MUMTAZ ALI vs MAYOR, MUNICIPAL CORPORATION, MIRPUR and 13 others

ORDER

1. ' This writ petition is addressed under section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974.

2. ' The succinct facts forming the background of the instant writ petition are, that the petitioner was the allottee of Plot No,150-A measuring 100' x 60' situated in Sub-Sector F-1, Mirpur city. He had constructed a house over the said plot and living therein. On the Northern side of the house, there was a thirty feet wide toad, which links the Main Road situated on the Eastern and Western side of the petitioner's house. On 30-11-1994, one of the non-petitioners, started excavation work on the said road. The petitioner raised objections and was told that the non-petitioner was the allottee/transferee of the said plot. He enquired and came to know, that non-petitioners Nos.1 to 3 have created Plots Nos.125-A, 125-B, and 125-C, and allotted the same to non-petitioners Nos.5 to 7.

3. They had subsequently transferred these plots to non-petitioners Nos.8 to 13. The non-petitioners redevised Plot No,125-C into Plots Nos.125-C/1, 125-C/2, and 125-C/3. The whole proceedings of the creation of the plots, their allotments, revising and transfer have been challenged through the instant writ petition.

4. ' This writ petition was admitted for regular hearing. The non-petitioners filed the written statements. Arguments were heard.

5. ' Ch: Muhammad Reaz Inqalabi, the learned Counsel for the petitioner, streneously argued that Plots Nos.125-A, 125-B and 125-C, were created by the Municipal Committee, Mirpur, on 27-5-1989 and allotted to non-petitioners Nos.5 to 7. He submitted that under section 61 of the Local Government Act, (hereinafter to be referred as Act, 1990), the Municipal Committee was not competent to create new plots in open and other spaces, therefore, the Municipal Committee had no jurisdiction to create new plots. It was further contended by the learned Counsel that the plots in dispute were allotted from the quota of Prime Minister of Azad Jammu and Kashmir, while there was no quota of Prime Minister in Sector F-1, because this sector was created somewhere in 1967.

6. The quota of Prime Minister was introduced through Special Regulations in 1985. He submitted that the Prime Minister had no quota in the old sectors. It was also submitted by the learned counsel that the Chairman alone was not competent to make any allotment. Under section 61(4) of the Local Government Act, only the Allotment Committee was competent to make the allotment. In the present case, all the three aforesaid plots. Were allotted by the Chairman. It was next submitted by the learned counsel that Municipal Committee, Mirpur, Regulations for Development and disposal of plots/estates, 1985, (hereinafter to be referred as Regulations), were repugnant to the Local Government Act. While emphasising on this point, he submitted that section 61 of the Azad Jammu and Kashmir Local Government Act, 1990 contained, that the Municipal committee shall not create any new plots in open and other spaces, while the Special Regulations contained that the Municipal Committee shall prepare a scheme and make the allotment. Thus, the Regulations are inconsistent to the Act, so nullity in the eye of law. They have no force behind them. It was further argued that the Plot No,125-B was not revised up to 14-4-1996. In this respect, he produced a certificate from the office of the Estate Officer, Municipal Committee, Mirpur and submitted that subsequently, it was shown that this plot was revised in 1993. He submitted that a forgery was committed. On the one hand, in 1996, it was certified by the Municipal Corporation that Plot No,125- B was not revised, while on the other hand, it was shown that it was revised in 1993. The learned counsel submitted that all the allotments in the name of the non-petitioners Nos.5 to 7, and their subsequent transfer, may be declared as without lawful authority.

7. ' While controverting the arguments of the learned Counsel for the petitioner, the learned Counsel for the non-petitioners Nos.5 to 7, contended that the petitioner was not an aggrieved person. He has no right to challenge the allotment of the non-petitioners. He submitted that the petitioner has challenged the allotment on the ground that the plots were marked on the road. There is nothing on the record, on the basis of which, it could be said that the plots in dispute were marked on the road, therefore, the petitioner could not be termed as an aggrieved person. It was further argued by the learned counsel that the petitioner has already obtained the allotment of Plot No,150-A in his favour, therefore, he was not entitled to the allotment of second plot, so, by the allotment of the non-petitioners, no vested right of the petitioner was violated, as such. He could not be considered as an aggrieved person. He referred the judgment, of the High Court---titled Mst. Fatima Bi v. Abdul Malik reported in 1988 CLC 2330. He submitted that when the petitioner' was ineligible for allotment, then, he could not be treated as an aggrieved person.

8. ' It was also submitted by the learned Counsel that in the instant case, the allotment was not made by the Chairman, Municipal Committee, Mirpur, but it was made by the Prime Minister. Only the plots number were allocated by the Chairman Municipal Committee. The learned counsel further submitted that the Municipal Committee was competent to create new plots. In this respect, he referred sections 23-B and 24(3) of the Fifth Schedule of Local Government Act, and submitted that the Municipal Committee was competent to create plots, thus, the Municipal committee had created the plots and these were allotted to the non-petitioners Nos.5 to 7 by the Prime Minister, Azad Jammu and Kashmir accordingly.

9. ' The learned Counsel for the remaining non-petitioners, contended that the plots in dispute were allotted to the non-petitioners from the quota of Prime Minister.

10. ' I have heard the arguments, perused the relevant record and given my utmost muse to the respective arguments advanced by the learned Counsel for the parties.

11. ' In the instant case, the original record of. The allotment was summoned. The perusal of the file of the allotment of non petitioner No,5, shows, that he moved an application before the Prime Minister of Azad Janunu and Kashmir, that he is performing functions as Chairman, Municipal Committee, Mirpur. He is living along with his father in the old Abadi, so, one plot may be allotted to him. On 12- 4-1984, it was ordered by the then Prime Minister of Azad Jammu and Kashmir that a plot of one Kanal may be allotted to him from his quota. On 25-5-1989, the Town Planner, Municipal Committee, Mirpur, reported, that in Sector F-1, Mirpur, Plots Nos.118 to 125 have. Been marked by the M.D.A. On the southern side of these plots, unmarked open space is available". Three new plots were created and marked by the Town Planner, Municipal Committee, Mirpur, on this space. He also suggested that the newly created Plot No,125-A measuring 91 + 85 x 62/2', may be allotted to the non-petitioner No,5. He submitted the file to the-Estate Officer, who submitted the same to the Chairman, non-petitioner No,5. He himself allotted it in his own name. It is quite clear that when the Prime Minister of Azad Jammu and Kashmir passed an order, at that time, this plot was not marked, but was subsequently created and marked by the Town Planner of the Municipal Committee, Mirpur.

12. ' The perusal of the file of Imtiaz Ahmad non-petitioner No,6, shows that he move and application before the Prime Minister of Azad Jammu and Kashmir, that Plot No,11-C in Sector A-5, and Plot No,9-I, in Sector F-1, measuring 20 Marlas are vacant, these may be allotted to him. On this application, the Prime Minister ordered that the plots may be allotted to the applicant, while the Chairman passed an order derogatory to the order of the Prime Minister, that one plot from the quota of Prime. Minister may be proposed and referred the file to the Town Planner. He created new Plot No,125-B and proposed it, for him. The Chairman Municipal Committee allotted this plot to the non-petitioner No, 6, on ' 27-5-1989. When the application was moved before the Prime Minister, at that time, there was no Plot No,125-B, but this plot was subsequently created by the Town Planner, Municipal Committee, Mirpur.

13. ' The perusal of the file of non-petitioner No,7, shows that he moved an application before the Prime Minister of Azad Jammu and Kashmir that Plot No,150-A in Sector F-1, was allotted to him. He had deposited the entire price of the plot, The Mirpur Development Authority is not granting permission for the construction of the boundary. Wall. The Government has cancelled the aforesaid plot because it was situated within the limits of Municipal Committee. The Municipal Committee was only competent to allot the plot, so, the Municipal Committee may be directed to allot the plot to him. The Prime Minister ordered that if the M.D.A. Had allotted the plot to the non-petitioner No,7, and the plot is within the area of the Municipal Committee; then, the plot may be allotted to him and necessary permission may be granted to him, for the construction of the house, while, the Chairman passed an order quite contrary to the order of the Prime Minister, that one plot measuring one Kanal may be proposed for the non-petitioner No,7, from the quota of Prime Minister, Azad Jammu and Kashmir. The Town Planner created new Plot No,125-C, and the Chairman Municipal Committee allotted this plot to the non-petitioner No,7.

14. ' It is quite amazing that the non- petitioner No,7, applied for the allotment of Plot No,150-A and the Prime Minister also passed the order for this plot, while Plot No,125-C was 'allotted to him from the quota of Prime Minister. It is also pertinent to note that there was no order of the Prime Minister, that the plot in question may be allotted to him, from his quota, The order of the Prime Minister was that if Plot No,150-A was allotted to the non-petitioner No,7 by the M.D.A., then, the same may be allotted to him.

15. ' From the perusal of the record, it is crystal clear that these three Plots Nos.125-A, 125-B and 125-C, were created by the. Municipal Committee, Mirpur and allotted to the non-petitioners Nos.5 to 7 who subsequently, alienated the same to other non-petitioners.

