Ghulam Nabi Yatoo vs State of JandK and Others

Hasnain Massodi, J.â€"Jammu & Kashmir Cooperative Housing Corporation Limited - a Cooperative Society registered under J&K Cooperative

Societies Act, 1960, (hereinafter the Housing Corporation) sometime back established a Cooperative Housing Colony under name and style of

Friends Enclave at Humhama, District Budgam. Petitioner got a plot measuring 5400 Sq.ft. bearing No. C-7 in H.I.G (High Income Group)

Category allotted in his favour. A deed of perpetual lease was executed by the parties i.e. J&K Cooperative Housing Corporation Limited and the

petitioner on 3rd August 2002. The Corporation allotted plot Nos. C-6 & C-7 adjacent to petitioner's plot to S/Shri Muneer Ahmad Wani S/o.

Ali Muhammad Wani R/o Panzgam Kupwara and Shri Abdul Majeed Wani S/o. Shri Amir-ud-Din Wani R/o Tulsi Bagh Srinagar (Original

Allottees for short) respectively. The lease deeds in this regard were executed sometime in 2001. S/Shri Muneer Ahmad Wani & Shri Abdul

Majeed Wani with permission of Corporation transferred lease hold rights in plot Nos. C-6 & C-7 to Haji Ghulam Ahmad Wani S/o. Haji Wali

Joo and Shri Asif Afzal Chowdary S/o. Muhammad Ramzan Chowdary R/o Handwara vide transfer of lease hold rights deeds executed on

30.05.2013 and 22.06.2013 respectively. Petitioner after plot No. C-7 was allotted to him, constructed a residential house through Corporation,

as per the approved colony design, on the allotted plot. Shri Asif Afzal Chowdary and Haji Ghulam Ahmad Wani-respondents 11 and 12 in the

petition, soon after lease hold rights were transferred in their favour by Original Allottees, approached Competent Authority (Commissioner,

Srinagar Municipal Corporation) for grant of permission to raise construction on their land (plot Nos. C-5 & C-6) and sanction of building plan,

submitted by them. The Competent Authority accorded permission vide order No. 47 of 2013 dated 27.8.2013 and sanctioned building plan,

submitted with an application for grant of permission to raise construction by respondents 11 and 12. The respondents 11 and 12 were permitted

to raise double storeyed residential house and double storeyed garrage/servant room in accordance with sanctioned plan. They after permission

was accorded by the Competent Authority raised construction on the land (plot Nos. C-6 and C-7) acquired by them.

Petitioner aggrieved that respondents 11 and 12 did not raise construction in accordance with the permission and sanctioned plan and while

raising the construction encroached upon a part of lane No. 5 in front of his residential house and strip of land earmarked as green area, has come

up with the writ petition on hand. He on the strength of averments made in the petition seeks following relief:

i) A writ of certiorari or any other appropriate writ, order or direction, quashing the order No. 47 of 2013 dated 27.8.2013, issued by

respondent No. 5, whereby respondents 10 to 12 have been permitted to raise the construction of a double storeyed residential house and double

storeyed garage/servant quarter on plot Nos. C-05 and C-06 including any other order which may have been issued by respondent No. 5 in

favour of respondents 10 to 12 for raising any construction or any kind of structure on the lane No. 5 including installation of a gate and sentry

booth on the said land and fencing around the green strip.

ii) A writ of mandamus or any other appropriate writ, order or direction, directing respondents 5 to 8 and 13 to:

a) Seal/demolish the double storeyed residential house of respondents 10 to 12 as also double storeyed garage/servant quarter raised on plot Nos.

C-5 and C-6 and lane No. 05 and to remove the encroachments made by the respondents on lane No. 5 and the green belt and also demolish

fencing/blockage raised by respondents 10 to 12 on lane No. 5 and the fencing raised by them around the green strip so as to allow the inhabitants

of the colony to have access from one place to another by using lane No. 5 for their ingress and egress purposes.

b) Command the respondents 5 to 7 and 13 to ensure that no illegal construction is raised by respondents 10 to 12 on lane No. 5 or any kind of

fencing/gate is raised by them on the green strip or lane No. 5/road in any manner whatsoever.

c) to take action against the respondents 5 to 8 and 13 for issuing permission in favour of respondents 10 to 12 for raising construction of the

double storeyed residential house and double storeyed garage/servant quarter on the land/green strip which is reserved for the inhabitants of the

colony for ingress and egress purposes and also for plantation of trees.

