Jammu & Kashmir High Court - Srinagar Bench
Tariq Ahmad Malik & Another vs J&K Special Tribunal Srinagar & Ors on 25 January, 2023
Author: Mohan Lal
Bench: Mohan Lal
Item No.44
Before Notice.
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) No. 101/2023
CM No. 157/2023
Caveat No. 100/2023
Tariq Ahmad Malik & Another.
...Petitioner (s)
Through: Mr. M. A. Qayoom, Advocate.
Vs
J&K Special Tribunal Srinagar & Ors.
...Respondent(s)
Through: Mr. Areeb Javed Kawoosa, Advocate for R- 8 and 9.
CORAM: Hon'ble Mr. Justice Mohan Lal, Judge
ORDER
25.01.2023 Caveat No. 100/2023 With the appearance of Mr. Areeb Kawoosa, learned counsel appearing for respondent Nos. 8 and 9, the instant caveat stands discharged. WP (C) No. 101/2023.
01. Petitioners through the medium of the instant petition have invoked the writ jurisdiction of this Court in terms of Article 226 of the Constitution of India, for issuance of following writs:-
a. By issuance of writ of certiorari or any other appropriate writ, order or direction, the impugned orders dated 09.1.2023 and 12.01.2023 along with notices dates 25.10.2022 and 28.10.2022 issued by respondent No.4 be quashed.
b. By issuance of writ of mandamus or any other appropriate writ, order or direction, the respondents be directed not to demolish the single storeyed structure raised by the petitioners on their own land, pursuant to notice dated 28.10.2022 or cause any interference with their raising
1|Page any further construction on the land covered by Survey No. 1521, situated at Wani Mohalla, Mukhti Mohalla, Partapgarh and Rabirgarh, Srinagar.
02. Petitioners have averred that on the basis of oral gift made by one Abdul Rashid Rather and Mohammad Maqbool Rather sons of Rehman Rather residents of Rambirgarh Pratabgarh Srinagar. Mutation order bearing No. 6054, in respect of the land measuring 5 kanals and 17 marlas (Maidani) comprised in Survey No. 1521 situated at Rambirgarh Pratabgarh stands attested in favour of the petitioners by revenue authorities. It is averred that the aforesaid land is located in Wani Mohalla Rambirgarh and it is not located within the limits of Srinagar Municipal Corporation as is evident from certificate issued by councillor Ward number 32 Mujigund Srinagar, coupled with the other revenue documents issued by Patwari Halqa Rambirgarh Pratabgarh dated 01.06.2022 as Intikhab Jamabandi counter signed/attested by Tehsildar Srinagar Central (OQ) and Naib Tehsildar, Srinagar on the basis of the report furnished by the field agencies which shows that the land falling under Khasra No. 1515, 1516, 1519, 1521 to 1527 of revenue village Rambirgarh Pratabgarh falls outside the municipal limits of Srinagar. It is stated that as the aforesaid land was outside the jurisdictional limits of Srinagar, the petitioners were desirous of raising construction of single/double storied building on their land in Survey No. 1521, therefore, the petitioners submitted the applications to the Block Development Officer, Qamarwari, who in terms of orders dated 05.07.2017 and 22.12.2017 gave his no objection certificate/permission to the petitioners to raise the construction of one storied/two storied building on their proprietary land as per the norms of the Panchayati Raj Act, whereof the petitioners raised single storied structure on the aforesaid land in the year 2017. It is stated that quite adjacent to
2|Page the land of the petitioners, is the land of respondent Nos. 8 and 9 which is covered by different Survey numbers excluding the survey No. 1521 which they have purchased from erstwhile owners of the land; respondent Nos. 8 and 9 filed application before the Tehsildar Srinagar, stating therein that they have purchased the land measuring 3 marlas under Survey No. 96 and 4 marlas under Survey No. 922/100 both situated at Mouza Sozeith Gooripora, Tehsil Narbal District Budgam, and in the said application the respondent No.8, did not make mention of the fact that the land is covered under Survey No. 1521 