16. ' Now, the, primary question requiring determination is whether the Municipal Committee was competent to create new plots?

17. ' Section 61 of the Act, 1990 contained that the Municipal Committee may allot the plot or land vested in it by the Government. Mirpur Development Authority or any other Authority, in the prescribed manner, but the Committee shall not create new plots in open and other spaces. For having true perception, I would like to reproduce section 61 of the Act, 1990 which reads as under :-- "61. Power to dispose of plots/land.---(1) A Municipal Committee may, retain, or may lease, sell, exchange, cancel the allotment, issued by it, rent out or otherwise dispose of any plot or land vested, in it. By the Government, Mirpur Development Authority, in the prescribed manner; Provided that the Municipal Committee shall not--

(i) create new plots in open and other spaces

(ii) deviate/encroach upon limits laid down in the Master Plan;

(iii) interference with the plots reserved for environmental, Government and other specified purposes;

(2) An' allotment or a plot or land under the forgoing provisions of this Act or Vtli Schedule of the Act, shall amount to an agreement to sell and the title to such a plot or land, shall be transferred through a title certificate, granted by the Municipal Committee concerned. Such a Certificate granted by the Municipal Committee shall be a sufficient proof of ownership of the property in respect of which it has been issued; The plain reading of the aforesaid provision clearly conveys that the Municipal Committee may dispose of plot or land vested in it, by the Government, Mirpur Development Authority, or any other Authority, but the proviso contained that "the Municipal Committee shall not create new plots in any open or other spaces, and shall also not deviate/encroach upon the limits laid down in the Master-plan. An embargo was imposed upon the Municipal Committee.

18. It is well-recognized principle of law that a proviso is generally to be construed as a limitation or a qualification upon the otherwise general application of the statute. Where the enacting clause is general in its language and purpose, a proviso subsequently followed, should be construed strictly.

19. This view finds support from the Crawford, Statutory Construction by Mr. Earl. T. Crawford page 607.

20. A proviso is always regarded as restrictive or explanatory. In other words, the proviso operates to create special exceptions from the enacting 'clause. It is also well-celebrated principle of law that a proviso should be construed strictly. This view finds support from PLD 1957 SC 219 and PLD 1958 SC

41. A proviso has overriding effect if its contents are inconsistent with the main provision to which a proviso is attached. This view finds support from SCR, 1995 SCR 196. I would like to reproduce the same which is as under: ' A proviso by its very nature has overriding effect if its contents are inconsistent with the main proviso to which a proviso is attached. Legislature does not imply words like notwithstanding to the contrary to demonstrate its overriding nature unless it is designed to override-proviso which do not immediately precede a proviso and are contained elsewhere...."

21. ' In proviso of section 61 of the said Act, it has been clearly laid down that the Municipal Committee shall not create new plots in any open or other spaces and also not deviate/encroach upon the limits laid down in the Master-plan. A specific restriction was imposed upon the Municipal Committee through the proviso, so, the Municipal Committee was not, at all, competent to create new plots.

22. ' It is also pertinent to note that section 61(2) and (3) of the Act, 1990, stipulates that the Municipal Committee shall not deviate/encroach upon the limits laid down in the Master-plan, and also not interfere with the plots reserved for environmental, Government and other specified purposes. The Master-plan is very comprehensive. It contained the total plots situated in each sector along with the Roads, spaces, open spaces, green belts, rejected areas and other amenities. An embargo was imposed upon the Municipal Committee that it shall not deviate/encroach upon the limits laid down in the Master-plan. The old Sectors transferred to the Municipal Committee, were also incorporated in the Master-plan. The Municipal Committee was not, at all, competent to change the limits laid down in the Master-plan. When a Sector shown in the Master-plan, contained total plots situated in it along with roads, open spaces, spaces, rejected areas and other amenities, then the Municipal Committee was not, at all, competent to mark any new plot in that sector. The creation and marking of new plots In that sector, amount to deviation/encroachment upon the limits laid down in the Master-plan. A further restriction was also imposed on the Municipal Committee that it shall not interfere with the plots reserved for environmental, Government and other specified purposes. It is held that the Municipal Committee was not, at all, competent to create or mark any plot in the sectors incorporated in the Master-plan. All the sectors which were transferred to the Municipal Committee, through Notification, dated 14-2-1985, were incorporated in the Master-plan, therefore, according to section 61(1), (2) and (3) of Act, 1990, the Municipal.

23. Committee was not competent to create or mark any plot in these sectors which were transferred to the Municipal Committee through Notification, dated 14-2-1985. Creation and marking of plots in these Sectors, amount to deviation and encroachment in the limits of the Master-plan, therefore, the creation and allotment of the plots in these sectors, is without lawful authority The Municipal Committee has no concern with the creation and allotment of plots. In the present case, the Municipal Connate created three plots, in the space left in the old Sector F-1, Mirpur. Thus, in this way, the Municipal Committee has deviated and encroached upon the limits laid down in the Master-plan and had also committed the violation of section 61(1) proviso of the Act, 1990.

24. As the contention of the learned counsel for the non-petitioners is concerned that under Fifth Schedule and sections 23-B and 24(3) of the Local Government Act, the Municipal Committee was competent to create new plots, it has no substance for the following reasons:- ' The compulsory functions of the Municipal Committees and Town Committees C were prescribed in the Fifth Schedule which are as under:-- "Schedule V ' Compulsory functions of Municipal Committees and Town Committees.

25. ' Such functions in connection with Zakat and Ushar as may be assigned by Government under relevant law.

26. ' A-Public Health A Municipal Committee may, by notice require the owner or occupier of any building or land which is in an insanitary or un-whole-some state:- (a)to clean or otherwise put it in a proper state; (b)to make arrangements to the satisfaction of the Municipal Committee for the proper sanitation; and

(c) to lime-wash the building and to make such essential repairs as may be specified in the notice;

(2) If any requirement of a notice issued under subsection (1) is not complied with, within such period, as may be specified in the notice, the Municipal Committee may cause the necessary steps to be taken at the expense of the owner or the occupier, and the cost so incurred by the Municipal Committee shall be deemed to be a tax-levied on the owner or the occupier under this Act.

27. 3.Removal Collection, and disposal of refuse.---(1) A Municipal Committee shall make adequate arrangements for the removal of refuse from all public roads and streets, public latrines, urinals, drains and all buildings and land vested in the Municipal Committee and for the election and proper disposal of such refuse.

1. Responsibility for sanitation.---A Municipal Committee shall be responsible for the sanitation of the Municipal area.

(2) In-sanitary buildings and land. ---(1)

(2) The occupiers of all other buildings and lands within the Municipality shall be responsible for the removal of refuse from such buildings and land subject to the general control and supervision of the Municipal Committee.

(3) The Municipal Committee shall cause public dust bins or other suitable receptacles to be provided at suitable places and in proper and convenient situations in streets or other public places and where such dustbins or receptacles are provided, the. Municipal Committee may by public notice, require that all refuse accumulating in any premises or land shall be deposited by the owner or occupier of such premises or land in such dustbins or receptacles;

(4) All refuse removed and collected by the staff of the Municipal Committee or under their control and supervision and all refuse deposited in the dustbins and other receptacles provided by the Municipal Committee shall be the property of the Municipal Committee; Latrines and Urinals.---. (1) A Municipal Committee shall provide and maintain in sufficient number and in proper situations public latrines and urinals for the separate use of such sex, and shall cause the same to be kept in proper order and to be properly cleaned.

(2) The occupier of any premises to , which any latrine or urinal pertains shall keep such latrine or urinal in;

(3) Where any premises are without privy or urinal accommodation, or the privy or urinal is on any ground objectionable, the Municipal Committee may, by notice, require the owner of such premises--

(a) to provide such or such additional privy or urinal accommodation as may be specified;

(b) to make such structural or other alteration in the existing privy or urinal accommodation as may be so specified; (c)to remove the privy or urinal; and (d)where there is any underground sewerage system to substitute connected privy or connected urinal accommodation for any service privy or service urinal accommodation; ' Birth and deaths.---(1) A Municipal Committee shall register all births and deaths within the limits of the Municipality and information of such births and deaths shall be given by such persons or authorities and shall be registered in such manner as the bye-laws may provide.

(6) Infectious disease.---(1) A Municipal Committee shall adopt measures to prevent infectious diseases and to restrain infection within the Municipality.

(2) A Municipal Committee shall establish and maintain one or more hospitals for the reception and treatment of persons suffering from infectious disease.

28. ' B-Water Supply.

(7) Water supply.--- (1) A Municipal Committee shall provide cause to be provided to. The Municipality a supply of wholesome water sufficient for public and private purposes.

(2) Where a piped water supply is provided, the Municipal Committee shall supply water to private and public premises in such manner and on payment of such charges as the by laws may provide;

(8) Private sources of water supply.-- (1 r All private sources of water supply within the municipality shall he subject to control, regulation and inspection of the Municipal Committee;

(2) No new well, water pump or any other source of water for drinking purposes shall be dug, constructed or provided except with the sanction of the Municipal Committee;

(3) A Municipal Committee, may by notice, require the owner or any person having the control' of any private source of water supply used for drinking purposes.

