Jammu & Kashmir High Court - Srinagar Bench
Mrs. Rehana Raj & Ors vs Srinagar Municipal Corporation & ... on 14 February, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved On: 6th of February, 2023
Pronounced On: 14th of February, 2023
LPA No. 139/2022
CM No. 4259/2022
Mrs. Rehana Raj & Ors.
... Appellant(s)
Through: -
Mr R. A. Jan, Senior Advocate with
Mr Taha Khalil, Advocate.
V/s
Srinagar Municipal Corporation & Ors.
... Respondent(s)
Through: -
Mr Moomin Khan, Advocate with
Ms Saima Gul, Advocate.
CORAM:
Hon'ble Mr Justice Rajnesh Oswal, Judge
Hon'ble Mr Justice Mohan Lal, Judge
(JUDGMENT)
(Oswal-J):
01. The Appellants are aggrieved of Order dated 8th of July, 2022
passed by the learned Writ Court in WP (C) No. 1457/2022, whereby the
Writ Petition filed by the Appellants challenging the Order dated 18th of
June, 2022; re-sealing the premises of the Appellants situated at Suthra
Shahi, Srinagar; has been dismissed on the ground of availability of
efficacious statutory remedy under the Jammu and Kashmir Municipal
Corporation Act, 2000 (for short "the Act of 2000").
02. Mr R. A. Jan, the learned Senior Counsel, appearing for the
Appellants, vehemently argued that Section 253 of the Act of 2000 was not
applicable in the case of the Appellants as the Appellants were not erecting
any work within the meaning of Section 253 of the Act of 2000, rather the
Respondents had proceeded against the Appellants under Section 258 of the
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CM No. 4259/2022
Act of 2000 read with Byelaws 2.2.5 and 2.2.6 of the Srinagar Municipal
Corporation (Building) Byelaws, 2011; and Byelaw 2.12 of the Jammu and
Kashmir Unified Building Byelaws, 2021. It is contended that, although the
aforesaid issue was argued before the learned Writ Court, but same was not
appreciated, thereby rendering the impugned Order unsustainable in the
eyes of law.
03. Mr Moomin Khan, the learned Counsel appearing for the
Respondents, submitted that since the Appellants violated the provisions of
the Act of 2000 by changing the user of the premises in question from
residential into commercial, therefore, appropriate action under Section 253
of the Act of 2000 was taken against the Appellants.
04. Heard and perused the record.
05. The Appellants, being aggrieved of Order dated 18th of June,
2022; re-sealing the premises of the Appellants situated at Suthra Shahi
Srinagar, challenged the same before the Writ Court and the Writ Court
dismissed the Writ Petition in terms of impugned Order dated 8 th of July,
2022. Perusal of the aforesaid Order passed by the learned Writ Court
reveals that the Writ Petition was dismissed on the ground that the
Appellants have an efficacious statutory remedy available under the Act of
2000. The contention of the Appellants is that since the Appellants were not
erecting/ raising any building in terms of the Act of 2000, so the
Respondents could not have resorted to the provisions contained in Section
253 of the Act of 2000, while passing the re-sealing Order. In order to
appreciate the contention so raised by the Appellants, it is necessary to
reproduce Section 253 as well as Section 258 of the Act of 2000, which
read thus:
"253. Order of demolition and stoppage of building and
works in certain cases and appeal:
'(1) Where the erection of any work has been commenced, or
is being carried on or has been completed without or contrary to the
sanction referred to in section 246 or in contravention of any
condition subject to which such sanction has been accorded or in
contravention of the provisions of this Act or bye-laws made
thereunder, the Commissioner may in addition to any other action
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that may be taken under this Act, make an order directing that such
erection or work shall be demolished by the person at whose
instance the erection or work has been commenced or is being
carried on or has been completed within such period (not being less
than seven days from the date on which a copy of the order of
demolition with a brief statement of the reasons therefore has been
delivered to that person) as may be specified in the order of
demolition:
Provided that no order of demotion shall be made unless the
person has been given, by means of a notice served in such manner
as the Commissioner may think fit, a reasonable opportunity of
showing cause why such order should not be made:
Provided further that where the erection nor work has not
been completed, the Commissioner may be the same order or by a
separate order, whether made at the time of the issue of the notice
under the first proviso or at any other time, direct the person to stop
the erection or work until the expiry of the period within which an
appeal against the order of demolition, if made, may be preferred
under sub-section (2).