and rightly so because the entire land has been purchased by the petitioners measuring 5 kanals and 17 marlas is covered by Survey No. 1521 and is owned and possessed by them; that on the application filed by respondent No. 8 and 9, the respondent No.4 addressed the letter dated 31.08.2022 to respondent No.5 stating therein that the scheduled date of demolition of illegal/unauthorized construction has been fixed on 06.09.2022 at 1:00 pm, as such respondent No.4 is directed to proceed further for demolition on the scheduled date; respondent No.4 issued show cause notice dated 25.10.2022 to petitioner No.1 and latter on 28.10.2022 issued demolition notice; the said demolition notices were challenged by petitioner No.1 by filing statutory appeal under Section 253 (2) of Act of 2000 before the Tribunal. On 14.12.2022, the Special Tribunal Bench 3rd, passed the order of status-quo whereas on 14.11.2022, respondent Nos 8 and 9 filed an application for impleadment before the Tribunal and by the order of the Tribunal dated 14.11.2022, they were impleaded as respondents. It is averred that the petitioners filed a writ petition bearing OWP No. 2833/2022 before the Hon'ble High Court which came to be decided on 14.12.2022 and while setting aside the order dated 01.12.2022, passed by the Special Tribunal, the matter was remanded back to the
3|Page Tribunal for further consideration; before the Tribunal, the petitioners challenged the orders of demolition dated 28.12.2022 along with the impugned notice dated 25.10.2022 issued by respondent No. 4 whereby respondent No.1 i.e. Special Tribunal on 09.01.2023, dismissed the appeal of the petitioners.
03. Petitioners being aggrieved of and dissatisfied with the impugned orders passed by respondent No.1 on 09.01.2023 and 12.01.2023 and the impugned notices issued by respondent No.4 dated 25.10.2022 and 28.10.2022 have challenged their proprietary, correctness and legality on the grounds, (i) that the petitioners have obtained NOCs from the Block Development Officer, Qamarwari, Srinagar, for raising of the construction in their own proprietary land whereas respondent No.1 Jammu and Kashmir Special Tribunal without appreciating the issue whether the land falls within the Municipal limits of Srinagar or outside of it has thus committed the error in not considering the NOCs issued by Block Development Officer concerned and have therefore, upheld the demolition notice issued by respondent No.4. (ii) that respondent No.1 has dismissed the appeal on the grounds that in terms of SRO 72 of 02.03.2016 at Serial No. 32, the said site has been incorporated within the municipal limits of Srinagar w.e.f 2016 but the fact is that the land of the petitioners is covered under Khasra No. 1521 in Wani Mohalla, as such, is not included under SRO No. 72 dated 02.03.2016; (iii) that the area where the construction has been raised by the petitioners is not included within the limits of Srinagar Municipal Corporation which is evident from the fact that the communication dated 12.12.2022, has been addressed by the Ward Officer, Ward No. 26 (Respondent No.5) to the Chief Enforcement Officer, Municipal
4|Page Corporation (Respondent No.3) wherein the ward officer has asked the Chief Enforcement Officer that the authorities be consulted regarding the clarification as to whether the area comes within the limits of Srinagar Municipal Corporation or not; (iv) that it is highly strange that respondent No.1-Special Tribunal, has not looked into the aforesaid said communication and has passed the impugned order of dismissing the appeal filed by the petitioners, respondent No.1 has not considered the fact that three suits are already pending for adjudication between the parties before the Civil Court wherein the status-quo order has been passed, further, respondent No.1 has also not considered any relevant material while passing the impugned orders which therefore, suffer from error of jurisdiction and liable to be set aside.