(a) to keep the same in good order and to clean it from time to time of silt, refuse and decaying matter;

(b) to protect the same from contamination in such manner as the Municipal Committee directs; and

(c) if the water therein is proved to the satisfaction of the Municipal Committee to be unfit for drinking purposes, to take such measures as may be specified in the notice to prevent the use of such water for drinking purposes.

29. ' C. Drainage.

(9) Drainage.--(1) A Municipal Commit-tee shall provide an adequate system of public drains in the Municipality and all such drains shall be constructed, maintained kept cleared and emptied with due regard to the health and convenience of the public;

(2) Every owner or occupier of any land or building within the Municipality may, with the previous permission of the Municipal Committee, subject to such terms and conditions including the payment of fees, as the Municipal Committee may impose, cause his drains to be emptied into public drains;

(3) All private drains shall be subject to control, regulation and inspection by the Municipal Committee;

(4) Subject to the provisions of any other law for the time being in force a Municipal Committee may by notice direct a commercial or industrial concern to provide for the disposal of its waste or effluent in the manner specified, and failure on the part of the owner, tenant, or occupier thereof to comply with such direction shall be offence under this Ordinance;

(5) A Municipal Committee may, by notice require the owner of any building land or an industrial concern within the Municipality:

(6) In case of failure of the owner to comply with the requirements of notice under subsection(5); the Municipal Committee may itself cause to carry out such requirements and the cost so incurred, shall be deemed to be a tax levied on the owner of the building of the land, as the case may be under this Act.

(10) Drainage and sewerage schemes for commercial and. Industrial area/ areas. ---(1) A Municipal Committee may through a notice require the owners, tenants and occupiers of commercial and industrial concerns in any area or areas within a municipality to have at their own cost prepared a scheme for the adequate and safe drainage and disposal of their water and effluent of the quality permitted under the rules, or the bye-laws and submit it to the Municipal Committee within the time specified in the notice; provided that the time limit may be extended by the Municipal Committee for a maximum period of three months at the request of the owners, tenants or occupiers of the commercial and the industrial units concerned.

(2) The drainage, sewerage and disposal scheme as approved by the Municipal Committee with modification, it shall be executed and implemented by the owners tenants, or occupiers of the commercial or industrial units at their expense in such manner and within such time as may be specified by the Municipal Committee.

(3) In case of the failure of the owners, tenants or occupiers of the commercial or industrial concerns to comply with the provisions of subsections (1) and (2) the Municipal Committee may itself prepare the drainage, sewerage and disposal scheme and execute and implement it after approval by Government by its own expense and the cost so incurred shall, under this Act, be deemed to be a tax levied on tenants or occupiers of the industrial and commercial units concerned.

30. D. Articles of Food and Drink.

(11) Private Markets.--- (1) No private market for the sale of articles of food or drink or animals shall be established or maintained within a Municipality except under the licence granted by the Municipal Committee and in conformity with conditions of such licence.

31. ' A Municipal Committee, may levy fees in respect of private markets in the prescribed manner.

32. ' A Municipal Committee may, by notice, require the owner of any private market to construct such works, provide such convenience and make such arrangements for the maintenance of the market, and within such period as may be specified in the notice;

(12) Slaughter Houses.--- A Municipal Committee shall, provide and maintain at such site or sites within or outside the limits of the Municipality one or, more slaughter, houses, for the slaughter of animal or sale of any specified description of animals.

33. E. Animals and cattle

(13) Prohibition on picketing or tethering in streets.--- No animal shall be picketed or tethered in such streets or place as may be specified by the Municipal Committee and any animal found picketed or teetered in any such street or place shall be liable to seizure and impounding:

(14) Prohibition against keeping and maintaining cattle.-- (I) Notwithstanding anything to the contrary contained in any other law or any agreement, instrument, custom or usage or decree, judgment or order of any Court or other authority--

(a) no person shall, after the expiry of the period allowed under subsection (2) keep or maintain cattle in any part of a prohibited zone; provided that the prohibition shall not apply to:

(i) cattle kept bona fide for sacrificial purposes;

(ii) cattle kept for drawing carts or use in mills with the permission of the Municipal Committee subject to such conditions as it may impose;

(iii) Cattle under treatment in any veterinary hospital;

(iv) cattle brought to a cattle market demarcated by the Municipal Committee for the purpose of sale and;

(v) cattle brought to a slaughter-house or kept by butchers for the purpose of slaughter within the area demarcated by the Municipal Committee;

(b) No person shall within the limits of the Municipal Committee keep tether, stall, feed, or graze any cattle on any road street or thoroughfare or in any public place.

(2) The Municipal Committee may, by a general or specified order direct that any person in charge of cattle shall remove the cattle from the prohibition may be allowed to keep and maintain their cattle at the places earmarked as 'Cattle Colonies' by the Municipal Committee on such terms and conditions as it may impose.

(15) Dangerous animals--- A Municipal Committee may. By bye-laws, define the animals which shall be deemed to be dangerous animals and the circumstances under which animals not otherwise dangerous shall be deemed to be dangerous animals and such bye-laws among other matters, provide for the detention, destruction or disposal, otherwise, of such animals.

(16) Disposal carcasses--- Whenever an animal in the charge of a person dies, otherwise, than by being slaughtered for sale or consumption or for some other religious purpose such person shall either:-

(a) convey the carcasses within twenty four hours to a place if any, fixed by the Municipal Committee for the disposal of the dead bodies of animals or to a place beyond the limits of the Municipality not being a place within one mile of such units;

(b) give notice of the death to the Municipal Committee whereupon the Municipal Committee shall cause the carcass to be disposed of and in charge such fees from the person concerned as the bye-laws may provide.

(17) Educational institutions.--- (1) A Municipal Committee shall establish maintain and manage such educational institutions as may be required by Government and may with the previous approval of Government maintain such other educational institutions as may be necessary for the promotion of education in the municipality;

(2) All educational institutions maintained by the Municipal Committee shall be maintained in a state of efficiency and shall confirm to such standards as may be prescribed as standards;

(3) A Municipal Committee may, with the previous approval of Government give financial aid to private educational institutions within the municipality;

(18) Compulsory education.--- Subject to any law for the time being in force, a Municipal Committee shall be responsible for enforcement of compulsory education in the municipality and it may in this behalf adopt all such measures as may be necessary to ensure that every child of school going age iv the municipality attends a school recognized by the Municipal Committee.

34. G. Public Safety.

(19) Fire Fighting.--- (1) For the prevention and extinction of fire, a Municipal Committee shall maintain a fire brigade consisting of such staff and such number of fire stations and Such implements, machinery, equipment and means of communicating intelligence as may be prescribed.

(2) On the occurrence of the fire within a municipality any Magistrate, any official of a fire brigade directing the operations and any police officer not below the rank of sub-inspector, may:-

(a) remove or order the removal of any person who by his presence interferes or impedes the operations for extinguishing the fire or saving life and property;

(b) close any street or passage in or near which any fire is burning.

(c) for the purpose of extinguishing the fire, break into or through or pull down, or cause to be broken into or through, or pulled down, or use for the passage of houses or either applications; and premises;

(f) cause mains and pipes to he shut of as to give greater pressure of water in or near the place where the fire has occurred; (e)call on the persons in charge of any fire engine to render such assistance as may be possible, and (f)generally take such measures as may appear necessary for the preservation of life and property.

35. (3)No person shall be liable to pay damages in respect of anything done or in good faith purported to be done under this section.

36. (4)A Municipal Committee shall prepare fire-fighting plan and revise it at least once a year.

37. (20)Civil Defence.--- A Municipal Committee shall be responsible for the civil defence of the Municipality and it shall in this behalf perform such functions. As may be specified by Government.

(21) Floods.--- For the fighting of floods, rescuing of people from, the flood affected areas, and affording relief to flood stricken people a Municipal Committee shall provide such boat appliances, and equipments as may be specified by Government.

(22) Dangerous and offensive articles and trades.--- (1) The articles and trades given in the first schedule shall be deemed to be dangerous or offensive for the purposes of this section.

38. (2)Except under and in conformity with the conditions of a licence granted by the Municipal Committee-- (a)no person shall carry on any dangerous or offensive trades; (b)no premises shall be used or offered to be used for any dangerous or offences trade; and (c)no person shall store or keep in any premises:- (i)any dangerous or offensive article except for domestic use; or (ii)any dangerous or offensive article in excess of such limits as may be fixed by bye-laws.

39. (3)A Municipal Committees may, with the previous sanction of Government, prepare and enforce a schedule providing for the prohibition of dangerous and offensive trade in specified areas -within .The municipality and for the restriction such trades in any area not specified.

