H. Wali Mohd. and Others vs Administrator Municipality and Others

Ali, C.J.—These four petitions raise common questions of law and fact and would, therefore, be decided by one judgment, indicating

individual cases wherever necessary.

All the Petitioners are purchasers of the premises in dispute which were originally owned by Dewan Bishan Das, an ex-Prime Minister of the

State who, according to the Petitioners, was in possession of the property for more than 76 years. The vendor of the Petitioners had after acquiring

the land constructed several huge buildings and structures as a result of which the properties were rendered very valuable. A portion of the

property was in possession of the tenants of Bishan Das who were asked to attorn to the new purchasers after the heirs of Bishan Das sold the

property to the Petitioners. The property in question is situate in Magharmal Bagh and consists of residential houses, buildings and sheds and open

lands. The Petitioners, Haji Abdul Aziz Shah, his wife, one Abdul Salam Shah and H. Mohd. Ramzan Shah purchased 8 and 9 Marias and 10.000

sq. ft. of the property bearing Khasra Nos. 885 and 890 by two separate sale deeds registered on 12-1-67 and 8-12-67. Similarly Haji Wali

Mohd. by a sale deed dated 7-12-67 purchased land measuring 25704' 5"" along with buildings garages situate in Sarai Pain near the exhibition

ground. After purchasing the aforesaid property, this Petitioner started his own commercial establishment and business headquarters.

It is not disputed by the State that the premises were purchased by the Petitioners in the writ petitions mentioned above, nor is it denied that

prior to the demolition of the buildings the premises in dispute were in possession of Parnesh Chandra and others who were the heirs of Dewan

Bishan Das.

Thus prima facie it would appear that the undisputed possession of the vendors of the Petitioners has been clearly admitted by the State in all the

petitions. he concerned officers however, alleged that (sic)the lands were Wasidarl Land (Govrnment Lands) and were leased out to Dewan

Bishan Das for purposes of conructing buildings. The lease granted to te said Bishan Das was governed by Wasidari(sic) Rules which were later

on amended(sic) by the Lands Grants Act of 1960 and under the provisions of his Act as also the rules framed thereunder the State ad the right to

resume the lands for a public purpose after paying compensation of the lessees. Although the State has by to(sic) means adduced sufficient

evidence to rove that the lands in question were Wasidari(sic)Lands inasmuch as they have either produced the counterpart of the case deed nor

have they produced the Nazool register to show that the lands in question were Nazool lands, yet for purposes of this case we shall assume that he

lands in question were Wasidari and Nazool lands leased out to Bishan Das a long(sic) time back. In fact the only docu mentary evidence

produced by the State efore us consists of a copy of Jamaband where the lands are shown as Khalsa Sirkar,(sic) i.e., lands owned by the State

and Bishan Das is shown as a tenant in posession. As the Petitioners also do not vant us to go into the question Of title out decide this case on the

assumption that the lands are Wasidarl lands, we would refrain from making any observations regarding the title of the Petitioners or(sic) of their

vendors in these writ petitions. Any casual observation made in these petitions will not, therefore, prejudice the rights of either party.

The Petitioners have contended that he State wanted to resume the lands under the Land Grants Act of 1960 but without taking necessary

action as required by law and with a view to seizing the property of the Petitioners taking advantage of a fire that broke out on 5-1- 68,

Respondents 1 and 2 of petitions Nos. 216 and 221 in collusion with each other tried to forcibly dispossess the Petitioners and succeeded in

demolishing a major portion of the buildings constructed by the Petitioners' vendors. The Petitioners further alleged that without any semblance of

title or right the res pondent fenced the whole area containing the premises in dispute without the per mission of the Petitioner and thus clearly

invaded the Petitioners' fundamental rights.

In order to appreciate the contentions raised by the counsel for the Petitioners a few admitted facts which have been collected from the

unrebutted assertions made by the Petitioners and also from the Government file No. 561 produced by the Additional Advocate General may be

stated here.

The story begins with the decision of the Government to acquire lands In question under paragraph 21 of the rules for grant of lands in Jammu and

Kashmir for building purposes which have been kept alive by virtue of Sections 6 and 13 of the Jammu and Kashmir Land Grants Act of 1960.

This rule runs as under:

On the expiry of the period of lease or in the case of lease being renewed on the expiry of the period of the renewal of the lease. His Highness the

Maharaja in Council shall acquire possession of the land covered by the lease and all buildings erected thereon or appurtenances belonging thereto

after making such compensation to the lessee for the cost of buildings erected by him as may be determined by the State Engineer. If the lessee

does not accept the compensation so determined by the State Engineer, His Highness the Maharaja in Council may require the lessee to remove

the materials of houses and buildings erected by him and to vacate the land within a reasonable time to be fixed after due regard to the

circumstances of each case. If the order is not complied with by the lessee within the time so fixed His Highness the Maharaja in Council may enter

in possession of the land and other buildings or houses that may be standing thereon at the time and all rights of the lessee for compensation for

such houses or buildings, as may be so taken possession of, shall be deemed to have been finally determined and extinguished.

Analysing the ingredients of this rule, it would appear that the State would be competent to resume possession from the lessee at any time

provided the following conditions are satisfied:

(1) That the land is required for a public purpose.

(2) That compensation Is assessed by the Government in accordance with the mode laid down in the rules.

(3) That the said compensation has been paid to the lessee.

It is manifest therefore, that unless the Government pays compensation to the lessee, it is not entitled either in law or in fact or on principle to

take possession of the property. We might further mention here that under the Land Grants Act the procedure for assessing compensation has

been slightly changed and under those rules the Divisional Engineer P.W.D. has to assess the compensation and the lessee has been given a right of

appeal against the aforesaid assessment of compensation to the Chief Engineer whose order has been made final.

But the language of Section 6 of the Land Grants Act clearly shows that the provisions of the Act and manifestly of the rules made thereunder

would apply only to leases created after the passing of the Act. Thus all leases created before the Act would continue to be governed by the old

rules quoted above. The leases in these petitions have been executed long before the said Act was passed and is, therefore, clearly governed by

the old rules.

By Government order No. LA/74 of 1957 dated 22-9-57 the Government decided to resume the lands in question bearing Khasra Nos. 890

min and 937 min situate in Bagh Magharmal for a public purpose. The Government order runs thus:

Whereas Khasra Nos. 890 min and 937 min measuring 10 kanals and 16 marlas, 239 cft. situate in Bagh Magharmal Mauza Narsingarh, Srinagar,

held in lease by the successor in interest of late Dewah Bishan Das are required for a public purpose namely for setting up a tonga and lorry stand,

it is ordered that the said land shall be taken possession of and all appurtenances and structures standing therein shall be acquired by the Director

Land Record in terms of Rule 26 of the Building Site Rules of 1976.