04. Learned counsel for the petitioners has reiterated the arguments reflected in the memo of the petition and has vehemently articulated the arguments, that the respondent No.1 has failed to appreciate the fact that the portion of land where structure has been raised by the petitioners falls out the municipal limits of Srinagar, no finding has been rendered by respondent No.1 whether the revenue extracts issued by revenue agencies in favour of the petitioners specifically mentioning therein that the land in question falls outside the jurisdiction limits of Srinagar. It is argued that under Panchayat Raj Act r/w Jammu and Kashmir Pachayat Raj Rules 1996 in terms of Rule 155 construction of the building outside the municipality has to be undertaken with the previous approval of the Halqa Panchayat, and in the case in hand on the approval of Halqa Panchyat, Block Development Officer, Qamarwari, Srinagar, has granted no objection certificate for raising construction by the petitioners. It is vehemently argued that
5|Page at this stage, to ascertain the fact whether the land in question falls within the jurisdiction of municipal limits of Srinagar or outside and to preserve the lis, the constructions raised by the petitioners on spot have to be maintained in status- quo to preserve their rights. To support his arguments, the learned counsel has relied upon the full Bench judgment of Orissa High Court reported in AIR 1974, Orissa 89 (V 61 C27) titled [Krushna Kishore Bal VsSankaraan Samal & Ors]
05. Learned counsel appearing for the caveators/respondent Nos. 8 and 9 in the caveat petition, has stated that caveator No.1/respondent No.8 had filed an appeal under Section 257 (1) of Jammu and Kashmir Municipal Corporation 2000 against the demolition order dated 28.10.2022 issued by respondent No.4 before the Jammu and Kashmir Special Tribunal wherein caveators filed an application for intervention which was allowed, consequently, cavetors filed their detailed objections whereafter the said appeal came to be dismissed by the J&K Special Tribunal vide its judgement/order dated 09.1.2023, but due to the typographical error in the date of reservation of the case which was shows as 24.12.2022 instead of 30.12.2022, the judgement was rectified to the said extent of the typographical error vide order of respondent No.1 dated 12.01.2023. Caveators /respondent Nos. 8 and 9 have further averred that in response to the appeal against the demolition notice dated 28.10.2022 filed by the petitioners reply was filed by them wherein it was specifically averred that application of the petitioners for building permission was already rejected by the competent authority on 06.09.2022 and by virtue of SRO 72 dated 02.03.2016, the area where the illegal and unauthorized construction has been raised in Rambirgarh fall under the municipal limits of the respondent- corporation thereby the
6|Page petitioners were required to obtain the permission for raising the construction, however, they have raised the ground floor illegally and unauthorizedly without seeking permission from the competent authority, the building permission has been rejected on 05.09.2022 by the competent authority on the ground that the site is covered for parks and gardens, the illegal and unauthorized constructions has been raised by the petitioners which is not only violative of the municipal laws and concept plained development but also effects fundamental and constitutional rights of other persons, the erection of building without sanction is prohibited under Section 242 of the Municipal Corporation Act of 2000 and 26 of the Jammu and Kashmir Unified Building Bye laws.