Shri Hakeem Muhammad Maqbool and six others, all residents of Friends Enclave Humhama were at request allowed to intervene vide order

dated 13 12 2013. They in their application averred that lane-5 and green belt adjacent to plot Nos. C-5 and C-7 were properly delineated and

earmarked as such in the approved plan of the colony and all the residents have the right to use and enjoy the lane as well as green belt developed

out of funds provided by Srinagar Municipal Corporation and that the wall raised by the respondents 11 and 12 on lane No. 5 affected ingress and

egress within the colony and also blocked access of residents of the colony to green belt.

Chairman, Building Operation Controlling Authority a d other functional's of Srinagar Municipal Corporation, impleaded as respondent Nos. 5

to 7 in the petition, oppose writ petition on the ground that it raises disputed questions of fact, not expected to be gone into by this court, while

exercising its writ jurisdiction. It is denied that petitioner has any cause to maintain the petition. Petition is also opposed on the ground of non-

joinder and mis-joinder on the parties. Respondents 5 to 7 admit to have accorded permission to respondents 11 and 12 to raise construction on

plot Nos. C-5 and C-6 as per the Plan submitted by them and approved after obtaining. No Objection from the Housing Colony. It is insisted that

respondents 11 and 12 have undertaken construction in accordance with the permission and sanctioned plan. It is pleaded that permission has

been granted and sanction accorded in strict accordance with the Control of Building Operations Act and Regulations made there under.

Respondents 5 to 7 admit that representation as received from Friends Enclave Consumer cum Welfare Committee in respect of construction

undertaken by respondents 11 and 12 They maintain that on inquiry, the representation was found to be without any substance. It is insisted that

dispute whatever raised falls within jurisdiction of Housing Colony.

Petition is opposed by the Housing Corporation on the ground that the allegations of encroachment on a part of lane No. 5 and the green strip

adjacent to plot Nos. C-5 and C-6 levelled against respondents 11 and 12 in the petition, are devoid of any substance. It is stated that Original

Allottees after taking over possession of plot No. C-5 and C-6 approached the Corporation with a request that Plot Nos. C-5 and C-6 were at

the end of the Housing Colony and on edge of a deep gorge on northern side and that as the slope downwards to the bottom of the gorge had

developed cracks, they be allowed to raise a retaining wall around the slope so as to prevent further soil erosion. It is pleaded that the Corporation

conducted a spot inspection and found substance in complaint of the Original Allottees and in said background permission was granted to Original

Allottees to raise a retaining wall around the slope without claiming any right over the slope and to convert it into a plantation. The green belt of the

Colony is said to be maintained by the Housing Colony with assistance of Srinagar Municipal Corporation and the retaining wall except part of

green belt strip in question, constructed by the Srinagar Municipal Corporation. The Housing Corporation also denies that the respondents 11 and

12 unauthorizedly took over a part of lane No. 5 in front of Plot No. C-6. It is pleaded that as the plot No. C-6 was found to be less than 5400

Sq.ft., a strip of land adjacent to the plot was allotted to the Original Allottees to make up the deficiency.

Respondent No. 10 in his reply has denied to have any interest proprietary or otherwise in plot No. C-5 and C-6 at Friends Enclave

Humahama. He clarifies that his son(respondent No. 11) and father (respondent No. 12) have acquired lease hold rights over the aforesaid plots

and have been permitted by the respondent No. 5 to raise construction as per the approved plan. It is pleaded that Original Allottees of plot Nos.

