Jammu & Kashmir High Court - Srinagar Bench
Javaid Hussain Baba vs State Of J&K And Others on 6 May, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 29.04.2025
Pronounced on: 06.05.2025
CM(M) No.68/2024
JAVAID HUSSAIN BABA ... PETITIONER(S)
Through: - Mr. F. A. Wani, Advocate.
Vs.
STATE OF J&K AND OTHERS ...RESPONDENT(S)
Through:- Mr. Bikramdeep Singh, Dy. AG-for R1 to R7.
Mr. T. H. Khawaja, Advocate-for R8
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner, through the medium of present
petition, has challenged order dated 05.06.2017 passed by
the J&K Special Tribunal, whereby the order of demolition
dated 30.08.2016 issued by Srinagar Municipal
Corporation in respect of the construction raised by
respondent No.8 at Mohalla Syed Afzal Shri Bhat, Alamgari
Bazar, Srinagar, has been set aside and respondent
Srinagar Municipal Corporation has been directed to
regularize the unauthorized construction raised by
respondent No.8 in case the same falls within the ambit of
the Act and the Rules framed thereunder.
2) The facts emanating from the pleadings of the parties
are that respondent No.8 without obtaining permission of
Srinagar Municipal Corporation raised construction of a
residential premises at Mohalla Syed Afzal Shri Bhat,
Srinagar. It seems that the petitioner, who happens to be
the brother of respondent No.8, filed a civil suit before the
Court of 1st Civil Subordinate Judge (Municipal Magistrate),
Srinagar, seeking a permanent prohibitory injunction
against respondent No.8 and the Municipal authorities
restraining respondent No.8 and his associates from raising
any sort of illegal construction on spot. An interim order
came to be passed by the learned Sub Judge on
24.06.2016, whereby respondent No.8 and his associates
were temporarily restrained from raising any sort of illegal
and unauthorized construction on spot.
3) It seems that respondent No.6-Ward Officer during
his visit found that respondent No.8 is raising unauthorized
construction on spot and, accordingly, a notice under
Section 254 of the J&K Municipal Corporation Act was
issued to respondent No.8 directing him to stop the process
of construction forthwith. Thereafter respondent No.4
issued a show cause notice to respondent No.8 in terms of
Section 253(1) of the Municipal Corporation Act asking him
to show cause within 48 hours as to why construction
raised in contravention of the provisions of the Act be not
demolished. It seems that respondent No.8 failed to show
cause in response to the aforesaid notice, which prompted
respondent No.4 to issue demolition notice under Section
253(1) of the Act vide his communication dated 30.08.2016.
This demolition notice came to be challenged by respondent
No.8 by way of an appeal before the J&K Special Tribunal
and on 05.06.2017, impugned order came to be passed by
the learned Tribunal whereby the notice of demolition was
set aside and the respondent Corporation was directed to
regularize the structure raised by respondent No.8 if the
same falls within the ambit of the Act and the rules framed
thereunder.
4) It also appears that the petitioner had approached this
Court by way of writ petition bearing OWP No.1150/2016
projecting his grievance about the illegal construction
raised by respondent No.8. This Court vide order dated
03.10.2016, disposed of the writ petition after noticing that
the petitioner had already filed a civil suit against
respondent No.8 and respondent No.8 had already filed an
appeal against the demolition order before the J&K Special
Tribunal.
5) The petitioner has challenged the impugned order
passed by the Tribunal on the grounds that the learned
Tribunal has showered undue benefit upon respondent
No.8 while passing the impugned order. It has been
submitted that it was not open to the learned Tribunal to
direct the respondent Corporation to regularize illegal
construction made by respondent No.8. It has been
contended that, admittedly, respondent No.8 had raised
construction on spot without permission from the
Municipal authorities, as such, there was no ground
available to the Tribunal to quash the demolition notice.
6) Respondent No.8, in his reply to the writ petition, has
submitted that he has an independent right to seek
regularization of the construction raised by him which
cannot be denied to him. It has been further contended that
the construction has been raised by him on the spot where
his house was already existing and that the construction
does not violate any zonal regulations. It has been
submitted that the construction raised by respondent No.8
is covered by the regularization policy. It has been
contended that the learned Tribunal has simply directed
the respondent Corporation to regularize the impugned
structure if it is covered by the rules and, as such, it cannot
be stated that there has been any positive direction issued
by the Tribunal against the respondent Corporation for
regularization of the construction.
