Executive Officer vs Nazir Ahmad Mir on 29 May, 2024

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Jammu & Kashmir High Court - Srinagar Bench

Executive Officer vs Nazir Ahmad Mir on 29 May, 2024

1. The present petition has been filed under Article 226 of the Constitution filed by the Executive Officer, Municipal Council, Baramulla against the order dated 30.12.2022 (for short the impugned order) passed by J&K Special Tribunal, Srinagar (for short the Tribunal) in the revision petition titled as 'Nazir Ahmad Mir versus Executive Officer, Municipal Council, Baramulla'.

2. The matter in issue in the instant petition has arisen out of the following facts:

• In terms of communication no. MC/Bla/2007-08/809-13 dated 19.07.2007, the petitioner herein intimated the WP (C) 3266/2023 Page 2 of 16 Collector Land Acquisition (ACR), Baramulla about his intention to construct a new office building on a vacant piece of land measuring six kanals falling under survey no. 490, as such, requested the Collector to direct the Tehsildar concerned to provide Shajra Khasra of the said land in order to enable the petitioner herein to submit a formal indent of acquisition.

• Upon receiving the requisite information, the petitioner herein vide communication no. DULB/G/1097/8305-06 dated 26.10.2007 requested the Collector to go ahead with the acquisition of the land in question under the provisions of the J&K Land Acquisition Act, Samvat 1990 (for short the Act of 1990) on priority basis.

• The petitioner herein thereafter vide communication no. MC/BLA/LA/09/6298-30 dated 14.03.2009 read with communication no. MC/BLA/2012/1715-18 dated 21.11.2012 requested the Deputy Commissioner/District Collector Baramulla to initiate proceedings for the acquisition of the land in question on priority basis.

• The Collector Baramulla in reply thereto vide communication no. DCB/LA/2009/27-35 dated 29.07.2009 stated that the land in question stood already notified and that further proceedings thereof had not been initiated.

• The petitioner herein, however, claimed that pending the process of acquisition, the respondent herein conveyed his no WP (C) 3266/2023 Page 3 of 16 objection for acquisition of three kanals of land out of six kanals of the land in question, and, as such, the petitioner requested the Collector to initiate fresh acquisition proceedings for the said three kanals of land and to de-notify the rest of the three kanals of land and consequently vide communication no. MC/BLA/2012/1715-18 dated 21.11.2012 requesting the Collector to issue notification under law for acquisition of said three kanals of land. • The Collector thereafter issued notification under section 4 of the Act of 1990 under no. ACR/LA/125/2012 dated 09.04.2013 vis-à-vis three kanals of land and invited objections to be submitted within 15 days from the date of notification whereupon the President Majlis Auqaf-i-Islami, Baramulla filed objections thereto on 23.04.2013 stating therein that the notified land is under dispute in a civil court at Baramulla and that the land in fact comprises of six kanals instead of three kanals and, as such, sought stopping of the acquisition proceedings till final decision of the case. Besides, the said objections, President Joint Action Committee, Falah Bahbood Baramulla also filed objections on 23.04.2013 stating therein that the land measuring six kanals had been under occupation and use of the Municipal Council Baramulla since decades and that the said land, however, had been got mutated in the revenue department in the name of one Kiran Kour and others and thereafter sold to WP (C) 3266/2023 Page 4 of 16 Nazir Ahmad Mir, the respondent herein, and as such, also sought cancellation of the notification issued under section 4 of the Act of 1990 and instead requested for notifying the entire six kanals of land for construction of the Municipal Office Complex/Transport Yard.

• Subsequent to the filing of the aforesaid objections, the Collector Baramulla vide communication no. DC/LA/PNC/45 dated 23.08.2013 called for private negotiations with regard to finalization of the rates inviting Director Urban Local Bodies as well to attend the meeting on whose behalf Incharge Deputy Director participated in the said negotiation and reported that the land in question was on the backside of the office of the Municipal Council, Baramulla with M.E.S. Campus on its backside and that the approach to the plot of land in question was available through the office of Municipal Council Complex and the shopping complex situated nearby, stating further that the land in question had been in possession of the Municipal Council for the past three decades and some sheds had also been constructed thereon for storage purposes for a long time and in the revenue records the land is recorded in the ownership of one Nirmal Singh from whose name it came to be transferred in the name of one Kiran Kour daughter of Prakash Dev Singh, who in turn sold the said land to the respondent herein who owns WP (C) 3266/2023 Page 5 of 16 the land and the shopping complex built over it which is adjacent to the land in question.

• The said Deputy Director and the local Auqaf Committee, Baramulla along with Joint Action Committee Falahi Bahbood opposed the reduction of quantum of land to be acquired and insisted for acquiring the whole plot of six kanals of land. Accordingly, the petitioner herein came to be directed to submit indent for the remaining three kanals of land by the Collector vide communication no.

