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2016 DIGILAW 112 (JK)

Madan Lal Aggarwal & Ors. v. Administrator, Jammu Municipality & Anr.

2016-03-16

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

body2016
JUDGMENT Tashi Rabstan, J. 1. These appeals are directed against the judgment dated 21.07.2000 passed by the learned Single Judge in OWP Nos. 792/1996, 549/1996 and 701/1997, whereby the learned Single Judge while allowing the petitions filed by the Administrator, Jammu Municipality, set aside the orders passed by the J&K Special Tribunal compounding the breach by levying fine. Learned Single Judge further directed the Jammu Municipal Corporation to forthwith execute the notice. In the instant appeals, the appellants have also challenged order dated 29.12.2000 passed in Rev(OWP) No. 162/2000, whereby the learned Single Judge dismissed the review petition preferred against the judgment dated 21.07.2000. 2. As common question of law and facts are involved in all the four petitions, same were considered and heard together and are being disposed of by this common judgment. 3. The facts-in-brief are that the Jammu Municipality served a notice upon appellant-Madan Lal Aggarwal in terms of Section 229(3) of the Municipal Act for raising a multi-storied building in an unauthorized manner in Partapgarh area, Raghunath Bazar, Jammu and, thereafter, converting the same from residential to commercial. Appellant-Madan Lal Aggarwal preferred three appeals before the J&K Special Tribunal, Jammu (hereinafter, for short, learned Tribunal). Although the learned Tribunal while allowing the appeals had observed that how the huge violation in raising the structure comprising of 16,645 sq. ft. had gone unnoticed by the municipal authorities and certainly the officials of Municipality were in connivance with the appellant therein, yet it compounded the violation of re-constructing the shop by levying composition fee @ Rs. 50/- per sq. ft. in File No. STJ/90/94, dated 24.01.1996; Rs. 50/- per sq. ft. in File No. STJ/139/95, dated 31.05.1996 for unauthorized construction of semi-basement floor, floor over the basement and 2nd floor under construction (1596 x 3 = 4788 sq. ft.), as also Rs. 100/- per sq. ft. in File No. STJ/563/96, dated 22.07.1997 for the total unauthorized area of 1329 sq. ft. in laying slabs of one room on the existing walls on second floor. Against the orders of learned Tribunal, the Municipality filed three writ petitions, bearing OWP Nos. 549/1996, 792/1996 and 701/1997. The learned Single Judge vide common judgment and order dated 21,07.2000 allowed all the three writ petitions and set aside the orders passed by the learned Tribunal with a direction to the Municipality to forthwith take steps to execute the notices. Against the orders of learned Tribunal, the Municipality filed three writ petitions, bearing OWP Nos. 549/1996, 792/1996 and 701/1997. The learned Single Judge vide common judgment and order dated 21,07.2000 allowed all the three writ petitions and set aside the orders passed by the learned Tribunal with a direction to the Municipality to forthwith take steps to execute the notices. Learned Single Judge also directed the Municipality to initiate action against those officers/officials responsible for not carrying out timely inspection and were party to the raising of such unauthorized construction. Appellant before the learned Tribunal also filed a review petition, bearing Rev (WP) No. 162/2000 before the learned Single Judge for reviewing the judgment and order dated 21.07.2000. Learned Single Judge, however, dismissed the review petition being without any merit. Hence, the present appeals on behalf of present appellants. 4. LPAOW Nos. 20/2001, 21/2001 and 22/2001 have been filed by appellant-Madan Lal Aggarwal against the orders passed by the learned Single Judge in OWP Nos. 549/1996, 792/1996 and 701/1997. Whereas, LPAOW No. 44/2001 has been filed by two other brothers of Madan Lal Aggarwal, namely, Sunandan Lal Aggarwal, Rakesh Lal Aggarwal and his mother, namely, Kamlawati on the ground that they are also co-owners in the property-in-question, therefore, are also affected by the judgment and order passed by the learned Single Judge in the aforementioned OWPs. 5. During the course of hearing of these appeals, appellant-Kamlawati got died, therefore, her legal heirs, i.e., Appellant Nos. 1(A) to 1(F) in LPA No. 44/2001 were brought on record vide order dated 31.05.2010. 6. The main ground pleaded in the appeals, particularly in LPA No. 44/2001 is that appellant-Madan Lal Aggarwal is not the sole owner of the property-in-question, rather appellants Kamlawati, Sunandan Lal Aggarwal and Rakesh Lal Aggarwal are also co-owners in the property-in-question, both as a purchaser of the building as well as by inheriting the property. And, after the demise of appellant-Kamlawati, her other legal heirs, i.e., appellants 1(D) to 1(F) in LPA No. 44/2001 have also become co-sharers in the property, whereas the Jammu Municipality had issued the demolition notices only to appellant Madan Lal Aggarwal, and no notice of whatsoever nature was ever served upon rest of the appellants. And, after the demise of appellant-Kamlawati, her other legal heirs, i.e., appellants 1(D) to 1(F) in LPA No. 44/2001 have also become co-sharers in the property, whereas the Jammu Municipality had issued the demolition notices only to appellant Madan Lal Aggarwal, and no notice of whatsoever nature was ever served upon rest of the appellants. Thus, it is pleaded, the judgment and order of learned Single Judge is an ex facie exparte order, as no opportunity of hearing was ever given to rest of the appellants to put forth their case. It is further pleaded that the husband of deceased appellant-Kamlawati had also purchased a portion of the property-in-question. And, after his death as well