LexSTATE OF JAMMU AND KASHMIR & ORS. versus HAJI WALI MOHAMMED AND OTHERS
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A B c D E F G H STATE OF JAMMU AND KASHMIR & ORS. v. HAJJ WALi MOHAMMED AND OTHERS August 8, 1972 [A. N. GROVER AND D. G. PALEKAR, JJ.] 80 I Jammu and Kashmir Municipal Act, Samvat 2008, ss. 129, 238 and 239-Notice affixed to property-No proof of attempted service-I/ su[Ji- cient-Grant of 24 hours time to demolish structures· in which bu~iness was be'ng carried on-No opportunity given to repair-I/ time given reasonable. 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 A~t, Samvat 2008. Only 24 hours time was gh-en to the respondent for dismantling the structures. · The notices were never ,erved upon the respondents but were affixed on the premises. The municipality demolished the properties. In writ petition filed by the res· pondents the High Court held that the orders passed by the appellants were illegal. Dismissing tP.c appeal to this Court, HELD : Owing to "the non-compliance with the provi,ions of ss. 238 and 239 of the Ac~, the action taken by the municipality in the matter of demolition must bo held to be entirely illegal and contrary to Jaw. [811A B] (I) Section 239 of the Act gives the procedure relating to authentica. ti()n of service of a v31id notice. Under sub--s. (i) every notice may be served in the manner provided for the serv'ice of summons in the C.P.C. so far as may be applicable. Even accepting the contention of the appel- lant that ti:ie respondent~ refused to accept the notices and that was the reasun for ·affecting service by affixation, the provisions of OR 5, r. 9 of the Code were· not complied with. No proof was adduced by way of an affidavit of ·the pmcess server or any other officer regarding the attempts to serve the notkes. Production by the respondents of the notices or admission that 'there was affixture did not dispense with complianre 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 provides that when any notice under the Act requires any ac~ 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 tloes 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; 81 OC-D] (b) Section 129 also contemplates that the owner may be required either to remove the structure or to cause such ·repa·irs to be made to it as ·m.ay, be c'pnsi~ered nece~sa:~ for public safety, But, i~ the present case, no time was given for repairing and the owner or occupier of the property was straightway required to demolish the building or the structure. Con· sidering that at no previous stage the offic~rs of the municipality . ~ad formed the OTJinion that the structures were tn such a dangerous cond1bon that thev shoJ"ld be demoli,hed, tt~ drastic step of demolition directed to .be taken in 24 hours, appears, on the face of it, to be harsh and unusual [810D·Gl 2-LI 72S"p.Cl/73 802 SUPREME COURT F EPORTS [1973] l S.C.R. 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 eiher 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 contlusions and abservations of the High Court relating to collu- •ion between various government officers for dispossessing the respondents from their properties and demolL•hing them and the ma/a 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 pur- •uant 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] [SOSH; SllB·CJ CIVIL APPELLATE JURISDICTION : c. A. Nos. 144 to 147 of 1969. Appeal by rertificate from the judgment and order dated 19th July 1969 of Jammu and Kashmir High Court in Writ Petition No. 216 of 1968. A B c L. M.
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