It would appear from a perusal of this order that the premises in question were resumed because they were required for purposes of

constructing tonga and lorry stand which according to the Government, was a public purpose in order to justify them to acquire the said land. We

might also mention here that this order was passed before the Land Grants Act of 1960 has come into force and the relevant provision which

governed such lands was the Buildings Site Rules of 1976 (Bikrami) as mentioned above. This order was slightly modified by substituting some

khasra Nos. by virtue of Government order No. 380 of 1960 dated 3-10-1960.

It appears that in pursuance of the Orders passed in 1957 and then in 1960 as referred to above another Government order No. 281 of 1961

dated 22-1-65 was passed by which the lands which had been sought to be resumed by the previous orders were sought to be transferred in

favour of the Roads and Buildings department for Government purposes. This order runs thus:

Sanction, is according to the transfer Of the Nazool land measuring 11 ks 2 ms and 3 sq. ft. comprising khasra Nos. 890 min and 937/min and

885/min. situate in Baghi-Magharmal Mauza Narasingarh Srinagar resumed vide Government order No. LA-74 of 1957 dated 28-9-57 read with

Government order No. 380 of 1960 dated 3-10-60 in favour of Roads and Buildings department for Government purposes.

The Dy. Commr. Srinagar will proceed immediately to acquire possession of the lands mentioned above and buildings and structures, if any,

erected thereon and appurtenances belonging thereto, after paying compensation to the lessees for such building and appurtenances and also for

such other improvements as may have been effected on the lands by the lessees and hand over the same to the R. and B. Department. The

compensation shall be assessed by the Div. Engineer who shall notify in writing the assessment made to the parties.

This order clearly enjoins on the Dy. Commr. to acquire possession of the land resumed only after paying compensation to the lessee for the

building and the improvements made by him. The order further directs that the compensation was to be assessed by the Div. Engineer who would

notify his assessment to the parties. In pursuance of this order there has been a lot of correspondence between the Dy. Commr., the Chief

Engineer and the Div. Engineer for assessment of compensation. We might here refer to one of the letters of the Tehsildar Nazool dated 18-9-

1961 which is contained in the file produced by the Government. In this letter it is clearly mentioned that the Government had directed the Dy.

Commr. to acquire the land only after paying compensation and therefore, the Tehsildar has requested the Dy. Commr. to see that the evalution of

the properties was made and compensation was paid before possession was taken.

There is another letter by the then Dy. Commr. to the Financial Commr. dated 22-8-61 which states that steps may be taken to make available

funds to the time of Rs. 110276 which appears to be the compensation assessed by the concerned authority. While the Government order dated

22-1-1961 (Supra) clearly states that the lands in question after being resumed were to be transferred to the P.W.D. yet there is a letter dated 10-

9-1961 by the Administrator Municipality to the Chief Engineer requesting him to intimate if possession of the lands was taken over by the P.W.D.

in order to be transferred to the Municipality. This letter appears at page 12 of the Government file and is rather important to show the allegations

of collusion between the first and the second Respondents as alleged by the Petitioners. This letter would clearly show that the P.W.D. was to take

possession of the lands for purpose of the Municipality who was to use the same.

Then there are a number of letters in the said file from the Dy. Commr. to the Financial Commr. and other authorises making a grievance that

the funds for payment of compensation to the parties had not been made available and possession had not been taken. Ultimately there is a letter

dated 30-12-1961 appearing on page 17 of the file from the Chief Engineer to the Revenue Secretary intimating to him that the compensation had

been assessed at Rs. 1,02,127 and that funds may be made available. It is also mentioned in this letter that the Government Architect may be

deputed to prepare plans of shop cum flats to be built on the lands. This explains why the land was required by the Municipality.

It appears that the original compensation of Rs. 1,02,127 was later on enhanced to Rs. 1,39,260 because certain structures had not been

taken into consideration while making the previous assessment. At page 21 (ibid) is a letter by the Chief Engineer P.W.D. to the Dy. Commr.

requesting him to make arrangements for payment of the compensation mentioned above.

It, however, appears that no action was taken on the basis of the said Government order in the matter of payment of compensation despite a

long correspondence, with the result that a fresh Government order No. ND-305 of 1963 dated 31st August 1963 had to be passed. This order

runs as under:

It is ordered that land measuring 9 ks, and 5 Ms. 173 sq. ft, comprising khasra Nos. 885/min. 890/min. and 887/min. situate at Bagh Maghar Mal

Srinagar at present under the wasidari of Shri Purnesh Chander and other legal heirs of late Dewan Bishan Das which is required for public

purpose namely, for development of the city and proper planning of buildings be resumed.

The Dy. Commr. Sringar will get the evaluation of the superstructures etc. if any standing on the land in question made by the Chief Engineer

P.W.D. after having it notified to the parties as required under rules.

It may be pertinent to note that whereas under the previous Government orders the public purpose was construction of tonga and Lorry stands,

under the later Government order the public purpose mentioned was the development of the city and proper planning of buildings. Under this order

the Dy. Commr. was directed to get the evaluation of the buildings constructed by the lessees made and compensation to be paid to the parties in

accordance with rules. Previous to this government order there is another letter at page 30 of the file from the Dy. Commr. Srinagar to the Dy.

Commr. Jammu enclosing some notices for service on the persons indicated in the notices. This letter runs thus:

Herewith I am sending you three notices for service on the person indicated in each notice, Government are very eager to take over the land

whose lease has been resumed some time back. I shall feel personally grateful it proper service of the notices is arranged.

Sd/Noor Mohd.

D.C. Srinagar.

The notices which were issued pursuant to this letter were notices regarding the assessments made by the Divisional Engineer.

It appears that the lessees accepted the notices and filed an appeal as required under the rules to the Chief Engineer where they"" challenged the

assessment as also the resumption of the land on the ground that no public purpose was involved. This appeal was filed under the rules framed

under the Land Grants Act of 1960, i.e. under para 7 of the rules framed under the Act. The appeal was rejected on 6-12-1963. By virtue of

letter No. 25937,40 dated 6-12-63 Dewan ParnesK Chandra heir of D. Bishan Das was informed of the rejection.

We have already pointed out that the lease in the present case was not governed by the rules made under the Land Grants Act, yet it appears

that both the parties were suffering from a mistaken impression of law that the new rules governed even the present leases. Thus any compensation

fixed under the new rules would have no legal force and would not legally bind the vendor of the Petitioner. Since however, the compensation

assessed was not done in accordance with para 21 of the old rules, which rules alone would apply to the lessees in the instant case the legal

position would be that such a compensation would be destitute of any legal effect.

