KUNDAN LAL Vs. NAIB TEHSILDAR

JUDGEMENT

(1.) THE brief facts relevant for the disposal of this writ petition according to the petitioner are that he had constructed a shop alongwith a Thara in Hiranagar in the month of July 1967, after securing proper permission from the Notified Area Committee. The Naib -Tehsildar describing himself as the Chairman Notified Area Committee issued a notice to the petitioner dated 17 -7 -1969 calling upon the petitioner to demolish this Thara by 23 -7 -1969. The Naib Tehsildar is not the Chairman of the Notified Area Committee; therefore the notice issued by him is ultra vires and should be quashed.

(2.) IN this case numerous opportunities were given to the respondent to file objections but no objections were filed. Then His Lordship Honble the Chief Justice passed an order on 30 -4 -1970 wherein last opportunity was granted to the learned counsel for the respondent to file objections within one month from the date of that order; failing which the petitioner had to proceed without any objections. Even then no objections were filed and the case came up before me on 3 -6 -1970. Further adjournment was sought for filing objections but in view of the peremptory order of His Lordship the Chief Justice. I declined to grant any further opportunity to the learned counsel for the respondent for filing objections. I still heard the learned counsel for the respondent and even used the record produced by him for deciding this case.

(3.) IT was conceded by the learned counsel for the respondent that on the date when the notice was issued by the Naib Tehsildar of Hiranagar i.e. 17 -7 -1969, the Naib Tehsildar was not the Chairman of the Notified Area Committee Hiranagar. The other fact mentioned by the petitioner that the Thara was constructed in the year 1967 was controverted by the learned counsel for the respondent. According to him only the shop was constructed in the year 1967. The Thara was an unauthorised construction started in the year 1969. I do not want to enter into this disputed question whether the Thara was constructed in the year 1967 or 1969 with permission or without permission. Assuming for the sake of this case that the Thara was constructed in the year 1969 without any proper permission, the whole point for decision is whether a notice issued by the Naib -Tehsildar who was not the Chairman of the Notified Area Committee on the relevant date i.e. 17 -7 -1969 is a valid notice. The learned Addl. Advocate General has referred to a Government order No. 262 -A of 1969 dated 30 -8 -1969 which reads as under: - "Post facto sanction is accorded to the holding of charge of Tehsildar Hiranagar by Shri Isher Dass Naib Tehsildar with effect from 12 -6 -1969 till some suitable substitute is posted there. By order of the Government of Jammu and Kashmir". The only argument of Mr. Gupta is that this notice was issued by a person who was not clothed with the authority to issue such a notice under the Municipal Act, Notified Area Committees being governed by the Municipal Act. Therefore, the notice should be ignored. According to Mr. Gupta the post facto appointment of the Naib Tehsildar as Tehsildar Hiranagar is of no consequence. It may be mentioned that the Tehsildar is the Chairman of the Notified Area Committee. As the notice has been issued by a person without any authority it should be quashed, is the argument of Mr. Gupta. He said the post facto conferment of authority will not make the notice at all valid. He has argued that if a certain person purporting to act as Magistrate first class sentences somebody to two years rigorous imprisonment whereas in fact on the day of the passing of the sentence he is not such a Magistrate, any post facto conferment of power upon such a person with retrospective effect as a Magistrate will not make the sentence a legal one. Mr. Amar Chand, on the other hand, raised two pleas in this behalf; one that by means of Government Order No. 262 -A of 1969 dated 30 -8 -1969 the Naib Tehsildar Mr. Isher Dass was granted the powers of a Tehsildar retrospectively from 12 -6 -1969, the notice issued by him on 17th July 1969 is as such valid and should be deemed to have been issued by the Tehsildar of Hiranagar, who is the Chairman of the Notified Area Committee. Secondly his argument is that even if this petition is granted, the writ would be infructuous because the actual Tehsildar now can issue another similar notice to the petitioner and start proceedings afresh. Therefore there will be no purpose in issuing an infructuous writ.