40. H. Town Planning

(23) Master Plan.--- A Municipal Committee shall draw up mast plan for the municipality while shall, among other matters provide for--

(a) survey of the municipality, includable its history. Statistics, public service and other particulars;

(b) development, expansion a improvement of any area within to municipality; and

(c) restrictions regulations, a prohibitions to be imposed with regard to the development of sited and the erection and re-erection buildings within the municipality;

(24) Site Development Schemes.--- (1) Where a Master-Plan has been drawn and such Master Plan has been approved, Without any Modification by Government, no owner of 1and exceeding such area as may specified in this behalf in the mast plan so approved shall develop to sites or erect or re-erect a building on any plot of land covered by the Master-plan, except in conformation with the provisions of a suit development scheme sanctioned.

(2) Where a Master-plan has not been drawn up under section 23, no own of land shall develop the site or erect or re-erect any building on any plan or land except in conformity with the provision of site development schemes sanctioned by the Municipal Committee.

(3) Among other matters, a suit development schemes may provide for:-

(a) the division of the site into plots;

(b) the streets, drains and open spaces to be provided;

(c) the land to be reserved for public utility services and to be transferred to Municipal Committee;

(d) the land to be acquired by the Municipal Committee;

(e) the price of plots;

(f) the works that shall be executed at the cost of the owner of the site or sites; and

(g) the period during which the area shall be developed.

(h) The land reserved for public utility services in site development scheme shall be transferred free of cost by the owner or the owners to the Municipal Committee before the sanction of the scheme. Such land shall not be covered or used for any other purpose than as shown in the scheme except with the sanction of the Government; Execution of site development schemes.---(1) The execution of a site development scheme shall be subject to the inspection and control of the Municipal Committee and the Committee may give such directions with regard to the execution of the schemes as may be necessary for the proper development of site.

41. ' If any area is developed or otherwise dealt with in contravention of the provisions of the sanction site development scheme, the Municipal Committee may, by notice, require the owner of such area or the person who has contravened the provisions to make such alteration in the site as may he specified in the notice and where such alteration is not made or for any reason cannot he carried out the Municipal Committee may require and enforce the demolition of the offending structure and notwithstanding anything to the contrary contained in any law, no compensation shall be payable for such demolition.

(3) If an area for which a site development scheme has been sanctioned is not developed within the period provided in the site development scheme and further extension is not allowed,, by the Municipal Committee or the development is not in conformity with the terms of the site development scheme, the Municipal Committee may in the prescribed manner take over the development of the site and execute the necessary works and the cost incurred thereon by the Municipal Committee shall be deemed to be a tax levied on the owner or owners under this Act.

42. I-Building Control.

43. Erection and re-erection of building.---(I) No person shall erect or re-erect a building unless the site has been approved and the building plan indicating the purpose or purposes for which the building is to be used, has been sanctioned by the Municipal Committee.

(2) A person intending to erect or re- erect a building shall apply for sanction in the manner provided in the bye-laws and shall pay such fees as may be levied by the Municipal Committee.

44. ' Where a plan to relay a street has been approved by a Municipal Committee a person, who intends to erect or re-erect a building or commences to erect or re-erect a building, shall adopt the approved building or street line and for this purpose, any space required to be left vacant shall vest in the Municipal Committee.

(4) All building applications presented under this section shall be registered in the manner provided in the bye-laws and shall be disposed of as early as possible but not later than sixty days from the date of the registration of the application, and if no order is passed on an application within sixty days of its registration, it shall be deemed to have been sanctioned to the extent to which it does not contravene the provisions of the building bye-laws or the master plan or site development scheme, if any

(5) A Municipal Committee may for reasons to be stated in writing reject a site plan or a building plan but any person aggrieved thereby may appeal to Government; within thirty days of the order of rejection and the order passed by Government; in appeal shall be final.

(6) A Municipal Committee may sanction site plan or building plan subject to such modifications o terms as may be specified in the order of sanction.

(7) Nothing in this section shall apply to any work, addition or alteration which the Municipal Committee may, be law---laws, declare to be exempted.

(27) Completion of buildings alteration building etc. --- (1), Every person who has erected or re- erected building within thirty days of the completion of the building report such completion to the Municipal Committee.

(a) The Municipal Committee shred cause every building which has been completed to be inspected, and if has been constructed in violation contravention of any provision this Act, the rule or the bye-laws of the master plan or suit development scheme, if any, the Municipal Committee may require the alteration of the building so as to be in compliance with and where such alteration is not possible, the Municipal Committee may require building or any part thereof to the demolished, or on the application to the owner of such building compound the offence, provided the no offence shall be compounded if involves any violation contravention of the provisions master-plan or of a sanctioned suit development scheme, or if to building has been constructed cause other than it was shown to used, in the sanctioned building plan;

(3) If a building is required to be demolished under the provisions of subsection (2) and such requirements not complied with, in the specified period, the Municipal Committee may have the building demolished through its own agency, and the cost so incurred thereon by the Municipal Committee shall be deemed to ti tax levied on the owner or occupier of the building under this Act.

(28) Regulation of buildings.--- (1) Except with the prior sanction of the Municipal Committee, no building shall be but to a used other than the use as shown in the sanctioned building plan according to which it was erected or re-erected; ' Provided that the Municipal Committee shall not sanction any change in the use of a building which may be in violation or contravention of the master-plan, or site development scheme, if any.

(2) IT any building or anything fixed thereon be deemed by the Municipal Committee to be in a ruinous state or likely to fall or in any way dangerous to any inhabitant or such building or of any neighbouring or to any occupier thereof or to passersby, the Municipal Committee may, by notice, require the owner or occupier of such building to demolish it or to take such action in regard to the building as may be specified in the notice, and if there is default, the Municipal Committee may take necessary steps itself, and the cost shall be a tax levied on the owner or occupier of the building under this Act.

(3) If a building is in a dangerous condition or otherwise unfit for human habitation, the Municipal Committee may prohibit the occupation of such building till it has been suitably repaired to the satisfaction of the Municipal Committee.

(4) If the building is in dangerous condition and declared unfit for human habitation, the Municipal Committee may for the purpose of demolition, eject the owner or occupier from such building with such necessary force as may be required. J. Streets.

(29) Public streets.--- (1) A Municipal Committee shall provide and maintain such public streets and other means of public communications as may be necessary.

(2) A Municipal Committee shall in the prescribed manner, prepare and execute a road maintenance and Development Programme which shall form part of the Budget.

(30) Streets.--- (1) No new street shall be laid out except with the previous sanction of the Municipal Committee, and in conformity with the terms and conditions of such sanction.

(2) All streets other than public streets, shall be maintained in such manner as the bye-laws may provide.

(3) The Municipal Committee may, by notice, require that any street may be paved, metalled, drained, changed approved or lighted in such manner as may be specified and in the event of default, the Municipal Committee may have the necessary work done through its agency and the cost incurred thereon by the Municipal Committee, shall be deemed to be a tax levied on the person concerned under this Act.

(4) Government may prescribe the manner in which a street other than a public street may be converted into a public street.

(31) Encroachment.--- (1) No person shall make an encroachment movable or immovable on an open space or land vesting in or managed, maintained, or controlled by a Municipal Committee, on or over or under a street, road, graveyard, within the municipal limits or a drain except under a licence granted by the Municipal Committee and to the extent permitted by such licence.

45. '2) Municipal Committee may remove the encroachment mentioned in subsection (1) with such force as may be necessary.

(3) Whoever trespasses into or is in wrongful occupation of a building or property which vests in or is managed, maintained or controlled by a Municipal Committee, may in addition to any other penalty to which he may be liable under this Act or any other law for the time being in force, after such notice, as may be provided by the Municipal Committee be ejected with such force as may be necessary.

(4) Any person aggrieved by notice issued under subsection (3) may, within seven days of the service of notice appeal to such authority as may be appointed by Government in this behalf whose decision thereon shall be final.

(5) Notwithstanding anything contained in any other law, no compensation shall be payable for an encroachment removed under this section.

(32) Street lighting.--- (1) A. Municipal Committee shall take such measures as may be necessary for the proper lighting of the public streets and other public places vesting in the Municipal Committee, by oil, gas, electricity or such other illumination as the Municipal Committee may determine.

(2) A Municipal Committee may form and enforce street lighting scheme.

(33) Street watering.-- - (1) A Municipal Committee shall take such measures, as may be necessary for the comfort and convenience of the public, and may, for this purpose, maintain such vehicles, staff and other apparatus as may be necessary.

(34) Traffic control.--- A Municipal Committee shall under bye-laws make such arrangement for the control and regulation of traffic as may be necessary to prevent danger to and ensure the safety, convenience and comfort of the public.

(2) A Municipal Committee may provide parking matters on such public places as may be determined by it.

(35) Public vehicles.--- (1) No person shall keep or let for hire, or drive or propel within the limits of a municipality, any public vehicle, other than a motor vehicle except under a licence granted by the Municipal Committee and in conformity with the conditions of such licence.

(2) No horse or other animal shall be used for drawing a public vehicle within the limits of a municipality except under a licence granted by the Municipal Committee and in conformity with the conditions of such licence.

(3) A Municipal Committee shall in such manner as bye-laws may provide and with the previous approval of Government, fix the rate of fares for the use of public vehicles and no person plying a public vehicle shall charge a fare in excess thereof.

46. ' Explanation.---In this section, a public vehicles means any vehicle which ordinarily used for hire.