It would again appear from a perusal of the said Government file that although the Chief Engineer rejected the appeal of the lessees regarding

the compensation assessed by the Div. Engineer yet no action was taken by the concerned authorities to pay the amount of compensation to the

lessees. A letter from the Dy. Commr. to the Chief Engineer R. and B. dated 10-3-64 reminds the Chief Engineer that the amount of compensation

assessed may be arranged so that payment may be made and possession of the premises taken by the Dy. Commr. In order to be handed over to

the P.W. Department.

While the correspondence between the Dy. Commr. and the other department was still continuing for payment of compensation, composite

notice under Sections 4 and 5 of the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1959, (herein to be referred

to as the old Act) were served on the tenants on 19-6-1963. According to the Petitioners these notices were not served on the lessees but were

merely served on the tenants who filed objections thereto before the estate officer. Thereafter the matter was completely dropped and no steps

either to pay compensation to the lessees or to acquire the lands or to follow the proceedings under the old Act to their logical conclusion took

place. No reasonable explanation has been given by the Additional. Advocate General for this silence for a long time on the part of the

Government or its officers. The only reasonable inference that can be drawn from such a long and unexplained silence is that the Government on

second thought did not want to pursue the matter.

After a silence of about five years we find the Respondents rising from their deep slumber one fine morning on 5-1- 1968 when an order of

eviction under the old Act was actually passed. The order is annexure 'E' and runs as follows:

Whereas there are sufficient reasons to believe that a portion of Government land comprising Khasra No. 885 min situate in Estate Narsingarh

Srinagar is under the unauthorized occupation of Shri H. Abdul Salam S/o Ismail Shah Shargari, and

Whereas under the provision of Section 6 of the Land Grants Act, 1960 the J. and K. Public Premises Eviction of Unauthorized Occupants Act,

1959, is applicable and a notice u/s 4 of the said Act was served on the unlawful occupants in the manner prescribed and

Whereas the unauthorized occupant has failed to produce any genuine cause or any proof of evidence in justification of the occupation of the

aforesaid premises in response to the notice lawfully issued to him and:

Now in exercise of the powers conferred upon me u/s 5 of the Public Premises Eviction of Unauthorized Occupants Act of 1959, I.L.S. Tatud.

IAS. Dy. Commr, Estates Officer being satisled that the public premises indicated above are in unauthorised occupation hereby order eviction of

the aforementioned unauthorized occupants from the said premises.

A copy of this order be affixed on the outer door or at some other conspicuous part of the public premises unauthorised occupied.

The order, according to the Petitioners, was pasted on the electric pole outside the premises. According to the allegations made by the

Petitioners this notice was actually dated 8-1-1968 but it was ante dated to 5-1-1968 in order to show that some time was given to the Petitioner

to vacate the land. It is also common ground that on 5-1-1968 a devastating fire broke out in the Municipal buildings which are adjacent to these

buildings, as a result of which a huge portion of the Municipal buildings was burnt down to ashes. The Petitioners allege that since the land has been

resumed by the Government for purposes of building flats for the Municipality, the Municipality thought it a fit occasion to grab the lands, since its

own buildings were gutted, and acting in collusion with the first Respondent Estate Officer the Administrator of the Municipality got a notice issued

to the Petitioner under Sections 4 and 5 of the old Act, while the Administrator Municipality himself issued a notice on 9-1-1968 u/s 129 of the

Municipal Act directing the Petitioners to remove -the buildings as they were in a dangerous condition. Under the notices the Petitioners were given

only 24 hours time to demollish the buildings and as they failed to comply with the said notices the Administrator and the Dy. Commr. employed

500 people and got a major portion of the buildings demolished on 11-1-1968. The Petitioners moved this Court in vacation and obtained a stay

order as a result of which a portion of the buildings could not be demolished and the nefarious object of the first two Respondents could not be

achieved.

The Petitioners further contend that after issuing orders under Sections 4 and 5 of the old Act and after having demolished a major portion of

the buildings of the Petitioners, a formal order dated 16-2-1968 was passed by the Dy. Commissioner transferring the premises, to the

Municipality. On the basis of these facts a large number of contentions have been raised before us by the learned Counsel for the Petitioners.

In the first place Mr. Ashok Sen appearing for the Petitioner submitted that even if the old Act was a valid piece of legislation, the Petitioners

were not unauthorized occupants as defined in Section 2(a) of the Act. We have referred to the jammu and Kashmir (Public Premises Eviction of

Unauthorised Occupants) Act, 1959, as the old Act. For purposes of brevity, we shall refer to the Jammu and Kashmir Public Premises Eviction

of (Unauthorized Occupants) Ordinance as the ordinance and the J. and K. Public Premises (Eviction of Unauthorized Occupants) amended Act

as the amended Act.

Section 2(a) of the old Act runs as follows:

Unauthorized occupation' in relation to any public premises means the occupation by any person of the public premises without authority for such

occupation and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any

other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined by any reason whatsoever.

It was contended by the counsel for the Petitioners that as the vendors of the Petitioners had legal right to continue in possession until they

were paid compensation for the land sought to be resumed by the Government, their possession could not be said to be unlawful so as to come

within the mischief of unauthorized occupants as defined in the old Act. In our opinion the contention is well founded and must prevail. It would

appear from Rule 21 quoted in an earlier part of this judgment as also from para 7 of the rules framed under the Land Grants Act of 1960 that

possession from a lessee can be taken only after he is paid compensation and not before that. In these circumstances, therefore so long as the

lessee is not paid the compensation, his possession continues to be perfectly lawful and he cannot be evicted under the Act.

The Additional Advocate General drew our attention to the last portion of the words has been determined for any reason whatsoever"". This, in

our opinion, would not help the Respondents because the rule requires that resumption of land would be a completed act only when compensation

is paid to the lessee and possession is taken over. In the instant case it cannot be said that the lease had been completely determined as

contemplated by Section 2(e) of the Act unless the lessees were paid actual compensation. It is somewhat curious to find in the instant case that

the very authority which has later issued notices under Sections 4 and 5 of the old Act had on previous occasions stressed the fact that possession

from the lessees could not be taken over unless compensation was paid. The said authority namely the Dy. Commr. was also aware, as would

appear from the correspondence detailed above, that the compensation of Rs. 1,39,260 though assessed and upheld by the Chief Engineer was

not yet paid to the Petitioners and not even the funds for payment of this amount were made available despite repeated requests. In spite of having

knowledge of all these facts, the same authority chose to issue notices u/s 4 of the Act in the year 1963 and then followed it up by Issuing orders

u/s 5 directing eviction of the lessees knowing full well that compensation had not been paid. In this view of the matter the act of the Estate Officer

(Dy Commissioner) in proceeding against the Petitioners or their vendors under the provisions of the old Act cannot be held to be bona fide. At

any rate in view of the legal position mentioned above namely that the Petitioners' vendors not being unauthorized occupants, the Act had no

application and therefore,, any notice issued u/s 4 or any order passed u/s 5 of the Old Act was completely without jurisdiction.

