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2002 DIGILAW 339 (JK)

Gh. Hassan Wani v. State Of J. &K.

2002-10-31

B.L.BHAT, T.S.DOABIA

body2002
Per T.S. Doabia, J (Oral): The present appellant, who figured as writ petitioner, applied for permission to construct a building. This permission was granted to him on 2nd January, by the Administrator, Notified Area Committee, Pulwama. This order makes a mention of the fact that the sanction is being granted in terms of section 10 of the Jammu and Kashmir Town Planning Act, 1963 and Section 222 of the Municipal Act, Svt. 2008. The fact that Tehsildar, Pulwama, had made a recommendation vide his communication dated 8.3.2001 was taken note of. The communications addressed by the Executive Engineer, R&B Division dated 11.4.2001 and of the District Town Planner dated 14th June, 2001 were also taken note of. It was on the basis of communications so received, sanction was accorded for erection of shop/residential house. The terms and conditions have been specified. Condition Nos. 6, 7, 8 and 9 indicate the method and manner in which the construction has to be raised. For facility of reference these conditions No. 6, 7, 8 and 9 are reproduced below:-- 6. The wall from the side of NAC land should be blind. 7. The front side set back, shall be maintained 20 from the plot line. 8. Rear side 15 (minimum). 9. Other sides 10 minimum. The height of the building shall not exceed 30 from ground level upto roof top. 2. The fact that the appellant is the owner of the land in question is sought to be reflected by placing reliance on revenue record. This is excerpt of Khasra Girdwarai of Pulwama. This is of the very land on which the building is sought to be constructed. The land is shown in possession of the appellant. 3. The further fact is that Deputy Commissioner, pulwama, passed an order on 17th January, 2002. It appears that it was brought to the notice of the Deputy Commissioner, Pulwama, that some constructions are being raised by encroaching upon Government land. A general order was passed that building permissions issued by the Notified Area Committee from 26th November, 2001 onwards shall be deemed to be cancelled. Earlier to that, a Committee was constituted. This was so constituted by an order passed an 17th January, 2001. Both these orders have been placed on record of this appeal as annexure `K and `L. What led the appellant to approach this Court was a communication dated 24th January, 2002. Earlier to that, a Committee was constituted. This was so constituted by an order passed an 17th January, 2001. Both these orders have been placed on record of this appeal as annexure `K and `L. What led the appellant to approach this Court was a communication dated 24th January, 2002. This was a communication addressed by the Administrator of the Notified Area Committee. By this the appellant was informed that the building permission/sanction in his favour would be deemed to have been cancelled in pursuance of the order passed by the Deputy Commissioner on 17th January, 2002. It is this aspect of the matter which was subject-matter of challenge in the writ petition. 4. The State preferred objections in the writ petition. In para 11 of the reply it has been pleaded that number of complaints were received. One complaint was that the present appellant was raising the construction on a piece of land on which there existed a water canal. It is submitted that this construction would pollute the water. It was this aspect of the would matter which was taken note of . The issue was verified in the presence of all concerned and it was in these circumstances further action was taken. Thus the sum and substance of the plea taken by the State was that the appellant was raising the construction on that piece of land on which a canal was existing and if he is permitted to raise the building, this would lead to polluting the water system and the water bodies. 5. The question which is required to be gone into is as to whether the Deputy Commissioner can pass a general order cancelling the sanctions granted by the Notified Area Committee. Sanctions are accorded under section 222 of the Municipal Act. The provisions of the Municipal Act are applicable to the Notified Area Committees also. This is by virtue of the provisions contained in Chapter XXX of the Municipal Act. Therefore, for all intent and purposes, whenever sanction is granted by the Notified Area Committee, the source of power is traceable to Section 222 of the Municipal Act. Once sanction is granted, then it is the Executive Officer who can direct modification of the sanctioned plan of a building before its completion. This is also provided under section 223 of the Municipal Act. Once sanction is granted, then it is the Executive Officer who can direct modification of the sanctioned plan of a building before its completion. This is also provided under section 223 of the Municipal Act. If any building is being raised which is not in accordance with the sanctioned plan, then the power can be exercised in terms of section 226 and 227 of the Municipal Act. The basic jurisdiction to take action vests in the Executive Officer of the town Area Committee. In this case as the sanction was granted by the Administrator, Notified Area Committee, then it can be said that it was that officer who could take further action as contemplated by the provisions of the Municipal Act. Here it would be apt to mention that the supervisory power in the nature of control is provided in Chapter XXVI of the Municipal Act. The power has been given to the Minister for Local Self Government. He can call for the records, correspondence, plan or other documents from the council or the Executive Officer and pass such orders as may be warranted. Section 253 of the Municipal Act makes a provision in this regard. Under section 254 of the Act the Minister for Local Self Government can cause inspection to be made by any officer and in doing so he can direct any officer to take appropriate steps. Thus the basic jurisdiction to accord sanction is with the Notified Area Committee and if it is found that some building has been raised in contravention of the sanction then it is that officer alone who can take action or jurisdiction can be exercised in pursuance of the powers vested in the officer and authorities mentioned in Chapter XXVI of the Municipal Act. 6. So far as the Town planning Act is concerned, the permission is contemplated by section 10 of the Act. If any construction is being raised in contravention of the Act, then section 13 of the Act of 1963 can be made applicable. 