Jammu & Kashmir High Court - Srinagar Bench
Wp(C ) No. 1914/202 vs Aijaz Ahmad Baba 2. Manzoor Ahmad on 29 January, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
1.2 5
IN HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C ) No.1701/2021 c/w
CCP(D) No. 5/2021
WP(C ) No. 1914/2020
Reserved on : 20.12.2023
Pronounced on: 29.01.2024
1 Srinagar Municipal Corporation th.
Commissioner, Srinagar Municipal
Corporation, Karan Nagar, Srinagar
2. Commissioner, Srinagar Municipal
Corporation Karan Nagar, Srinagar.
3. Chief Enforcement Officer, Srinagar
Municipal Corporation, Karan Nagar,
Srinagar
4. Ward Officer Ward No. 30, Srinagar
Municipal Corporation Karan Nagar
Srinagar
.....petitioners(s)
Through :- Mr. Rais-ud-Din Ganai Dy.AG
V/s
1 Aijaz Ahmad Baba 2. Manzoor Ahmad .....Respondent(s)
Baba 3. Nisar Ahmad Baba, all sons of Ali
Mohd Baba resident of Hamza Hilla
Nishat Srinagar
Through :- Mr. Z. A. Shah Sr. Advocate with
Mr. Hanan Advocate.
WP(C ) No. 1914/2020
Shabir Ahmad Gojawari Mr. Jehangir Iqbal Ganai
Sr. Advocate with Ms. Mehnaz
vs Rather Advocate
UT of J&K and others Mr. Rais-ud-Din Ganai Dy.AG
Mr. Z. A. Shah Sr. Advocate with
Mr. Hanan Advocate.
2
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1 By this common judgment, two writ petitions, one filed by
Sh. Shabir Ahmed Gojawari [WP(C) No. 1914/2020] and the other filed by
Srinagar Municipal Corporation [WP(C) No. 1701/2021] challenging
judgment dated 10.09.2020 passed by the Jammu and Kashmir Special
Tribunal, Srinagar (hereinafter referred to as „the Special Tribunal‟), are
proposed to be disposed of. Before coming to the grounds of challenge
raised by the writ petitioners in these two writ petitions, it would be apt to
briefly refer to the facts leading to the filing of the present writ petitions.
2 Vide building permission Order No. 3048 of 2018 issued by
the Srinagar Municipal Corporation in terms of Sections 243 and 244 of the
Jammu and Kashmir Municipal Corporation Act, 2000 (hereinafter referred
to as the „Act of 2000‟) read with Jammu and Kashmir Municipal
Corporation Building Bye-laws, 2011 (hereinafter referred to as the „
Bye-laws of 2011‟), the private respondents, namely Aijaz Ahmad Baba,
Manzoor Ahmad Baba and Nisar Ahmad Baba were accorded permission
for execution of repairs/restoration by way of retrofitting to strengthen the
existing three storeyed heritage building with attic without any change in
size, shape and height so as to keep the façade intact in its original position.
The building is located at Estate Nursing Garh, Hari Singh High Street,
Srinagar. It appears that the private respondents deviated from the
sanctioned plan while raising construction of the building. Accordingly, a
notice dated 25.03.2019 under Section 254 of the Act of 2000 was issued
by the petitioner-Srinagar Municipal Corporation (hereinafter referred to as
the „Corporation‟) to the private respondents requiring them to stop the
construction in question. It also appears that when the private respondents
did not comply with the aforesaid notice, a communication dated
26.03.2019 was addressed by the Corporation to the Police Station
Shergari, Srinagar in terms of Section 254(2) of the Act of 2000 seeking
assistance in removal of persons engaged at site. Another notice, in terms
of first proviso to Section 253(1) of the Act of 2000 dated 02.04.2019 was
issued by the Corporation to the private respondents, whereafter, a notice
of demolition, in terms of Section 253(1) of the Act was issued by the
Corporation on 05.04.2019 against the private respondents directing them
to demolish/pull down the structure within a period of 7 days from the date
of said notice.
