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2024 Supreme(JK) 333
1 | P a g e
S. No.68
Supp.Cause List
IN THE HIGH COURT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 1602/2024
CM 4328/2024
MOHAMMAD ISHAQ ZAROO
… Petitioner(s)/Appellant(s)
Through: Mr.Suhail Mehraj, Advocate
Vs.
SRINAGAR MUNICIPAL CORPORATION AND
ORS.
...Respondent(s)
Through: Mr. Moomin Khan, Advocate
CORAM:
HON’BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
Compliance with statutory requirements under the Jammu and Kashmir Municipal Corporation Act is essential before seeking relief through writ jurisdiction.
Headnote:(A) Jammu and Kashmir Municipal Corporation Act, 2000 - Sections 243, 244, and 247 - Writ petition for mandamus seeking permission to construct additional floors on an existing commercial structure - Petitioner alleged compliance with formalities and payment of requisite fee - Court found that the case did not fall under section 247 due to non-compliance with sections 243 and 244 - Petitioner failed to establish compliance with statutory requirements. (Paras 1-6)
(B) Writ Jurisdiction - The court emphasized that the petitioner must fulfill all statutory requirements before seeking relief under writ jurisdiction. (Paras 6-9)
Facts of the case:
The petitioner sought permission to construct the 3rd and 4th floors of a commercial building, claiming to have completed all formalities and paid the requisite fee in 2019. Due to state reorganization and COVID-19, the petitioner delayed the process and later filed a representation for fresh permission, which was not considered in time.
Findings of Court:
The court found that the petitioner did not comply with the necessary statutory provisions and thus dismissed the writ petition as not maintainable.
Issues: The main issues were whether the petitioner complied with the statutory requirements for construction and the applicability of section 247 of the Municipal Corporation Act.
Ratio Decidendi: The court ruled that the petitioner must comply with sections 243 and 244 of the Municipal Corporation Act before invoking section 247, emphasizing the necessity of following statutory procedures.
Result: Writ petition dismissed as not maintainable.
ORDER :
1. The petitioner through the medium of the present writ petition filed under Article 226 of the Constitution of India has sought writ in the nature of mandamus directing the respondent-Corporation to accord permission and to allow the petitioner to construct the 3rd and 4th floor of the already existing commercial structure situated at Jahangir Chowk, Srinagar, for which the petitioner alleged to have fulfilled all the requisites formalities and has also submitted the requisite fee to the tune of Rs. 3,56,440 way back in the year 2019.
2. Learned counsel on behalf of the petitioner fairly submits that in the year 2019, the petitioner applied for sanction of building permission to carry out construction of 3rd and 4th floor on the said existing two storied commercial building situated at Jahangir Chowk Srinagar and had completed all the requisite formalities as was directed and conveyed by the respondent-Corporation as per the procedure envisaged for grant of building permission under Municipal Corporation Act, 2000. It is submitted by the learned counsel, that the petitioner has already deposited the requisite fee to the tune of Rs. 3,56,440, which he was directed to pay the respondent-Corporation as per the framed site plan. However, due to reorganization of the Jammu and Kashmir State into UTs and subsequent Covid 19, the petitioner was unable to pursue the case promptly and could not raise the construction in conformity with the said building permission and on 16th February, 2024, he filed a representation before the respondent-Corporation seeking fresh permission for construction of 3rd and 4th floor of the already existing commercial structure situated at Jahangir Chowk Srinagar. It is further submitted, that the application so filed by the petitioner for accord of fresh permission had not been considered by the respondents within stipulated time frame and as per the mandate of the Municipal Corporation Act with particular reference to section 247 of the said Act and a perusal whereof reveals that the petitioner deems to have implicit permission to proceed with the construction as the respondents have failed to accord consideration within stipulated period of 60 days as envisaged under section 247 of the Jammu and Kashmir Municipal Corporation Act. For facility of reference, the same is reproduced as under:
247. When building or work may be proceeded with. ––
(1) Where within a period of sixty days after the receipt of any notice under section 243 or section 244 or of the further information, if any, required under section 245 the Commissioner does not refuse to sanction the building or work or upon refusal does not communicate the refusal to the person who has given the notice, the Commissioner shall be deemed to have accorded sanction to the building or work and person by whom the notice has been given shall be free to commence and proceed with the building or work in accordance with his intention as expressed in the notice and the documents and plans accompanying the same :
Provided that if it appears to the Commissioner that the site of the proposed building or work is likely to be affected by any scheme of acquisition of land for any public purpose or by way any proposed regular line of a public street or extension, improvement, widening or alteration of any street, the Commissioner may withhold sanction of the building or work for such period not exceeding sixty days as he deems fit and the period of sixty days shall be deemed to commence from the date of the expiry of the period for which the sanction has been withheld.
(2) Where a building or work is sanctioned or deemed to have been sanctioned by the Commissioner under sub-section (1), the person who has given the notice shall be bound to erect the building or execute the work in accordance with such sanction, but not so as to contravene any of the provisions of this Act or any other law or of any bye-law made thereunder.
(3) If the person or any one lawfully c