C-5 and C-6 were allotted a strip of land to make good deficiency in the area of plot allotted and also allowed to raise retaining wall around strip

of land adjacent to the plot Nos. C5 andC-6 to prevent soil erosion. It is pleaded that the petitioner himself while raising construction on his plot

i.e. C-7 has unauthorizedly raised structures adjacent to his residential house and one of the structures is raised on the partition wall between plot

Nos. C-6 and C-7 without maintaining any setbacks. It is denied that petitioner's right of ingress and egress through lane No. 5 has been blocked

or restricted as the petitioner continues to use lane No. 5 for access to his house and main gate of petitioner's house opens on lane No. 5. It is

averred that lane No. 5 reaches its dead end in front of Plot No. 7 and does not after serve Plot No. 7 any other plot. It is denied that the

respondents 11 and 12 are keen to encroach upon a strip of land decided to be set apart by the Corporation as green area. The retaining wall

raised around the strip, according to the respondent is intended to protect it from soil erosion as the Plot Nos. 5 and 6 being on the edge of a deep

gorge as also the adjoining strip are threatened by soil erosion. It is insisted that the writ petition is a reaction to the persistent demand made by

respondents 11 and 12 to petitioner to demolish, on his own, illegal and unauthorized construction raised on Plot C-7 close to Plots C-5 and C-6.

It is denied that inhabitants of the locality have any objection to the construction raised by respondents 11 and 12 or are aggrieved that any part of

lane No. 5 or the space left to be developed as green strip is being encroached upon by respondents 11 and 12. The respondent in this regard has

appended a resolution signed by Mr. Muhammad Amin Anjum ""Retd.""), Mr. Abdul Lateef Beigh, Dr. Isharat, Dr. Muzaffar Jan, Mr. Smuddin

Bhat, Mr. Ajaz Ahmad Bhgat Mr. Mumtaz, M. Amum Manhas, Mr. Mufti Nazim, Mr. Muhammad Maqbool and Dr. Showkat Khan all residents

of Friends Enclave, Humhama to the reply.

The writ petition is resisted by respondents 11 and 12 on the grounds almost identical to the grounds detailed in reply filed by respondent No.

The reply reiterates the stand taken by the Building Operation Controlling Authority the Housing Corporation and respondent No. 10 that

respondents 11 and 12 have raised construction on the land properly acquired by them and in accordance with the permission granted and building

plan sanctioned in their favour. The allegations leveled in the petition are said to be false and frivolous and a camouflage used by petitioner to cover

up illegal and unauthorized construction raised by him on his plot. The respondents 11 and 12 insists that dispute raised in the petition is of a pure

civil nature and respondents 1 to 4 have been impleaded as a party respondents only to give it a colour of arbitrariness on their part, so as to

invoke writ jurisdiction of the court under Article 226 of Constitution of India. It is pleaded that the construction is raised in accordance with the

permission and approved building plan and that the respondents while raising the construction have not encroached upon any part of lane No. 5 or

land earmarked to be developed into a green strip.

The Registrar Judicial, High Court Wing Srinagar was on 31st December 2013, appointed as Commissioner for spot inspection. He was asked

to visit the spot and submit a report about the existing position of construction on spot. The Commissioner visited the spot on 11.01.2014, and

submitted his report on 5th February 2014. The petitioners as well as interveners have filed their objections to the Commissioner's report. They

deny that at the time Commissioner visited, spot any of the residents of the locality was present or petitioners or interveners were asked to remain

present on spot so as to point to violations and encroachment of public lane and a strip of land set apart as green area, made by respondents 11

and 12. The Commissioner is said to have failed to give the present status of the construction raised by respondents 11 and 12 and also to indicate

whether any part of lane No. 5 was brought under the construction and wall raised on lane No. 5 leaves any access to-green strip. The

Commissioner is said to have also failed to give date constriction on plot Nos. 5 and 6 was commenced by the respondents 11 and 12. The

interveners in the objection deny that they were associated with the spot inspection. It is denied that ""Muneer Ahmad"" as claimed in the report was

present on the spot. It is insisted that the Commissioner's report is factually incorrect as he has assumed that access to the green strip would be

through respondent's land and that the part of lane No. 5 taken over by the respondent was respondent's land.