3 Aggrieved by notice dated 05.04.2019, the private respondents
filed a statutory appeal before the Special Tribunal. On 09.04.2019, the
learned Special Tribunal, while issuing notice to the Corporation, directed
the parties to maintain status quo. In the meantime, the private respondents
applied for modification of Building Permission dated 17.05.2018 and their
request was acceded to by the Corporation, whereafter, vide Order No.184
dated 27.11.2018, a revised building permission was granted in favour of
the private respondents. As per the said revised building permission, the
private respondents were given permission for restoration/reconstruction of
three storeyed heritage building with attic on existing plinth within the
parameters to restore its de-facto position, meaning thereby that the private
respondents were permitted to reconstruct three storeyed building with attic
on existing plinth within the parameters to restore its de-facto position.
4 According to the writ petitioners, despite the status quo order
passed by the learned Special Tribunal, the private respondents continued
to raise construction and raised a five storeyed structure. The Corporation
sensing that the private respondents have violated the status quo order
passed by the learned Special Tribunal, sealed the structure vide order
bearing No.PS/Com/3365-78 dated 23.07.2020.
5 Aggrieved by the aforesaid order, the private respondents filed
a revision petition before the Special Tribunal and vide order dated
29.07.2020, the Special Tribunal stayed the operation of the impugned
sealing order and the Corporation was directed to de-seal the building.
6 It is pertinent to mention here that the writ petitioner Shabir
Ahmad Gojwari, who claims to be running a business establishment in the
vicinity of the building, which is subject matter of the present writ
petitions, had filed a civil suit against the private respondents before the
civil Court (Municipal Magistrate, Srinagar) seeking a permanent
prohibitory injunction to restrain the private respondents from raising
illegal construction on spot. It appears that the civil Court passed a
temporary injunction restraining the private respondents from raising any
illegal, unauthorized construction on spot in terms of its order dated
13.07.2020. The suit is stated to be pending before the civil Court as on
date.
7 The learned Special Tribunal, by virtue of the impugned order
dated 10.09.2020, decided the appeal filed by the private respondents
against the demolition notice dated 05.04.2019 as also the revision petition
filed by the said respondents against the sealing order dated 23.07.2020 by
formulating a common judgment which is impugned herein. The Tribunal
has, while recording that the private respondents have deviated from the
sanctioned building plan by raising height of the building up-to 51 feet
instead of permitted 40 feet and the said deviation has been converted into
full fledged floor and attic floor, held that the Corporation cannot be
allowed to demolish the same as it would subject the private respondents to
huge loss and that if the deviations are not compounded, it would amount
to bringing down the whole construction which will cause huge prejudice
to the rights and interests of the private respondents. Accordingly, the
Special Tribunal regularized the deviations committed by the private
respondents while raising the construction of the building in question by
compounding the same against payment of composition fee.
8 Regarding the sealing order, the Tribunal held that the
construction raised by the private respondents does not fall within the
meaning of „unauthorized building‟ as contained in Bye-law 2.1.1 because
the private respondents have been permitted to raise the construction on
spot. Thus, according to the Special Tribunal, the order of sealing issued by
the Corporation is bad in law and cannot sustain in the eyes of law.
9 The writ petitioners have challenged the impugned order
passed by the Tribunal on the grounds that the impugned order dated
10.09.2020 is without jurisdiction as the Tribunal has no power to
compound the illegal construction and that no revision lies before the
Tribunal against an order of sealing issued by the Corporation. It has been
contended that raising of height of a building by more than 1.5 per cent
beyond permissible limit and construction of an additional floor beyond
permissible limit amounts to major deviation and, therefore, a
non-compoundable item. It has also been contended that the Tribunal has
fallen into error by holding that the deviations made by the private
respondents do not fall within the ambit of „unauthorized building‟ as
defined in the Byelaws of 2011 because all deviations of building
permission constitute „unauthorized construction‟. Therefore, it was not
open to the Tribunal to de-seal the structure and allow the private
respondents to violate the order(s) of the Tribunal.
