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2002 Supreme(J&K) 340
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
T.S. Doabia,B.L. Bhat, JJ.
Gh. Hassan Wani - Appellant
Versus
State Of J&K & Ors. - Respondent
LPA No. 150/2002
Decided On : 31 October, 2002
Advocate For Appellant: M.A. Qayoom
Advocate For Respondent: R. Gadda
The main legal point established in the judgment is that the appropriate authorities under the Town Planning Act and the Irrigation Act should take action in case of building violations or risks to the water system, and that the Deputy Commissioner did not have the authority to cancel building permissions granted by the Notified Area Committee.
Headnote:
Building Permission - Town Planning - Jammu and Kashmir Town Planning Act, 1963, Section 10; Municipal Act, Svt. 2008, Section 222
Fact of the Case:
The appellant applied for permission to construct a building, which was granted by the Administrator, Notified Area Committee, Pulwama. However, the Deputy Commissioner passed an order cancelling the building permissions, leading to a challenge in the writ petition.
Finding of the Court:
The court found that the Deputy Commissioner's general order cancelling the sanctions granted by the Notified Area Committee was not within his jurisdiction. It also emphasized that the appropriate authorities under the Town Planning Act and the Irrigation Act should take action if the construction violated the sanctioned plan or posed a risk to the water system.
Issues: The issues revolved around the jurisdiction of the Deputy Commissioner to cancel building permissions and the appropriate authorities responsible for taking action in case of violations or risks to the water system.
Ratio Decidendi: The court held that the Deputy Commissioner did not have the authority to cancel building permissions granted by the Notified Area Committee. It also emphasized that the authorities under the Town Planning Act and the Irrigation Act should take action in case of violations or risks to the water system.
Final Decision: The judgment under appeal was set aside, disposing of the appeal as well as the writ petition.
The present appellant, who figured as writ petitioner, applied for permission to construct a building. This permission was granted to him on 2nd January, by the Administrator, Notified Area Committee, Pulwama. This order makes a mention of the fact that the sanction is being granted in terms of section 10 of the Jammu and Kashmir Town Planning Act, 1963 and Section 222 of the Municipal Act, Svt. 2008. The fact that Tehsildar, Pulwama, had made a recommendation vide his communication dated 8.3.2001 was taken note of. The communications addressed by the Executive Engineer, R&B Division dated 11.4.2001 and of the District Town Planner dated 14th June, 2001 were also taken note of. It was on the basis of communications so received, sanction was accorded for erection of shop/residential house. The terms and conditions have been specified. Condition Nos. 6, 7, 8 and 9 indicate the method and manner in which the construction has to be raised. For facility of reference these conditions No. 6, 7, 8 and 9 are reproduced below:--
6. The wall from the side of NAC land should be blind.
7. The front side set back, shall be maintained 20 from the plot line.
8. Rear side 15 (minimum).
9. Other sides 10 minimum. The height of the building shall not exceed 30 from ground level upto roof top.
2. The fact that the appellant is the owner of the land in question is sought to be reflected by placing reliance on revenue record. This is excerpt of Khasra Girdwarai of Pulwama. This is of the very land on which the building is sought to be constructed. The land is shown in possession of the appellant.
3. The further fact is that Deputy Commissioner, pulwama, passed an order on 17th January, 2002. It appears that it was brought to the notice of the Deputy Commissioner, Pulwama, that some constructions are being raised by encroaching upon Government land. A general order was passed that building permissions issued by the Notified Area Committee from 26th November, 2001 onwards shall be deemed to be cancelled. Earlier to that, a Committee was constituted. This was so constituted by an order passed an 17th January, 2001. Both these orders have been placed on record of this appeal as annexure `K and `L. What led the appellant to approach this Court was a communication dated 24th January, 2002. This was a communication addressed by the Administrator of the Notified Area Committee. By this the appellant was informed that the building permission/sanction in his favour would be deemed to have been cancelled in pursuance of the order passed by the Deputy Commissioner on 17th January, 2002. It is this aspect of the matter which was subject-matter of challenge in the writ petition.
4. The State preferred objections in the writ petition. In para 11 of the reply it has been pleaded that number of complaints were received. One complaint was that the present appellant was raising the construction on a piece of land on which there existed a water canal. It is submitted that this construction would pollute the water. It was this aspect of the would matter which was taken note of . The issue was verified in the presence of all concerned and it was in these circumstances further action was taken. Thus the sum and substance of the plea taken by the State was that the appellant was raising the construction on that piece of land on which a canal was existing and if he is permitted to raise the building, this would lead to polluting the water system and the water bodies.
5. The question which is required to be gone into is as to whether the Deputy Commissioner can pass a general order cancelling the sanctions granted by the Notified Area Committee. Sanctions are accorded under section 222 of the Municipal Act. The provisions of the Municipal Act are applicable to the Notified Area Committees also. This is by virtue of the provisions contained in Chapter XXX of the Municipal Act. Therefore, for all intent and purposes, whenever sanction is granted by the Notif
