J&K Municipal Corporation Act, 2000: An Analysis of following
Provisions.
1. Functions of Corporation
2.
Building Regulations
3. Building
Procedures, Powers and Penalties.
4. Appointment and functions of Commissioner.
1. Functions of the ‘Municipal Corporation’
A municipal corporation/committee can be defined as an autonomous,
or a self-government institution constituted for the purposes of regulation of
local affairs, either in cities or in towns. In J&K, there are two
Municipal Corporations (one each in Jammu & Srinagar). And as many as 20 Municipal Committees (one each in every district). Both Corporations and Committees have
been constituted under Section 3 of the Municipal Corporation Act, 2000, and have
been assigned a number of functions, which can be categorized into the following—
a.
General Functions/Powers. (Section 41)
b.
Obligatory functions. (Section 43)
c.
Functions entrusted by Governments. (Section 42), and
d.
Discretionary functions of the Corporation. (Section 44)
a. a. General Powers/Functions.
According to Section 41 of the MCA, 2000— a municipal area is
entrusted to the Corporation, or a Committee, which has been constituted for
it. In other words, it means, every Corporation/Committee is responsible to
manage to the local area, which comes under it. For instance, ‘Srinagar’ is
under Srinagar Municipal Corporation; ‘Kulgam’ is under Kulgam Municipal
Committee and similarly every District/city falls under its respective
Committee/Corporation[1].
These bodies are duty-bound to take decisions and pass the resolutions, in
relation to the financial, as well as other important matters.[2]
Obligatory functions
are the functions, which are compulsory, binding, or incumbent in the convention. These
functions, as a matter of obligation, are necessary to be discharged by
Committees/Corporations. In case of failure, a corporation can be held
responsible. Section 43 of the Act deals with such functions. It imposes a
number of ‘obligations’ on the Corporation to fulfil its role. In this regard, the corporation/committee may take suitable measures to—
1. Construct
and maintain the drainage system, including public toilets and other similar
facilities. Apart from this the body is also responsible for the construction,
maintenance and providing of water supply in its vicinity.
1. Construct
and maintain the drainage system, including public toilets and other similar
facilities. Apart from this the body is also responsible for the construction,
maintenance and providing of water supply in its vicinity.
2.
Keep its
localities healthy, and remove filthy, rubbish or other obnoxious material,
which may cause pollution or annoyance. In this regard, measures can be
taken to prevent the spread of diseases.
3.
Construct
and maintain the cattle pounding.
4.
Regulate
and maintain the dedicated sites, which are meant for the burial/disposal of
the dead bodies.
5.
Construct,
maintain and regulate the Municipal Markets, in a way to prevent the dangerous,
as well as offensive trade practices.
6.
Build,
maintain and regularly improve the roads, bridges, paths, and etcetera. Apart
from this, the corporation has to assure that there’s no obstruction on such
places, which might cause inconvenience to the public in general. Streets and
other premises need to be ‘named and numbered’. Moreover, they also have to
maintain the municipal offices, and secure such sites, which may be dangerous
to access.
7.
Regulate,
and upkeep the recreational places, e.g., public parks, gardens etc.
8.
Preserve,
protect and develop the ‘monuments, memorials and other valuable properties,
which have been entrusted to their management. For this purpose, the committee has
to ensure the survey of the buildings, and lands falling within its area.
9.
Implant
trees for ‘roadside greenery’, and fulfil such obligations, which may be
entrusted to their management from time to time.
As already stated in
Section 41 of the Act, a municipal corporation/committee is ‘wholly and solely’
responsible for the management of the affairs of a particular locality. Section
42(1), however, authorizes the Government to entrust the corporation with the
powers, which they deem necessary for its ‘local self-governance. The
expression ‘entrust’ means ‘to confer trust’, or ‘to deliver something in
trust’. Hence, whatever functions are ‘notified to the corporation’, must
be delivered efficiently, and without any compromise. The committee may be asked
to—
1.
Prepare and
present an extensive plan in relation to the economic development, and social
justice.
2.
Carryout
their functions actively, and ensure the implementation
of different schemes in relation to…
a.
The
regulation of ‘use of land’, ‘construction of buildings, roads, and bridges’.
b.
The ‘economic
and social development’ of locale.
c.
The ‘supply
of water (industrial and domestic)’, ‘public health’, ‘sanitation or ‘solid
waste management’, and ‘up gradation’ as well as ‘improvement of slums’.
d.
The preservation,
protection, and promotion of environment including ‘ecological aspects of
environment’ including ‘urban forestry’.
e.
The
‘alleviation of poor in urban areas’ including the ‘interests of weaker
sections, handicapped and mentally retarded’.
f.
The
dedicated sites, e.g., ‘burial grounds/sites, cremation grounds (centres)’, and
‘urban amenities’ like public parks, gardens or play-grounds, and ‘street
lighting’, ‘bus stops’, ‘public conveniences’ etcetera.
g.
The ‘cattle
pounding’, ‘slaughter houses’, ‘tanneries’, and ‘prevention of cruelty to animals’.
h.
