Muneer Ahmad Bhat vs Commissioner And Ors
2021 Latest Caselaw 518 j&K/2

                                                                     Serial No. 228

                                                                     After Notice list



              HIGH COURT OF JAMMU AND KASHMIR
                        AT SRINAGAR
                                                          WP(C) No. 932/2021
                                                          CM No. 2987/2021
Muneer Ahmad Bhat

                                                                     ..... Appellant(s)
                                 Through: -
                        Mr. Sheikh Manzoor, Advocate

                                         V/s
Commissioner and Ors.
                                                                   ..... Respondent(s)

Through: -

Mr. Moomin Khan, Advocate

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge Hon'ble Mr Justice Vinod Chatterji Koul, Judge Order 06.05.2021

In the instant petition, petitioner prays for the following reliefs:-

" a) A writ in the nature of prohibition, thereby prohibiting the respondents from demolishing the shops of the petitioner without following the due procedure as is established under law.

b) A writ in the nature of mandamus, commanding upon the respondents to consider/decide the building permission case of petitioner which is pending before the respondents at an earliest.

c) A writ in the nature of mandamus, commanding upon the respondents to submit details of all authorized and unauthorized commercial/residential building adjacent to the construction of petitioner and the details of action initiated against them."

In terms of order passed by this Court on 05.05.2021, the respondents

were directed to file the reply by tomorrow, viz 06.05.2021.

Reply stands filed by the Srinagar Municipal Corporation, Srinagar,

wherein it is stated that the respondent Corporation is yet to take statutory

action against the petitioner and as such, the instant writ petition is liable to be dismissed. It is further stated that the petitioner has raised the structure in

question without any permission whatsoever, that too on agricultural land. It

is further stated that the petitioner has made vague assertions that he had

applied for building permission and has not placed any material on record of

having done so. As such, the instant writ petition has been filed by the

petitioner only in order to abuse the process of law and in order to raise further

illegal construction on spot. It is further stated that the Corporation is well

within its rights to take any action as envisaged under law against the illegal

structure raised by the petitioner on spot.

Petitioner has failed to establish the legal right for maintaining the writ

petition for the relief claimed, as violation of right is sine-qua-non for grant

of writ of mandamus. Law on the subject is no more res-integra, supported by

the Judgments, while dealing with the scope of 'grant of writs, in case titled

'State of Kerela V. Smt. A. Lakshmikutty & Ors.; (1986) 4 Supreme Court

Cases 632', at Paragraph No.34, has observed as under:

"34. We must refer to the case of Mani Subrat Jain v. State of Haryana & Ors., (supra) which was relied upon by learned counsel for the State Government. It is well-settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, there- fore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles stated in Halsbury's Laws of England, 4th edn., vol. 1, paragarph 122, this Court observed that a person whose name had been recommended for appointment as a District Judge by the High Court under Art. 233(1) had no legal right to the post, nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed:

"It is elementary though it is to be restated that no one can ask for a mandamus without a legal right.

The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation.

The consultation of the Governor with the High Court does not mean that the Governor must accept whatever advice of recommendation is given by the High Court. Article 233 requires that the Governor should obtain from the High Court its views on the merits and demerits of persons selected for promotion and direct recruitment."

The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. The present trend of judicial opinion appears to be that in the case of non-selection to a post, no writ of mandamus lies."

23. Again, in the case of 'State of UP & Ors. V. Harish Chandra & Ors.;

(1996) 9 Supreme Court Cases 309', at Paragraph No.10, the Hon'ble

Supreme Court has held thus:

"10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But so mandamus can be issued to direct the Government to refrain from enforcing the provision of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, it any, of persons included in the list did not subsist. In the course of hearing the learned counsel for the respondents, no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases pursuance to the direction of the Court some appointments have been made but in some other cases it might have been done by the Appointing Authority. Even though we are persuaded to accept the submission of the learned counsel for the respondents that on some occasion appointments have been made by the Appointing Authority from a select list even after the expiry of one year from the data of selection but such illegal action of the Appointing Authority does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the conclusion that such appointments by the Appointing Authority have been made contrary to the provisions of the Statutory Rules for some unknown reason and we deprecate the practice adopted by the Appointing Authority in making such appointments contrary to the Statutory Rules. But at the same time it is difficult for us to sustain the direction given by the High Court since, admittedly, the life of the select list prepared on 4.4.87 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court. We may not be understood to imply that the High Court must issue such direction, if the writ Petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the State Government that there existed one vacancy in the year 1987 is correct or not."

Respondents with reference to the scheme of law, applicable to the

construction of buildings within the jurisdiction of Municipal Corporation,

Srinagar, cannot be restrained by writ of prohibition to take action, as

warranted. For taking action, respondents does not require any direction by

the writ Court.

In view of above, we are satisfied that the writ petition is not

maintainable, therefore, shall stand dismissed, however, dismissal of the writ

petition shall not form any ground for the respondents not to consider the case

of petitioner for building permission, stated to be pending with them and any

action taken shall not be in tune with the scheme of law.

                                     (Vinod Chatterji Koul)                (Ali Mohammad Magrey)
                                                    Judge                                Judge

           SRINAGAR
           06.05.2021
           "Mohammad Yasin Dar"




MOHAMMAD YASIN DAR
2021.05.11 16:06
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