I have gone through the pleadings and record available on the file. I have heard learned counsel for the parties.

The grievance voiced in the petition that, according to petitioner, prompted him to invoke writ jurisdiction of the court may be serialized as

under:

i) That the respondent No. 10 commenced construction on plot C-5 and C6 adjacent to petitioner's plot (C-7) in the year 2012, when the

respondent No. 10 or for that matter, respondents 11 and 12 were yet to acquire any right or interest in the aforementioned plots and therefore

were yet to obtain permission from the Competent Authority, to raise construction on said plots.

ii) The permission granted by the respondent No. 5 to respondents 11 and 12 vide order No. 47 of 2013 dated 27th August 2013, authorizing

them to construct a double storeyed residential house and double storeyed garbage/servant room on plot No. C-5 and C-6 did not authorize them

to raise construction on part of lane No. 5 allegedly annexed by respondents 11 and 12 with aforementioned plots; that though, the permission to

raise construction was granted in the name of respondents 11 and 12, it is respondent No. 10 who raised the construction of double storeyed

residential house, and a double storeyed garbage/servant room on part of lane No. 5 in violation of the permission accorded by the respondent

No. 5.

iii) That respondents 11 and 12 did not follow mandate of Regulation 4 Control of Building Operation Regulations 2001, while applying for

permission and therefore permission was accorded in disregard of the Regulation of 2001.

iv) That the double storeyed garage/servant room raised on the part of lane No. 5 infringes petitioner's right, to privacy and his right to use the lane,

as also that of his other neighbors.

v) That the petitioner's objection to double storeyed residential house, does not conform to ""colony design"".

vi) That the respondents 10-12 encroached upon part of lane No. 5 by annexing it with plot No. C-6 and raising construction thereon.

vii) That the respondents unauthorizedly constructed a retaining wall around a strip of land adjoining Plot Nos. 5 and 6 intended to be maintained

as part of green belt for the benefit of colony dwellers, with the intention to make it part of Plots C-5 and C-6.

viii) That the competent authority did not adhere to the Controlling of Building Operation Act, and the Regulation made there under while

according permission to respondents 11 and 12.

The petitioner's case that, it is respondent No. 10 and not respondents 11 and 12, who is raising construction on plot, does not find support

from the material available on the file. Merely because respondents 11 and 12 are related to respondent No. 10 is not enough to raise a

presumption that the construction is undertaken by respondent No. 10, and not respondents 11 and 12 in whose favour lease hold rights have

been transferred and permission to raise construction accorded by the Competent Authority. The averments made in this regard remain a bald

allegation without any supporting material. Similarly, the plea that the construction on plots C-5 and C-6 was commenced in 2012, and not 2013,

as claimed by respondents 10 to 12, is without any substance. In the first place plea looses its sheen as the Competent Authority has granted

permission to rise construction. This apart we do not come across any record that would lend support to the allegation. The record appended to

the petition would show that reservation about the construction in question were voiced by some of the residents of Housing Colony, in May/June

2013, and not in 2012. The negotiations for transfer of lease hold rights in favour of respondents 11 and 12, expected to be initiated in April/May

2013, culminated in formal execution of the Deeds registered on 28th May 2013 and 1st June 2013. Further, it is a fact of common knowledge

that illegal and unauthorized construction triggers action by Building Controlling Authority and in present case would also evoke reaction from the

Housing Corporation. The reaction manifests in show cause notice requiring the person undertaking such construction to stop construction and to

demolish the construction on his own unless he wants the Competent Authority to intervene and demolish construction at his cost and

responsibility. The proceedings in this behalf, obviously result in creation of record that at the latter stage may be used to conclude that such

construction was raised at a particular point of time. In the present case as already pointed out, there is nothing on record to lead to the conclusion

that construction was commenced by respondent No. 10 or respondents 11 and 12 in year 2012.