The
‘registration of births, deaths, and other important statistics’.
According
to a proviso added to Section 42(1), the government had to issue a notification in
relation to the above matters within three months of the implementation of the
Municipal Corporation Act, 2000. The said enactment has already come into force
in the year 2000. Subsequently, per clause (2) of this section, once powers/functions
have been vested to the corporation— it shall not be interpreted as to take away the other functions, given
under different laws.
d.
Discretionary functions.
The expression ‘discretionary’ may be defined as ‘a state of
having or using the ability to act or decide according to one’s own will,
discretion or judgement’.
In other words, it means that the functions given under Section 44
are arbitrary in nature. In case corporation fails to accompli in discharge of its functions, it cannot be deemed to be
in fault. Besides, these functions are generally falling under the ambit of
other departments, but owing to their vitality corporation can take a due care
at times. Following are the matters, in which corporation may exercise its
discretion—
1.
It may work
for the development of education in general, and for ‘cultural and physical’
education in particular. In order to achieve this goal, it may establish and
maintain aid— to develop libraries, museums, or art galleries, botanical
gardens, and zoological collections.
2.
Similarly,
it may set an aid, and maintain it to regulate different stadiums, gymnasia,
akharas (traditional wrestling clubs) and other places of such importance like—
swimming pools, bathing places, and public washhouses.
3.
It may
build up facilities for civic reception for the persons of higher distinction.
Apart from this, it can also provide for the establishment of different
theatres/cinemas in public places, or resorts, fairs and exhibitions.
4.
The corporation may also work for the construction and maintenance of rest houses
and shelter homes for the poor and destitute. Or, houses for vulnerable groups
like— children, deaf and dumb, handicapped and disabled, or mental asylums. The corporation may arrange the housing for inhabitants of any area, including its
own.
5.
It has a
discretion/power to work for the welfare and betterment of its officers, and
employees. In relation to that— dwelling houses may be constructed, and
maintained; including the sanctioning of loans, and purchase of vehicles.
6.
Corporation
may go on organising the management of different bacteriological/chemical
laboratories for the purposes of examining foods, drugs and water.
Subsequently, it may also make different kinds of provisions for the relief of
destitute, or disabled persons.
7.
It may also
undertake the task of vaccination and inoculation for the purposes of public
health. The establishment of hospitals; dispensaries and other welfare,
including maternity wards for public medical relief.
8.
It has a
power to organize, and manage different dairies, farms both in and outside the
jurisdiction for the supply and procession of milk etcetera. It can construct,
and maintain the cottage industries, handicrafts, sales emporium, or warehouses
go-downs, sheds, garages, stables as well as vehicle stands.
9.
It may
create provisions for filtered water supply, development of the municipal area, and
approve schemes for that.
10. It can undertake other such measures too which aren’t mentioned
here, but are necessary for the convenience of the public, and are related to
public safety, health or welfare.
2.
Building Regulation
2.
Building Regulation
Chapter fourteenth of the MCA, 2000
deals with the building regulations. It consists of Section 242-260
provisions—
242. Prohibition of erection of building without sanction.
It lays down an explicit law by prohibiting the construction and
erection of any building, including the works given in Section 244. However, as
per the exception given within this rule, a person having a proper sanction of
the Commissioner under the law of land may be allowed to execute or erect any
building or construction work.
243. Erection of building.
Per provisions of this Section, if a person wants to construct a
house or building, he must get a sanction first. In order to get that sanction,
he needs to file an application and fulfil the form to provide the required
information. Apart from this, he has to submit the documents— which carry the
plan and other specifications signed by a qualified civil engineer.
Every
person who wants to execute the work related to the following matters has to file
an application before the Municipal Corporation to get the sanction.
a) To
make any additions to a building or to make alterations or repairs involving the
removal or re-erecting of any partition or wall, supporting the roof or
exceeding ½ of the plinth level.
b) To
make any alteration in any room(s) involving the subdivision of any room or
their conversion; or the repairing, removal or construction on a street close
to the building; closing or opening or any window or door and the removal of
staircase(s).
In
order to do such work the application must contain the documents having the
plan to be executed.
2.1. Sanitation and Public Health
Chapter
XV deals with the obligation of the Municipal Committee/ Corporation in
relation to the following matters:
a) Daily
cleansing of streets of rubbish and filth (S-261).
b) Placement
of depots, containers, holders and places for rubbish, garbage and other
polluted matter (S-262).
c) Removal
of garbage and other wastage by collected or gathered on the premises of
factories or workshops (S-265)
d) The
Commissioner may ask the owner or occupier of such premises to collect all such
garbage and other polluted matter and transport that by such routes as may be
specified. They may also prohibit such occupiers or owners under section 266 to
accumulate such rubbish, filth or polluted matter for more than 20 hours.
Simultaneously, no owner or occupier should be allowed to throw or run down the
waste into the drain or street except in the manner provided(S-266).
e) Scavenging
and cleansing of filthy or unwholesome premises, streets or places(S-267).
Commissioner has the power to order for the scavenging and cleansing of such
places wherein the occupier fails to do that and may recover the expenses as
the arrear of tax. He may order for the construction of public convenience
places based on separate compartments as per gender.
