Fayaz Ahmad Bhat vs State and Others

Nisar Ahmad Kakru, J.—There being no sanction authorising construction beyond first floor, it became imperative to examine the record as

to how authorities have allowed such construction to commence and continue in absence of permission, accordingly, on 3/10/2002 the

respondents were directed to produce the record but despite lapse of more than a half a year record was not produced. To compel obedience of

the direction following order was passed on 29/06/2003.

Respondents have failed to produce the record for last months together. How long they expect the court to wait. Be it placed on record that if

record is not produced on the next date, the respondents other than respondent 5 shall appear in person to explain the cause of inability.

Appropriate orders shall be passed thereafter. Be listed on 12/6/2003.

Apprehending likelihood of employment of coercive mode, the Respondent-Municipality gave up the resistence and produced the relevant

record on 12/6/2,003 just one day before summer vacation. Apparent disinclination in production of record depicts an unsavoury approach which

is detrimental to the public interests. Why such reluctance and who is responsible for it and how such erring officer/official should be dealt with, I

leave this area untouched to be embarked upon by the respondents at their own level.

To put the record straight, it needs to be mentioned that when these three inter-connected clubbed writ petitions came up for consideration a

statement was made by learned counsel for the petitioner that respondents are contemplating settlement of the controversy outside the court, on

such statement he sought withdrawal of the writ petitions with liberty to file fresh in case respondents back out. Learned counsel for the

Municipality controverting the statement submitted that assurance was never given to the petitioner and statement is aimed at the involvement of the

Municipality in yet another phase of litigation with a sole purpose to escape the fall out of violation of the statute. In nutshell the Municipality is

averse to the conditional withdrawal of writ petitions. That apart there is an impediment in granting the prayer of withdrawal which is traceable to

the ad interim relief dated 16/7/1996. This ad interim order entitles the petitioner to raise construction as per the sanctioned plan but the

subsequent ad interim order dated 11/08/1996 passed in OWP 337/96 envisages stand-still. It is a situation where court is required to make

clarification as to what is the consequence of these two directions lest it works as an obstacle for the authorities concerned in discharge of their

statutory obligations. In this view of the matter, prayer for withdrawal of writ petitions cannot be conceded to and I proceed to decide the writ

petitions on their merits.

It is urged in OWP 230/96 that petitions had come in possession of two-kanals and 17 marlas of land on lease and had raised the construction

upon it in the year 1967 which gutted in fire giving rise to the need of reconstruction and there being permission from the Divisional Town Plannner

bearing No. 08 of 1996 dated 27/04/1996 forming annexure p4 to the writ petition respondents are sought to be prohibited from causing any

interference in the construction. In quick succession another writ petition bearing No. OWP 337/96 was filed on 31/07/1996 questioning the show

cause notice issued under the J&K State Town Planning Act 1963 (Act for short), followed by writ petition OWP 693/97 filed on 05/05/1997

seeking a writ of mandamus to restrain the respondents from demolishing five storeyed building consisting of four storeys and an attic situated at

Kothi Bagh Srinagar comprising survey Nos. 501/169 and 507/170. The facts given in OWP 230/96 which is prior in time are reiterated in other

two writ petitions and excepting the relief clause there appears no difference in the averments made in all the three petitions, therefore, reiteration of

facts is uncalled for and I skip over.

The petitioner has questioned the jurisdiction of the municipality to initiate action in respect of violation of the permission. In support of

contention it is averred that since the basic permission is issued by the Divisional Town Planner, therefore, he alone is competent to initiate action

against violation. Responding to the contention it is stated by the respondents that by SRO 328 dated 01/07/1980 read with Govt., Order No.

252-UD/91 dated 18/11/1991, a Building Permission Authority stands constituted which is the only authority competent to grant or refuse the

permission in terms of Section 10 of the Act and no power is vested in the Divisional Town Planner to issue the sanction. On this contention it is

submitted that construction made in pursuance of the permission of the Divisional Town Planner is without sanction of law. The contention is well

founded because statute does not give power to the Divisional Town Planner to issue the permission. The challenge to the jurisdiction of the

municipality is thrown simply to be rejected, for, statute sufficiently empowers the municipality to deal with the violations too.

It has also come in the objections that the petitioner has surpassed the limits of the sanction. The contention has substance because pursuant to

permission the petitioner could have made repairs so as to restore the fire damaged first floor of the building to the position the existed prior to

alleged mishap but how has he raised five floors in absence of permission, there is no explanation even worth the name in any of the writ petitions

yet he questions the show cause notice.

It is seen from the record of the municipality that it has through and through taken a stand that the permission for restoration of first floor

accorded by the Divisional Town Planner is without jurisdiction and any construction raised on the basis of such permission is liable to be

dismentled and in respect of construction beyond first floor stance of the municipality is that it is without permission. Significantly, OWP 693/97,

through which restraint against demolition of five storeyed building is sought, there is no averment which would suggest even remotely that

construction ahead of first floor has the sanction of any authority much less competent. In the face of such state of affairs one fails to understand as

to what prevented the municipality from taking steps to stop the construction, no explanation much less satisfactory one has come forward from the

respondents, however to justify the default an abortive attempt is made to take refuge from ad interim order dated 16/07/1996. The stand smacks

of camouflage because direction permits the petitioner to restore the building to its original position in accordance with permission bearing No. 08

of 1996 dated 24/04/1996 granted by Divisional Town Planner which in no manner entitles him to raise five storeys. In addition to that there is

another difficulty for the municipality traceable to the order dated 18/08/1996 passed in OWP 337/96 which directed maintenance of status-quo,

obviously the direction makes it obligatory upon the parties to keep the structure in the condition it was on 11/08/1996 restraining further

constructional activity but construction was not stopped which is an admitted position emerging from the averments made in the writ petition itself.