The controversy at the root of the matter is alleged annexation of a strip of land measuring 35.8 fts. x 22 fts. claimed to be used by petitioner

and other residents of the Colony, that according to respondent No. 8, 10 to 12 is not part of lane No. 5 and was duly allotted to the Original

Allottees to make up the deficiency in the area allotted in their favour. Petitioner on the strength of the above plea labels the double storied

garage/servant room as illegal and unauthorized inasmuch as the permission accorded in favour of respondents 11 and 12, does not authorize them

to raise construction on the said strip. It is admitted case of the parties that lane No. 5 reaches a dead end in front of Plot No. C-7 i.e. petitioner's

plot is last plot served by lane No. 5. In case lane No. 5 is taken to proceed beyond plot No. C-7, the only beneficiaries are to be respondents 11

and 12 as plot No. C-6 is at the edge and last plot in the row. In the said background, the stand taken by the respondent No. 8 assumes

significance. The respondent No. 8 has developed the Housing Colony, prepared the colony plan, its layout and earmarked lanes and by-lanes.

Respondent No. 8 is to tell us about true character of lane No. 5 beyond plot No. 7 i.e. petitioner's plot. Let us revisit the stand taken by the

Housing Corporation. It would be advantageous to extract relevant part of Para 2 of its reply:

In the meantime, the said plot holders also reported to the answering respondent Corporation that the plots allotted to them are not of the size as

applied for by them i.e. the dimension of 60'x 90'for which the said allottees had made the requisite payment to the answering respondent. The

answering respondent on examination of the issue also found the claim of the said allottees genuine and after spot verification and measurement

found the aforesaid plots of the said allottees lesser in dimension than the size allotted to them, therefore, the answering respondent allotted a strip

of land adjacent to plot C-6 in favour of the allottee of Plot C-6 in order to make up the deficiency.

Respondent No. 8, therefore, has taken a clear stand that the strip of land in front of plot No. C-6 was duly allotted to the Original Allottee.

The Communication No. JKCHC/4/FE/4293 dated 3rd April 2012, lends support to the case set up by respondents 8, 10 and 12. It would be

appropriate to reproduce the communication hereunder:

THE J&K CO-OPERATIVE HOUSING CORPORATION

Ref. No. JKCHCI4IFEI4293

dated 03-04-2012

To

Shri Muneer Ahmad Wani

S/o. Sh. Ali Mohd. Wani

R/o Panzgam Kupwara

Subject: Allotment of strip adjoining Plot No. C-06 situated at friends Enclave, Humhama.

Kindly refer to the perpetual lease deed registered in the court with regard to Plot No. C-06 situated at Friends Enclave Humhana in your favour,

but as per the actual measurement of plot there is less land. In this connection it is to inform your goodself that in lieu of said land a strip of land

which is lying vacant in front of your plot is hereby allotted in your favour.

Yours faithfully

Sd/-

Managing Director

In the above background, strip of land in front of plot No. C-6 is allotted to the Original Allottee from whom respondents 11 and 12 have

acquired lease hold rights and not encroached upon by respondents 10 to 12 as alleged in the petition. The part of strip, therefore, becomes part

of Plot Nos. C-6 It cannot therefore be said that permission accorded by the Competent Authority in favour of respondents 11 and 12, did not

authorize construction on the allotted strip. Whether respondent No. 8 was competent under its rules, regulations and by-laws to allot aforesaid

strip to Original Allottee, may be projected as an issue by petitioner or any other allottee. But such question is to be raised at a different level, point

out a little latter, as we proceed with the matter. To conclude, there is no merit in the petitioner's claim that the double storey garage/servant room

is illegal, unauthorized and not covered by permission Order No. 47 of 2013 dated 27/8/2013.