It was next contended that since no action was taken for more than 4 years and a half after the issue of notice dated 19-6-1963, the notice

must in law be deemed to have spent itself since no proceedings were taken within a reasonable time of the giving of the notice. In support of this

argument reliance was placed on Craies on Statute Law wherein the learned author relying on (1884) 9 App. Cas 480, 489 observes as follows:

Powers conferred by Act of Parliament must, as a general rule, be exercised within a reasonable time after notice has been given to the persons

whose property will be affected by their exercise otherwise the notice will be liable to be treated as being no longer effective. Where powers are

given to take lands compulsorily for the execution of works the exercise of powers must be bona fide commenced within the time limited for the

completion of the works.

In the instant case it would appear that the Government right from the year 1957 was very anxious that the land should be resumed for various

purposes and that compensation should be paid to the lessees. Somehow or the other no action was taken in the matter till January 1968 from

which the only inference that one can draw would be that the Government never intended to treat the notices issued under its direction to be

effective any longer. On this ground therefore the first notice issued under Sections 4 and 5 must be held to have spent its force and if proceedings

were to be taken against the Petitioners under the old Act, then a fresh notice u/s 4 should have been issued before passing an eviction order u/s 5

of the Act. As this was not done, the order of eviction purported to have been passed on 5-1-68 is clearly void. Furthermore, even the order u/s 5

does not disclose any reason why eviction is being ordered nor does it show that the Estate officer had applied his mind to the objections raised by

the tenants of the Petitioners. The order of eviction merely quotes the language of Section 4 and does not show in what way and how the Estate

Officer was satisfied that the Petitioners were unlawful occupants so as to be ejected. The Additional. Advocate General repelled this argument on

the ground that if the order u/s 5 was erroenous then the Petitioners should have filed an appeal before the District Judge u/s 9 of the old Act

instead of coming in writ before this Court.

This argument, therefore brings us to a consideration of the next important question raised by Mr. Sen namely that Section 5 of the old Act is

itself ultra vires as being violative of Article 14 of the Constitution of India. In this connection reliance was placed on the decision of the Supreme

Court in Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, which has been discussed threadbare by us in civil

reference No. 4 of 1967 (FB) (J and K) Yashpal v. Dy. Commr. Estate Officer. At the time when the Full Bench pronounced its judgment in that

case, the old Act had already been amended by the Ordinance and this Court was called upon to decide the constitutional validity of the old Act as

amended by the Ordinance. Reading the Full Bench judgment it seems to us that there can be no doubt that the Court upheld the old Act only

because by virtue of the amendment the old Act had undergone revolutionary changes and all the constitutional infirmities from which the old Act

suffered were removed by the Ordinance. In this connection the Full Bench in the case of Yashpal Civil Ref. No. 4 of 1967 (FB) (J. and K.)

(Supra) observed as under:

It would thus be seen that the ordinance has substantially amended the existing provisions of the principal Act, apart from introducing many new

provisions. Reading the amended Act, we find that the entire ambit, scope and complexion of the principal Act has been changed. To begin with

Section 5 which previously was couched in a directory form has now been recast in a mandatory form.

Referring to the decision of the Supreme Court, we observed in the Full Bench case (Supra) as follows:

Reading the decision for ourselves, it seems to us that the main ground on which Section 5 of the Punjab Act was struck down by the Supreme

Court was that the provisions of Section 5 of that Act gave a discretion to the Collector to pass an order of eviction in one case and not to do so in

another. In other words the use of the word 'may' in Section 5 implied that it was open to the Collector to pass an order of eviction in case of one

unlawful occupant of Government premises and refuse to evict another at his sweet will. Moreover, the power to evict u/s 5 was purely

discretionary, it was open to the Government to proceed against one unlawful occupant under the coercive and drastic machinery provided under

the Punjab Act and to proceed against another unlawful occupant under the general law in a Civil Court. Thus, Section 5 permitted hostile

discrimination between two persons similarly situate in that there being no ground for justifying such a discrimination and hence it was held that

Section 5 was violative of Article 14 of the Constitution of India.

It is true that Section 10 of the Punjab Act had ensured finality to the orders passed under the Act, but their Lordships of the Supreme Court held

that the said section did not oust the remedy of the Government to move the Civil Court for ejectment of (those in occupation of?) Government

premises. There can be no doubt that in the principal Act before amendment, the language of Section 5 was identical with that of Section 5 of the

Punjab Act and therefore, Section 5 of the principal Act was open to the same criticism as Section 3 of the Punjab Act. In the meanwhile

however, the ordinance intervened and altered the language of Section 5. Section 5 after the amendment is couched in a mandatory form and the

Estate Officer has now no choice in the matter but has a duty to evict the unlawful occupants on being satisfied that a case for eviction has been

made out

X X X X X X

In these circumstances, therefore, it Is reasonable to presume that the legislature was fully aware of the Supreme Court judgment by which Section

5 of the Punjab Act had been struck down. Whenever the legislature passes a law soon after a judicial pronouncement, the intention ordinarily is

either to amend the said pronouncement or to remove any infirmity pointed out in judgments of the Courts. Thus the Supreme Court had held that

Section 5 of the Punjab Act was ultra vires mainly because the section was couched in a directory form, the Government thought it fit to remove

this infirmity by substituting the word ""shall"" and accordingly recast the section to remove all possible doubts and infirmities so that the legislature

may be saved from the mischief of Article 14 of the Constitution of India....

X X X X X X

It was next contended that like the Punjab Act the amended Act does not oust the jurisdiction of the Civil Courts for the purpose of ejecting an

unlawful occupant of public premises. The result is that even though Section 10 gives some sort of finality to orders passed under the amended

Act, it does not deprive the Government from seeking an alternative remedy in the Civil Courts, as held by their Lordships of the Supreme Court in

the above noted case while interpreting identical provisions of the Punjab Act. It was thus argued that as the amended Act merely provides an

additional remedy, the position is that the Government has got two remedies to eject an unlawful occupant of Government premises, one through

the amended Act which is more drastic and coercive and the other through the Civil Court which is liberal and lenient, and that the possibility of

hostile discrimination by the Government with respect to one unlawful occupant and another cannot be ruled out.

X X X X X

There is yet another ground which furnishes a complete answer to the contention raised by the Appellant. Section 9 of the amended Act read with

Section 9-A leaves no room for doubt that the amended Act clearly intended that the only remedy for eviction of an unlawful occupant of public

premises should be under the summary procedure prescribed by the amended Act and through no other means. The amended Act now contains a

completely self-contained machinery for' evicting unlawful occupants of public premises and the provisions of this Act are exhaustive on the

subject. Furthermore, by providing for a reference to the Civil Court u/s 5-A where a prima facie question of title regarding the premises is

involved, and making the order of the Civil Court subject to appeal as being final, the jurisdiction of the Civil Court is completely ousted,

Thus, summarizing the Full Bench judgment of this Court the position that emerges is as follows:

(1) That Section 5 of the old Act suffered from the same infirmities and was subject to the same criticism as Section 5 of the Punjab Act which was

also couched in the same language as Section 5 of the old Act.

