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Jammu & Kashmir High Court - Srinagar Bench
Ilyas Ahmad Khan vs J And K Special Tribunal on 18 February, 2026
Serial No. 152
Suppl Cause List 2
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 266/2026 CM (674/2026) Caveat 250/2026
Ilyas Ahmad Khan
...Petitioner(s)/Appellant(s).
Through: Mr. Arfat Rashid Lone, Advocate.
Vs.
J and K Special Tribunal
and Others ...Respondent(s).
Through: Mr. Bikramdeep Singh, Dy. AG for R1-6.
Mr. Nisar Ahmad Bhat, Advocate for Caveat.
CORAM:
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
ORDER
18.02.2026
1. Caveat No. 156/2026 that came to be filed on behalf of One-Ghulam Nabi
Malla S/O. Abdul Rahim Malla R/O. Sekidafar Safakadal Srinagar, who does
not stand arrayed as respondent in the case, stands discharged vide order dated
16.02.2026.
2. Caveat No. 250/2026 filed by the respondents through their learned
counsel Mr. Bikramdeep Singh, Ld. Dy. AG stands accordingly discharged with
the appearance of the learned counsel concerned.
3. With the consensus of learned counsel for both the parties, the matter is
taken up for final disposal at this threshold stage.
4. Through the medium of the instant petition having been filed in terms of
the provisions of Article 226 of the Constitution of India, the petitioner has
sought the issuance or Writs/Directions in the nature of Certiorari and
Mandamus to the effect that the impugned order dated 11.02.2026 passed by the
respondent No. 1 i.e. Jammu and Kashmir Special Tribunal While dismissing his
interim application that came to be filed by him along with the main statutory
appeal titled "Illyas Ahmad Khan versus SMC & Ors" bearing Case No.
Appeal/2026/000292, dated 06.02.2026, impugning the demolition notice issued
vide No. SMC/ENF/W/6818-26, dated: 04.02.2026 of respondents be quashed
and set-aside and the respondents 2 to 6 be restrained from demolishing or
otherwise interfering with his existing single storied residential house situated
on a plot of land at Braripora Nowakadal, Srinagar, with further direction to the
respondents particularly the respondent No. 4 to consider his case for
regularization of existing residential house.
5. The case of the petitioner is that he is the owner in possession of a piece
of land situated at Braripora Nowakadal, Srinagar, on which existed an old,
dilapidated residential house which used to be the only source of shelter for him
and his family. That while he intended to undertake repairs of his aforesaid
dilapidated residential house, certain portions of the same collapsed requiring
reconstruction or restoration thereof to the original shape. That the needful
reconstruction/restoration process was undertaken by him strictly as per the
Unified Building Bye-laws, 2021. That, however, to his bad luck, the
respondents started interference with the process of his reconstruction which
compelled him to approach the Court of Municipal Magistrate, Srinagar, with a
civil original suit seeking injunction.
That the learned Civil Court passed an interim order thereby restraining
the official respondents from causing any illegal interference or demolition to
the suit property except under due process of law. That notwithstanding the
pendency of the said suit and the passing of the interim direction therein, he came
to be served with a show-cause notice during late evening hours on 02.02.2026
by the respondents calling upon him to show cause within 48 Hours as to why
the construction, so raised in contravention of the provisions of the Act, be not
altered/demolished/pulled down. That without affording him a reasonable
opportunity of responding to the said show-cause notice, he came to be served
with the final notice/order of demolition impugned in the appeal before the ld.
Tribunal on 04.02.2026. That the time granted in between was illusory,
mechanical, wholly insufficient and less than what was stipulated in the show-
cause notice for him to gather documents, seek legal assistance or place the true
factual position on record. That he has neither encroached upon any State laid
nor infringed upon the rights of any private individual.