10 The private respondents in their reply to the writ petitions
have raised a preliminary objection to the maintainability of the writ
petition on behalf of petitioner Shabir Ahmad Gojwari. It has been
submitted that the said petitioner has no locus standi to file the writ petition
as none of his legal or civil rights is affected by the impugned order passed
by the learned Special Tribunal. It has been submitted that the issue, which
is subject matter of the present writ petitions, is between the Corporation
and the private respondents and, as such, merely because the petitioner
Shabir Ahmad Gojwari is running his business establishment adjacent to
the building of the private respondents, does not give any cause of action to
him against the private respondents. It has been submitted that, as per the
Master Plan and the Building Bye-laws in vogue, there is no limitation to
the height of the building and as per the building byelaws, the height of a
building can be raised up to 70 feet, therefore, the Special Tribunal was
well within its jurisdiction to compound the deviations as regards the
height of the building.
11 I have heard learned counsel for the parties and perused the
pleadings filed by the parties and the record produced by the Corporation.
12 Before coming to merits of the case, it would be apt to deal
with the preliminary objection raised by the private respondents with
regard to the maintainability of the writ petition filed at the instance of Sh.
Shabir Ahmad Gojawari, who claims to be running a business
establishment adjacent to the building which is subject matter of the
present writ petitions. As already noted, the contention of the private
respondents is that merely because petitioner Shabir Ahmad Gojawari is
running his business establishment in the vicinity of the building in
question does not mean that any of his rights, statutory or civil, is violated
by raising of the construction by the private respondents. It has been
contended that the issue, whether the private respondents have deviated
from the sanctioned plan while raising the construction on spot and if so,
whether the same could be compounded, is a matter between the
Corporation and the private respondents. No other person has right to
intermeddle in an issue which is primarily between the Corporation and the
private respondents.
13 The question whether an applicant has locus standi to invoke
the extraordinary jurisdiction under Article 226 of the Constitution, has
been a matter of discussion and deliberation before this Court as well as
before the Supreme Court in a number of cases. In this regard, it would be
apt to refer to the judgment of the Supreme Court in the case of Jasbhai
Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmad and others,
(1976) 1 SCC 671 in which it has been held that an applicant should
ordinarily be one who has a personal or individual right in the subject
matter of the application, though in the case of some of the writs like
habeas corpus or quo warranto this rule is relaxed or modified. It has been
further held that as a general rule, infringement of some legal right or
prejudice to some legal interest in hearing the petitioner is necessary to
give him a locus standi in the matter. The issue has been elaborately dealt
with by the Supreme Court in paras (35) to (39) of the said judgment and
the same are reproduced as under:
"35.The expression "ordinarily" indicates that this is not a
cast-iron rule. It is flexible enough to take in those cases where
the applicant has been prejudicially affected by an act or
omission of an authority, r even though he has no proprietary
or even a fiduciary interest in the subject- matter. That apart, in
exceptional cases even a stranger or a person who was not a
party to the proceedings before the authority, but has a
substantial and genuine interest in the subject matter of the
proceedings will be covered by this rule. The principles
enunciated in the English cases noticed above, are not
inconsistent with it.
36. In the United States of America, also, the law on the point is
substantially the same. "No matter how seriously infringement
of the Constitution may be called into question said Justice
Frankfurter in Coleman v. Miller. This is not the tribunal for its
challenge except by those who have some specialized interest of
their own to vindicate apart from a political concern which
belongs to all". To have a "standing to sue", which means locus
standi to ask for relief in a court independently of a statutory
remedy, the plaintiff must show that he is injured, that is,
subjected to or threatened with a legal wrong. Courts can
intervene only where legal rights are invaded. "Legal wrong"
requires a judicially enforceable right and the touch stone to
justiciability is injury to a legally protected right. A nominal or
a highly speculative adverse affect on the interest or right of a
person has been held to be insufficient to give him the "standing
to sue" for judicial review of administrative action. Again the
"adverse affect" requisite for "standing to sue" must be an
"illegal effect''(l). Thus, in the undermentioned cases, it was
held that injury resulting from lawful competition, not being a
legal wrong, cannot furnish a "standing to sue" for judicial
relief.
37.It will be seen that in the context of locus standi to apply for
a writ of certiorari, an applicant may ordinarily fall in any of
these categories: (i) 'person aggrieved';(ii) 'stranger'; (iii)
busybody or meddlesome interloper.Persons in the last
category are easily distinguishable from those coming under
the first two categories. Such persons interfere in things which
do not concern them. They masquerade as crusaders for justice.
