J&K Municipal Corporation Act, 2000

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]

b.      Obligatory functions.

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.

 c.       Functions entrusted by Governments.

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.

 244: Application for making repairs and additions of the building.

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

 a)      Power to entry and inspection: According to sec 357, Commissioner has a power to enter into any building for the purpose of inspection, or may empower any employee:

*        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. 

 

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[1] Section 41 (1)

[2] Section 41 (2)

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An Unlike Discourse of an Expert

Words possess a power. They can make and break a person, particularly, when they flow by the side of an expert. Yes. That’s why we love to listen to the renowned personalities. Their experiences provide us a boost at the time of our self-dejection. And, their footprints convince us to appreciate hard work for higher goals.  

But, to this dismay. I experienced something adverse, just recently, when I participated in a week-long workshop at Kashmir University. There I listened to a well famed Advocate and expert of Valley. I always loved to attend the gatherings of this influential speaker, wherever he would speak. He would admire me in terms of his mark as an advocate. However, attending his discourse, this time, was like a ‘horrible nightmare’. It left me distressed and disappointed. Yet, I learned a lot, though negative, by this time. I still cannot rub it out of my mind. What was a session devoted to Article 35A of Constitution of India, turned out to be something inexplicable.

Hitherto, I knew this expert as a ‘motivational speaker’, but in that session I found him as a person who does everything to beat you. ‘Audience attending him were told to come prepared on the issue’. Yet most of them didn’t come so. True it is. Then, those who spoke were made to realise their bleak future. Perhaps he’s a habit of wining. Or, the audience (students) out there hadn’t prepared well on the issue. However, does that infer, he’d beat hell out of every such person who forwarded an argument. Experience says, ‘Experts listen to your statement keenly, point out corrections and suggest a way out’. It nowhere makes an influential person an astronomer.  

What makes me to keep on embellishing words here isn’t my anger or savage.  Though an adverse observation, which previously used to be a sheer motivation. I’m still unable to differentiate between two narratives of the same speaker. First, is he the one, who motivates you to learn more and achieve more? Second, is he a contrary of the first, who’d unleash anger on his addressees? ‘You expose yourself, whenever you speak’, does seem to be a logical procedure to him. What if I apply this touchstone to his speech in that session? Unfortunately, I’m afraid to get an indecisive result.

People present in that gathering weren’t experts on the subject of his discussion. But, learners to note and question. Proving them wrong didn’t require any skill. They couldn’t fit in parameters of the speaker. I do acknowledge they were ignorant on Article 35A. But, then, in his many decades long career, where lies his contribution? To this I’m reminded of a saying, “An offshore person’s obliviousness will not cause any damage to aquatic life, but an in shore’s, certainly will”. Yes. The infield advocates should realize this shame, at par, than those, who are yet to foot-in. ‘State has hired ‘outside counsel’ to defend Article 35A’, is not an infamy for me, but for one who’s termed as a living legend of Kashmir. Since, it’s he who said, “One generation cannot compete with other”.

‘Stop. Don’t say anything. You don’t know. You’ll damage our next generation’. These are some expressions which he unwarranted to censure people, who’d speak. Owing to this, I wonder, if he’s the same personality I’m aware of. How he can disapprove of something and wouldn’t say what lies beneath. He ought not to be so. People approve of him. I’m baffled, if it was his aura of teaching. For no teacher creates an atmosphere to show off his monopoly over something. Instead, he encourages to plug the gaps, and doesn’t not discourage. I observed the pale red demoralized faces of present students. Whether it was a girl or boy, they wouldn’t speak on account of dejection. For they saw, one who speaks has to lose badly.

Whether or not I should have attended that session. Nevertheless, it caste a shadow on his impression on me. My perception for him may not be absolute. But, I’m sure no expert ever tries to win o’er. He always creates a pleasing environment. He responds every question, very politely, may it come from a boy or girl. I believe that everyone is ambitious in his/her life. No one would want to be addressed in a way that he develops negative vibes in converse. Yes…, if such is the case, I must say ‘No’ to these kind of ‘Experts’ and ‘Sermons’.

The Journey of Five Years at Central University of Kashmir (Some Pleasing and Bitter Experiences…!)

During the days of my high school I was very much anxious to join the college level of education, since I had perceived from elders about the impression and compassion of college life. People used to tell me that college life is filled with lot of charm, excitement, fun and it gives us an opening to live an independent student life. Heedless of this when it comes to University life; Oh gosh! They would speak that in University there is solemnity on the part of students and people distillate mostly on the studies than on any other undertakings. Not only this, University life is the life where people hardly remain societal. But astoundingly, what I experienced in university life throughout my five years of experience went all against the taboos-of which I had earlier heard about. Undoubtedly, I missed the fun wrapped life of college and it gave me a sort of disdain too but wait… let me complete; I must mention that auspiciously the same gap is filled by my direct admittance into university from school which presented me the loads of glorious movements to remember and to share with other people for rest of my life.

