The Trial Court's deferral of a reconstruction application was unjustified, violating prior judicial orders and necessitating a stay on its operation.

ORDER :

1. The short submission which has been advanced by the learned counsel for the petitioner is that the learned Trial Court after hearing the counsel for the parties, was obliged under law to decide the application filed by the petitioner herein on the basis of the documents as well as admission on the part of the Srinagar Municipal Corporation to the extent that the petitioner is legally entitled to raise the re-construction, however, the learned Trial Court in terms of order dated 5th June, 2024, which is impugned in the present petition, has declined to decide the application and kept the same subject to outcome of the writ petition, without venturing into the legality or otherwise of the subsequent orders issued by the competent authority.

2. Mr. Nisar Ahmad Bhat, learned counsel appearing on behalf of the petitioner has vehemently argued that in terms of order dated 11th May, 2022 passed by this Court in WP(C) No. 939/2022, it was ordered that Srinagar Municipal Corporation shall ensure that the petitioner raises construction of his house strictly in accordance with the Building Permission No. 356 of 2021 dated 6th September, 2021 and shall not, for the time being, take any action in pursuance of the impugned communication and it was made clear that pendency of the said petition and the passing of the order shall not come in the way of Municipal Corporation to proceed against the petitioner in case the petitioner is found to have violated any terms and conditions of the building permission.

3. Mr. Nisar, learned counsel submitted that despite the aforesaid order, the Respondent No. 4 filed a suit for injunction against the petitioner and the Corporation, before the court of learned 1st Civil Subordinate Judge/Municipal Magistrate, Srinagar, who initially passed an order by directing the petitioner not to raise any illegal construction, however, in terms of communication dated 18th July, 2023 issued by the Corporation, the petitioner was allowed to restore the building in terms of building permission and the Respondent No. 4 thereafter without any cause and locus, challenged the aforesaid order before the J&K Special Tribunal by way of a revision, which was accordingly dismissed. Despite the fact that the aforesaid order attained finality, the Respondent No. 4 challenged the communication dated 18th July, 2023 before the Trial Court by way of an application under Section 151 of the Code of Civil Procedure and the Trial Court despite the aforesaid position and also the orders passed by this Court, allowed the application of the Respondent No. 4 and observed that the communication dated 18th July, 2023 has been passed in clear violation of Court order and accordingly, restrained the petitioner from raising the construction on spot.

4. Feeling aggrieved of the order so passed by the Trial Court, the petitioner challenged the same before this Court through the medium of CM(M) No. 231/2023 and in view of subsequent developments, the petitioner filed an application in terms of Section 94 of the Code of Civil Procedure before the Trial Court seeking permission for reconstruction in view of sanction order but the learned Trial Curt has put the said application subject to outcome of the writ petition pending before this Court. The order passed by the Trial Court is in direct conflict with interim order dated 11th May, 2022 passed by this Court in WP(C) No. 939/2022 and the Trial Court has also ignored the fact that the building permission is going to expire on 6 th September, 2024 and yet deferred the matter, which according to the learned counsel for the petitioner is patently bad, perverse and liable to be set aside.

5. Heard learned counsel for the petitioner at length and perused the material on record.

6. Issue notice to the respondents in the main petition as well as in the connected CM, returnable within a period of four weeks.

7. Requisite steps for service within one week.

8. Send for the scanned record of the Trial Court.

9.