They pretend to act in the name of Pro Bono Publico, though
they have no interest of the public or even of their own to
protect. They indulge in the pastime of meddling with the
judicial process either by force of habit or from improper
motives. Often, they are actuated by a desire to win notoriety or
cheap popularity; while the ulterior intent of some applicants in
this category, may be no more than spoking the wheels of
administration. The High Court should do well to reject the
applications of such busybodies at the threshold.
38. The distinction between the first and second categories of
applicants, though real, is not always well-demarcated. The
first category has, as it were, two concentric zones; a solid
central zone of certainty, and a grey outer circle of lessening
certainty in a sliding centrifugal scale, with an outermost
nebulous fringe of uncertainty. Applicants falling within the
central zone are those whose legal rights have been infringed.
Such applicants undoubtedly stand in the category of 'persons
aggrieved'. In the grey outer-circle the. bounds which separate
the first category from the second, intermix, interfuse and
overlap increasingly in a centrifugal direction. All persons in
this outerzone may not be "persons aggrieved.
39. To distinguish such applicants from 'strangers', among
them, some broad tests may be deduced from the conspectus
made above. These tests are not absolute and ultimate. Their
efficacy varies according to the circumstances of the case,
including the statutory context in which the matter falls to be
considered. These are: Whether the applicant is a person whose
legal right has been infringed ? Has he suffered a legal wrong
or injury, in the sense that his interest, recognised by law. has
been prejudicially and directly affected by the act or omission
of the authority, complained of ? Is he a person who has
suffered a legal grievance, a person against whom a decision
has been pronounced which has wrongfully deprived him of
something or wrongfully refused him something, or wrongfully
affected his title to something ? Has he a special and
substantial grievance of his own beyond some grievance or
inconvenience suffered by him in common with the rest of the
public ? Was he entitled to object and be heard by the authority
before it took the impugned action? If so, was he prejudicially
affected in the exercise of that right by the act of usurpation of
jurisdiction on the part of the authority ? Is the statute, in the
context of which the scope of-the words "person aggrieved" is
being considered. a social welfare measure designed to lay
down ethical or professional standards of conduct for the
community ? or is it a statute dealing with private rights of
particular individuals ?
14 From the above, it is clear that the Supreme Court has, after
analyzing the issue at length, laid down broad tests for coming to a
conclusion whether a writ petition on behalf of an applicant is
maintainable. Thus, for deciding whether a writ petition is maintainable at
the instance of an applicant, it has to be seen whether the applicant is a
person whose legal rights have been infringed or whether he is a person
who has suffered a legal grievance and a decision has been rendered
against him depriving him of something or whether he has a special and
substantial grievance of his own beyond some grievance or inconvenience
suffered by him in common with the rest of the public and if so, whether he
would be prejudicially affected in exercise of that right by the act of
usurpation of jurisdiction on the part of the authority. In the light of the
aforesaid tests, let us now proceed to consider the facts of the instant cases.
15 It is an admitted fact that the petitioner Shabir Ahmad
Gojawari has filed a civil suit against the private respondents before the
civil Court for adjudication of his civil rights as against the private
respondents and he has sought an injunction to restrain the private
respondents from raising construction which is in deviation of the
sanctioned building permission. It is also not in dispute that petitioner
Shabir Ahmad Gojawari is running his business establishment adjacent to
the building of the private respondents. Whether any of his civil rights is
violated by the deviations that may have been committed by the private
respondents while raising construction of their building on spot, is a
question to be decided by the civil Court. The regularization and
compounding of these deviations in terms of the impugned judgment of the
Special Tribunal has the potential of rendering the suit filed by the
petitioner Shabir Ahmed Gojawari as infructuous. Therefore, if the order
of compounding of deviations passed by the Special Tribunal, is left
unchallenged, it may have adverse consequences to the case of the
plaintiff in the civil suit. Thus, it is a case where the petitioner Shabir
Ahmad Gojawari has a special and substantial grievance of his own beyond
the grievance of other persons living in the vicinity, as such, it cannot be
stated that petitioner Shabir Ahmad Gojawari is a busy body or a stranger
at whose instance the writ petition would not be maintainable. He has a
substantial interest in challenging the impugned order passed by the Special
Tribunal. The writ petition at his instance is, therefore, held to be
maintainable.