In this behalf it calls for a mention that in OWP 337/96 the petitioner has sought a relief for placing a restraint on the respondents from demolishing

two storeyed structures. It is this writ petition in which order of status quo was passed on 11/08/1996 and during the pendency of this writ petition

another writ petition was filed on 05/05/1997 where in petitioner has sought protection against demolition of five storeys. Why municipality allowed

him to raise further construction inspite of direction of status quo. Why endeavour was not made to bring continuation of constructional activity to

the notice of the court and seek appropriate orders. Inaction does not end here. There are communications of the Secretary to Govt. Housing and

Urban Development Department and Vigilance Officer bearing No. 103-ISG-k-97 dated 17/01/1997 and No. VIG/SMC-1/96 dated

25/02/1997 addressed to the then Administrator Municipality indicating encroachment upon public land besides, transgression of the limits of law

by construction in question. Why these communications did not evoke response from the municipality. Why petitioner was allowed to make

construction in violation of permission and beyond first floor without permission. Something is wrong somewhere.

Height of insensibility to the breach of statutory obligation is evident from the fact that construction of a monstrous building consisting of five

storeys is not a job of a day or a week but of months if not years. The inaction of the respondents is writ-large and I cannot resist an observation

that which ever way one looks at/the conduct of the municipality qua the subject matter of the writ petitions, conclusion is that officers of the

municipality have shirked their responsibility and before it is too late, the Government is expected to rise to the occasion and impose accountability

on its functionaries to improve the performance the public institutions. To achieve the objective inquiry/investigation into the omissions and

commissions of those who were at the helm of affairs at the relevant point of time is necessitated and the circumstances which led to the issuance of

the permission shall also be got examined by the respondents and if it was issued without authority the consequences shall have to befall according

to law.

In the facts and circumstances of this case I find no fault with the action initiated by the respondents. Accordingly, these writ petitions are

disposed of along with CMPs with the direction to the respondents to proceed ahead in accordance with law with the action initiated. Interim

directions shall be deemed to have merged in this judgment.

Now a word about the conduct of the petitioner. The first writ petition bearing OWP No. 230/96 was filed him on 15.07.1996 inter alia

seeking a direction for allowing him to restore the structure to its original position as per the permission. Alongside an application was filed for

interim relief and a direction came to be passed on 16.07.1996 which reads:

Issue notice in the CMP also returnable within the same period. In the meanwhile, subject to objections, petitioner shall be allowed to go head

with his restoration of the building as per permission granted vide order dated 27.04.1996.

Another writ petition bearing OWP No. 337/96 was filed on 31.07.1996 challenging the show cause notice seeking a writ of prohibition to restrain

the respondents from dismantling the two storeyed building. In the CMP an interim direction was passed on 11.08.1996 which is extracted

hereunder:

Issue notice of four weeks. Issue notice in the CMP also. In the meanwhile, and subject to objections of other side the parties are directed to

maintain status quo with regard to ground floor of the building in question.

A plain reading of the direction makes it clear that on the one hand it restrains the respondents from demolishing the ground floor and on the other

it has the effect of prohibiting the petitioner from making any further construction beyond ground floor obviously, neither demolition of the structure

as it exited on 11-8-1996 nor construction beyond ground floor could be conceived of, for, law is settled that as long as a direction remains in

force, it has to be obeyed in its letter and spirit. No doubt departure is permissible if the Court which has passed the order or the superior Court

varies or vacates the direction but in absence of an order vacating the direction, disobedience of the order renders a person liable to action. In the

case on hand admittedly the direction has not been altered, yet petitioner constructed three more stories subsequent to the direction of status quo

dated 11.08.1996 which position is manifest from the averments made in the writ petition bearing No. 337/1996 in which he got a direction of

status quo on the basis of an averment that he has raised the construction upto ground floor only but in OWP No. 693/1997 he says he has raised

four stories. Such conduct shows that the petitioner is caring two hoots for the direction of the Court and has violated the order of status quo with

impugnity. How saddening it is. Needled to say that violation of the order of the court is bound to shake the confidence of all those who come to

the court for justice, consequently, dissatisfaction with judicial determinations. In my opinion the sanctity of the orders of the court is necessary to

ensure an ordered life in society. In this backdrop, it is directed that a copy of this judgment apart from the writ record shall be diarized and

numbered as suo moto contempt. Notice to the petitioner returnable within two weeks to show cause why he be not proceeded against for

disobedience of the order of the court. Be listed in third week hereafter.

Be it placed on record that these proceedings are initiated in respect of alleged violation of the orders of the court independently of the

proceedings initiated by the statutory authorities regulating the construction within municipality area, As a corollary the statutory authorities are free

to take action initiated by them with respect to the violations of law and permissions to its logical end unhindered by contempt proceedings.

Likewise the inquiry/investigation shall also go ahead simultaneously. Judgment shall be communicated to the Chief Secretary to Govt. of J&K

Srinagar. Record is returned to Mr. Khan in the open court.