(2) These infirmities were two-fold. In the first place Section 5 being couched in a directory form, it invested a discretion in the Estate Officer to

evict one unlawful occupant and refuse to evict another at his own sweet will. Secondly the jurisdiction of the Civil Court not being ousted the

Government reserved two remedies for itself: one through the drastic machinery provided under the Act and the other the remedy of the Civil

Court. The Government could in its own discretion choose to proceed against one person under the Act and against another in the Civil Court

Such a power was clearly discriminatory and violative of Article 14 of the Constitution of India as held by the Supreme Court (Supra).

There can be no doubt that Section 5 of the old Act also suffered from these infirmities and was, therefore, clearly ultra vires, Sut since these

infirmities were removed by the Ordinance and later by the amended Act, the old Act as amended was not struck down by this Court. The

observations of the Full Bench quoted above unmistakably point to the conclusion that this Court would have held Section 5 of the old Act as ultra

vires, as being violative of Article 14 of the Constitution of India had it not been for the ordinance which came to its rescue. It was, therefore,

rightly contended by Mr. Sen that since the old Act was ultra vires any proceedings taken under the said Act were completely without jurisdiction

and must be quashed.

In order to repel this argument, the Additional. Advocate General made an interesting submission. He submitted that by virtue of Section 15(a)

of the Ordinance and later of the amended Act all the proceedings taken under the old Act had been retrospectively validated, and therefore, even

if the Act was ultra vires at the time when it was passed or at the time when the order u/s 5 was passed, it will be deemed to be valid when the

matter is being considered by us. In other words the Additional. Advocate General took shelter under what is known as the Doctrine of Eclipse.

He drew our attention to Seervai's Constitutional Law wherein the learned author at page 167 para 8.17 observes as follows:

A law which is unconstitutional for lack of legislative competence is void abinitio; a law which is unconstitutional for violation of constitutional

limitations is unenforceable as long as it continues to violate constitutional limitations. Such a law whether pre-Constitution or post-Constitution, is

not wholly void if it violates fundamental rights; it is merely eclipsed by the fundamental rights and remains as it were in a moribund condition as

long as the shadow of fundamental rights falls upon it. When that shadow is removed the law begins to operate pro- prio vigore from the date of

such removal unless it is retrospective.

The observations of the learned author are based on M.P.V. Sundararamier and Co. Vs. The State of Andhra Pradesh and Another, . In our

opinion, however, the decision of Supreme Court in the above noted case is clearly distinguishable and does not apply to the facts of the present

case. Mr. Seervai has tried to draw a distinction between a law which is unconstitutional for lack of legislative competence and one which is

unconstitutional because it violates some constitutional limitations or restrictions. The learned author has included the chapter of fundamental rights

also as being in the nature of Constitutional limitations. With great respect to the learned author, we do not agree with him on this part of the

classification. In M.P.V. Sundararamier and Co. Vs. The State of Andhra Pradesh and Another, their Lordships were not at all dealing with

fundamental rights but with the right of inter-State sale and were construing the provisions of Article 286 of the Constitution of India. Article 286,

Clause (2) clearly imposed restrictions on the State to impose any tax on sale or purchase of goods either outside the State or in the course of

import of the goods into or export out of the territory of India. The power to impose such restrictions was given to Parliament under Clause (2) of

Article 286. Thus it would appear that under the Constitutional provisions there was a clear bar to the State legislature in imposing certain

restrictions. The Supreme Court was considering the impact of the Madras General Sales Tax Act of 1939 and the question was whether in view

of Section 286(1) the State had the power to impose restrictions as contained in the said Act. It is, therefore, clear that their Lordships were

dealing with a pre-Constitution Act. Furthermore, their Lordships were not dealing with the scope of the fundamental rights guaranteed to the

citizens of India by Part III of the Constitution of India. Their Lordships have specifically observed at page 492 as follows:

The decision in Behram Khurshed Pesikaka Vs. The State of Bombay, and Bhikaji Narain Dhakras and Others Vs. The State of Madhya Pradesh

and Another, both turn, on the construction of Article 13 of the Constitution, which enacts that laws shall be void to the extent they are repugnant

to the provisions of Part III. We are concerned in these petitions not with infringement of any of the provisions of Part III but of Article 286(2) and

the point for our decision is as to the effect of the infringement of that provision. Article 286(2) does not provide that a law which contravenes it is

void, and when regard is had to the context of that provision, it is difficult to draw the inference that that is the consequence of contravention of that

provision. Article 272(1) provides for the continuance in force of all laws existing on the date of the Constitution.

It is, therefore, clear that their Lordships themselves draw a distinction between the effect of the non-compliance of Article 286(2) and the

violation of Article 13. In the former, according to their Lordships the law could not be deemed to be void from its very inception, whereas in the

latter it should be deemed to be void to the extent of repugnancy. The Doctrine of Eclipse naturally applies to such cases where there are

temporary restrictions by a statute which disappear by a subsequent amendment so as to revive the law as it stood before the restrictions were

placed. The fundamental rights enshrined in Part III of the Constitution can hardly be described as restrictions on the legislative powers of a State

legislature. Furthermore in Mahendra Lal Jaini Vs. The State of Uttar Pradesh and Others, their Lordships clearly pointed out that the Doctrine of

Eclipse would not apply to post-Constitution Acts. In this connection their Lordships observed as follows:

Then comes the question as to the effect of an amendment of the Constitution in the two types of cases, so far as pre-Constitution laws are

concerned, the amendment of the Constitution which removed the inconsistency will result in the revival of such laws by virtue of the doctrine of

eclipse as laid down in Bhikaji Narain Dhakras and Others Vs. The State of Madhya Pradesh and Another, , for the pre-existing laws were not

still-born and would still exist though eclipsed on account of the inconsistency to govern pre-existing matters. But in the case of post-Constitution

laws, they would be still-born to the extent of the contravention. And it is this distinction which results in the impossibility of applying the doctrine of

eclipse to post- Constitution laws, for nothing can be revived which never had any valid existence.

x x x x x

Therefore in the case of pre-Constitution laws what an amendment to the Constitution does is to remove the shadow cast on it by this declaration.

The law thus revives. However, in the case of the second clause applicable to post-Constitution laws, the Constitution does not recognise their

existence having been made in defiance of a prohibition to make them. Such defiance makes the laws enacted void.

