Jammu & Kashmir High Court - Srinagar Bench
Abdul Rehman Ahanger vs Ut Of J&K & Others on 15 March, 2024
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKHAT SRINAGAR
Reserved on: 06.03.2024
Pronounced on: 15.03.2024
WP(C) No.1711/2022
ABDUL REHMAN AHANGER ...PETITIONER(S)
Through: - Ms. Asma Rashid, Advocate.
Vs.
UT OF J&K & OTHERS ...RESPONDENT(S)
Through: - Mr. Raies-ud-din Ganai, Dy. AG.
CORAM:HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1) The petitioner along with his two brothers had approached the
respondents for grant of building permission for construction of a
commercial complex at Batabagh Narapora Road Sopore. After the
requisite No Objection Certificates were issued by the concerned
departments, the respondent-Municipal Council, Sopore, granted
permission in favour of the petitioner and his two brothers for raising the
construction vide order dated 28.01.2016. The petitioner further claims
to have deposited the building permission fee on 31.12.2015 for an
amount of Rs.1,60,600/. The petitioner further states that when the
building permission was granted, he was not in a position to raise
construction of three storeyed building like his other two brothers due to
financial constraints and he raised construction of only single storey
building. The petitioner further claims to have obtained loan from the
financial institution and his friends and relatives for the purpose of
raising further construction of two more stories but could not raise the
construction due to Covid-19 Pandemic. The petitioner, as such,
submitted an application in the month of April, 2021 before the
respondent-Municipal Council which was forwarded to the concerned
departments for their No Objection certificates. The petitioner was also
directed to deposit the building permission fee and the same was
deposited in the Municipal Council Office, Sopore, through a cheque
amounting to Rs.1,14,050/. The concerned departments also granted No
Objection Certificates for raising the construction. It is further stated that
the petitioner has acquired a right of deemed permission as his building
permission case was not decided by the respondents. The petitioner,
accordingly, started the construction as a matter of right but the
respondents started interference in the completion of construction of the
building. The petitioner claims to have made applications with the
respondents for grant of revised permission for raising two more floors
but the same were not considered, as such, the petitioner through the
medium of present writ petition has sought directions upon the
respondents thereby restraining them from causing any sort of
interference with the construction being raised over the ground floor of
the building situated at Batabagh Narapora Road, Sopore.
2) The respondents have filed their response stating therein that the
petitioner had filed an application seeking building permission in his
favour for three storied commercial building at site Neharpora, Damna,
Sopore in the year 2016, which was accorded by the respondent-Council
vide order dated 28.01.2016. After sometime, the petitioner again
approached the respondents for accord of building permission for
construction of further two stories over the already existing ground floor
on the ground that he could not construct the building as per the earlier
site plan due to financial stringency. The case of the petitioner was
again referred to the concerned departments for their No Objection
Certificates. R&B Department Division Sopore submitted its report vide
communication dated 24.06.2021 with the remarks that the ground floor
of the shop line is at a distance of only 17 feet instead of 25 feet from the
centre of Neharpora main road, as such, is violating the prevailing
Ribbon Development Act, therefore, the case of the petitioner was not
accorded approval. The petitioner again approached the respondents for
approval and his case was again referred to the concerned departments,
however, the R&B Department Division again raised the same objection
that the building has been constructed at the distance of 17 feet from the
centre of the road instead of 25 feet.
3) Learned counsel for the petitioner submitted that once the
construction on the ground floor has been raised by the petitioner, the
respondents cannot deny permission to him for raising construction of
2nd and 3rd floors on the ground that the structure at ground floor is at a
distance of 17 feet from the centre of the road instead of 25 feet. She
further submitted that the petitioner is ready to furnish an undertaking
that if at any time the building comes under road widening process, he
will not claim any compensation for the said structure.
4) Per contra, Mr. Raies-ud-din Ganai, Dy. AG, submitted that the
petitioner cannot raise the construction in violation of Ribbon
Development Act. He further submitted that the respondents are not
possessing the whole of the record in respect of the building permission
granted in favour of the petitioner.
5) Heard and perused the record.
6) This is an admitted fact that the petitioner was permitted to raise
construction by the respondents and also that the petitioner has raised
the construction on ground floor only. It is admitted by the respondents
that the petitioner had applied before them for raising construction of
2nd and 3rd floors but due to the report submitted by the Executive
Engineer, R&B Division, Sopore, the application of the petitioner for
raising construction of 2nd and 3rd floors could not be accepted. The
petitioner has placed on record the building permission granted to him
and his brother for raising construction of two three storeyed
commercial buildings and one single storeyed commercial building
vide order dated 28.01.2016. The respondents have not been able to
produce the record in respect of the building permission granted in
favour of the petitioner and his brother, so as to ascertain as to whether
there was any stipulation for keeping a particular distance from the
centre of the road or not.
7) Be that as it may, the petitioner has already raised construction of
the ground floor and no one ever raised any objection to the same. The
petitioner has also placed on record the photographs demonstrating the
building line existing on spot. The communication of Executive
Engineer dated 24.06.2021 bears the mention of the fact that the
petitioner has furnished an undertaking that he will not claim any
compensation for the said structure, if the structure comes under the
road widening programme. The petitioner has placed on record the
application dated 20.06.2022 for grant of revised building permission
whereas the present writ petition has been filed on 04.08.2022. In view
of above, as the petitioner has already raised the construction of the
ground floor and objection in respect of violation of Ribbon
Development Act was never raised, this court deems it proper to direct
the respondents to consider the application of the petitioner for grant of
revised building permission as per rules notwithstanding the objection
raised by the Executive Engineer, R&B Division, Sopore, in respect of
the distance of the ground floor from the centre of the road. The
petitioner shall also file an undertaking with the respondents that in the
event the structure sought to be raised by him comes under road
widening, he will not claim any compensation for the same. The
application submitted by the petitioner shall be decided with in the
period of 30 days from the date, the copy of this order is made available
to the concerned respondents.
8) Disposed of as above.
(Rajnesh Oswal)
Judge
SRINAGAR
15.03.2024
"Bhat Altaf-Secy"
Whether the order is reportable: YES/NO
