DY COMMISSIONER, JAMMU Vs. SAIN DASS (SUBEDAR)

JUDGEMENT

(1.) THIS is an appeal by the State against the order of Mr. Jus ­tice Anant Singh sitting singly dated 28 -12 -1968. The facts of the case lay within a narrow compass. The petitioner had pur ­chased 11 marlas of land comprising Khasra No. 225 situate in village Dangiana Tehsil Jammu. The land was purchased by the petitioner for a sum of Rs. 3,000/ - by a registered sale deed dated 9 -1 -1968. Soon after purchasing the land, the petitioner started raising construction on it. It appears that under section 5 of the Jammu and Kashmir State Town Planning Act, 1963, Act No. XX of 1963 (hereinafter referred to as the Act) a Board was set up by the Government and a Notification was made specifying the area to be included within the Town Planning Scheme which was to be prepared by the Board. This notifica ­tion appears to have been made on 5th of March, 1965 by virtue of SRO -71 published in the Jammu and Kashmir Gazette Vol. 77 No. 49 -1 dated 5th of March, 1965. The notification gives a schedule mentioning the land which came within the Town Planning Scheme and plot No. 225 of village Dangiana is undoubtedly mentioned there. Another notification of the same date, SRO No. 72 was issued by the Government directing the Board to submit a scheme as required by Section 6 of the Act with respect to the areas mentioned in the previous notification. Despite the publication of the notifications it appears the peti ­tioner started making constructions on the land presumably being unaware of the contents of the afore -said notifications. Consequently on 7 -6 -1968 the prescribed authority concerned issued a notice to the petitioner under section 5 of the Act for showing cause why the structures made by him be not demo ­lished. The petitioner appeared and showed cause and con ­tended that he had not obtained any permission and he was not aware of the notifications issued by the Government and after he received the notice, he has stopped further constructions. Thereafter a final notice purported to have been given u/s 13 of the Act, was given to the petitioner informing him that the permanent structures would be demolished and the demolition expenses would be recoverable from him as arrears of land reve ­nue. This notice was issued on 27 -6 -1968 and asked the peti ­tioner to appear before the prescribed authority on 11 -7 -1968. We might mention here that the second notice was given as a corollary to the first notice. It is therefore manifest that if the first notice is invalid the second notice also falls to the ground. Unfortunately the State did not file its objections be ­fore the learned Single Judge and did not produce any notifica ­tion before him to show that the land in question fell within the schedule mentioned in the notification SRO -71 and there ­fore the learned Judge felt that since there was no notification u/s 5 of the Act, the prescribed authority was not competent to issue any notice to the petitioner nor could it demolish the struc ­tures put up by the petitioner.

(2.) BEFORE us, however, Mr. Amarchand appearing for the State, has produced a copy of the notification from which it appears that plot No. 225 of village Dangiana was undoubtedly included in the schedule to the notification SRO -71 dated 5 -3 -1965. This, however, does not solve the problem. It appears that the original notice which was issued to the petitioner on 7 -6 -1968 and which has been produced before us, runs in the following terms: - "Whereas I, the undersigned, am satisfied that you have commenced/completed the erection of structures in the area covered by the scheme notified under section 5 of Town Planning Act at Shastri Nagar (Formerly Dangiana Tehsil Jammu, Khasra No. 225) and that you have done so without getting permission as referred to under section 10 of J & K State Town Planning Act 1963. Therefore, in pursuance of Section 13 of the Act, I hereby call upon you to show cause on or before 13 -6 -1968 as to why you be not directed to demolish the structures thus made by you or through you and failing which the undersigned should not cause the erection to be demolished and expenses of such demolition recover ­ed from you as arrears of Land Revenue." The notice merely says that the petitioner had erected structures in an area which was covered by the scheme notified u/s 5 of the Act. Section 10 of the Act. runs as under : - "After the publication of a notification under section 5, no person shall erect or proceed with any building or work on or enter into or carry out a contract in respect of land within the area so notified or included in any Scheme, unless he has applied for and obtained permission from the Minister for so doing, notwithstanding any decree, order, judgment or any other law for the time being in force or any permission given under any law for the erection of any building or any matter relating to the said land." A perusal of this section would show that it runs into two parts. In the first place it prohibits erection of any building or construction in respect of land within the area so notified, and (2) or within the area included in any scheme unless a regular permission has been obtained from the Minister concerned.

(3.) IN the present case the appellant clearly alleges that the petitioner had contravened the second part of the said section by having made constructions even after the scheme was notified. It was on this basis that a notice u/s 13 of the Act was issued by the appellant to the petitioner. It is however, common ground that no scheme had been published at the time when the notice was given to the petitioner and till that time only the notifications had been made. Thus the petitioner was not called upon to meet the charge that he had contravened the provisions of Section 10 of the Act by erecting constructions on a land which was notified simplicitor. In these circumstances therefore it is clear that the first notice given to the petitioner was clearly invalid and any action taken on the basis of that notice is void. The second notice which followed from the default of the first notice also falls to the ground if the first notice is held to be in ­valid. In fact proviso to Section 13 of the Act runs as under: - "Provided that no such order shall be made unless the owner has been given a reasonable opportunity to show cause why the order should not be made." The statute thus requires that the owner should be given a reasonable opportunity to show cause why the order of demo ­lition should not be made. In the instant case the petitioner had clearly alleged that he did not know about the contents of the notifications and as soon as he received the notice he had stopped the constructions. The appellant had given him notice of default which was not in existence at all namely that the area comprising the land in question was included in the scheme. In these circumstances therefore it cannot be said that the pro ­viso to Section 13 of the Act had been fully complied with as rightly held by the learned Judge. For these reasons therefore there is no merit in this appeal, which is dismissed with costs. This will however not prevent the Deputy Commissioner from proceeding against the petitioner in accordance with the provi ­sions of the Act.