47. ' K-Arboriculture.

(36) Arboriculture.--- A Municipal Committee shall plant tree on public streets and other public places within the municipality and take all such steps as may be necessary for the plantation and protection of trees on such streets and laces.

48. ' Optional Functions of Municipal Committee.

(37) Optional Functions.--- A Municipal Committee may, and if required by Government shall undertake following functions:-- ' A. Public Health Promotion of Public Health. --- ' Subject to the provisions of this Act and the rules, a Municipal Committee may take such measures for promoting public health, including education, it health, as it considers necessary or as the case ..May be, Government directs.

(39) A Municipal Committee may--

(a) establish, maintain or manage or contribute towards the maintenance of health centers, maternity centers for the welfare of women, infants and children; and

(b) provide for the training of dais.

(40) Hospital and Dispensaries.--- A Municipal Committee may establish, maintain and mange, in the prescribed manner, such number of hospitals and dispensaries as may be necessary.

(41) Medical aid and relief medical education.--- A Municipal Committee may take such measure as may be necessary or as may be specified by the Government--

(a) the provision, maintenance and management of first aid centers;

(b) the provision, maintenance and management of mobile medical aid units;

(c) the provision and encouragement of societies for the medical aid;

(d) the promotion of medical education;

(e) the payment of grants to institutions for medical relief; and

(f) the medical inspection of school children.

(42) Environmental pollution.--- (1) A Municipal Committee may prepare and implement schemes for the prevention of the pollution of air by the gases, dust or other substances Exhausted or omitted by automobiles, engines, factories, brick or lime kilns, crushing machines for grinding stone, salt or other materials and such other sources of air pollution as the bye-laws may provide.

(2) A Municipal Committee may prepare and implement schemes for the prevention of the pollution of water or land from such sources and in such manner as the bye-laws may provide.

49. B-Dhobi. Ghats Ferries. Etc.

(43) (1) A Municipal Committee may, from time to time--

(a) set up suitable places for use by the public for bathing, for washing clothes or for drying clothes;

(b) Specify the time at which and the sex of persons by whom such places may Be used; and prohibit, by public notice, the use by the public for any of the said purposes of any places not so set apart.

(2) No personal shall establish, maintain or run Humam or a bath for public use except under a licence granted by the Municipal Committee, and in confirmity with the conditions and terms of such licence.

(44) Public Ghats.--- A Municipal Committee may provide. Dhobi Ghats and may by bye-laws regulate the use of Dhobi Ghats and levy fees for their use.

(45) Public water sources.--- (1) A Municipal Committee may with the previous sanction of the Government declare any source of water spring river, tank, pond or public stream or any part thereof within the municipality which is not private property to be a public water source.

(2) A Municipal Committee may in respect of any public water course provide such amenities, make such arrangements for life saving, execute such works and subject to the provisions of any law for the time being in force relating to irrigation, drainage and navigation regulate the use thereof as the bye-laws may provide.

50. 46(.1). A Municipal Committee may by bye-laws provide for the licensing of boats and other vessels, plying for hire in a public water course and may specify the terms and conditions for the grant of licences and the fees to be charged therefor.

(2) The Government may declare any part of the public water course to be a public ferry and entrust the management thereof to the Municipal Committee which shall manage and operate the public ferry in such manner and levy such tolls as may be necessary.

(47) 'A Municipal Committee may with the previous sanction of the Government, declare any public water course as public fishery and thereupon the right of fishing in such water course shall vest in the Municipal Committee' which may exercise such right in such manner as may be provided by bye-laws.

(48) Bye-laws for articles of food and drink.--- A Municipal Committee may by bye-laws:-

(a) prohibit the manufacture, sale or preparation or the exposure for sale, or any specified articles of food or drink in any place or premises not licensed by the Municipal Committee;

(b) prohibit the import into the municipality for sale or any specified articles of food or drink by person not so licensed;

(c) prohibit the hawking of specified articles of food and drink in such parts of the municipality as may be specified;

(d) regulate for the seizure and manner of transport within the municipality of any specified articles of food or drink;

(e) regulate the grant and withdrawal of licence under this section and the levying of fees therefor; or

(t) provide for the seizure and disposal of any animal, poultry or fish intended for food which is diseased or any article of food or drink which is noxious.

(49) Milk supply.--- (1) Except under a licence granted by the Municipal Committee and in conformity with conditions of such licence, no person shall, within the municipality keep milk cattle for the sale of milk, or sell milk or export or import milk for sale of manufacture of butter, ghee, or any other milk or dairy product, nor shall any premises be used for such purpose.

(2) A Municipal Committee may in the prescribed manner, and with the previous sanction of Government form and enforce a milk supply scheme which may among other matter provide for the establishment of milk men colonies, the prohibition of the keeping of milk cattle in the municipality or any part thereof and the adoption of such other measures as may be necessary for ensuring an adequate supply of pure milk to the public.

(50) Public markets.--- (1) A Municipal Committee may establish and maintain public markets or may provide places for use as public markets other than those meant for the disposal of farm produce, for the sale of articles of food and drink and of animals and secure the proper management and sanitation of such markets.

51. ' A Municipal Committee may in respect of public markets, provide by bye-laws:- ' the fees to be charged for the use of or, for the right to expose goods in the market; ' the fees to be levied on vehicles and animals bringing goods therein for sale; ' the fees to be charged for the use of shops, stalls pens or stamps; ' the fees to be charged in respect of animals brought for sale or sold; and ' the fees to be charged from broker, commission agents, weigh men and other person practising their calling therein.

52. ' D-Animal Husbandry.

(51) Animal Husbandry. --- (1) A Municipal Committee may provide for the establishment, maintenance and management of veterinary hospital and dispensaries and by bye-laws, regulate their working and fix the fees to be charged for treatment in such hospital and dispensaries;

(2) A Municipal Committee may by bye- laws define contagious diseases among animals and provide for measures that shall be adopted for prevention of the spread of such diseases including the compulsory inclusion of animals and the subject to such treatment as may be necessary of such animals as may be suspected to have been infected with carriers of any such disease.

(52) Animal homes and farms.--- (1) A Municipal Committee may with the previous approval of the Government establish, maintain and manage animals homes where subject to such terms and conditions and on the payment of such fees and other charges as the bye-laws may provide the animals of private persons may be kept.

53. 2) A Municipal Committee may with the previous approval of the Government establish, maintain and manage cattle forms and poultry farms and such farm shall be managed and administered in such manner as the bye-laws may provide.

(53) Registration of the sale of cattle.---A Municipal Committee may, by bye-laws, require that every sale of such of the animals as may be specified shall be registered with the Municipal Committee in such manner and subject to the payment of such fees as the bye-laws may provide.

(54) Livestock improvement.-- A Municipal Committee may, with the previous approval of the Government, frame and execute a livestock scheme, which may, among other matters provide that no person shall keep such animals above such age as may be specified unless they are castrated or are certified by competent authority to be fit for breeding.

(55) Cattle show, zoo etc.--- (1) A Municipal Committee may hold cattle shows and fairs within the limits of the municipality and charge such fees from the people attending such shows or fairs as the bye-laws may provide.

(2) A Municipal Committee may, with the previous approval of the Government, maintain or contribute towards the maintenance of zoological gardens.

54. E-Public Safety.

(56) Famine.-- In the event of a famine, a Municipal Committee may provide suitable places for the burial and burning of the dead, and shall take necessary measures for the people maintenance and administration of each burial and burning places.

(2) The Government may, by notification in the official Gazette, declare that any burial or burning place which is open to public for burial or burning, shall vest in Municipal Committee and thereupon such burial or burning place, shall vest in a Municipal Committee shall take all measures necessary for the proper maintenance and, administration thereof.

(3) A burial or burning place which is not administered by a Municipal Committee shall be registered with the Municipal Committee and shall be subjected to regulation, supervision and inspection by the Municipal Committee in such manner as the bye-laws may provide.

(4) No new burial or burning place shall be established within a municipality, except under a licence granted by the Municipal Committee and in conformity with the conditions of such licence.

55. F-Trees, Parks, Gardens And Forests.

(58) Gardens.--- (1) A Municipal Committee may lay-out and maintain Within the municipality such public gardens as may to necessary for the recreation and convenience of the public and such public gardens shall be maintained aid administered in such manner as the bye-laws may provide.

(2) For every public garden, there shall be framed and enforced, in the prescribed manner, a garden development plan, which shall provide for the development and improvement of the garden.

(59) Open space.--- A Municipal Committee may provide and maintain within the municipality such open spaces as may be necessary for the convenience of the public and such spaces shall be grassed, hedged, planted and equipped with such amenities and in such manner as the bye- laws may provide.

(60) Forests.--- A Municipal Committed may in the prescribed manner frame and enforce forest plans providing for the improvement, development and exploitation of forests and maintain, plant and work forests in accordance with such plan.