16 One of the main contentions raised by the writ petitioners
challenging the impugned order of the Tribunal is that the Tribunal does
not have jurisdiction to compound the deviations committed by the private
respondents while raising the offending construction. The contention of the
writ petitioners in this regard is two fold: (i) that as per the provisions
contained in the Act of 2000, the Special Tribunal does not have power to
compound the deviations (minor or major) and,(ii) that the deviations made
by the private respondents while raising the construction are
non-compoundable in nature as they have raised height of the building up
to 51 feet which is more than 1.5 per cent of the permissible limit.
17 If we have a look at the notice of demolition issued by the
Corporation that was subject matter of challenge in the appeal before the
Tribunal, it has been issued in terms of Section 253(1) of the Act of 2000.
Subsection (2) of Section 253 of the Act provides for a remedy of appeal
against an order made under Section 253(1) to the Tribunal. There is no
provision in the Act of 2000 that confers power upon the Special
Tribunal/Appellate Authority to compound the deviations. The power to
compound the deviations has been conferred upon the Commissioner of
Municipal Corporation in terms of Section 254(5) of the Act of 2000 which
reads as under:
"254(5) Where the owner of the building submits the revised
plan, after the work has been stopped by him or the work is
completed by him and deviations from the sanctioned plan are
minor in nature, the Commissioner may subject to the special
and general directions of the State Government under Section
2355, compound the cases of deviations".
18 From a perusal of the aforesaid provision, it is clear that in
relation to deviations of minor nature, the Commissioner of Municipal
Corporation is authorized to compound the same. As against this, in terms
of Regulation 9 of J&K Control of Building Operations (Revised)
Regulations, 2001 (hereinafter referred to as the Regulations of 2001‟), the
appellate officer has been conferred with power to compound an offence of
minor nature. However, in the instant case, the Corporation has proceeded
against the private respondents in accordance with the provisions contained
in the Act of 2000 and not in accordance with Control of Building
Operations Act, 1988 and the the Regulations of 2001. Therefore, an order
of demolition passed by the Corporation in terms of Section 253(1) of the
Act of 2000 is appealable before the Special Tribunal as provided under
Section 253(2) of the said Act and not in terms of Regulation 9 of the
Regulations of 2001. The Appellate Authority does not have power to
compound the deviation under the Act of 2000 and the said power has been
vested with the Commissioner of Municipal Corporation.
19 Mr. Z.A.Shah learned Senior Counsel appearing for the
private respondents has submitted that because the Commissioner is vested
with power to compound the deviations, the Tribunal which is an appellate
authority against an order of the Commissioner, is deemed to be vested
with power to compound the minor deviations. I am afraid the argument of
learned Senior Counsel cannot be accepted for the reason that the appellate
authority, in the instant case being a creature of statute viz. Act of 2000, as
such, its powers and jurisdiction are defined and circumscribed by the
provisions contained in the Act of 2000. An appellate Authority created by
a statute cannot go beyond what is provided in that statute.
20 The manner in which the appellate Authority i.e the Special
Tribunal has to exercise its powers is itself provided in the provisions
contained in sub-sections (2) to (6) of Section 253 of the Act of 2000,
which read as under:
"(2) Any person aggrieved by an order of the Commissioner
made under sub-section (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 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".
21 From a reading of aforesaid provisions, it is clear that the
Tribunal has power to stay the enforcement of order of demolition, it has
also power to confirm the order of demolition on an appeal or it can vary
the said order. The statute nowhere provides or vests power of
compounding of deviations upon the appellate authority, instead the said
power has been specifically vested with the Commissioner of Municipal
Corporation. As against this, under Regulations of 2001, the appellate
authority i.e the Tribunal has been specifically vested with the power to
compound the minor deviations. The Tribunal being an appellate authority
created by the statute i.e Act of 2000 cannot exercise its power beyond
those that have been vested upon it by the statute. The argument of learned
Senior Counsel appearing for the private respondents, therefore, cannot be
accepted.
