CORAM: HON’BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE

JUDGMENT

BRIEF FACTS:

1. The petitioner has invoked the writ jurisdiction of this Court seeking quashment of revised Building Permission Order No. 27 of 2019 dated 20.05.2019 issued by the Srinagar Municipal Corporation in favour of private respondent No.8, whereby the alleged deviations committed in the construction raised by the said respondent have been regularized/compounded.

2. Briefly stated, the case of the petitioner is that respondent No.8 was initially granted Building Permission Order No. 2900/2018 dated 01.01.2018 for raising construction over land situated at Chinar Avenue, Naseembagh, Srinagar. According to the petitioner, respondent No.8 thereafter raised construction in substantial deviation from the sanctioned plan, compelling the petitioner and other residents of the locality to repeatedly approach the Municipal authorities seeking action against the unauthorized construction.

3. It is pleaded that upon receipt of complaints, the Srinagar Municipal Corporation initiated proceedings under the provisions of the J&K Municipal Corporation Act, 2000 and issued demolition notice bearing No. SMC/Enf/4104-10 dated 01.02.2019 through the Chief Enforcement Officer alleging deviations from the sanctioned plan.

4. Aggrieved thereof, respondent No.8 approached the learned J&K Special Tribunal, Srinagar by way of statutory appeal. The petitioner herein also filed caveat as well as an application seeking impleadment before the learned Tribunal. The learned Tribunal vide order dated 28.02.2019 disposed of the matter by directing the parties to approach the Srinagar Municipal Corporation by way of representation and further directed the Corporation to re-examine the matter strictly in accordance with law and regulations governing the subject.

5. Pursuant to the aforesaid directions, the petitioner submitted representation before the Municipal authorities alleging that the deviations committed by respondent No.8 were major and non-compoundable in nature and therefore liable to be demolished. The Srinagar Municipal Corporation, after considering the matter, issued revised Building Permission Order No. 27 of 2019 dated 20.05.2019 in favour of respondent No.8 by invoking Clause 5.8.2(ii)(c) of the Srinagar Building Bye-laws, 2011, holding the deviations to be compoundable.

6. The petitioner has challenged the aforesaid revised permission primarily on the grounds that the authorities lacked jurisdiction to regularize the alleged deviations after issuance and affirmation of demolition notice; that the deviations are substantial and non-compoundable in nature; that no proper hearing was granted to the petitioner; and that the impugned action is arbitrary, illegal and contrary to the Municipal laws and Building Bye-laws governing planned construction.

SUBMISSIONS ON BEHALF OF THE PETITIONER:

7. Learned counsel for the petitioner submitted that respondent No.8 raised construction in blatant violation of the sanctioned building plan and despite repeated objections and complaints lodged by the petitioner before the Municipal authorities, the illegal construction activities continued unabated.

8. It is argued that the demolition notice issued by the Srinagar Municipal Corporation having been upheld by the learned Special Tribunal, the authorities thereafter became functus officio and lacked jurisdiction to subsequently regularize the very same unauthorized construction by issuance of revised Building Permission Order dated 20.05.2019.

9. Learned counsel contended that the revised permission effectively amounts to regularization of nearly ninety percent unauthorized construction, which according to the petitioner is wholly impermissible under the provisions of the Municipal Corporation Act and the Srinagar Building Bye-laws. It is submitted that only minor deviations can be compounded under law and that substantial or deliberate deviations cannot be legalized through the mechanism of co