In their case therefore there can be no revival by an amendment of the Constitution, though the bar to make the law is removed, so far as the

period after the amendment is concerned.

In view of this pronouncement of the Supreme Court, the view of Mr. Seervai that the doctrine of eclipse would apply to post-Constitution

Acts also does not appear to be tenable in law.

In the instant case it is common ground that the old Act having been passed in the year 1962 was a post-Constitution Act inasmuch as the

constitutional provisions were applied to the State as far back as 1954. For those reasons therefore the doctrine of eclipse relied upon by the

Additional. Advocate General would not apply to the present case.

The additional. Advocate-General then drew our attention to the observations of the Full Bench of this Court in Civil Ref. No. 4 of 1967 (FB)

(J and K) (Supra). Where we had stated that Section 15 of the Ordinance made the Act specifically retrospective so as to apply to pending

proceedings. It is true that these observations are there and we have observed that it was open to the Petitioner in that case to take advantage of

the procedure laid down by the Ordinance. At that time, however, this aspect of the matter does not appear to have been brought before us nor

was it argued in any form.

In the instant case we have to decide the point as to what will happen to proceedings which have been taken in pursuance of the old Act, even

if the same is amended by the Ordinance or later by the amended Act. In our opinion there can be no doubt that if the old Act is ultra vires as

being violative of Article 14 of the Constitution of India, then the voidness is both complete and incurable and therefore such an Act cannot be

revived even by a validating section, because so long as Article 14 of the Constitution of India remains, the State Legislature would not be

competent to validate any law which contravenes the said Article under any circumstances. Section 15 of the amended Act, therefore to that extent

falls beyond the legislative competence of the State Legislature and is, therefore, ultra vires. The said Section cannot revive proceedings taken u/s 5

of the old Act, but it may revive other proceedings which have not been held to be invalid by this Court and which are not violative of Article 14 of

the Constitution of India. We are fortified in our view by a recent decision of the Supreme Court in Jawaharmal Vs. State of Rajasthan and Others,

wherein almost in an identical case their Lordships observed as follows:

In our opinion, the approach adopted by the Legislature in this case is entirely misconceived. The Legislature no doubt can validate an earlier Act

which is invalid by reasons of non-compliance with Article 255 and such an Act may receive the assent of the President which will make the Act

effective. The Legislature cannot, however, itself declare by a statutory provision that the failure to comply with Article 225 can be cured by its

own enactment, even if the said enactment received the assent of the President. In our opinion, even the assent of the President cannot alter the

true constitutional position under Article 255. The assent of the President cannot, by any legislative process, be deemed to have been given to an

earlier Act at a time when in fact it was not so given. In this context there is no scope for a retrospective deeming provision in regard to the assent

of the President, (See page 771 of the Reports).

On a parity of reasoning therefore we are clearly of the view that the State cannot by any legislative process alter, amend or annul either Article

14 of the Constitution of India or validate old Act which was clearly violative of Article 14 of the Constitution of India. In these circumstances

therefore we are clearly of the view that Section 5 of the old Act is clearly ultra vires and cannot be revived by Section 15 of the Amended Act

which is also void to the extent that it revives proceedings u/s 5 of the old Act. The only other alternative for the State is to take fresh proceedings

under the amended Act against the Petitioners.

The next contention raised by the learned Counsel for the Petitioners was regarding the notices issuedf by the Municipality u/s 129 of the

Municipality Act. A perusal of these notices would show that there are interpolations in the notices issued on various dates to the tenants. The

Petitioners have stoutly denied that they were actually served with the notices u/s 129 of the Municipal Act and no reliable proof has been adduced

before us that they were so served. Neither the affidavit of the process server nor of any other person who served tjie notices on the Petitioners

has been filed by the Administrator in this case. Furthermore the hot haste in which the notices have been issued and the buildings demolished

throw a cloud ol doubt on the nature of the proceedings taken by the Administrator.

From the correspondence discussed above, it will be clear that at one stage the lands in question were resumed for purposes of building flats and

at least one letter reveals that the lands after being resumed were to be transferred to the Municipality. The order of the Dy. Commr. dated 16-1-

68 clearly shows that possession was handed over to the Municipality. We do not know how and under what law the Dy. Commissioner could

have made over possession to the Municipality when the Government order passed in 1961 clearly directed that after resumption of the lands it

was to be handed over to the R. and B. P.W.D. There is no affidavit by the State to show that the Government had authorised the Deputy

Commissioner by any Cabinet order to nand over possession to the Municipality. On the other and the Government orders quoted above clearly

show that the direction was to take possession only after paying compensation to the lessees. To this may be added the unfortunate fact that a fire

broke out on 5-1-68 which appears to have forced the issue and inspirea the Municipality to take possession of the property tinder the garb or

Section 129 of the Municipal Act The notice issued u/s 129 does not specify the nature of the portion of the building which is dangerous nor does

it give sufficient time to the Petitioners to repair the buildings or to make representation to the Administrator. The report of the expert Engineer

namely the Assistant Engineer shows that only the shed was in a dangerous condition and yet under the cover of this report the Administrator

sought to demolish the entire building and not the shed alone. All these facts speak volumes against the mala fide conduct of Respondent officers.

In depriving the Petitioner of their property of which they were in lawful possession to the knowledge of the Respondents 1 and 2 of Petitions

Nos. 216 and 221, there is no allegation in the counter-affidavit by the Administrator that he was not aware that compensation had not been paid

to the lessees. The conduct therefore of the firsf and the second Respondents does not appeal to us to be anything but mala fide.

Learned Counsel for the Petitioners submitted that as the notice did not specify the nature of the property which was dangerous, therefore it

was bad in law. He relied upon two cases of the Lahore High Court in AIR 1916 Lah 420 and (1908) Pun Re 85. In these cases an owner was

sought to be prosecuted for violating the provisions clause the Municipal Act, but he was acquitted oo the ground that the notice was bad inasmuch

as it did not specify the portion of the building which was dangerous nor the nature of the repairs that were required. In the present case in our

opinion the notice issued under the Municipal Act also suffers from the same infirmity.

Lastly it is difficult to believe that as the real object of resuming the land was either constructing a lorry or a tonga shed or constructing flats,

how could these buildings suddenly become dangerous on 5-1-68 when only a few years before that date the Divisional Engineer had assessed the

value of the properties at an amount of Rs. 1,39,260/-. The explanation for this strange phenomenon has been given by the State. The Counsel for

the Administrator however drew our attention to AIR 1959 Bom 322 and AIR 1958 Patna 71. So far as the Bombay case is concerned, the

language of the Act in that case does not appear to be identical with the language of Section 129 of the Municipal Act. Furthermore, even in the

Bombay case their Lordships have pointed out that the action of the authority should be bona, fide before it can be supported. u/s 239 of the

Municipal Act the same procedure has been laid down for serving notices etc. under the Act as under the provisions of the CPC This procedure

was obviously not followed in the present case. For these reasons the notice issued by the Municipality is bad and does not justify any action on

the basis of the same.