(2) Any person aggrieved by an order of the Commissioner
made under subsection (1) may prefer an appeal against the order to
the Special Tribunal within the period specified in the order for the
demolition of the erection or work to which it relates.
(3) Where an appeal is preferred under sub-section (2)
against an order of demolition, the Tribunal may stay the
enforcement of that order on such terms, if any, and for such period,
as it may think fit;
Provided that where the erection of any building or execution
of any work has not been completed at the time of the making of the
order of demolition, no order staying the enforcement of the order of
demolition shall be made by the Tribunal unless reasonable
opportunity of being heard is afforded to the Commissioner and
security sufficient in the opinion of the Tribunal has been furnished
by the appellant for not proceeding with such erection or work
pending the disposal of the appeal.
(4) Save as provided in this section no court shall entertain
any suit, application or other proceedings for injunction or other
relief against the Commissioner or restrain him from taking any
action or making any order in pursuance of the provisions of this
section.
(5) Subject to the order made by the tribunal on appeal, the
order of demolition made by the Commissioner shall be final and
conclusive.
(6) Where no appeal has been preferred against an order of
demolition made by the Commissioner under sub-section (1) or
where an order of demolition made by the Commissioner under that
sub-section has been confirmed on appeal, whether with or without
variation, the person against whom the order has been made shall
comply with the order within the period specified therein or, as the
case may be, within the period, if any fixed by the tribunal on
appeal, and on the failure of the person to comply with the order
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within such period, the Commissioner may cause the erection of the
work to which the order relates to be demolished and the expenses of
such demolition shall be recoverable from such person as an arrear
of tax under this Act.'
258. Restrictions on user of buildings and removal of
dangerous buildings-
'(1) No person shall, without the written permission of the
Commissioner, or otherwise than in conformity with the conditions,
if any of such permission-
(a) Use or permit to be used for human habitation any part of
a building not originally erected or authorized to be used for that
purpose or not used for that purpose before any alteration has been
made therein by any work executed in accordance with the
provisions of this Act and of the byelaws made thereunder;
(b) change or allow the change of the use of any land or
building;
(c) convert or allow the conversion of one kind of tenement
into another kind.
(2) If it appears to the Commissioner at any time that any
building is in ruinous conditions, or likely to fall, or in any way
dangerous to any person occupying, resorting to or passing by such
building or any other building or place in the neighbourhood of such
building, the Commissioner may, by order in writing, require the
owner or occupier of such building to demolish, secure or repair
such building or do one or more of such things within such period as
may be specified in the order, so as to prevent all cause of danger
therefrom.
(3) The Commissioner may also, if he thinks fit, require such
owner or occupier by the said order either forthwith or before
proceeding to demolish, secure or repair the building so set up a
proper and sufficient board or fence for the protection of passers-by
and other person, with a convenient platform and hand rail wherever
practicable to serve as a footway for passengers outside of such
board or fence.
(4) If it appears to the Commissioner that danger from a
building which is in a reunions condition or likely to fall is
imminent, he may, before making the order aforesaid fence off,
demolish, secure or repair the said building or take such steps as may
be necessary to prevent the danger.
(5) If the owner or occupier of the building does not comply
with the order within the period specified therein, the Commissioner
shall take such steps in relation to the building as to prevent all cause
of danger therefrom.
(6) All expenses incurred by the Commissioner in relation to
any building under this section shall be recoverable form the owner
or occupier thereof as arrears of tax under this Act.'