(61) Nuisances pertaining to trees and plantation.--- (1) A Municipal Committee may, by bye-laws, determine the posts of trees and plants and provide for their destruction

(2) If any land or premises, within a municipality is grown with rank or noxious vegetation or undergrowth, a Municipal Committee may by notice require the owner or occupier of such land or premises to clear such vegetation or undergrowth within a specified time and if he fails to do so such time the Municipal Committee may have such vegetation or undergrowth cleared and the cost incurred thereon by the Municipal Committee shall be deemed to be a tax levied on the owner or occupier under this Act.

(3) A Municipal Committee may in the manner provided in the bye-laws require the felling of any tree which is dangerous or the trimming of the branches of any tree which overhand or are likely to interfere with the traffic or are otherwise inconvenient.

(4) A Municipal Committee may in the manner provided in the bye-laws prohibit the cultivation of any crop which is considered dangerous to public health with such part of the municipality as may be specified.

(62) Tanks and low lying areas.--- A Municipal Committee may take such steps with regard to the excavation and re-excavation of tanks and the reclamation of low-lying areas as it thinks fit or as the case may be, Government directs.

56. ' G-Education.

(63) A Municipal Committee may:---

(a) construct, and maintain buildings to be used as hostels for students;

(b) give scholarship to deserving or specially bright students;

(c) provide for the training of teachers;

(d) promote adult education;

(e) provide schools books to orphans and indigent students free of cost or at concessional rates.

(f) maintain depots for the sale of school books and articles of stationery; and

(g) with the previous approval of Government:-

(i) promote and assist educational societies;

(ii) undertake educational survey and enforce educational plans;

(iii) provide, whether free of charge, or on payment milk or meals for school children.

57. ' H-Culture.

(64) A Municipal Committee may:-

(a) establish and maintain information centres for the furtherance of civic education and dissemination of information on such matters as community development and other matters of public interest;

(b) maintain radio and television sets at public places;

(c) organise museums, exhibitions and art galleries;

(d) provide and maintain public halls and community centres;

(e) celebrate the national occasions;

(f) encourage national and regional languages;

(g) promote physical culture and encourage public games and sports, organize rellies and tournaments;

(h) promote tours to the municipality and adopt measures for the preservation of the historical and indigenous characteristics of the municipality; and provide, promote or subsides facilities for the recreation of the public.

65. Libraries.--- A Municipal Committee may establish and maintain such public libraries, reading rooms and circulation libraries as may be necessary for the use of the public.

66. Fairs and shows etc.--- A Municipal Committee may make such arrangements on the occasion of any fair, show or public festivals within the municipality as may be necessary for the public health, public safety and public convenience, and may levy fees on the persons attending such fairs and shows.

(I) Social Welfare.

(67) Social Welfare.--- A Municipal Committee may--- (a)establish, manage and maintain welfare homes, asylums, orphanages, widow homes and other institutions for the relief of the distressed; (b)provide for the burial and burning of paupers found dead within the municipality at its own expense; (c)adopt such measures as may be prescribed for the prevention of beggary, prostitution, gambling, taking of injurious drugs and consumption of alcoholic liquor, juvenile, delinquency and other social evils; (d)organize social service volunteers; and (e)adopt such measures as may be prescribed for the promotion of the welfare of the backward classes, families of the person serving in Armed Forces and women and children.

(J) Municipal Police

(68) Municipal Police.--- (a) A Municipal Committee may, and if directed by Government, shall maintain such police force, to be known as Municipal Police, as may be necessary;

(2) The Municipal Police shall be a police force within the meaning of section 2 of the Police Act, 1861 and shall consists of such number of officers and men who shall receive such pay and allowances and shall be employed on such terms and conditions, as the Government, may, from time to time, determine;

(3) The Government may, not withstanding anything contained in the Police. Act, 1861, or in any other law, prescribe the duties which the Municipal Police may or may not be required to perform;

(4) Any officer or servant of a Municipal Committee when empowered in that behalf by a general or special order of the Government, may exercise the powers of a police officer for such purposes of this Act; as may be specified in such order.

(69) Additional functions.--- Nothing contained in this chapter shall preclude Municipal Committee to perform such functions as may be assigned to it by or under any other law.

(70) Development plans.--- Preparation and implementation of development plans.

(71) Sponsoring and promoting community development projects.

(72) Promotion, execution and implementation of commercial schemes."

58. ' The aforesaid Schedule is very comprehensive. All the functions of the Municipal Committees and Town Committees have been prescribed, in it. Important functions were assigned to the Municipal Committee. According to the said Fifth Schedule, the Municipal Committee is responsible for the sanitation of the municipal area. It has to take various steps for the sanitation of the municipal area. It is also the responsibility of the Municipal Committee to provide and maintain sufficient number of Public Latrines and Urinals at proper places for both the sex. It is most unfortunate that no step for the sanitation of the Municipal area has been taken. Neither any public Latrine or Urinal was provided by the Municipal Committee. Even there is no Public Latrine in the Courts premises.

59. The Municipal Committee has also to adopt necessary measures for preventing infectious diseases and to restrain infection within the municipality. The Municipal Committee has to maintain one or more hospitals for the reception and treatment of the persons suffering from the infectious diseases. It has to provide supply of water for public and private purposes. It has also to maintain the drains and sewerage system of the city. Another important function assigned to the Municipal Committee was the compulsory education. The Municipal Committee is responsible for the enforcement of compulsory education in the municipality and, has to adopt all such measures as may be necessary, to ensure that every child of school-going age in the municipality, attends a school recognized by the Municipal Committee. It has to, establish and maintain the public Libraries and Reading Rooms for the use of the public. The Municipal Committee has to provide parking places and control the environmental pollution. It has to provide suitable places for the burial of the dead and has to take necessary measures for the proper maintenance and administration of each burial place. The Municipal Committee has also to provide and maintain such open spaces as may be necessary for the convenience of the public and such spaces shall be grassed, hedged, planted and equipped with such amenities.

60. ' It is most unfortunate that the persons responsible for the smooth and proper functioning of the Municipal Committee, never heeded towards their basic functions. They did not even take any step for the most venerable function assigned to them, regarding the compulsory education, according to which it was necessary to ensure, that every child of school-going age in the municipality attends a school recognized by the Municipal Committee. It was also the basic duty of the Municipal Committee to establish and maintain Schools for the compulsory education of the.

61. School going children. It has also not taken any step for the control of the infectious diseases.

62. Neither any such hospital was established, nor any other steps were taken by it. It is also pertinent to note, that according to section 59, Fifth Schedule, it was the duty of the Committee to provide and maintain the open spaces with the green grass belts to the public for the general use, and for the environmental purposes, but it is most unfortunate that the persons responsible for the development of the open spaces, converted the open spaces into plots and even did not spare the open spaces left for the use of public-at-large.

63. ' The history of the Municipal Committee shows that the persons responsible for taking such steps, always remained after the plots just like "gromandized". Their main object was to create more and more plots, and to allot them to their favourits. In this way, they have spoiled the basic Master-plan of the city and made it ludicrous. Maugre of this, they could not quench their thirst. I would not like to hesitate from holding that the Municipal Committee is the engender of the revage of the beauty of the city because all the public parks and other open spaces of public utilities, have been converted into plots.

64. ' It is also pertinent to note that even the Municipal Committee did not leave any space for the burial of the dead. It is further pertinent to note that the population of the Municipal Committee, is thirsting for a drop of water and whole of the city, is facing the problem of water supply, but the Municipal Committee is not heeding towards its basic functions and is after the plots.

65. ' I, for my own satisfaction, summoned the original Master-plan of the city. It stultified me that new plots created by the Municipal Committee did not find any place in the Master-plan. No changes have been introduced in the Mater-plan, but on the spot, plots have been created and allotted by the Municipal Committee. The Municipal Committee was not, at all, competent to modify the Master-plan and create new plots. It is most unfortunate that no change has been shown in the Master :plan, but on the spot, the plots have been created and allotted to various persons.

66. ' As the contention of the learned Counsel for non-petitioners is concerned that according to sections 23 and 24 of Fifth Schedule, the Committee was competent to create new plots, has no substance for the following reasons:-- ' Section 23 of the said Schedule clearly conveys, that the Municipal Committee shall draw a Master-plan for the Municipality which shall contain the survey of the municipality including its history, statistics, public services and other particulars rather this provision contained that the Master-plan shall provide the items mentioned in the aforesaid provision.

67. ' Section 24 of the aforesaid Schedule deals with the Site Development Schemes. It contained that where a Master-plan has been approved without any modification by the Government, then, no owner of the land shall develop the sites or erect or re-erect a building on any plot or land covered by the Master-plan, except in conformity with the provisions of a site Development Scheme sanctioned. Section 24(3) contained that among other matters, a site Development scheme shall provide for---

(a) the division of the site into plots;

(b) the streets, drains and open spaces to be provided;

(c) the land to be reserved for public utility services and to be transferred to Municipal Committee;

(d) the land to be acquired by the Municipal Committee;

(e) the work shall be executed at the cost of the owner of the site;

(t) the period during which the area shall be developed.

68. ' Section 24(3) contained that the Site Development Scheme shall include the division of site into plots, streets, drainages and open spaces. It suggests that the site development scheme shall consist of various plots including the streets, drainages, open spaces and the land reserved for public utilities rather it pertains to the creation of a new particular Sector. It amounts to a Sector- plan. It does not only deal with the creation of few plots, but pertains to comprehensive scheme consisting of a new Sector. While, in the instant case, no such scheme was prepared but only three plots were created, so, it does not amount to Site Development Scheme.

