised construction has also violated the Ribbon Development Act. (iii) the plot area could not be ascertained because the appellant has not furnished the sale deed/revenue documents. The built up area of the unauthorised construction has been worked out to the tune of 621 sq. ft. (i.e. area under shop 160™ sq. ft. and area under 1st floor 441 sq. ft). (iii) the plot area could not be ascertained because the appellant has not furnished the sale deed/revenue documents. The built up area of the unauthorised construction has been worked out to the tune of 621 sq. ft. (i.e. area under shop 160™ sq. ft. and area under 1st floor 441 sq. ft). (iv) the map to scale showing therein the lay out of the unauthorised construction as desired is enclosed; (v) the construction has been erected without obtaining the building permission and hence the appellant has violated the Ribbon Development Act, Master Plan, Municipal Act and Town Planning Act.� 3. This respondent-Jagan Nath was given time to file objections. What was stated by him byway of objections to the report is also being noticed. These are as under : (i) the appellant has constructed two rooms, kitchen and store over the existing ground floor along with shops. The aforesaid construction was raised many years ago and since then he has been residing there and doing business; (ii) the measurements have not been made in accordance with the provisions of the Ribbon Development Act; (iii) the appellant is the owner of the plot, a photostat copy of the sale deed is attached; (iv) the map submitted by the respondents with mala fide intentions, without informing the appellant and in his absence; (v) the construction is an old one and he has not violated any rule of the Ribbon Development Act, Master Plan, Municipal Act and the Town Planning Act.� 4. The Tribunal was of the view that Jagan Nath respondent No. 5 was unable to prove that he was the owner of the land. He placed reliance on a sale deed. In this way Bhiku s/o Buta was shown as the owner of the land. It was accordingly concluded : (i) that this Jagan Nath was neither the owner nor lessee nor having lease hold rights and. therefore, was not entitled to raise any construction; (ii) that the construction was unauthorised and is likely to hamper the Master Plan, Municipal Act and the Town Planning Act; (iii) that the plea that the construction was old one could not be substantiated: (iv) that the fact that this Jagan Nath had admitted that he was raising the construction over the existing ground floor was taken note of. It was observed that this was done without obtaining permission under the Municipal Act; (v) that the concept of set back has not been kept in view; (vi) that the building should have been constructed at a distance of 50 from the centre of the road. It is in fact 18™-9� of the centre of the road. 5. It was in these circumstances observed that Jagan Nath was unable to substantiate his point of view and his appeal was dismissed. 6. Instead of Jagan Nath coming forward and challenging the order, a writ petition was preferred by Bhiku, the present appellant. His plea was that he being the owner of the land he should have been given an opportunity to show cause. According to him notice was required to be given to the owner. This having not been done any order of demolition could not have been passed. 7. A learned single Judge of this Court was of the opinion that the present appellant is fighting the battle for Jagan Nath. He has nowhere stated that he had constructed the building. The fact that Jagan Nath had taken a plea all along that he had raised the construction, the question of giving notice to the present appellant could not arise. It has also been observed that at the most he was merely an owner of the land not of the building. It was in these circumstances observed that the real person, who is likely to be effected is Jagan Nath and he has not come forward, therefore, no relief could be granted. 8. The argument put across in this appeal is that a notice should have been given to the owner. This be examined. 9. Section 229 of the Municipal Act makes a provision to the effect that in any of the events as mentioned in S. 229(1)(a) to (g) come into existence when the Executive Officer is to issue a notice in writing calling upon the person to show cause as to why the building should not be altered or demolished as he may deem necessary to remove the contravention. Section 229 does not require a notice to be given to the owner, but notice is required to be given to the person who is responsible for disobedience mentioned in S. 229(1). Section 229 does not require a notice to be given to the owner, but notice is required to be given to the person who is responsible for disobedience mentioned in S. 229(1). Therefore, to say that notice was required to be given to the recorded owner even though he has not raised any construction is an argument, which cannot be accepted. 10. Independently of the above, a notice given to the occupier would be a valid notice. Section 240 of the Municipal Act speaks of giving a notice to the owner or occupier and it provides that a notice has to be given primarily to the person who is supposed to comply with the notice. Section 240 for facility of reference is reproduced below : 240. Service when owner or occupier are different persons- Whenever it is provided by this Act that any notice may be given to the owner or occupier of any land or building, and the owner or occupier are different persons, such notice shall be given to one of them primarily liable to comply with such notice, and in case of doubt to both of them.� 11. It has come on the record that it was Jagan Nath, who was raising the building. He had taken this plea before the Tribunal. He was the person who was in occupation. A notice was given, to him in his capacity as an occupier. Therefore, to say that the appellant who was claiming ownership in the land was also required to be given a notice, is an argument which cannot be accepted. 12. In para 3 of the writ petition, it is stated that it is respondent No. 4 who was staying in the premises. If this be the position, then it was Jagan Nath, who was the occupier. He was issued a show cause notice. He took detailed objections. If this be the position, then the view expressed by the learned single Judge that the present appellant is fighting the battle for Jagan Nath, respondent No. 4 is a view to which no exception can be taken. 13. We are accordingly of the view- i) that it was Jagan Nath, respondent No. 4 who was the occupant and in his capacity as occupier, notice was rightly served upon him. 13. We are accordingly of the view- i) that it was Jagan Nath, respondent No. 4 who was the occupant and in his capacity as occupier, notice was rightly served upon him. ii) that Jagan Nath had taken a plea before the Tribunal that he had raised the construction and that he wanted to place on record a sale deed. No sale deed indicate that he was the owner of the land. It is not the case of Jagan Nath respondent No. 4 that the building in question was raised by Bhikhu. iii) Jagan Nath was a party in the writ petition. He was duly served. He engaged a counsel. He has not filed any reply. 14. In view of the above, no exception can be taken to the view expressed by the learned single Judge. This appeal as such, is found to be without any merit and is dismissed.