Besides, this chapter also provides for the following facilities in relation to
the construction of new buildings or houses and works,
a) Water
flush latrines along with urinals on each floor and as per gender (S-269-270)
b) In
case of tenants and separate accommodation for servants, same facilities should
be provided(S- 271)
c) Latrines
and urinals for markets and other public places as per the description and
number(S-277)
d) In
case of private accommodations, Commissioner may write for the construction and
maintenance of the same facilities in case not built already (S-273).
e) Commissioner may order for the vacation of
such premises which are not provided with sufficient accommodation for
convenience.
f) Removal
of congested buildings, (S-274) — if MC is satisfied that some buildings or
residential houses cause crowdedness and aren’t having proper ventilation or
drainage. They may issue an order of removal of such buildings, however, after
an inspection by the Corporation Health Officer is made.
g) Improvement
of buildings unfit for human habitation, (Ss-275, 276 and 277). In case upon
any information, Commissioner is satisfied that certain area or buildings
aren’t suitable for the living purposes, he may order for the repairs or
constructions in such buildings. In case, a person possessing such premises
fails to do so within a specified period of time, same will be done by the MC,
at the cost of the owner. Commissioner may, under Section 277, cause the demolition
of such buildings too.
Test
for declaring a building unfit for human accommodation, or habitation:
It has been laid down Section 277, and states that following matters should be
given a due regard for the purposes of fitness-
·
Repair;
·
Stability;
·
Freedom from damp;
·
Natural light and air;
·
Water supply;
·
Drainage and sanitary conveniences;
·
Facilities
for storage, preparation and cooking of
food and for the disposal of rubbish, filth and other polluted matter; and
·
the
building be deemed to be unfit as aforesaid if and only if it is so defective in one or
more of the said matters that it is not reasonably suitable for occupation
in that condition.
An
explanation appended to Section 277 states that “work of improvement” shall be
construed to include—
·
Necessary repairs;
·
Structural alterations;
·
Provision of light points and water taps;
·
Construction of drains, open or covered;
·
Provision of latrines and urinals;
·
Provision of additional or improved fixtures and fittings;
·
Opening up or paving of courtyard;
·
Removal of rubbish, filth and others, and
·
Any other
work including the demolition of any building
or any part thereof which, in the opinion of the Commissioner is necessary for
executing any of the works specified above.
3. Powers,
Procedure, Offences and Penalties
*
For the purposes of
ascertaining any contravention of the provisions in connection to any building
or land.
*
For the purposes of
ascertaining any contravention of the provisions in connection to any building
or land.
*
For the purpose of ascertaining
the circumstances to authorize any action.
*
For the purpose of
executing any work or to make any examination measurement, valuation and
survey.
*
For the purposes of
inspecting any land, adjacent to the land of work under section 358 to
authorize the owner for necessary amendments.
b) Similarly
Commissioner has the power to enter a land adjacent to land in relation to work
and can order amendments like building a wall etc. In doing so minimum damage
should be done and it should be compensated.
c) In case of any
emergency, according to Sec-359, Municipal
Commissioner may consider a case for breaking into a building by breaking the
tools of input. However, minimum damage should be sustained and entry must be
made in presence of two witnesses and a report should be made in this regard.
The entry to the house must be made in
the daytime between sunrise and sunset (S-360). However, under S-361,
Commissioner is duty-bound to seek the consent of entering into the premises
and a notice of twenty-four hours must be given to seeking the consent. According
to the proviso of this section, no such consent would be required in case there
is an apprehension that there is an animal is slaughtered in any shed, latrine,
and urinal or in any under-construction building. Sec- 362, due regard has to
be given to the social or religious places or the buildings having the female
occupancy
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Municipal Authorities under the Corporation
1. Appointment
of Commissioner: According to Section 45,
Chapter IV of the MCA, 2000 government is authorised to appoint any officer of
class I category as a Commissioner of Corporation. He should be appointed for a
tenure of 15 years but should have a 3 years term at the very outset. It
further states that government may require his appearance in some special
meetings, however, for that purpose a resolution needs to be passed first.
2. Functions
of the Commissioner: Per provisions of chapter
IV, Section 50, a commissioner shall discharge the functions under this Act as
well as of the others too. He must—
·
Exercise all the powers and
discharge all the duties specially conferred or imposed by this Act or by any
other law for the time being in force;
·
Prescribe the duties of and
exercise supervision and control over Corporation officers and other Corporation
employees.
·
He should dispose of all
questions relating to the service of the said officers and other employees and
their pay, privileges, allowances and other conditions of service;
·
On the occurrence of an accident,
unforeseen event or natural calamity involving or likely to involve extensive
damages to any property of the Corporation or danger to human life— take
immediate action in consultation with the Mayor.
·
Bring to the notice of the
Corporation any act or resolution of the Corporation which may be in violation
of any Government instructions or the provisions of this Act. If he fails to do
so, he’ll be subject to violation and omission.
[1] Section 41 (1)
[2] Section 41 (2)
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