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Perusal of Section 258 (1) (b) of the Act of 2000 reveals that
no person can change or allow the change of the use of any building
without the written permission of the Commissioner. The premises in
question is admittedly a house, as is evident from the rent agreement dated
29th of March, 2021, relied upon by the Appellants. As per the mandate of
Section 258 of the Act of 2000, the Appellants could not have changed the
use of building from residential to commercial purpose without the
permission of the Commissioner. Furthermore, Section 253 of the Act of
2000 provides that, where erection of any work has been commenced or is
being carried or has been concluded without or contrary to the sanction
referred to Section 246 of the Act of 2000 or in contravention of any
condition subject to which sanction was accorded or in contravention of the
provisions of this Act or Byelaws, the Commissioner may, in addition to
any other action that may be taken under the Act of 2000, direct the person,
who had commenced/ continued such erection of work, to remove such
erection or work.
06. Now, the issue that is required to be considered is as to
whether putting the residential premises to commercial use would come
within the mischief of 'to erect' or not. Section 241 of Chapter XIV of the
Act of 2000 defines the meaning of expression 'to erect building' and the
same is reproduced as under:
'241. Definitions- In this Chapter, unless the context
otherwise requires the expression "to erect building" means: -
(a) to erect a new building on any site where the previously
built upon or not;
(b) to re-erect: -
(i) any building of which more than one-half of the cubical
contents above the level of the plinth have been pulled down, burnt
or destroyed; or
(ii) any building of which more than one-half of the
superficial area of the external walls above the level of the plinth has
been pulled down; or
(iii) any frame building of which more than a half of the
number of the posts of beams in the external walls have been pulled
down;
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(c) to convert into a dwelling house any building or any part
of a building not originally constructed for human habitation or, if
originally so constructed, subsequently appropriated for any other
purpose;
(d) to convert into more than one dwelling houses a building
originally contracted as one dwelling house only;
(e) to convert into place of religious worship or into sacred
building any place or building not originally constructed for such
purpose;
(f) to roof or cover an open space between wall as on
buildings to the extent of the structure which formed by the roofing
or covering of such space;
(g) to convert two or more tenements in a building into
greater or lesser number;
(h) to convert into a stall, shop, warehouse or godown, stable,
factory or a garage any building not originally constructed for use as
such or which was not so used before the change;
(i) to convert a building which when originally constructed
was legally exempted from the operations of any building
regulations contained in this Act or in any bye-laws made thereunder
or in any other law, into a building which had it been originally
erected in its converted form, would have been subject to such
building regulations; and
(j) to convert into or use as a dwelling house any building
which has been discontinued as or appropriated for any purpose
other than a dwelling house."
A plain reading of Clause (h) to Section 241 of the Act of 2000
would clearly show that conversion of any building into a stall, shop,
warehouse or godown, stable, factory or a garage, which was originally not
constructed for the said purpose, would amount to 'erection of building'
within the meaning of this Chapter.
07. Further, a conjoint reading of Sections 241, 253 and 258 of the
Act of 2000 would establish that if a person violates the provisions of the
Act of 2000 or Byelaws made thereunder, and that violation falls within the
meaning of expression 'to erect building', then the competent authority
under the Act of 2000 can proceed against the said violator. So far as the
present case is concerned, the Appellants converted their residential house
into commercial establishment, which falls within the definition of 'to erect
building'. In that view of the matter, the contention raised by the Appellants
that the Respondents could not have re-sealed their premises by resorting to
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the mandate of Section 253 of the Act of 2000 is misconceived and same is
rejected. The Appellants are well within their right to avail the remedy of
appeal as provided under Sub-Section 2 to Section 253 of the Act of 2000,
as has been held by the Coordinate Division Bench of this Court in case
titled 'Shakeela Banu v. State of JK & Ors.', bearing OWP No.
1545/2018 decided on 24th of August, 2018.
08. Viewed thus, we do not find any illegality in the impugned
Order dated 8th of July, 2022 passed by the learned Writ Court. Resultantly,
the same is upheld and the appeal is dismissed, along with the connected
CM. The Appellants, however, shall be at liberty to avail appropriate
remedy as provided under Sub-Section 2 to Section 253 of the Act of 2000
for seeking redressal of their grievance(s).
09. Interim direction(s), if any subsisting as on date, shall stand
vacated.
10. There shall, however, be no order as to costs.
(Mohan Lal) (Rajnesh Oswal)
Judge Judge
SRINAGAR
February 14th, 2023
"TAHIR"
i. Whether approved for reporting? Yes.
