Jammu & Kashmir High Court - Srinagar Bench
Javaid Ahmad Khan And Another vs Government Of J&K And Others on 3 February, 2021
S.No.204
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through virtual mode)
LPA No.138/2020 in
WP(C) No.1527/2020
CM No.4903/2020
Reserved on 29.01.2021
Pronounced on:03.02.2021
Javaid Ahmad Khan and another ....... Appellant(s)
Through: Mr. Syed Faisal Qadri, Sr. Advocate
With Mr. Salih Pirzada, Advocate.
Versus
Government of J&K and others ......Respondent(s)
Through: Mr. Moomin Khan, Advocate for R 1 to 5.
Mr. Nissar Ahmad Bhat, Advocate for R-7.
CORAM: Hon'ble Mr. Justice Sanjeev Kumar, Judge
Hon'ble Mr. Justice Vinod Chatterji Koul, Judge
ORDER
Sanjeev Kumar-J
1. This appeal under Clause 12 of the Letters Patent is directed
against an ad interim ex-parte order dated 07.10.2020 passed by the Writ
Court in WP(C) No.1527/2020. The operative portion of the order reads as
under:-
"Accordingly, it is directed that the private respondents shall
not raise further construction in any manner on spot and the
respondent No. 3 shall also ensure that the order is complied
in letter and spirit. The compliance report shall also be placed
before the Court by the next date fixed in the case. The
prayer of the learned counsel for the petitioner for sealing of
the premises shall be considered after hearing the other side.
The directions shall remain in force till next date of hearing.
2. The impugned order has been assailed by the appellants, who
are respondent Nos. 7 and 8 before the Writ Court, inter alia, on the ground
that prior to the filing of the writ petition, they had filed a caveat petition but
the same was not listed by the Registry along with the writ petition and,
therefore, an ex-parte order adverse to their interest came to be passed.
3. This Court vide order dated 03.11.2020 while issuing notice of
the appeal to the respondents also stayed the operation of the impugned
order passed by the Writ Court.
4. Learned counsel for the appellants submits that he has been
raising his construction strictly as per the building permission granted by the
Srinagar Municipal Corporation (SMC) and that the violations pointed out
by Competent Authority have been compounded by the order of J&K
Special Tribunal. Learned counsel for the appellants invites attention of this
Court to the order No. 271/2019 dated 17.02.2019, whereby the Competent
Authority for building permissions i.e. Commissioner, SMC, accorded
permission to the appellants to raise construction as per duly authenticated
plan.
5. Learned counsel appearing for respondent No.7, however,
opposes the appeal on the ground that the order impugned is subject to
objections of the appellants and other respondents in the writ petition and,
therefore, not a judgment under Clause 12 of the Letters Patent. On merits,
the learned counsel for respondent No.7 urges that the appellants are guilty
of raising the construction in violation of the sanctioned building plan.
Making reference to the building permission granted by the SMC, it is
submitted that the building permission was granted in favour of the writ
petitioner for a period of three years to be reckoned with effect from
20.03.2016. He, therefore, submits that the building permission has since
expired but the appellants are continuing with the construction.
6. Having heard the learned counsel for the parties and perused the
record, we are of the view that the order impugned is an ad interim ex-parte
order and has been passed by the Writ Court without affording an
opportunity of being heard to the appellants, who had filed a caveat petition
before filing of the writ petition. It is because of the negligence on the part
of the Registry that the caveat was not put up and accordingly the writ court
considered the matter for interim relief in exparte.
7. That apart, we do not find any serious infirmity in the
impugned order, even if we consider it in the light of the merits of the
controversy raised before the Writ Court. It is true that the appellants are
entitled to raise construction strictly as per the permission granted by the
competent authority and anything raised beyond the permission has to be
accounted for.
8. It is equally true that the violations committed by the
appellants, for which notice was issued by the Municipal Corporation on
10.09.2020 have been compounded by the order of the Special Tribunal
dated 20.10.2020, passed in Appeal File No. STS/6076/2020 dated
12.10.2020.
9. In view of the above, we are of the view that the order
impugned passed by the Writ Court deserves to be clarified to the following
extent:
i) That the appellants herein, who are private respondents before the
Writ Court, shall not raise any construction on spot contrary to and
in violation of the subsisting building permission granted by the
competent authority of the SMC and the SMC shall ensure that this
order is complied with in letter and spirit and the violations, if any,
committed by the appellants are accounted for and dealt with in
accordance with law.
ii) The compliance report shall be submitted by the SMC before the
Writ Court indicating clearly as to whether the construction raised
by the appellants is in accord with the building permission granted
by the competent authority or in violation thereof. The SMC in its
compliance report shall also indicate the action taken for violation
of the building permission, if any. It is further clarified that till writ
the petition is considered and finally disposed, the order of
compounding violations shall remain intact.
The appeal is, accordingly, disposed of in the above terms.
( Vinod Chatterji Koul) (Sanjeev Kumar)
Judge Judge
SRINAGAR
03.02.2021
Vinod
Whether the order is speaking :Yes/No
Whether the order is reportable: Yes/No
VINOD KUMAR
2021.02.05 14:58
I attest to the accuracy and
integrity of this document
