ADMINISTRATOR MUNICIPALITY Vs. SUDHIR MAHAJAN
HIGH COURT OF JAMMU AND KASHMIR
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(1.) BOTH these petitions involve common questions of law and fact because what arises for consideration is whether the order of the Jammu and
Kashmir Special Tribunal dated 15.8.90 quashing the notice issued under
Section 44 of the Municipal Act suffers from any jurisdictional error or
illegality so as to justify interference in exercise of power of judicial
(2.) THE admitted facts of the cases are that the Executive Officer, Municipality Jammu on 15.8.90 in exercise of power under Section 44 of
the Municipal Act sanctioned demolition of side walls and removal of
shutters fixed by the respondents, allegedly by encroaching the
government land towards the road side at Exchange Road, Jammu.
(3.) THIS order was challenged in appeal before the Special Tribunal. By the impugned order, the learned member of the Tribunal,
allowed the appeal and set aside the order. This order is challenged by
the Municipality on the ground that interpretation placed on the scope of
Section 44 of the Act is not correct and therefore, the judgment is
liable to be set -aside.
The Tribunal while setting aside the notice, considered the scope of Section 44 and 229 of the Municipal Act and held that the
Executive Officer, Municipality, Jammu should have proceeded under
Section 229 of the Act, which specifically empowers the Executive Officer
to deal with such a matter. In order to appreciate rival contention, it
is necessary to refer sub -section 1 of Section 44 of the Act which reads
"44(1) Extraordinary powers of President or Vice President in case of emergency: On the Occurrence or threatened occurrence of any event involving or likely to involve extensive damage to human life or grave inconvenience to the public the President or in his absence or during the vacancy of his office, a Vice President or during the absence of both the President and the Vice President, the Executive Officer may direct the execution of any work or the doing of any act which the Council , is empowered to execute or do and the immediate execution or doing of which is in his opinion necessary for the service or safety of the public and may direct that the expense of executing such work or doing such act shall be paid from the Municipal Fund : Provided that every direction given under this section shall be reported to the next following meeting of the Council".
Two -fold requirement of the section are that the occurrence or
threatened occurrence of any event must be such which involves 1)
extensive damage to human life or 2) grave inconvenience to public. This
emergency power being exceptional under Section 44, is available only if
these two conditions are satisfied. Not otherwise.
3) The question is whether the order of the Executive Officer, Municipality Jammu satisfies these two conditions. The sanction order passed by the Executive Officer as reproduced in the order of the Tribunal reads as under: "Sanction is hereby accorded to the demolition of side walls and removal of shutters fixed by encroaching the government land towards the road side by M/s Mahajan Electronics and Kewal Photo Flash at Exchange Road, Jammu under Section 44 of the Municipal Act, 2008 as the encroachment is a nuisance to the public at large".
Shri Dayal Singh Charak, Khilafwarzi Officer, Municipality Jammu
is hereby authorised to carry out the demolition on 15.8.90 at 9 A.M.",;
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