69. ' Assuming for the sake of arguments, that it would have been provided in the Fifth Schedule, that the Municipal Committee could create the new plots, even then, the Municipal Committee was not competent to create new plots, because the proviso of section 61 of the Local Government Act, contained that the Municipal Committee shall not create new plots. As stated earlier that a proviso shall have overriding effect on the other inconsistent provisions of law, so in the presence of this proviso, the Municipal Committee was not competent to create plots in the open spaces, The Municipal Committee was not, at all, competent to create new plots. In the instant case, the Municipal Committee has created the aforesaid three plots, without any lawful authority.

70. ' It is pertinent to note that the Notification dated 14-2-1985 whereby various' sectors were transferred to the Municipal Committee, also lends support to the fact that the Municipal Committee was not competent to create plots, because it contained that the developmental works/schemes like Master-planning,. The Greater Water Supply Scheme and renovation of sewerage and water supply would be executed by the Mirpur Development Authority. For having true perception, I would like to reproduce relevant para. 1(c) of the said Notification which reads as under:-- "1(c) The developmental works/ schemes like Master planning, the Greater Water Supply Schemes and renovation of sewerage and water supply would be executed by the M.D.A. The tendered developmental works shall be executed by the M.D.A. All other developmental activities in future, will be undertaken by the Municipal Committee except in the areas mentioned vide 1(a) above."

71. ' It is, thus, clear that the developmental works/schemes like Master Planning would be executed by the Mirpur Development Authority. When the Master planning would be executed by the M.D.A., then, the Municipal Committee was, not, at all, competent to deal with the Master planning. The Municipal Committee has no concern with it.

72. ' It is well-settled principle of law that the Rules and Regulations derogatory to the basic Act, are nullity in the eye of law, so, the Regulations which contained that the Municipal Committee may create plots in the open spaces and rejected area, are derogatory to the basic Act and nullity) in the eye of law.. It also flabbergasts me that the Special Regulations for the development and disposal of Estate Rules, 1985, have been enacted under section 82/I, of the Local Government Ordinance, 1985 which was subsequently converted into Act, 1990.

73. ' Section 3 of the Special Regulations contained that Committee shall be competent to develop, subject to the provisions of Local Government Ordinance, any piece of land or any other property vesting in it, for which a suitable Physical Planning and Housing Scheme shall be prepared and approved by the Committee. According to this rule, the Committee was competent to develop any piece of land and prepare a Housing Scheme, but this provision was also "subject to the provision of Local Government Ordinance." Section 61 of the Local Government Act, contained (i) that the Municipal Committee shall not create any new plot; and (ii) deviate/encroach upon the limits laid down by the Master-plan. When, under the aforesaid Act, 1990, an embargo was placed upon the Committee, then, how the Committee was competent to prepare a Housing Scheme on any piece of land. The Housing Scheme could only be prepared after the creation of plots, therefore, this Rule 3 of the aforesaid Regulations, is derogatory to the basic Act, and nullity in the eye of law.

74. ' Section 4 of the aforesaid Regulations contained that a residential estate shall comprise of plots of different sizes for the construction of houses. It also contained that any land marked as open space in the site drawing or any rejected place, may be developed by the Committee as residential or commercial plots or be utilized for the purpose of raising kitchen garden, fruit garden, green belts or ars other purposes, for which the Committee may determine necessary terms and conditions.

75. ' On the one hand, the Act contained that the Municipal Committee shall not create any new plot and deviate/encroach upon the limits laid down in the Master-plan, while the Regulations contained that is the Municipal Committee may create plots in the open spaces and rejected areas. Thus, this Regulations is repugnant to the basic Act, under which it was framed 7,1en a particular area was shown in the Master-plan as space, open space or rejected area, then, how, the Municipal Committee was competent to create plots in that area There was a clear restriction upon the Municipal Committee, that it shall not deviate from the limits laid down in the Master- plan. The creation of any plot in the area shown in the Master-plan, as a space, open space or rejected area, amounts to deviation from the limits laid down in the Master-plan, therefore, this Regulations is also derogatory to the basic, Act, so, it is nullity in the eye of law. The Municipal Committee had no jurisdiction to create new plots. All the creation of the plots and their allotment by the Municipal Committee after the transfer of the Sectors to it, is without lawful authority and it amounts to the deviation of the limits laid down in the Master-plan.

76. ' It would also not be out of place to mention here that when the Special Regulations Nos.3 and 4 were repugnant to the basic Act, under which, they were framed, then, how the plots could be allotted according to the proportion prescribed under Regulation No,9(2)?

77. ' According to the aforesaid Regulations, firstly, the Housing Scheme shall be prepared. After the preparation of the Housing Scheme, the plots shall be allotted according to the proportionate prescribed under Regulation No,9(2). If the Municipal Committee is not competent to prepare the Housing Scheme, as stated above, then, how the plots could be allotted according to the proportionate prescribed under Regulation No,9(2). Thus, the Municipal Committee had no power to allot the plots. It is also held that the Regulation No,9(2) is also in conflict with the basic Act and is nullity in the eye of law. The Municipal Committee has no power to allot the plots according to the proportion prescribed in Regulation No,9(2). Thus, there was no quota of the Prime Minister within the municipal limits as provided under Regulation No,9(2).

78. ' Assuming for the sake of arguments that Regulations were not contrary to the basic Act, even then, the Sector F-1 was created and allotted much earlier before the enforcement of the present Special Regulations, 1985, the us, the Prime Minister had no quota in Sector F-1, Mirpur. Even, according to these Regulations, the quota of the Prime Minister was only in those Sectors which were created after the enforcement of the aforesaid Regulations, 1985.

79. ' Let us assume for the sake of arguments that the Regulations were not derogatory, even then, a comprehensive scheme was provided, under the said Regulations. According to Regulation No,3, the Municipal Committee has to prepare a Housing Scheme, while Regulation No,4, contained that a residential estate shall comprise of plots of different sizes for the construction of the houses together with the public amenities like Parks, open spaces, Dispensaries, Mosques, etc. It clearly conveys the establishment of a new Sector. Regulation No,6 pertains to the disposal of the plots or farms in any estate. According to this Regulation, the Municipal Committee shall dispose of the plots by allotment after obtaining applications from the persons desirous of such allotment.

80. Regulation No,7 contained that the Municipal Committee shall invite applications within the specified period for the allotment of the plots. Regulation No,8 pertains to the procedure for the allotment of the plots. Regulation No,8 pertains to the procedure for the allotment. According to this Regulations, on the receipt of the applications, a list of the applicants shall be prepared and affixed on the Notice-board. The Allotment Committee shall scrutinize the applications for eliminating the non-deserving persons. The applications of the non-deserving persons shall be rejected and notified. After scrutiny, the plots shall be allotted to the eligible persons in the proportionate as provided in Regulation No,9(2). According to the proportionate prescribed in the said Regulation No,9(2), sixty per cent of total plots shall be allotted to the Mangla Dam affected persons, five per cent to the domiciled of Mirpur District, five per cent to the Azad Jammu and Kashmir Nationals, five per cent to the professionals like Doctor, Lawyers etc; and twenty five per cent was reserved for the quota of Prime Minister. For having true perception, I would like to reproduce Regulations Nos.3 to 9 which are as under:-

3. Development of Estate. ---(1) The committee shall be competent to develop subject to the provision of Local Government Ordinance, any piece of land or any other property vesting in it, for which a suitable physical planning and housing scheme shall be prepared and approved by the committee. Any subsequent change in such a scheme shall also be approved by the Committee which may include the change of land use for parks, open spaces, residential as well as commercial plots or commercial/ resendential plots etc. Which does not effect the sanctioned Master-Plan.

(2) For developing any estate, the committee may prepare a mini development scheme for obtaining development grants from the Government or any sponsor, a Limited Company, Cooperative Society registered under the law, for raising funds for developing any estate, or may adopt any other method for creating funds for development of such estate.

(3) For developing and improvement of any existing Abadi or locality the committee may prepare an area development scheme, and impose development costs on the beneficiaries, in order to meet development expenses with previous sanction of the Government.

(4) No other person or agency shall develop any estate within specified areas except with the prior permission of the committee and subject to such terms and conditions as may be imposed by the Committee under the Local Government Ordinance.

4. Requirements for Estate. --(1) A residential estate shall comprise of plots of different sizes for construction houses together with public amenities like parks, open spaces, school, Dispensaries, Mosques, Markets, Clubs etc. Suitable provision for roads, Water supply, Sewerage, Electricity etc. Shall also be provided.

(2) Commercial and Industrial Estate may comprise of plots of different sizes for carrying on different commercial activities and establishing of different industries thereon with other facilities necessary for such commercial and Industrial purposes.