Flashing back to year 2011; the year I began my course of law at Central University of Kashmir. I was quite enthusiastic about my admission in the university and so much enchanted for the picturesque which my mind had formed about the varsity of university campuses, that they are so much enormous and thousands of students cum scholars study there. Thus I was eager for joining the class work which was to begin in the month of August that year. Being so much impatient, on the very first day of same month, I left for the university which at that time was placed at Magarmal-Bagh Srinagar. Searching for the University campus with so much vehemence for quite a long time, what I found was a white-coated rented building based on three floors with a big billboard (displaying Central University of Kashmir) held on its rusted and spoilt gate. Ash! This entire scene shocked me, because I hadn’t realized my university campus like the nest of a bird. Subsequently there was only one building of this kind, thus I thought it was reserved only for one department, but then from the gate keeper I came to distinguish that the building was reserved for five departments with two rooms for each. Someone showed me the rooms available for ‘School of Legal Studies’ and in the mean time I found that the building was jam packed by students of all five departments, who like me also seemed dejected by their (big!) campus. With this my journey of five years integrated law at Central University started, besides I silently buried my expectations of ‘Fantasy University Campus’ on the gate of that block of University. Being the high school pass out I was quite zealous about the versatile University campus but what I got was like the same school building, where I hit the road for bigger dream of the University and this made me feel like I have been promoted to new class in my school….!!!

Although being upset for not getting what I had expected, I got something more mesmerizing and undreamed-of. Absolutely… and that was the genus of gift which was endowed to me in the form of tutors and my own batch buddies of the School of Legal Studies, CuK. Perhaps, this gift was bequeathed to me for being aggrieved of the amenities which are vital for the university level students.  I didn’t get what I had anticipated but what I got was & is acceptable replacement for all that I looked-for. The teachers here I got were perfect for my guidance and hardly anyone can replace their adoration towards the students. Wow! I can fairly recall the scene of our first year; that startled environment of our class and the acute supervision of our teachers which at that time made us to beat the time also. Oh! How can I forget to comment upon that motherly assertiveness of our beloved ma’am “Asst. Prof. Gul-Afroz”, who used to teach us three subjects and in each session she was having the apt avatar. Bravo! It provides me an immense pleasure to inscribe about our other teachers too. They were great and solely resilient towards our learning. They used to motivate us each and every time by every possible approach. Occasionally they make us to watch documentaries, even in the class room. I can still dredge up every such thing, but trust me it makes me emotive every movement I think of those times and I wish to live them again, as now I realize the significance of those priceless days.

With the passing of first year and shifting of the University block to Zanakote, some things got thinned down. Because, now we were the seniors and our attitude towards the studies has reformed. Perhaps, now we comprehended ourselves as University students. May be, it was because the building we were recently shifted-to was big, and here in Zanakote, our 2^nd university-block was surrounded with paddy fields or here library was a slight bigger than the first one. One more horrible stance with this block of University is the accident of my few batch mates on the passing-by national highway, which still makes me scared and at that time made me felt like we won’t survive until the last semester. Apart from this, often times students used to stuck in the traffic jam and eventually reach late to the classes. Due to the escalation of burden of studies (don’t be stunned!), and University campus being situated in the out skirts of city, I felt like our three semesters at Zanakote passed more quickly than first year of our degree.

As soon as our campus moved to Nowgam, where everything as related to aforementioned blocks was much satisfying, however… not as much worthy that it could wipe-out my memories of previous places. Impulsively at Nowgam block, I started to become conscious about the passing of halfway journey of our degree, but time here also went too fast and I till the last semester of my degree could not feel that soon I have to leave the family which was worth a gift to me for last five years. It may be because I tried to gear up myself to handle the different assignments necessary for my course of law. But wait... how it is possible? For, I could not easily gather my serenity to daunt of our teachers like ‘Burhan Sir’. He off and on used to scold us in order to see the improvisation on our part. I would love to listen to him again but I know time will never allow me a one more chance, even if I wish to. I could not get enough time to be guided under the patronage of our respected Head of Department ‘Dr. Sheikh Showkat’. At the verge of my degree, now I realized the importance of being the student of ‘Mubashir Sir’, ‘Mashooq Sir’, and ‘Dr. Mudasir Sir’. I still wish to take the prolific words of advice from ‘Dr. Rehana Ma’am’ and ‘Unanza Ma’am’. It was always nice to get encouraged by the ‘Hilal Sir’. Actually due to this keen attention & sober attitude of our teachers I always felt like I study in a preparatory school and not in a University.

Last but not least; as is said that people come and go, like the waves of ocean; but there are some whom you want to retain in your life. And, those whom I wish to retain in my life are my batch mates. Yes, you read it right…. They always were grateful and humble to me. In fact, they form the family of mine. I learnt innumerable things from them; they all are wise and unique in persona. They made me felt the value of collectiveness and how it looks to be social. I acknowledge that sometimes there were some differences but at the same instance I always felt their truthfulness to each other. I have always observed that whatever riffs there happen to be were all immaterial. These guys were unified, gutsy, compassionate, sympathetic and mostly amusing enough to become everyone’s favorite. Wish I should not leave this family, but I know it is the established precedent of life that we have to move on to continue the journey of life. I cannot stop anyone of them even I cannot pray that they shouldn’t leave me. I hope the moments we lived together remain olive forever. And always stay blessed wherever they go. I pray to my Almighty Allah! to confer my batch mates with bigger triumphs and long endurances.                                                                                                                 …………….Cheerios...!!!

Regards…..

Mashooq Yousuf Malik

Batch: 2011-2016

Email: mashooq.law@gmail.com