22 Having held that the Special Tribunal in the instant case had
no power to compound the deviations of any nature whatsoever, the learned
Tribunal by compounding the deviations has travelled beyond its
jurisdiction while passing the impugned order. It was only the
Commissioner of Municipal Corporation who, being vested with the
requisite power, could consider the matter regarding compounding of
deviations and pass appropriate orders in terms of Section 254(5) of the Act
of 2000.
23 The question whether the deviations and contraventions
committed by the private respondents while erecting the building in
question, are minor in nature or in other words, are compoundable in
nature, has to be decided by the Commissioner in the first instance and not
by the Tribunal. The contention of the writ petitioners that the deviations
were non- compoundable in nature and the contention of the learned
appearing for the private respondents that these deviations were
compoundable in nature being not in violation of the relevant building
byelaws and the Master plan/land use, are matters which can be determined
and decided in the first instance by the Commissioner, Srinagar Municipal
Corporation. Therefore, this Court would desist from rendering any opinion
on this aspect of the matter at this stage lest it may prejudice the respective
cases of the parties.
24 Another question that has been deliberated upon by learned
counsels appearing for the parties is as regards the jurisdiction of the
Tribunal to entertain the revision petition against the order of sealing
passed by the Corporation. Mr. Jehangir Iqbal Ganai, learned Senior
Counsel appearing for the petitioner Shabir Ahmad Gojwari has
vehemently contended that an order of sealing passed by the Corporation in
terms of clause 2.1.2(b) of Byelaws of 2011 is not revisable before the
Special Tribunal. It has been contended that the power of revision under
Section 403 of the Act of 2000 is conferred on the Government and not on
the Special Tribunal and Section 3 (1) of the J&K Special Tribunal Act,
1988 („the Act of 1988‟ for short) does not apply to the statutes which have
come into existence after the promulgation of the Act of 1988. To elaborate
his argument, the learned Senior Counsel has contended that in Section
253(2) of the Act of 2000 , word „Special Tribunal‟ has been expressly
used while providing for appellate forum against an order of demolition
passed by the Commissioner, but the legislature has intentionally not used
the word „Special Tribunal‟ in Section 403 of the Act which provides for
power of revision and instead in the said provision, the revisional authority
has been mentioned as the Government.
25 Per contra, Mr. Z.A.Shah, learned Senior Counsel has
submitted that Section 3 of the Act of 1988 clearly indicates that if a statute
provides for remedy of appeal, revision or review before the Government
or a Minister, the same would lie before the Special Tribunal and, therefore
there is no manner of doubt in holding that the revision petition against a
sealing order passed by the Corporation, which is revisable under section
403 of the Act of 2000, before the Goverment would lie before the
Tribunal.
26 It is to be noted that clause 2.1.2 (b) of the Byelaws of 2011 vests
power with the competent Authority to seal a plot or a building if
unauthorized construction is not stopped. Before determining the question
whether the Special Tribunal has jurisdiction to entertain a revision petition
against an order of sealing passed under Byelaws of 2011, it would be apt
to trace out the source of the Bye-laws of 2011. These Building Byelaws
of 2011 have been framed by the Srinagar Municipal Corporation in
exercise of its powers under Section 395 D of the Act of 2000 and they
have also been approved by the Government vide Notification dated
21.09.2011. These byelaws, inter alia, provide for the regulations relating
to building infrastructure, slope, height, corridors and passages, boundary
wall/compound wall, basement etc. Byelaw 5.8.2 provides for penalties and
violations and it defines compoundable items and non-compoundable
items. As already noted, Subsection (5) of Section 254 vests powers with
the Commissioner to compound the deviations of minor nature subject to
special and general directions of the State Government under Section 255
of the Act of 2000. As per Section 255 of the Act, the Government is
vested with power to give special or general directions in the matter of
policy in relation to compounding of cases involving deviations from the
sanctioned plan as is required to be followed by the Commissioner for
compounding of such cases under subsection (5) of Section 254 of the Act.