7) The respondent Corporation has also filed its reply to
the writ petition, in which the facts mentioned hereinabove
have been narrated and it has been submitted that
pursuant to the directions of the Tribunal, respondent No.8
has applied for regularization of construction and his case
is under process but a final decision in the matter has not
been taken because of pendency of the present writ petition.
8) I have heard learned counsel for the parties and
perused the record.
9) So far as the facts narrated hereinbefore are
concerned, the same are not in dispute. It is not in dispute
that respondent No.8 has raised construction on spot
without obtaining prior permission from the Municipal
authorities. Learned counsel for respondent No.8 has
contended that the petitioner has no locus standi to file the
10) In the above context, it has to be noted that the
petitioner happens to be the brother of respondent No.8. He
claims that he is the co-owner of the property on which the
construction has been raised by respondent No.8. It is also
not in dispute that the petitioner has filed a suit against
respondent No.8 and Municipal authorities voicing his
grievance about the raising of unauthorized construction by
respondent No.8. It is also admitted case of the parties that
the petitioner had filed an intervention application before
the Tribunal during the pendency of the appeal against the
demolition notice. Whether any of the civil rights of the
petitioner is violated by the unauthorized construction that
has been raised by respondent No.8 on spot is a question
to be decided by the civil court. However, the regularization
of unauthorized construction by respondent Corporation in
terms of the impugned order of the learned Tribunal has
the potential of rendering the suit filed by the petitioner as
infructuous. Therefore, if the order of regularization of
unauthorized construction of respondent No.8 that may be
issued by the respondent Corporation is left unchallenged,
it may have adverse consequences to the case of the
petitioner in the civil suit. Thus, it is a case where the
petitioner has a special and substantial grievance of his
own, as such, it cannot be stated that he is a stranger on
whose instance the present petition would not be
maintainable. The petitioner has a substantial interest in
challenging the order passed by the Tribunal. Therefore, the
petition at his instance is held to be maintainable.
11) Coming to the merits of the petition. The learned
Tribunal has itself come to a conclusion that the
construction raised by respondent No.8 on spot is
unauthorized, inasmuch as he has not sought permission
from the Municipal authorities. Therefore, it was not open
to the learned Tribunal to set aside the impugned order of
demolition issued by respondent Municipal Corporation
against respondent No.8. The order of the learned Tribunal
to this extent is not sustainable in law. Similarly, it was not
open to the Tribunal to direct the respondent Corporation
to accord consideration to the regularization of
unauthorized construction raised by respondent No.8 as no
such application was made by respondent No.8 before the
Municipal Corporation at the relevant point of time.
12) However, it has to be noted that respondent No.8 has
an independent right of approaching the respondent
Corporation praying for regularization of unauthorized
construction raised by him. Neither this Court nor the
Tribunal can interdict respondent No.8 from exercising his
said right. It is for the respondent Corporation to consider
any such prayer that may have been made by respondent
No.8 in the light of bye-laws, zonal plan and all other
statutes and guidelines holding the field. Since the
respondent Corporation is the competent authority which
can consider such prayer, therefore, it would be well within
its jurisdiction to take a call on any such prayer that may
have been made by respondent No.8.
13) In view of what has been discussed hereinbefore, the
writ petition is allowed and the impugned order dated
05.06.2017 passed by the learned Tribunal is set aside,
leaving it open to the respondent Corporation to take a call
on the application of respondent No.8, which is stated to be
already under process with the respondent Corporation, in
accordance with building bye-laws, zonal plan and all other
statutes and guidelines holding the field. In case the
respondent Corporation decides to regularize the
construction, then the demolition notice shall be deemed to
have been withdrawn and if the respondent Corporation
declines to do so, it shall be at liberty to proceed ahead with
the demolition notice dated 30.08.2016.
(Sanjay Dhar)
Judge
Srinagar,
06.05.2025
"Bhat Altaf-Secy"
Whether the order is reportable: Yes/No
