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Judgment
The circumstances under which this petition has come to be filed be noticed;
The petitioners submitted an application seeking permission to raise construction on a piece of land measuring 3 Kanals and 19 Marias. This
land is said to be located in Khasra No's 381,Min. 382Min and 385Min. This land was purchased by the petitioners through a registered sale
deed. This is said to have been executed in their favour on 11.09.1997. The petitioners wanted to raise a ""Hall"" to be used for devotional
purposes. The requisite permission to raise the construction was given. The buildings plans were sanctioned. This sanction was granted on 14th
May, 1998. When construction activity was taken in hand, respondent No.5 appears to have taken objection to the raisingof the construction. This
was on the ground that the part of the land which is subject matter of sale deed referred to above was not owned by persons, who sold property,
Some opinion was also expressed by the Nazool Department. This is to the effect that part of the land is Nazool Land.
On this stand having been taken and this fact having come to the notice of the respondent Municipality, the Municipal Authorities took action
and the Executive Officer of the Municipality issued an order on 23rd June, 1998. This order reads as under :
Building permission for the above named title which was granted vide permission order No. 31 dated 14.5.1998 is hereby kept in abeyance till
the clarification regarding the proprietory land is received from the Assistant Commissioner, Nazool, who is enquiring the title of the land on
complaint of one Shri Jawahar Lal Malla."" The above order is Annexure K.
It be seen that the petitioners had also taken steps with a view safeguard their interest in the property acquired in pursuance of the saledeed
referred to above. A civil suit has been filed. An application under Order 39 Rule's 1 to 2 was also filed. An interim order has been passed. This
order permits the petitioners to raise construction. They are, however, supposed to give an undertaking to the effect that if ultimately, they fail in the
suit, then they would demolish the building at their own expenses. This order was passed by the civil Court on 23rd June, 1998.
In this petition, validity of order annexureK is questioned.
The argument raised by the learned counsel for the petitioners is that once permission is granted to raise the Construction, then it cannot be
withdrawn There is no provision to keep the permission in abeyance.
The legal position is as under: Once a plan is sanctioned, then there is some power vested in the Municipality to direct modifications to be made
in the sanctioned Plan. This can be done Under Section 223 of the Jammu and Kashmir Municipal Act of Samavat, 2008, Powers can be
exercised under Section 225 of the Act also. If some building is being raised in contravention of the Act, then the person raising the construction
can be directed to not to do so. Powers is also conferred on the Minister Incharge Local Self Government. The Minister Incharge Local Self
Government has the power to revoke any sanction for erection or reerection of any building at any time before commencement of erection or
reerection of any building. This is so provided in section 224 (1) Proviso of the Act. As the Jammu Municipality is relying upon these provisions
with a view to sustain action taken by it, it would be apt to notice the statutory provisions referred to above. These sections read as Under:
Power of Executive officer to direct modification of a sanctioned plan of a building before its completion. If at any time before the completion of a
building of which the erection has been sanctioned under section 222, the Executive Officer or the Council finds that any modification of the
sanctioned plan is necessary, the Executive Officer or the council may, subject to the compensation for any loss to which the owner may be put,
direct that the building be modified accordingly.
Lapse of sanction after one year, from the date of Sanction...(1) Every sanction for the erection or reerection of any building which shall be given
or be deemed to have been given by the Executive Officer, shall remain in force for (two years) only from the date of such sanction, or for such
longer period as the Executive Officer may have allowed when conveying sanction under section 222 should the erection or reerection of the
building not have, been commenced within 3 (two years) and completed within 3 (three years) or such longer period as may have been allowed by
the Executive Officer the sanction shall be deemed to have lapsed but such lapse shall not bar any subsequent application for fresh sanction under
the foregoing provisions of this Act
(Provided that the Minister Incharge Local Self Government shall always have power to revoke any sanction for erection or reerection of any
building at any time before commencement of erection or reerection of any building.
Every order made by the Executive Officer of the Minister Incharge Local Self Government under this section shall be final and shall not be
called in question in any original suit, application or proceedings and no injunction shall be granted by any court or other authority in respect of any
action taken or to be taken in pursuance of the power conferred by or under this section.