(3) Agricultural Estate and comprise of farms of suitable size approved for vegetable farming, dairy farming, fruit gardens and roads and irrigation facilities. These may include the provisions for Cold Storage, Ware houses and marketing facilities wherever necessary: ' Provided that an "Awkward" piece of land may be disposed of by the Allotment Committee, by allowing it to be merged into the adjoining plots/farms etc. On such terms and conditions as may be determined by it, or it may be utilized by the Committee in any other manner; ' Provided further that any land marked as open space in the site drawings or any rejected place may be developed by the Committee as residential or commercial plots or be utilized for the purpose of raising kitchen gardens, fruit gardens, green belts or any other purpose, for which the Committee, may determine necessary terms and conditions.

5. Fixation of Price or Premium. ---The price of any plot or farm in any estate or premium/rent in respect thereof shall be determined by the Committee after taking into consideration the acquisitional cost of land, development expenses and other service charges. If necessary, the committee may fix initially a provisional price or premium subject to further payments of development charges from time to time.

6. Disposal of Plots/Farms.---(1) The plots of farms in any estate may be disposed of by the allotment committee in any one of the following methods;

(a) By allotment after inviting applications from person desirous for such allotments;

(b) by public auction of plots/farms;

(c) by lease for a fixed term of years, extendable up to ninety-nine years.

(2) In deciding upon the mode of disposal, the allotment Committee may take into consideration the development costs of an estate, the source of development, the nature and location of plots and such other relevant facts as committee may deem fit.

(3) The allotment Committee may also follow the directives given by the Government in connection with the disposal of plots etc.

7. Notice inviting applications for allotment.---(1) Whenever the plots/farms are to be disposed of through allotment, a notice giving sufficient particulars of plots/farms inviting applications within a specified period shall be issued by the Committee, and given wide publicity, such period may be extended by the Committee.

(2) The Committee may prescribe application forms obtainable on payment of Rs,10 from the office of the Committee.

(3) The Committee may issue a brouchor giving details/sizes of plots/farms, prices, premium, rental detailed etc. And other terms and conditions of allotment.

81. 8.. Procedure for allotment.---(1) (a) On receipt of applications a list shall be prepared and affixed on notice board;

(b) The allotment committee shall cause scrutiny of these applications to eliminate non-deserving applications and to determine priority-wise to which a particular applicant belongs. List of those applications, category-wise will be prepared and placed on Notice-board. The list of non- deserving applications with reasons for rejection shall be notified;

(c) After scrutinizing, the eligible applicants shall be given plots by drawing of lots in proportion approved vide Regulation 9(2).

(d) eligibility for applying for allotment of plots;

(i) applicant must belong to any one of the, categories given in Regulation No,9(2) of these regulations.

(ii) Applicant must be major/independent;

(iii) applicant or head of his family have not been allotted any residential or commercial plot of more than 5 Marlas as the case may be, in Mirpur Town, or hamlets including those disposed of;

(iv) for residential plots, the applicant or head of the family or any of his dependent have not been allotted any residential WAPDA Quarter/ Bungalow.

(2) The procedure laid down in Rule 8 sub-rules clauses (a) to (d) (i-iv) shall not be applicable in case of allotment/regularization of the awkward land and the Chairman of the Committee shall be empowered for the disposal of such case on its merits.

9. Policy Directive for allotment.---(1) The allotment Committee may and when so directed by the Government shall issue from time to time, policy directive indicating the order of preference for making allotments to different applicants and other guidelines for ensuring homogeneous, social, cultural and civic environment while making allotments;

(2) Without prejudice to the generality of clause (1), the order of preference for applicants and the shape of different categories of applicants in Mirpur Town shall be as under:-

(i) Mangla Dam affected persons and their sons...60% ' Provided that the affected person defined in the Regulations may be given priority in allotment and the balance of the plots, if any, will be allotted to their deserving sons who are heads of their independent families.

82. ' Provided further that for the purpose of price, the sons of the affected persons shall be deemed to be non affected;

(ii) Residents (Domicile) of Mirpur district; and .... 5%

(iii) Other than categories (i) and (ii) above (including professionals groups like Lawyers, Doctors, Journalists and Engineers etc ....5 %

(iv) Janunu and Kashmir Nationals....5%

(v) Special quota reserve for Prime Minister ....25% ' According to the aforesaid Regulations, the plots were to be allotted according to the proportion provided in Regulation No,9(2) to the eligible persons as provided in Regulation No,8(1)(c).

83. Regulation No,8(1)(c) contained that the plots shall be allotted to the eligible persons in the proportion approved vide Regulation No,9(2). Thus, it is crystal clear that even the Prime Minister was only competent to allot the plots to the persons declared eligible for allotment under Regulation 8(1)(c). The Prime Minister had no jurisdiction and power to entertain applications directly and order for their allotment. The Prime Minister was only competent to allot the plots to the persons who have moved the applications before the Allotment Committee, and have been declared eligible for the allotment of the plots, by the Allotment Committee. In the instant case, the Prime Minister directly entertained the applications from the non-petitioners Nos.5 to 7, allotted the plots to them, without any lawful authority.

84. ' It is pertinent to note that according to the scheme provided in the Special Regulations, first the scheme was to be prepared by the Committee under the said Special Regulation No,3, then, the applications were to be invited and finally, the plots were to be allotted according to the proportionate provided in Regulation No,9(2), but in the instant case, the Prime Minister first passed an order for the allotment and subsequently, the plots were created and allotted. It is preposterous.

85. ' While considering the case from another angle, it is noted that in the instant case, the Prime Minister never ordered that the plots may be allotted to the non-petitioners Nos.5 and 6 from his quota. In case of non-petitioner No,7, the Prime Minister ordered for certain plots, but those plots were not allotted to him, while for non-,petitioner No,7, the Prime Minister passed a conditional order that if Plot No,150-A situated in Sector F-1 is allotted to him by the M.D.A., then, the same may be allotted to him, while the plot from the quota of the Prime Minister was allotted to him.

86. ' As the contention of the learned counsel for the non-petitioners Nos.5 to 7 is concerned that the petitioner was not aggrieved person, and has no right to challenge the allotment, has no substance for the following reasons:-- It is not necessary that person invoking the writ jurisdiction should have a juristic right. It is sufficient if he successfully establishes that he has an existing right to challenge the order which is illegal and adversely affects his rights whatever they may be. This view finds support from the Judgment of Supreme Court Azad Jammu and Kashmir titled "Ajaib Hussain and another v. Muhammad Fazil and others, reported in CLC 1980 SC (AJ&K) page 198 which reads as under:--- "The learned counsel seems to be labouring under misconception only a person whose vested right have been directly invaded by an action, can be termed as an aggrieved person. But in our view, it is not necessary that a person invoking writ jurisdiction should have a juristic rights. It is sufficient if he successfully establishes that he has an existing right to assail an order which is illegal and adversely affects his rights whatever they may be."

87. ' In the instant case, the petitioner is resident of F-1, Mirpur City. The plots were created on the space which was left for the inhabitants of Sector F-1. The price of whole of the land of Sector F-1 was charged from all the allottees of Sector F-1 as is vivid from the Judgment of the Supreme Court reported in CLC 1980 SC (AJ&K) 198, therefore, the petitioner has every right to challenge the creation of new plots in any space left for the inhabitants of that sector.

88. ' As the contention of the learned counsel for the petitioner is concerned that in 1996, it was certified by the Municipal Committee that Plot No,125-B was not tevised, while on the other hand, it was subsequently shown revised in 1993. In this respect, a verification was placed on the record whereby it was certified in 1996 that this plot was not revised but subsequently this plot was shown revised in 1993 which is most unfortunate. It clearly conveys that subsequently, in back date the revising was shown.

89. ' Even otherwise, when the Municipal Committee had no jurisdiction to create and allot the plots, then, the revising is immaterial. A Revising Committee could only be constituted if the Municipal Committee had the jurisdiction to create and allot the plots. Only the legal acts could be revised.

90. Thus, the constitution of the Revising Committee, was also illegal and without lawful authority.

91. ' Before parting with the case, I hope that in future, the Municipal Committee shall divert its attention towards the development of the city, and shall not indulge in the creation of new plots and their allotment. The Committee shall be the engender of the beauty and healthy atmosphere of the municipality instead of the ravage and debacle of the basic Master-plan of the city.

92. ' It also could not be ignored that the plots allotted to the non-petitioners Nos.5 to 7 have been transferred to the remaining non-petitioners. They have paid the prices of the plots. When the basic allotment of the non-petitioners Nos.5 to 7 is without jurisdiction and is cancelled, then, the remaining non-petitioners who have purchased the same, shall suffer a substantial loss. They will suffer due to the acts of the officials of the Municipal Committee/Corporation who created and allotted plots, without any lawful authority and jurisdiction, therefore, they have every right to claim the money paid by them along with the damages etc. From the authorities who made such orders of the allotment which were the engender of their financial loss and mental torture.

93. ' The upshot of the above discussion is that this writ petition is accepted, the creation of Plots Nos.125-A, 125-B and 125-C in Sub-Sector F-1, Mirpur, Azad Kashmir, their allotments, revising in favour of non-petitioners Nos.5, 6 and 7 and subsequent transfers are hereby declared to be without lawful authority.