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2010 Supreme(J&K) 591
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Sunil Hali, J.
Mohd. Tariq Reshi & Ors. -Appellant
Versus
State & Ors. -Resopndent
OWP No. 138-2009
Decided On : 26-11-2010
R.A. Jan, S.A. Vakil.
The main legal point established in the judgment is that the respondents were required to follow the statutory provisions before demolishing the green houses, and the green houses did not fall within the definition of 'building' as per the Act.
Headnote:
Green Houses - Construction Dispute - Control of Building Operations Act of 1988 - Section 2, Section 7 - The court considered whether the setting up of green houses fell within the definition of 'building' as per the Act and whether the respondents had the power to demolish the same without adhering to the provisions of the law. The court found that the green houses did not fall within the definition of 'building' and even if they did, the respondents were required to follow the statutory provisions before demolishing them. The court allowed the petition and awarded costs to the petitioners.
Fact of the Case:
The petitioners established a unit for manufacturing, processing, and cultivation of Aromatic/Medicinal plants and cut flowers. They set up green houses for nurturing the plants, which led to a dispute with the respondents. The respondents issued a notice for demolition, and later destroyed the green houses, causing damage to the petitioners' property.
Finding of the Court:
The court found that the green houses did not fall within the definition of 'building' as per the Act and that the respondents violated the statutory provisions by demolishing the green houses without following due process.
Issues: The issues were whether the setting up of green houses was covered by the definition of 'building' and whether the respondents had the power to demolish the green houses without adhering to the provisions of the law.
Ratio Decidendi: The court held that the green houses did not fall within the definition of 'building' and that even if they did, the respondents were required to follow the statutory provisions before demolishing them.
Final Decision: The petition was allowed, and costs were awarded in favor of the petitioners.
2. Motivated by the erstwhile Chief Minister for investing in development projects in the State of Jammu & Kashmir, petitioners established a unit for the activity of manufacturing, processing and cultivation of Aromatic/Medicinal plants and cut flower. In order to establish such unit, petitioners purchased land measuring 152 kanals and 02 marlas from its erstwhile owners, situated at Zeetyar Boulevard, Srinagar. The acquired property in addition to land, consist of one single storeyed tin roofed building, a single storeyed annexy, garage and a tin roofed shed with land underneath and appurtenant thereto. These structures were constructed prior to 1971 by the erstwhile owners.
3. In order to establish eco-friendly heritage park as well as floriculture project, two green houses were set up by the petitioners for the purposes of nurturing the plants. It is the setting up of two green houses which has triggered controversy in the present writ petition. The respondents issued a notice to the petitioner on 15th of March, 2006 asking him as to why single storeyed structure raised by them may not be demolished in pursuance to the directions issued by this Court in OWP (PIL) No. 159/2002.
4. Reply is stated to have been filed by the petitioners in which it has been emphasized that the structure was already in existence prior to 1971, no fresh structure has been raised or constructed by the petitioners on the said land. It is further stated that the single storeyed bungalow of Late Maharaja Hari Singh/Dr. Karan Singh was already in existence much before coming into force of the Master Plan and the directions issued by the High Court.
5. On this reply having been received by the respondents, a Committee is stated to have been constituted on the request of the parties. The Committee after considering the objections/reply submitted by the petitioners dropped the said construction from the list of illegal constructions.
6. The matter should have rested here. However, the respondents are stated to have entered the premises of the petitioners and destroyed the green houses erected by them and causing damage to their property which was in the shape of objects of craft, detachable realigns etc. It is this act of the respondents which has been questioned by the petitioners on the following grounds:
(a) that the green houses set up by the petitioners do not fall within the definition of "building" as provided under Section 2 of the Control of Building Operations Act of 1988;
(b) that even if it is construed to be a building, even then a notice as contemplated by Section 7 of the Act was required to be issued to the petitioners before demolishing the same;
(c) that there is no direction from the High Court to demolish any structure in violation of the statute.
7. On the other-side case of the respondents is that the setting up of the green houses is squarely covered by the definition "building", as such, in terms of the directions issued by the High Court prohibiting any constructional activity of a building within the prescribed area, is required to be demolished. This in fact is the only ground on which action is defended by the respondents.
8. I have heard learned counsel for the parties.
The controversy in the present writ petition is confined only to two issues, i.e.:
(1) Whether setting up of green houses is covered by the definition of the building as contemplated by the Act;
(2) Even if it is construed to be a building, whether respondents have the power to demolish the same without subscribing to the provisions of law.
Mr. Jan, learned counsel for the petitioners, stated that the setting up of the green houses is not covered by the definition of the building. According to Mr. Jan, no constructional activity as such has been undertaken in setting up of the green houses. It is a structure which is detachable and can be removed f
