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2024 Supreme(J&K) 221
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Srinagar Municipal Corporation – Petitioner
Versus
Aijaz Ahmad Baba – Respondent
W.P. (C) No. 1701 of 2021, W.P. (C) No. 1914 of 2020, C.C.P. (D) No. 5 of 2021
Decided On : 29-01-2024
Advocate Appeared:
For the Petitioners: Rais-ud-Din Ganai, Jehangir Iqbal Ganai, Mehnaz Rather.
For the Respondents: Z.A. Shah, Hanan.
The main legal point established in the judgment is the jurisdiction of the Special Tribunal to compound deviations and entertain the revision petition, and the interpretation of 'unauthorized building' under the building byelaws.
Headnote:
Building Permission - Deviation from Sanctioned Plan - Jammu and Kashmir Municipal Corporation Act, 2000, Sections 243, 244, 253, 254, 403 - The court discussed the deviations from the sanctioned building plan, the power to compound deviations, and the jurisdiction of the Special Tribunal. It highlighted the interpretation of 'unauthorized building' and the authority to seal and demolish offending structures.
Fact of the Case:
The private respondents were granted building permission for restoration/reconstruction of a heritage building but deviated from the sanctioned plan by raising a five-storey structure. The Corporation issued notices and orders to stop and demolish the construction. The Special Tribunal regularized the deviations and stayed the sealing order.
Finding of the Court:
The court found that the petitioner had locus standi to challenge the impugned order as it affected his civil rights. It held that the Special Tribunal had no power to compound deviations and that the sealing order was revisable before the Tribunal. The court also found the Tribunal's interpretation of 'unauthorized building' to be flawed and set aside the impugned order.
Issues: The issues included the locus standi of the petitioner, the jurisdiction of the Special Tribunal to compound deviations and entertain the revision petition, and the interpretation of 'unauthorized building' under the building byelaws.
Ratio Decidendi: The court held that the petitioner had a substantial grievance and locus standi to challenge the impugned order. It determined that the Special Tribunal had no power to compound deviations and that the sealing order was revisable before the Tribunal. The court also clarified the interpretation of 'unauthorized building' under the building byelaws.
Final Decision: The impugned order was set aside, and the private respondents were directed to approach the Commissioner for compounding deviations. The offending portion of the building was to be sealed until a decision was made, and if not compounded, it was to be demolished in accordance with the law.
JUDGMENT :
SANJAY DHAR, J.
1. By this common judgment, two writ petitions, one filed by Sh. Shabir Ahmed Gojawari [WP (C) No. 1914/2020] and the other filed by Srinagar Municipal Corporation [WP (C) No. 1701/2021] challenging judgment dated 10.09.2020 passed by the Jammu and Kashmir Special Tribunal, Srinagar (hereinafter referred to as “the Special Tribunal”) are proposed to be disposed of. Before coming to the grounds of challenge raised by the writ petitioners in these two writ petitions, it would be apt to briefly refer to the facts leading to the filing of the present writ petitions.
2. Vide building permission Order No. 3048 of 2018 issued by the Srinagar Municipal Corporation in terms of Sections 243 and 244 of the Jammu and Kashmir Municipal Corporation Act, 2000 (hereinafter referred to as the “Act of 2000”) read with Jammu and Kashmir Municipal Corporation Building Bye-laws, 2011 (hereinafter referred to as the “Bye-laws of 2011”) the private respondents, namely Aijaz Ahmad Baba, Manzoor Ahmad Baba and Nisar Ahmad Baba were accorded permission for execution of repairs/restoration by way of retrofitting to strengthen the existing three storeyed heritage building with attic without any change in size, shape and height so as to keep the façade intact in its original position. The building is located at Estate Nursing Garh, Hari Singh High Street, Srinagar. It appears that the private respondents deviated from the sanctioned plan while raising construction of the building. Accordingly, a notice dated 25.03.2019 under Section 254 of the Act of 2000 was issued by the petitioner-Srinagar Municipal Corporation (hereinafter referred to as the “Corporation”) to the private respondents requiring them to stop the construction in question. It also appears that when the private respondents did not comply with the aforesaid notice, a communication dated 26.03.2019 was addressed by the Corporation to the Police Station Shergari, Srinagar in terms of Section 254(2) of the Act of 2000 seeking assistance in removal of persons engaged at site. Another notice, in terms of first proviso to Section 253(1) of the Act of 2000 dated 02.04.2019 was issued by the Corporation to the private respondents, whereafter, a notice of demolition, in terms of Section 253(1) of the Act was issued by the Corporation on 05.04.2019 against the private respondents directing them to demolish/pull down the structure within a period of 7 days from the date of said notice.
3. Aggrieved by notice dated 05.04.2019, the private respondents filed a statutory appeal before the Special Tribunal. On 09.04.2019, the learned Special Tribunal, while issuing notice to the Corporation, directed the parties to maintain status quo. In the meantime, the private respondents applied for modification of Building Permission dated 17.05.2018 and their request was acceded to by the Corporation, whereafter, vide Order No. 184 dated 27.11.2018, a revised building permission was granted in favour of the private respondents. As per the said revised building permission, the private respondents were given permission for restoration/reconstruction of three storeyed heritage building with attic on existing plinth within the parameters to restore its de-facto position, meaning thereby that the private respondents were permitted to reconstruct three storeyed building with attic on existing plinth within the parameters to restore its de-facto position.
4. According to the writ petitioners, despite the status quo order passed by the learned Special Tribunal, the private respondents continued to raise construction and raised a five storeyed structure. The Corporation sensing that the private respondents have violated the status quo order passed by the learned Special Tribunal, sealed the structure vide order bearing No. PS/Com/3365-78 dated 23.07.2020.
5. Aggrieved by the aforesaid order, the private respondents filed a revision petition before the Special Tribunal and vide order dated 29.07.2020, the