The provisions of this section shall have effect notwithstanding anything to the contrary contained in this Act or in any other law for the time
being in force. 225.Power to executive officer to stop progress of building work unlawfully commenced or carried out (1) In any case in which the
erection of building has been commenced or is being carried on in contravention of the provisions of this Act (or any rule or byelaw made there
under), the Executive Officer may, by written notice, require the building operations to be discontinued from the date of the service of such notice.
Any person failing to comply with the terms of such notice shall he punishable with fine which may extend to \two thousand rupees) and when
the noncompliance is canting one with a further fine of which many extend to onehundred rupees) for every day after the first during which the
noncompliance continues.
A Plain reading of the section 223 makes, it apparent that it is Executive Officer or the Council, acting as a body, which can take steps and
direct modification of the sanctioned plan. This is subject to payment of compensation for any loss which may occur to the owner raising the
construction, Under Section 224(1), the Minister Incharge Local Self Government has power to revoke sanction before the commencement of
erection or reerection of any building. The Municipality has not been able to point out as to under which statutory provision powers has been
exercised while passing order annexurek. The same is therefore, liable to be quashed, as being totally without jurisdiction.
Independently, of the above, it be seen that Executive Officer has not passed the order of his own. He has also not acted on the asking of the
Municipal Council, He has acted on the direction given by the Assistant Commissioner, Nazool. As to how Assistant ant Commissioner, Nazool
comes in the picture has not been clarified. It is settled Law that if the power is vested in a particular person or authority, then that power has to be
exercised by that person alone. If power is exercised at asking of the third person, then it would not be a valid exercise of power. In this regard
reference be made to the decisions reported as Kans Raj vs.Dy.E. and T .Commr. AIR 1965 Punjab in the above case it was held as:
(15) As I have already mentioned, there is no order by the District Excise and Taxation officer deciding the respective merits of the applicants
regarding each licence. This application were processed as already set out and a decision was taken by the Excise and Taxation officer who
merely gave effect to it by signing his name against the applicant's name to whom it had been decided to allot the licence. It is significant that this list
is initiated by the (sic) Excise and Taxation officer does not perform his statutory function under section 35,but merely carries out the decision
arrived at by the higher authorities. 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 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
Commissioner 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 licence he granted. He merely forwarded to the respondent an order of 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
judgement 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). (28) The discretion vested, in the Commissioner of Police under Rule 250 has been conferred upon him for
public reasons involving the convenience, safety, morally and welfare of the public at large. An enabling power of this kind conferred for public
reasons and for the public benefit, is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which
cannot be shirked or shelved nor it be evaded, performance of it can be compelled under section 45."" Reface may also be made in this connection
to Chanan Singh Vs. State of Punjab, 1963 Cur LJ 248, at p. 250Hari Kishan Sharma Vs. Punjab State, ILR (1961) 2 Punjab 831, at p. 845,
Novelty Talkies Bhatinda Vs. Punjab State, ILR (1960) 2 Punj 276 and Punjab State Vs. Mehr Chand, AIR 1959 Punj 222.
Thus power exercised at the asking of the third person is not proper exercise of power. Order annexure K is liable to be quashed on this
ground alone.
The learned counsel appearing for the respondent No. 5 submits that Assistant Commissioner Nazool is the member of the Committee which
grants sanction, and therefore he could give directions to the Executive Officer.
It be seen that Assistant Commissioner Nazool could point out and raise objection, when the matter was being considered by the Municipality
once sanction is granted then Assistant Commissioner Nazool ceases to have any power and in any case he has no power to issue direction in his
individual rapacity . Whatever power are conferred on him are conferred on him as member of the Committee which sanctioned building plan the
Assistant Commissioner Nazool is not exercising any power individually. In view of the above legal situation, the order annexureK is held to be
beyond statutory provision and same is setaside
As the litigation is pending in the Civil Court and as an exparte order was passed by the Civil Court pending the suit to raise construction and
as respondent No. 5 has filed his written statement, the civil court would see to it that the application is disposed of within a period of three months
from the date copy of this order is made available to that court, otherwise as indicated above it is held that Municipality Jammu has exercised
power contrary to the provisions of the Act referred to above. Order annexureK is thus set aside. Disposed of accordingly.