27 From the above, it is clear that the Government, in exercise of
its powers under Section 255 of the Act by incorporating byelaw 5.2.8 in
the building bye-laws of 2011 has given policy directions relating to
compounding of cases involving deviations from the sanctioned plan. Thus,
the entire exercise for compounding of offences in terms of By-laws of
2011 owes its origin to the provisions contained in the Act of 2000. It can,
therefore, be safely stated that the order of sealing which was subject
matter of challenge before the Tribunal owes its genesis and origin to the
provisions contained in the Act of 2000 and the said order is revisable in
terms of Section 403 of the said Act which reads as under:
"403.Power of revision- The Government, may at any
time, for the purposes of satisfying itself as to the
correctness, legality, propriety or regularity of any
proceeding or order passed by any officer of the
Government or the Commissioner or any officer
subordinate to him, call for and examine the record and
may pass such order with reference thereto as it may
think fit".
28 From a reading of aforesaid provision, it is clear that any order
passed by any officer of the Government or the Commissioner or any
officer subordinate to the Commissioner is revisable before the
Government. The question that begs for answer is whether the expression
„Government‟ appearing in Section 403 of the Act of 2000 can be
construed as „Special Tribunal‟ by taking aid of provisions contained in
Section 3 of the Act of 1988 which reads as under:
"3.Appeals, revisions etc. to the Tribunal.
(1) Notwithstanding anything contained in any law made by
the 1[Legislative Assembly of the Union territory of Jammu and
Kashmir], an appeal, revision or review petition which under
any such law lies to the Government of the Union territory of
Jammu and Kashmir or a Minister shall, from such date as may
be appointed by the Government of the Union territory of
Jammu and Kashmir by notification in the Official Gazette, lie
or be so preferred, brought, made or presented to the Tribunal
and accordingly any reference in any provisions of such law,
which relate to the matters aforesaid, to the Government of the
Union territory of Jammu and Kashmir or the Minister shall be
construed as a reference to the Tribunal.
(2) The Tribunal shall also excise all the jurisdiction, powers
and authority in relation to such appeals, revisions and review
petitions as the Legislature may by law provide".
29 From a bare reading of subsection (1) quoted above, it is clear
that if under any law made by the State legislature, an appeal, revision or
review lies to the Government or the Minister, the same would now lie or
be presented to the Tribunal and, therefore, the reference which relates to
the Government or the Minister shall be construed as reference to the
Tribunal. A reading of subsection (1) does not, in any manner, infer that it
is only in case of those statutes which had come into existence at the time
of promulgation of the Act of 1988, that the reference to Government or the
Minister has to be construed as reference to the Tribunal and not in respect
of those statutes that have been promulgated thereafter. This is further
clarified from the fact that vide S.O No. 1229 (E) dated 31.03.2020, the
expression „State Legislature‟ has been substituted by „Legislative
Assembly of UT of Jammu and Kashmir, meaning thereby that even in
case of statutes that may be promulgated by the legislative assembly of UT
of Jammu and Kashmir, which is yet to come into existence, the reference
to the Government or the Minister will have to be construed as reference to
the Tribunal. The contention of learned Senior Counsel appearing for the
petitioner in this regard, therefore, appears to be without any substance.
30 So far as subsection (3) of Section 3 of Act of 1988 is
concerned, it provides that the Tribunal shall also exercise jurisdiction in
relation to such appeals, revisions and review petitions as the legislature
may by law provide. This means that the Tribunal would exercise
jurisdiction not only in respect of those appeals, revisions and review
petitions as are to be preferred before the Government or the Minister, but
it will have jurisdiction even in relation to such appeals, revisions and
review petitions where the statute may specifically provide so. The word
„also‟ appearing in subsection (3) of Section 3 is significant in this regard
which conveys that, in addition to whatever has been provided under
Subsection (1) of Section 3, the Tribunal would exercise its jurisdiction in
respect of appeals, revisions and review petitions as the statute may
provide.