as with the death of appellant-Kamlawati, the said portion has devolved in favour of present appellants in equal proportion. Thus, it is contended that since the said portion has been inherited by the present appellants in equal proportion and are co-shar-ers/co-owners of the same, Jammu Municipality was wrong in issuing the demolition notices only to one co-sharer, namely, Madan Lal Aggarwal, leaving the other co-sharers without any legal justification; thus denying them the opportunity of being heard, which is against the principles of natural justice and the statutory provision namely Section 229 of the Municipal Act, 2008 (1951-AD). Further, it is contended that as per the new proposed Master Plan, Mohalla Partapgarh area has also been covered under the commercial area. 7. Heard learned counsel appearing for the parties and perused the appeals as well as the writ record. 8. It is the case of the appellants that the property in question is a big complex, and is owned by each of the appellants separately. The notice issued by the Municipality under Section 229 of the Municipal Act, 2008 (1951-AD) has admittedly been served on one of the owners of the big complex, namely, Madan Lal Aggarwal. A notice for illegal or unauthorized construction is required to be issued under Section 229 of the Municipal Act. The relevant provision reads thus- "229. Penalty for disobedience-(l) should a building be erected or re-erected- (a) without sanction as required by Section 221(1); or (b) ...................... (c) ...................... (d) ...................... (e) ...................... (f) ...................... (g) ...................... A notice for illegal or unauthorized construction is required to be issued under Section 229 of the Municipal Act. The relevant provision reads thus- "229. Penalty for disobedience-(l) should a building be erected or re-erected- (a) without sanction as required by Section 221(1); or (b) ...................... (c) ...................... (d) ...................... (e) ...................... (f) ...................... (g) ...................... The Executive Officer shall issue a notice in writing stating the reasons, calling upon the person to show cause within a period of three days, if the contravention relates to Clauses (a), (b), (c), or (d) and within five days if contravention relates to Clause (e), (f) or (g) why the building should not be altered or demolished as he may deem necessary to remove the contravention. 2. The Executive Officer shall cause the notice to be affixed on the outer door or some conspicuous part of the building whereupon the notice shall be deemed to have been duly served upon such person. 3. If the person to whom notice has been given refuses or fails to show , cause within the period specified under sub-section (1) of its service upon him or if after hearing that person and considering any evidence which he may produce in support of his claim within that period; the Executive Officer is satisfied that the erection of the building is in contravention of the provisions of this section, he shall by order direct the person to demolish, alter or pull down the building or part thereof so far as is necessary to remove the contravention within seven days if the person fails to comply with the direction, the Executive Officer shall after the expiry of the said period of seven days cause the building or part thereof to be demolished altered or pulled down as the case may be, and may for that purpose use such police force as may be necessary." 9. The Jammu Municipality has not denied the fact that the property in question does not belong only to Madan Lal Aggarwal and is in fact the property also owned by other persons. Therefore, issuance and service of notice upon one of owners cannot be treated as compliance of Section 229 of the Municipal Act as there are other co-owners/co-sharers of the property in question. 10. Admittedly, the Jammu Municipality had issued the demolition notices to only one appellant, namely, Madan Lal Aggarwal. Therefore, issuance and service of notice upon one of owners cannot be treated as compliance of Section 229 of the Municipal Act as there are other co-owners/co-sharers of the property in question. 10. Admittedly, the Jammu Municipality had issued the demolition notices to only one appellant, namely, Madan Lal Aggarwal. Further, the Jammu Municipality has not denied the stand taken by the appellants that besides appellant Madan Lal Aggarwal, there were/are other co-owners/co-sharers of the property-in-question; meaning thereby the Jammu Municipality has admitted the claim of appellants that there is more than one owner of the property-in-question. 11. Therefore, in our view, issuance of notices to only one appellant by the Jammu Municipality was not only illegal/bad, but was also without any authority of law and against the settled provisions of Municipality Act. Therefore, we deem it proper to set aside the judgment of learned Single Judge in absence of non-issuance of demolition notices by the Jammu Municipality to rest of the co-owners/co-sharers as regards the property-in-question and non-affording of opportunity to them. 12. Accordingly, in the given circumstances, the appeals are allowed and the judgment and order of learned Single Judge, impugned herein, is set aside. Consequently, the judgment/order of learned Tribunal is also set aside on the same reasoning with liberty to Jammu Municipality to issue fresh notices to all the co-owners/co-sharers of the property-in-question in terms of the Municipal Act and, in case all the appellants/co-owners/co-shar-ers or any one of them have committed any sort of violation in raising the structure-in-question, to take action against them as required under law. Connected miscellaneous applications, if any, shall accordingly stand disposed of. Appeals allowed