Thus the position is that the State acting through Respondents 1 and 2 tried to dispossess the Petitioners who had a fundamental right to remain

in possession of the property until compensation was paid to them. They were sought to be dispossessed by resorting to an Act which was ultra

vires, and the buildings were demolished by the Administrator without any legal justification and without any proper notice having been served on

the Petitioners.

It was firstly suggested by one of the Respondents that the Petitioners had no locus standi to maintain this petition because no permission was

taken from the Government to transfer lands as required by the Land Grants Act. There is no such statement of fact in the affidavit that no such

permission was taken but what is alleged is only a statement of law. The concerned authority, namely, the Director Land Records or the Revenue

Secretary has not come forward to swear an affidavit to the effect that no permission was granted to the Petitioners before they took their sale

deeds. In these circumstances therefore as there is no pleading on this question, we would not entertain this plea.

In Bishan Das and Others Vs. The State of Punjab and Others, their Lordships of the Supreme Court observed as follows:

It is enough to say that they are bona fide in possession of the constructions in question and could not be removed except under authority of law.

The Respondents clearly violated their fundamental rights by depriving them of possession of the dharamsala by executive orders. Those orders

must be quashed and the Respondents must now be restrained from interfering with the Petitioners in the arrangement of the dharamsala, temple

and shops.

X X X

X X X X

In these circumstances the action of the Government in taking the law in their own hands and dispossessing the Petitioners by the display of force

exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a

Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of

peaceful possession of property.

X X X

(See pp. 1574-1575 of the Reports).

The observations made by their Lordships with respect to the executive action taken by Government servants in that case fully apply to the first

and the second Respondents of Petitions Nos. 216 and 221 in this case also.

Having regard to the circumstances discussed above, the following facts emerge in this case:

(1) That the Petitioners and before them their predecessors-in-interest were in lawful possession of the premises in dispute for a long time.

(2) That although the lands were ordered to be resumed, the Petitioners could not be evicted until due compensation was paid to them and the

Deputy Commissioner had himself clearly adverted to this legal position in his letters to various authorities and had requested the Government for

making funds available for payment of compensation to the lessees.

(3) That at the time when notice u/s 4 and an order u/s 5 of the old Act were issued, the compensation though assessed under the new rules and

not under the old rules which applied to the present case was neither offered nor paid to the Petitioners.

(4) That after issuing notice u/s 4 some time in 1963, no further proceedings were taken for about five years and suddenly an order u/s 5 was

issued on 8-1-1968.

(5) That the notice u/s 129 ol the Municipal Act bore clear marks of interpolation and was not in accordance with Section 129 of the Municipal

Act.

(6) That even the report of the Assistant Municipal Engineer on the basis of which the demoHtion was ordered merely showed that only the shed

was in a dangerous condition and it did not at all refer to the buildings being in such a dangerous condition so as to be demolished.

(7) That a major portion of the premises in dispute were demolished on 12-1-68 and soon thereafter these very premises were transferred to the

Municipality by an executive order of the DC without sanction of the Government.

From the facts discussed above, it is manifestly clear(sic) that the Deputy Commissioner and the Administrator appear to have entered into an

unholy alliance with each other in order to forcibly and illegally dispossess the Petitioners of their property at a time when the entire valley was in

the grip of a heavy snowfall and the roads were completely blocked so that the Petitioners may not get an opportunity to raise their voice against

the atrocious and highhanded action of the aforesaid Respondents (the Government and the High Court being at Tammu at that time). Having taken

the law in their own hands, the saidRespondents proceeded to play havoc with the Petitioners' fundamental rights to property, one of them by

evicting the owners under the J. and K. Eviction of Unauthorised Occupants Act, 1959 (Supra) knowing full well that so Jong as the Petitioners

were not paid compensation their possession was perfectly lawful, and the other by demolishing a substantial portion of the buildings of the

Petitioners under the cloak of a vague and fictitious report given by their own Engineer a few hours before the demolition. In doing so, both the

Respondents have shown an utter disregard of the norms of law, have made a farce of the legal machinery provided for eviction of unauthorized

occupants and have not only violated the principles of natural justice but have even contravened the specific directions given by the Government

orders to take possession of the lands only after payment of due compensation to the Petitioners. It cannot be gainsaid that such a conduct on the

part of the first two Respondents is highly destructive of the sacred concept of the rule of law which is the basis or our democratic set up and also

exhibits a sad commentary on the efficient working of the governmental machinery.

The next question is as to whether apart from quashing the orders of eviction, should this Court issue a writ of Mandamus restoring possession

to the Petitioners having regard to the unlawful, illegal and callous manner in which the Respondents have acted in this case and have violated the

law, there can be no doubt that this is a fit case in which a writ of Mandamus restoring possession to the Petitioner must be issued by this Court. In

similar circumstances in Sohanlal Vs. The Union of India (UOI), a writ of Mandamus restoring possession of the property was issued and their

Lordships in that case at page 552 observed as follows:

The eviction of Jagan Nath was in contravention of the express provisions of Section 3 of the Public Premises (Eviction) Act. His eviction therefore

was illegal. He was entitled to be evicted in due course of law and a writ of Mandamus could issue to or an order in the nature of Mandamus could

be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted if the property was still in

possession of the Union of India....

In the instant case also since we have clearly found that the eviction of the Petitioners either under the J.and K. Eviction of Unauthorized.

Occupants Act (Supra)or under the Municipal Act was illegal, they are entitled to be restored to possession.

For these reasons the petitions are allowed. By a writ of certiorari the orders of eviction of the Petitioners are quashed and the Respondents

are restrained from evicting the Petitioners except in due course ofl law. By a writ of Mandamus the Respondents are directed to restore

possession to the Petitioners immediately and to remove the fencing. The Petitioners shall be entitled to costs of Rs. five hundred (Rs. 500/- only)

which shall be paid equally by the first and the second Respondents, (viz. the Deputy Commissioner and the Administrator Srinagar Municipality).

Let a copy of this judgment be sent to the Chief Secretary to the Government for necessary action.

Jaswant Singh, J.

I agree with the reasoning and the conclusions arrived at by My Lord the Chief Justice and have nothing useful to add.

R.N. Gurtu, J.

I agree to the order proposed by His Lordship the Chief Justice ana am in substantial agreement with his reasoning and observations.

Anant Singh, J.

I fully agree with His Lordship the Chief Justice including his observations against the Respondents 1 and 2 as to their mala fide condition. I

would rather say that their conducts were not only atrocious but monstrous, unprecedented in, the judicial history, at least in my, judicial experience

of over 35 years.