That the allegations contained in the impugned demolition notice are
vague, self-contradictory, factually incorrect and unsupported by any cogent
material. That the impugned notice does not disclose, with precision, the nature
of the alleged violation, the specific provisions of the Act purportedly breached,
thereby rendering the same arbitrary and legally infirm. That the impugned
demolition notice/order is liable to be set-aside on the ground of violation of
principles of natural justice. That the respondents have failed to comply with the
mandatory safeguards provided under the Jammu and Kashmir Municipal
Corporation Act, 2000, (hereinafter referred to as the 'Act' for short) as well as
the various constitutional guarantees. That he was constrained to approach the
learned Tribunal of respondent No. 1 with a statutory appeal impugning the
demolition notice dated 04.02.2026. That the appeal was accompanied with an
application for grant of interim relief.
That the respondent No. 1 dismissed the said interim application vide
order dated 11.02.2026 in utter disregard of the factual position and the various
provisions of law governing the field. That the learned Tribunal by not allowing
the interim application has put his statutory appeal at a risk of being rendered
infructuous. That the petitioner has, inter alia, averred in the statutory appeal
before the learned Tribunal that he is entitled to seek regularization of his
structure under the provisions of the Act of the Jammu and Kashmir Unified
Building Bye-laws, 2021.
6. I have heard the learned counsel for the parties and that of the Caveator-
Ghulam Nabi Malla also.
7. The learned counsel for the petitioner during his arguments, inter alia,
submitted that the impugned order dated 11.02.2026 passed by the learned
Tribunal is bad in law for the reasons that the learned Tribunal has, while
dismissing the interim application of the petitioner, lost sight of the fact that
notice of demolition impugned in the appeal before the said Tribunal was
directed at demolishing the admittedly existing single storied residential
structure of the petitioner and his family which was the only source of shelter for
them. That the fact of existence of a portion of the structure of the petitioner was
corroborated by the impugned notice of demolition itself. That the learned
Tribunal has proceeded to pass the impugned order by cursorily observing that
the petitioner failed to make out a prima facie case for grant of interim relief
while ignoring the manner in which the impugned demolition notice came to be
issued without affording a reasonable and meaningful opportunity of being heard
to the petitioner.
The learned counsel further contended that the impugned order dated
11.02.2026 passed by the learned Tribunal is bad in law for the further reason
that the provisions of J&K Unified Building Bye-laws, 2021, provide for the
regularization of a structure having been raised without permission provided the
same is not contravening the Building Regulations and Bye-laws/Zonal
Regulations.
It was further contended by the learned counsel that the learned Tribunal
while denying the interim relief to the petitioner failed to appreciate that it is a
settled legal position that demolition is an extreme, drastic and last resort
measure in municipal jurisprudence to be resorted to only in cases where a
structure is wholly dangerous, constitutes a fresh encroachment or is otherwise
beyond the scope of regularization. He submitted that in the case of the
petitioner, the reconstruction undertaken by him is;
(i) Based on pre-existing plinth;
(ii) Undertaken for structural integrity;
(iii) Fully capable of being regularized under the governing
municipal laws;
(iv) Causing no nuisance, obstruction, encroachment or public
hazard whatsoever;
The learned counsel further contended that the learned Tribunal by
dismissing the interim application has literally dismissed the main appeal which
procedure is unknown to law.
8. Per contra, the learned counsel for the respondents very vehemently
contended that there appears to be no illegality or incorrectness in the impugned
order dated 11.02.2026 passed by the learned J&K Special Tribunal, Srinagar,
which fact is clearly evidenced from the order itself. He contended that the
learned Special Tribunal has passed on a very reasonable, legal and convincing
order which does not admit of any interference. He contended that the petitioner
laid the slab on the illegally raised structure even after the issuance of the
demolition notice which is evidenced from the Geo-Tagged Photographs. He
submitted that petitioner dared to raise the structure in congested habitation
without seeking the prior building permission as required under the provisions
of the Act. The learned counsel for the respondents submitted that the petitioner
actually by resorting to illegal practice intended to make the legal process
infructuous. He submitted that there was no prima facie case made out in the
interim application of the petitioner which has rightly been dismissed by the
learned Special Tribunal. He further contended that the petitioner did not choose
to file any response/reply to the show-cause notice dated 02.02.2026 issued by
the respondents' corporation against him.