DULB/G/1097-11/10526-27 dated 08.11.2013, however, vide communication no. ACR/LA/MC/Ushkura/125 dated 11.08.2016, the Collector informed that the proceedings under the Act of 1990 had lapsed and, as such, requested for placing a fresh indent whereupon the petitioner herein vide communication no. DULB/G/1097/11/11928-29 dated 22.05.2017 submitted a fresh indent to the District Collector Baramulla for issuance of necessary notification. • The respondent in the meanwhile filed a civil suit titled as 'Nazir Ahmad Mir vs. State of J&K' seeking therein a restraint order against the petitioner herein from causing any interference in the land in question wherein the civil court being Sub Judge Baramulla vide order dated 20.10.2009 directed the maintenance of status quo.

• The Municipal Council Baramulla Project through its Chief Executive Officer had earlier filed an appeal before the WP (C) 3266/2023 Page 6 of 16 Deputy Commissioner Baramulla against the order of mutation no. 3218 dated 2.7.2007 attested by Tehsildar concerned in favour of its aforesaid owners which appeal, however, came to be dismissed on 11.11.2008.

• A suit also came to be filed by the Municipal Council Baramulla against the predecessor-in-interest of the above- named Kiran Kour before the court of Sub Judge, Baramulla, which suit also got dismissed in default on 25.08.2021. • In the aforesaid suit filed by respondent herein before the Sub Judge, Baramulla, vide order dated 09.10.2021 directed the petitioner herein being defendant in the suit to accord consideration to the application of the plaintiff/respondent herein for grant of building permission sought by him for raising construction over the land in question and the defendant/petitioner herein in compliance to the said order passed on 12.01.2022 rejected the claim of the respondent herein.

• The respondent herein filed a revision petition before the Tribunal against the said rejection order dated 12.1.2022 which revision petition came to be disposed of on 20.09.2022 as follows:

"In this backdrop of the matter, it cannot be held that the property in question is disputed one. Hence there should be no apprehension to the respondents in holding that the petitioner is exclusive owner of the property and it was only on this apprehension that the building permission case of WP (C) 3266/2023 Page 7 of 16 the petitioner was rejected by way of order impugned. There are no other allegations levelled against the petitioner that the said proposed extension of the commercial complex is against the Master Plan, Zoning Regulations or any other Building Bylaws. In view of this, the order passed by the Executive Officer dated 12.1.2022 is set aside with the direction to the respondents to reconsider the building permission case of the petitioner and thereafter pass appropriate orders within a period of two months failing which the permission shall be deemed to have been granted in terms of Rule 2.6.5 (o) of the J&K Unified Building Byelaws 2021."

• The petitioner herein subsequent to the passing of the aforesaid award by the Tribunal and in terms thereof considered the case of the respondent herein and yet again rejected the same vide order dated 15.11.2022 stating that in a civil suit pending adjudication before the Sub Judge, Baramulla, the petitioner herein had been restrained from the dismantling the sheds constructed by the respondent herein and had ordered maintenance of status quo.

• The aforesaid rejection order dated 15.11.2022 again came to be challenged by the respondent herein before the Tribunal which revision came to be allowed by the Tribunal in terms of order dated 30.12.2022, the operative portion of which reads as under.

"Accordingly, the revision in hand is allowed and the order impugned dated 15.11.2022 passed by the respondents refusing the building permission case of the petitioner is set aside which otherwise is non est in the eyes of law as the same has not been communicated on the prescribed format WP (C) 3266/2023 Page 8 of 16 (Appendix A-7) provided in the provision 2.6.3 of J&K Unified Building Byelaws 2021 and discussed in the earlier paras of this order. The respondent i.e. Executive Officer Municipal Council, Baramulla as such, is directed to grant building permission in favour of the petitioner which is pending disposal in his office within a period of seven days from the date of this order failing which the permission shall be deemed to have been granted in favour of the petitioner and the petitioner would be at liberty to go ahead with the construction work strictly in accordance with the plans already submitted."

• The said order of the Tribunal dated 30.12.2022 is being challenged in the instant petition.

3. The petitioner herein has maintained the instant petition, inter alia, on the grounds that the land in question was notified for acquisition multiple times and has not been de-notified yet, and that the Tribunal travelled beyond its jurisdiction while passing the impugned order and that the land in question is adjacent to the army cantonment and as per the guidelines of Ministry of Defence for issuance of an NOC for construction over the said land consultation with Station Commander is necessary and lastly that the respondent herein did not apply online for grant of the building permission and as such the petitioner herein was not able to process the same.