J.N. Bhat, J.

I have had the privilege of going through the learned judgment of my Lord, the Chief Justice but I would like to add the following words:

In this case the Government has taken rather contradictory stands. The first Government Order No. LA 74 of 1957 dated 22-9-1957 was

under Rule 26 of the Building Site Rules and described the purpose of resuming this property as construction of a Tonga and Lorry stand. By

means of another Government Order No. 281 of 1961 dated 22-1-1961 the land was to be transferred to the Roads and Buildings Division of the

Public Works Department. Then by another Order No. ND 305 of 1963 dated 31-8-63 the Government sought to resume this property, under

Sections 4 and 5 of the Public Premises (Eviction of Unauthorised Occupants) Act and the purpose for which this land was to a be got vacated

from its occupants was development and proper planning of the city. Lastly in the year 1968 the Government acting through the Estates Officer,

the Deputy Commissioner Srinagar, got an order of eviction passed against the occupants u/s 5 of the Jammu and Kashmir Public Premises

(Eviction of Unauthorised Occupants) Act, which order purports to have been passed on 5-1-1966. The notice issued in 1963 was allowed to

lapse and no action was taken in pursuance of that. But as has been remarked by my Lord, the Chief Justice, the land was to be retained by the

Wasidar or even his successors-in-interest subject to payment of compensation by the Government. His Lordship, the Chief Justice, has referred

to the correspondence that passed between various officers oil the Government, for instance Deputy Commissioner to Financial Commissioner

letter dated 22-8-1961. Chief Engineer to the Revenue Secretary, letter dated 30-12-1961 requesting for allocation of funds to the tune of Rs.

1,39,260/ and others wherein it was definitely stated that before ejecting the occupants, compensation had to be paid. All this was forgotten and

on or after the day when a huge fire broke out in the vicinity of this property i.e., 5-1-1968 and eviction order purports to have been passed

against the occupant. The categorical case of the Petitioners is that this order was made on 8-1-1968 and it was antedated as 5-1-68.

There appears to be intrinsic evidence about this allegation of the Petitioners as has been discussed in detail by my Lord, the Chief Justice. The

long and short of the whole matter as it appears to me is whether action was sought to be taken under Building Site Rules or under the Land

Grants Act, or under the Jammu and Kashmir Public Premises (Eviction of Unauthorised Occupants) Act, the condition precedent for ejecting the

occupants was payment of compensation already assessed by competent authorities as far back as 1967. That compensation admittedly was not

paid upto the time the Wasidar, his heirs or the transferees were sought to be ejected and as a matter of fact ejected. Besides whatever law may

be held applicable to the facts of this case, even on the most favourable construction in favour of the Government, proper notice as required by law

was not at all given to the Petitioners. Even assuming that the order of eviction was passed on 5-1-1968, the time allowed for vacating the

premises to the persons in possession of the property for more than half a century was too short, more so when there were so many constructions

at site for which in good old days i.e. in 1961 compensation of a lac and about forty thousand Rupees was thought to be reasonable. In the year

1968 the amount of compensation must be at least double the amount. To deprive persons of their property worth lacs or Rupees by forcibly

ejecting them therefrom after such a short notice can hardly be deemed to be just, proper, legal or bona fide. Therefore in my opinion the

proceedings for eviction taken under any law were illegal and not bona fide.

The part played by the Municipality is equally unwarranted and I should not hesitate to use the term condemnable. In the notices which are

alleged to have been intended to be served on the Petitioners, there has been clear interpolation in dates. All these notices seem to have been

written on 8/1 but 8/1 has been changed to earlier dates as 3/1, 5/1 and even 28-12-1967; but the forgeries are patent to the naked eye. The

Municipality instead of allowing the Petitioners to repair the property or even pointing out in what way which item of the property was in a

dangerous condition all of a sudden with a whole gang of sweepers etc., which are alleged to be about 500 dismantled the constructions at site. No

notice issued by the Municipality is proved to have been served on any of the Petitioners. It was argued on behalf of the Municipality that Section

129 of the Municipal Act did not require any notice to be given to the owners of any building before it was declared as dangierous. The words of

the section are as under:

Should any building, wall or structure or anything affirmed thereto or any bank or tree be deemed by the Executive Officer to be in a ruinous state

or in any way dangerous or there be any fallen building or debris or other material which is unsightly or is likely to be in any way injurious to health

it may, by notice require the owner thereof either to remove the same or to cause such repair to be made to the building, wall, structure or bank as

the Executive Officer may consider necessary for the public safety and should it appear to be necessary in order to prevent imminent danger, the

Executive Officer shall forthwith take such steps at the expense of the owner to avert the danger as may be necessary.

It was argued that all that was required was the satisfaction of the Executive Officer that any construction was in a ruinous state or in any way

dangerous. Before coming to this conclusion the Executive Officer was not bound to issue any notice to the owners thereof to show cause against

his opinion. But after having formed his opinion he could issue notice to the owners to remove the same or cause repairs to be done to the property

or if he thought there was imminent danger, he could forthwith take such steps at the expense of the owner to avert the danger, as may be

necessary. In this case it was argued that the Executive Officer was satisfied on the report of the Engineer and others that the constructions were in

a dangerous condition, But this argument of the learned Counsel for the Municipality is not sound because in such cases these administrative

authorities have to discharge quasi judicial obligations and the law is very well settled now both in England and India that before anybody can be

deprived of any right in property, he must be heard. The leading case on the subject, which is akin to the present case, is Cooper v. Wandsworth

Board (1863) 14 CBNS 180. In that case the question of demolition of a construction was considered to affect property and before passing an

order for demolition of the house proper notice and hearing was to be given to the alleged defaulter even though the statute was silent as regards

the procedure to be followed. Willes J., said:

...a tribunal which is by law invested with powers to affect the property of one of Her Majesty's subjects, is bound to give such subject an

opportunity of being heard before it proceeds: and that rule is ol universal application, and founded on the plainest principles of justice.

Byles, J., further observed that:

... although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the

omission of the legislature.

This authority was followed in a number of cases such as Ridge v. Baldwin (1963) 2 All ER 66 at p. 73 (HL) and Urban Housing Co. v. Oxford

City Council (1940) Ch 70.

In India also the same view has been taken: where anybody's person or property is affected by any order of even an administrative Authority

he is to be heard before such an order is passed. Among other cases reference may be made to Shivji Nathubhai Vs. Union of India (UOI) and

Others, and Calcutta Dock Labour Board Vs. Jaffar Imam and Others, .

In view of these observations and the categorical finding on other questions of fact by my Lord the Chief Justice, I also concur in the order

proposed by his Lordship the Chief Justice and agreed to by other learned Judges constituting the Bench.