9. The learned counsel for the caveator-Ghulam Nabi Malla also
vehemently contended that there is no merit in the petition filed by the petitioner
by invoking the provisions of Article 226 of the Constitution of India. He
submitted that the petition is not maintainable in the facts and circumstances of
the case. He further contended that the petitioner after dismantling the old
structure raised a new structure without seeking any building permission as
required under the Act thereby violating all the easementary rights of his
neighbors including the caveator. He contended that the petitioner even dared to
lay the slab over the illegal structure after the issuance of demolition notice.
10. I have perused the record of the instant petition and especially the order
dated 11.02.2026 passed by the learned Special Tribunal while disposing of the
interim application that was filed by the petitioner/appellant along with his
statutory appeal impugning the demolition notice dated 04.02.2026 of the
respondents.
11. I have also accorded my thoughtful consideration to the rival arguments
advanced on both the sides.
12. In the interests of justice, the instant petition filed by the petitioner is
treated as having been preferred in terms of the provisions of Article 227 of the
Constitution of India also.
13. It is the case of the petitioner/appellant that he has specifically mentioned
in the appeal pending before the learned Special Tribunal as well as in this
petition that even if he will be found at the conclusion of the appeal having raised
the subject construction unauthorizedly, without seeking building permission
which was needed for the purse, he is still having his right under the provisions
of the Act and the Unified Building Bye-laws of 2021 to seek the regularization
of the structure as the same does not violate the provisions contained in the
Building Bye-laws and Master/Zonal Plan Regulations. The learned counsel
during his arguments invited the attention of this Court towards Appendix-D-
(B.B.)-Compoundable Offences which provides for the
regularization/compounding of an unauthorized structure which otherwise
conforms to the provisions contained in the Building Bye-Laws and
Master/Zonal Plan Regulations.
14. It is profitable to reproduce the Appendix-D (B.B) Compoundable Items:
"If a building or part thereof has been constructed unauthorized, i.e.
without obtaining the requisite building permit from the concerned
Authority as required under the Building Bye-Laws, the same shall be
compounded at the following rates provided the building or part thereof
so constructed otherwise conforms to the provisions contained in the
Building Bye-Laws and Master/Zonal Plan regulations. For this party
shall have to submit the request for building permit in the prescribed
procedure:
Rates_ _ __ __ __ __ __ _
15. The learned counsel for the petitioner during his arguments further
contended that the object of the provisions for regularization/compounding of an
unauthorized structure is to uphold the Fundamental Right of Life of a citizen
who may otherwise suffer for want of shelter on account of the demolition on
technical basis.
16. It was further submitted by the learned counsel that the main statutory
appeal of the petitioner stands rendered infructuous by the dismissal of the
interim application as the respondents have been left free to proceed in terms of
the demolition notice.
17. In the facts and circumstance of the case, it appears that the passing of the
impugned order dated 11.02.2026 by the ld. Tribunal has the effect of the
dismissal of the main appeal also. The ld. Tribunal in the facts and circumstance
of the case, especially having regard to the availability of the provisions
regarding regularization of any unauthorized structure, in the building Bye-Laws
of 2021, ought to have taken care of the same. On the analogy of the legal
principle that, "no interim relief deserves to be granted which virtually allows
the main case", no interim order is also justified which has the effect of the
dismissal of the main case.
18. In the facts and circumstances of the case, the petition is disposed of at
this threshold stage with the setting aside of the impugned order dated
11.02.2026 of the learned Special Tribunal with further direction to the parties
that they shall, pending and subject to the final disposal of the main appeal by
the respondent No. 1, maintain status-quo on spot with respect to the subject
construction.
19. The petitioner is at liberty to approach the respondents/Corporation
seeking the regularization of the subject structure in accordance with the law.
20. The learned Special Tribunal is requested to expeditiously proceed on the
main appeal so that same is disposed of at an earliest.
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR
18.02.2026
Shahid Manzoor