4. The respondent herein has filed objections to the petition and has contended that the Executive Officer had no competence to file petition stating further that even though the land in question was notified several times, yet the said process lapsed as no WP (C) 3266/2023 Page 9 of 16 further action thereto beyond the issuance of the notification under section 4 of the Act of 1990 was taken.

It has also been stated in the objections that the petitioner herein filed an appeal and a civil suit laying claim over the land in question and that both of them got dismissed and having failed to establish his title over the land in question the petitioner cannot deny the respondent herein his right to raise construction over the land in question being lawfully owned by him.

It has also been stated by the respondent herein in the objections that the petitioner herein rejected the application of the respondent herein for grant of permission by taking refuge under the pendency of the civil suit, which otherwise is an independent power of the petitioner to grant or refuse a building permission as mere pendency of the suit cannot be made a ground to refuse permission.

The respondent herein has further stated in the objection that the petitioner has taken contradictory stand in the petition as on the one hand it has been averred that the respondent herein did not apply for the permission and as such his case could not be processed, whereas on the other hand has contended that the land in question falls within the cantonment area and that if same is the case the petition filed by the petitioner is not maintainable as the petitioner cannot be said to be a person aggrieved, but the cantonment board which has given its no objection to the respondent to raise the construction. WP (C) 3266/2023 Page 10 of 16

It has been stated in the objections that the petitioner has placed on record copy of the order by virtue of which the suit filed by him had been withdrawn and has stated that no suit was pending before any court, and that the Tribunal being a superior authority on being satisfied that the petitioner had acted in an illegal manner, directed the petitioner herein to grant building permission to the respondent herein besides holding that in case of inaction on the part of the petitioner herein the respondent herein can raise the construction under deemed permission clause.

Heard learned counsel for the parties, considered the matter and perused the record.

5. As has been noticed in the preceding paragraphs inasmuch as the record tends to show that the petitioner herein has claimed that the land in question is required by the Municipal Council for its expansion, however, ironically has never pursued the matter and ensured that the same is taken to its logical conclusion. Record further reveals that laying a claim over the property on the basis of possession, a suit for declaration and injection and an appeal came to be filed by the petitioner herein against the erstwhile owners of the land in question which suit came to be dismissed in default and the appeal dismissed on merits and having failed to lay claim over the land in question, the petitioner placed an indent for acquisition of land followed by a fresh indent qua three kanals and then followed again by another indent for the WP (C) 3266/2023 Page 11 of 16 entire six kanals of land in question. Record further reveals that admittedly no action beyond issuance of notification under section 4 of the Act of 1990 was taken resulting into lapsing of the said acquisition proceedings and despite the lapse of the said proceedings the respondent's earlier request for grant of building permission was denied by the petitioner vide order dated 12.01.2021 only on the ground that there was a dispute regarding the title of the respondent herein over the land in question which denial order dated 12.01.2021 came to be rejected by the Tribunal vide its order dated 20.09.2022 by holding that the respondent herein is the exclusive owner of the land in question and since there was no other grounds pressed for rejection of the permission, the petitioner herein came to be directed to reconsider the building permission case of the respondent herein.

6. It also emerges from the record that in compliance to the aforesaid order of the Tribunal dated 20.09.2022, the petitioner herein rejected the application of the respondent herein again on a new set of grounds being pendency of the restoration application filed by the petitioner herein for restoration of the civil suit filed by him and order of status quo and other orders passed by the civil court in the suit filed by the respondent herein, though the said grounds were available to the petitioner herein at the time of earlier rejection order dated 12.01.2021 and, however, interestingly were not pressed into service, as WP (C) 3266/2023 Page 12 of 16 such, it can safely be concluded that raising of such grounds at this stage amounts to manifest acts of omission and commission besides an unbecoming conduct on the part of the petitioner herein coupled with the fact that the Municipal Council Baramulla in general and the petitioner herein in particular have indulged in uncalled for multiple litigation qua the land in question at the expense of the public exchequer.

7. It is not in dispute that the respondent herein had applied for building permission which came to be rejected in the year 2021 vide order dated 12.01.2021 which rejection order came to be set aside by the Tribunal in the revision petition filed by the respondent herein vide order dated 20.09.2022 with a direction to the petitioner herein to reconsider the case of the respondent herein specifically holding that the respondent herein has the absolute title over the land in question and yet the petitioner herein rejected the case of the respondent herein vide order dated 15.11.2022 which order as well came to be set aside by the Tribunal in the revision petition filed by the respondent herein in terms of the impugned order dated 20.12.2022.