31 There is yet another reason to hold that the revisional power
under Section 403 of Act of 2000 is exercisable by the Special Tribunal. In
this regard, provisions contained in Rule 23 of Jammu and Kashmir Special
Tribunal Rules, 1986 are of some significance. It provides that the Tribunal
shall have power to call for the record of the subordinate courts/authorities
suo motu or on the petition filed by any party. As already noted, the Special
Tribunal exercises appellate jurisdiction against the order of demolition
passed by the Commissioner of Municipal Corporation. By virtue of this
power, the Tribunal becomes an authority superior to that of the
Commissioner or any other officer subordinate to him. Thus, the Tribunal
in terms of Rule 23 of the Rules of 1986 has power to call for the record of
the Commissioner as well as the officers subordinate to him suo motu or on
a petition filed by any party. This strengthens the opinion of this Court that
the Special Tribunal does have revisional powers in respect of orders
passed by the Commissioner and the officers subordinate to him in terms of
Section 403 of the Act of 2000. It can, therefore, be safely held that the
learned Special Tribunal was well within its jurisdiction to entrain the
revision petition against the order of sealing which has been passed by the
Commissioner in exercise of powers under Byelaws of 2011 framed under
Section 395 D of the Act of 2000.
32 Another question that comes up for consideration is whether
the Tribunal was right in holding that the order of sealing dated 23.07.2020
is bad in law. In this regard, the Tribunal has interpreted the expression
„unauthorized building‟ appearing in Building byelaw 2.1.1 to mean a
building raised without grant of a building permit. According to the
Tribunal, because the private respondents had obtained valid permission
from the competent authority for raising the building, therefore, the
building raised by them is not unauthorised within the definition of Byelaw
No.2.1.1.
33 If we have a look at Byelaw No. 2.1.1, it defines „unauthorised
building‟ as a building undertaken after a building permit has lapsed or
after a building permit has been revoked. The reasoning adopted by the
Tribunal that, once a building permission has been issued and is valid even
if the said building is raised in contravention of the building permission,
the same would not qualify to be an unauthorized building, is absolutely
flawed. What byelaw No. 2.1.1 conveys is that unauthorized building is a
building which is undertaken without grant of permission, meaning thereby
if a building activity is undertaken regarding which there is no permission,
it would constitute an unauthorized building. To quote an example, if there
is a building permission for raising three storeyed building and the person
concerned constructs an additional fourth floor, the additional 4 th floor
would constitute „unauthorized building‟. Any deviation from the building
permission would always constitute an unauthorized construction. The
Tribunal by adopting flawed reasoning which is against the logic and
common sense has termed the „unauthorized construction‟ of the private
respondents as authorized one and thereafter set aside the sealing order.
The ground on which the Tribunal has quashed the order of sealing is
absolutely perverse and liable to be set aside.
34 For the foregoing reasons, the writ petitions are disposed of
with the following directions:
(i) The impugned order passed by the Special Tribunal is
set aside;
(ii) The private respondents are at liberty to approach the
Commissioner, Srinagar Municipal Corporation with a petition
for compounding of the deviations and if and when such a
petition is made by the private respondents before the
Commissioner, the same shall be considered by the said
authority in the light of the building permission granted in
favour of the private respondents, the relevant building
byelaws, the zonal plan and all other relevant statutes and
guidelines on the subject;
(iii) The offending portion of the building constructed by the
private respondents shall be sealed by the petitioner-
corporation till such time a decision is taken by the
Commissioner, Srinagar Municipal Corporation with regard to
the question of compounding of deviations; and,
(iv). In case the deviations are not compounded/ regularized
by the Commissioner, the private respondents shall ensure that
offending portion of the building is demolished or, in the
alternative, the Corporation shall undertake demolition of the
offending portion in accordance with law.
As per the allegations made in the contempt petition, the
private respondents are stated to have undertaken glazing work of the
impugned structure. In view of the directions passed in the main writ
petition, particularly direction No.(iv) , no further orders are required to be
passed in the present contempt petition. The same is, accordingly, disposed
of in the light of the aforesaid directions passed in the writ petition.
(SANJAY DHAR)
JUDGE
Srinagar
29.01.2024
Karam Chand/Secy.
Whether the order is speaking : Yes
Whether the order is reportable : Yes