7. 6. So far as the Town planning Act is concerned, the permission is contemplated by section 10 of the Act. If any construction is being raised in contravention of the Act, then section 13 of the Act of 1963 can be made applicable. 7. We are, accordingly, of the view that if the terms of the sanction Whatsoever are violated or, if it was found that the building was not being constructed in terms of the sanction, then the appropriate course was for the Administrator of the Notified Area Committee to take action or for the officer who is competent to do so under section 13 of the Town Planning Act. Such a course was not adopted in this case. This is one aspect of the matter. 8. The other aspect of the matter is that the State is of the view that the building is being raised on the canal. Even if this aspect of the matter is to be believed then the appropriate authority under the Irrigation Act of 1978 is required to take action The proper action is required to be taken by the authorities who are supposed to look after the canal system under the Irrigation Act of 1978. If the construction in question is likely to pollute the water system, then also it is those authorities mentioned in sections 4 and 5 of the Irrigation Act, who can take action contemplated under the relevant provision of the Irrigation Act. 9. Another aspect of the matter is that when power is conferred upon a particular officer, then that power has to be exercised by that person alone. If the power is exercised at the behest of higher authorities, then it would not be a valid exercise of power. In this respect it would be apt to refer to the decision in Kans Raj v. Dy. E.&T. Commr., AIR 1965 Punjab 284. The relevant observations made in the above case are being quoted below :--- "... It is settled law that if any authority has been vested with the power to grant a licence, it is that authority which must exercise that power and if power is exercised by some other authority the exercise of that power will be wholly void. In this connection reference may be made to the decision of the Supreme Court in Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 16. In this connection reference may be made to the decision of the Supreme Court in Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 16. In this case the authority to grant and cancel a licence for the erection of a building to be used for purposes of public amusement vested in the Commissioner of Police under the rules. The power did not vest in the State Government. The Commissioner of Police granted the licence for the erection of a cinema house. This sanction was later cancelled by the Commission of Police at the instance of the State Government. The cancellation was questioned by the person who had been permitted to construct this cinema hall. His petition was allowed by the Bombay High Court and the appeal by the Commissioner of Police to the Supreme Court failed. While dealing with this matter the Supreme Court observed as follows :-- "26. We have held that the Commissioner did not in fact exercise his discretion in this case and did not cancel the license he granted. He merely forwarded to the respondent an order of cancellation which another authority had purported to pass. It is evident from these facts that the Commissioner had before him objections which called for the exercise of the discretion regarding cancellation specifically vested in him by Rule 250. He was therefore bound to exercise it and bring to bear on the matter his own independent and unfettered judgment and decide for himself whether to cancel the license or reject the objections. That duty he can now be ordered to perform under section 45 Of the specific Relief Act).........." 10. Similar opinion has been expressed in a case Joginder Lal Kuthiala and Ors v. The Administrator Jammu Municipality and Ors., 1998 SLJ 445. In the said case the provisions of sections 223, 224 and 225 of the Municipal Act were considered and it was observed that the Executive officer or the Council acting as a body can direct modification of a sanctioned plan subject to payment of compensation for the loss which may occur to the owner. Therefore, as indicated above, the basic jurisdiction in these matter is to be exercised by the authorities under the Municipal Act or under the Notified Area Committee Act. They cannot act at the behest of higher authorities. Therefore, as indicated above, the basic jurisdiction in these matter is to be exercised by the authorities under the Municipal Act or under the Notified Area Committee Act. They cannot act at the behest of higher authorities. If some inspections are carried out, it is for the officers indicated in the Act who can act and take decision independently at their own level. 11. In the above circumstances, it is observed that the Executive officer of the respondent Committee would examine the matter. If the appellant is raising the construction not in accordance with the sanction or is encroaching upon the land, then he will take remedial measures in this regard. Independently the State is left free to invoke the provisions of Irrigation Act, if the construction is being raised on the canal system or is likely to pollute the water. In case it is found that some building is being raised on land which answers the description of canal as contemplated in the Act the State will take necessary action under the Irrigation Act. For a period of one month both the sides will maintain status quo so as to enable the Administrator to take a decision. Any decision would, of course, be after hearing the appellant. The appellant to produce a copy of this judgement before the Executive Officer. Any order passed by the Notified Area Committee in so far if it affects the appellant would remain in abeyance for a period of one month. 12. The judgement under appeal is accordingly, set-aside . This dispose of the appeal as well as the writ petition.