8. A deeper and closer examination of the impugned order would manifestly show that the Tribunal after referring to clause 2.6.3 and 2.6.5 (o) of the J&K Unified Byelaws 2021 directed the petitioner herein to grant building permission to the respondent herein within seven days failing which the said permission shall be deemed to have been granted. The aforesaid clauses being WP (C) 3266/2023 Page 13 of 16 relevant and germane to the controversy are extracted and reproduced hereunder:

Clause 2.6.3 Grant or Refusal of a Building Permit After receiving the replies, designs and specifications of proposed building, building permit shall be issued to the applicant when the BPIA is satisfied that the design and specifications of the proposed building comply with these building Byelaws. However, if after receiving the replies the proposed building does not comply with building Byelaws, Master Plan etc., the application may be rejected. Reasons for rejection shall be communicated to the applicant within fifteen days in the prescribed format (Appendix "A-7": Form for Refusal of Building Permit).

Clause 2.6.5 (o) In the case the applicant has fulfilled all the requisite formalities and the Authority has not decided on the notice of intent of the applicant within a maximum period of 60 days from the date of application, the permission shall be deemed to have been accorded, provided the proposed construction does not: (i) (ii) (iii) (iv) (v) (vi) Violate the planned development of J&K UT as envisaged by various departments and departmental agencies such as Municipal Corporation/Council/Committee, Development Authorities, Jal Shakti Department, UEED etc. as applicable. Violate zoning regulation under the Master Plan Violate the land use of the area Violate the FAR and set back norms Come in alignment of green belt Effect the easement right of the adjacent plot holder and the title of the land is not subject matter of dispute before any forum.

WP (C) 3266/2023 Page 14 of 16

A bare perusal of the clause 2.6.3 supra reveals that the same has enumerated the situation wherein an application for building permission can be refused and therefore the building permission of the respondent herein could have been rejected where proposed building was not complying with the Building Byelaws, Master Plan or similar other grounds. The aforesaid clause further provides that the reasons for rejection have to be communicated to the applicant in the prescribed format and once the respondent herein had applied before the petitioner herein for grant of building permission and same came to be rejected not once but twice, the petitioner herein at this stage cannot in law take the plea that the respondent herein did not apply for grant of building permission properly, as such the same could not be processed.

Further Clause 2.6.5 (o) supra provides for deemed permission in a case where all the requisite formalities are completed by an applicant and the authority does not take a decision on the notice of intent thereof within a maximum time period of 60 days from the date of application.

9. Admittedly, the respondent herein had applied for grant of the building permission before the petitioner herein which came to be rejected twice by the petitioner herein and, as such, under these circumstances the Tribunal can be said to have been justified in passing the impugned order. It is thus clear that the mere facts on the assumed existence of which the building WP (C) 3266/2023 Page 15 of 16 permission case of the respondent herein has been rejected by the petitioner herein and on the basis of which building permission case of the respondent could have been rightly rejected, did not exist and since the period within which the application seeking building permission of the respondent herein could be rejected had already lapsed, the legal consequence in the form of deemed permission as envisaged in law occupying the field would ensue, though with a caveat that the purported construction does not violate Master Plan, if any.

Thus, the Tribunal while providing that permission shall be deemed to have been granted in favour of the respondent herein and ought to have expressly observed that such deemed permission shall be subject to the condition that the proposed construction does not violate Master Plan, if any, of the area.

10. It is significant to mention here that the grounds taken in the instant petition seemingly, is a feeble attempt as a last resort by the petitioner herein to deny the respondent herein the right to raise construction over the land in question, in that, same is evident from the grounds taken in the petition and noticed in the preceding paragraphs that neither of the said grounds were raised by the petitioner herein in the rejection order/s supra.

11. For what has been observed, considered and analysed hereinabove, the petition merits to be allowed. Accordingly, the petition is allowed and disposed of with an observation that the impugned order dated 30.12.2022 passed by the Tribunal does WP (C) 3266/2023 Page 16 of 16 not call for any interference except that the deemed permission ordered by the Tribunal shall be subject to the condition that the proposed construction does not violate Master Plan, if any, of the area and the regulations contained therein.

12. Keeping in view the aforesaid facts and circumstances of the case and the acts and omissions and commission of the petitioner herein, this Court deems it appropriate to saddle the petitioner herein with costs to the tune of Rs.50,000/- to be deposited before the Registrar Judicial of this court within four weeks' time from today with the liberty to Government to recover the said amount of costs from the office of officer who had held the position of Executive Officer in the Municipal Council, Baramulla and had been instrumental in taking recourse to uncalled for litigation and burdening the public exchequer.

13. Record produced by the counsel for the respondents is directed to be returned back.

(JAVED IQBAL WANI) JUDGE Srinagar 29-05-2024 N Ahmad Whether the order is speaking: Yes Whether the order is reportable: Yes Nissar Ahmad Bhat I attest to the accuracy and authenticity of this document 04.06.2024 16:50

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Jammu & Kashmir High Court - Srinagar Bench