06. Learned counsel for the respondent Nos. 8 and 9 has reiterated the arguments as the stand taken by them in the caveat petition and to support his arguments, he has relied upon the judgements reported in (i) AIR 2021 Bombay High Court titled [Shri Sunil Dattu Gaikwad & Ors Vs. The State of Maharashtra & Ors]. (ii) Judgement dated 02.07.2021 of Calcutta High Court titled [Girija Shankar Shaw @ jaiswal & Ors Vs. Howrah Municipal Corporation Ors] and (iii) judgement reported in SCC 2021, titled [Supertech Limited Vs. Emerald Court Owner Resident Welfare Association & Ors]
07. Heard and considered. It is the admitted case of the parties that the land in question measuring 5 kanals and 17 marlas covered under Survey No. 1521 is in ownership and possession of the petitioners. Annexures II and III annexed with the writ petition relied by the petitioners comprises of Intikhab Girdawari of village Rambirgarh Pratabgarh and the Sale Deed which depict that mutation No. 6054 has been attested in favour of the petitioners in regard to the land in
7|Page question. Intikhab jamabandi of village Rambirgarh Pratabgarh issued on 15.03. 2018 depicts that the area of Rambirgarh Pratabgarh does not fall within the municipal corporation of Srinagar. Annexure IV to the petition, relied by petitioners demonstrates that on 05.12.2022, councilor of ward No. 32 Mujgund Srinagar has issued a certificate which depicts that Wani Mohalla Rambirgarh Pratabgarh does not fall within the jurisdiction of Srinagar Municipal Corporation. Annexure V to the petition is revenue extract of Intikhab jamabandi with regard to the village Rambirgarh Pratabgarh issued on 19.06.2022, which early demonstrates that the land under Survey No. 1521 measuring 5 kanals and 17 marlas falls outside the limits of municipal corporation of Srinagar. Annexure VII to the petition is the certificate issued by Naib Tehsildar Central Srinagar which indicates that Survey No. 1521 of village Rambirgarh Pratabgarth falls outside the Srinagar Municipal Corporation. Annexure VIII to the petition is a certificate issued by Block Development Officer, South Qamarwari which demonstrates that the resolution has been submitted at Panchayat Committee of Rambirgarh Pratabgarh whereby no objection certificate has been granted for construction of one storied building in favour of the petitioner No.1 and two storied building in favour of the petitioner No.2 by the Block Development Officer concerned. It is apt to reinterate here that respondent No.4 enforcement officer West SMC vide his order dated 25.10.2022 has issued a show cause notice to the petitioners along with the demolition notice dated 28.10.2022. Respondent No.5 vide his communication dated 12.12.2022, after the issuance of demolition notice has addressed written communication to respondent No.3 Chief Enforcement Officer, SMC to the effect that NOCs have been issued by the BDO in favour of the petitioners and there is dilemma whether
8|Page the said area of Rambirgarh Pratabgarh falls under the jurisdiction of SMC or not and the revenue authorities be consulted regarding clarification that whether the said area comes within the limits of SMC or not so that the further course of action be initiated. From the communication of respondent No.5 to respondent No.3, it clearly transpires, that even the municipal authorities are not certain/sure whether the area where the petitioners have raised the structures falls within the jurisdiction of SMC or not. So, when the municipal authorities are not certain regarding the status of the land of the petitioners, it is the prime duty of this Court to ensure the preservation of the rights of the petitioners till the issue is decided by the authorities. In the case law relied upon by the learned counsel for the petitioners reported in AIR 1974 Orissa 89 (V 61 C27) full Bench of Orissa High Court has held that mere violation of the municipal rules does not give cause of action to the adjoining owners. The case laws relied upon by the learned counsel for the intervenors/respondent Nos. 8 and 9 which specifically deal with the demolition of the illegal and unauthorized structures, cannot be considered at this stage when municipal authorities are uncertain regarding the status of the land of the petitioners whether it falls in the jurisdiction of Srinagar Municipal Corporation or not.
08. Issue notice to the respondent Nos. 2 to 7 to file objections/response to the main writ petition as well as to interim application. Respondent Nos. 8 and 9 shall also file their response/ written objection to the main as well as to the interim application by or before next date of hearing.
09. List on 21.02.2023. In the meantime, subject to the objections from the other side and till next date of hearing before the Bench, to preserve the lis in the
9|Page writ petition and rights of the petitioners qua their land comprised in Survey No. 1521 measuring 5 kanals and 17 marlas, it is ordered, that status-quo shall be maintained in regard to the impugned orders passed by respondent No.1 dated 09.01.2023 and 12.01.2023 along with impugned notices dated 25.10.2022 and 28.10.2022 passed by respondent No.4 with further direction that the property in question shall be maintained in status-quo.
(Mohan Lal ) Judge SRINAGAR 25.01.2023 Showkat 10 | P a g e