The contention that as the application for grant of permission to raise construction in question did not conform to the requirements of the

Regulation 4 of Jammu and Kashmir, Controlling of Building Operation (Revised) Regulation 2001, the permission granted vide order No. 47 of

2013 dated 27.8.2013, is liable to be set aside, does not deserve to be accepted. The Regulation 4 requires a person intending to raise

construction within Municipal Corporation/local area of Srinagar, to append with the application 12 copies of the building/site plan, title verification

certificate from Assistant Commissioner, Nazool, Srinagar, ""No Objection"" certificate from different departments, so as to enable the Building

Operation Controlling Authority to take an objective decision on the proposal submitted. The Building Operation Controlling Authority is required

to examine whether a person intending to raise construction has title over the land and whether the proposed construction is to affect any of the

projects under execution or proposed to be executed by Power Development Department (PDD), Urban Environmental Engineering Department

(UEED) and Lakes and Water Ways Development Department (LAWDA). In case, the proposed construction is to pre-judiciously affects any

such project or the person intending to raise construction has no title or defective title over the building site, the Building Operation Controlling

Authority may refuse permission to raise construction. Same is not true about a Housing Colony authorized by the Government. In such case, all

such factors are taken into consideration while authorizing a Housing Corporation/Society to establish Housing Colony. To illustrate, the

Competent Authority examines the title document/ownership documents, ensures that the proposed Housing Colony does not offend any of the

plans/projects of different departments or any instructions issued by such departments. The promoters of the Housing Colony, at the time, they

seek permission to set up a Housing Colony make a provision for road connectivity, power distribution, safe drinking water facility and other civic

amenities. In the circumstances, non-adherence to the requirements of Regulation 4 in case of proposed construction over a plot allotted in a

Housing Colony would not be fatal to the permission granted by the Building Operation Controlling Authority. The reason being that all such

requirements in case would be repetitive, in character and an idle formality. This is the reason that the Competent Authority in the present case has

called objections from the Housing Corporation, as such objections would not only confirm respondent 10 and 11's title over the site of proposed

construction but also cover other aspects of the matter like provision for safe drinking water, power distribution, road connectivity and other civic

amenities.

Petitioner has no grievance as regards double storied residential house raised by respondents 11 and 12 in accordance with the permission

order No. 47 of 2013 dated 27/8/2013. His only complaint is that the building plan approved by the Competent Authority in favour of

respondents 11 and 12 is not as per the colony design. Petitioner's case in other words is, that each house constructed in Friends Enclave,

Humhama, Srinagar, is to be on pattern of design, approved by the Housing Corporation. The Competent Authority according to petitioner in

other words, lacked power to sanction and approve a Building Plan not in tune with ""colony design"". It is pertinent to point out that respondent

No. 5, has granted permission to respondents 11 and 12, to construct double storeyed residential house on plot Nos. C-6 and C-7 as per the

building plan approved by it, only after respondent No. 8 conveyed its ""No Objection"" to the building proposal. Respondents 11 and 12 submitted

an application to the Chairman, Building Operation Controlling Authority on 1st July 2013, for accord of permission to raise construction as per

the building plan enclosed with the application. The application was referred to respondent No. 8. The respondent No. 8 conveyed its No

Objection to the proposal vide its communication dated 2nd July 2013, addressed to Joint Commissioner (Planning), Srinagar Municipal

Corporation. It reads.

THE J&K CO-OPERATIVE HOUSING CORPORATION LTD.

Ref. No. JKCHC1121 FEU 16059-60

dated 2.07.2013

The Joint Commissioner (Planning), Srinagar,

Municipal Corporation, Sgr.

Subject: Permission in respect of Plot No. -05 & C-06 situated at Friends, Enclave, Humhama

With reference to your letter No. SMC/JC(P)/436-37 dated 01.07.2013, regarding the subject cited above. In this connection it is to inform your

goodself that Plot No. C-05 & C-06 situated at Friends Enclave, Humhama has been allotted to Muneer Ahmad Wani S/o. Haji Wali Joo R/o

Panzgam, Kupwara, Kashmir to Asif Azad Chowdary S/o. Muhammad Ramzan R/o Handwara at present Srinagar. Further the Corporation has

no objection if said lessee raise construction on the above said plots according to the building plans issued by Srinagar Municipal Corporation.

Thanking you

Yours faithfully

Sd/-

Managing Director

It is only after respondent No. 8 conveyed its no objection that permission was accorded to respondents 11 and 12 to raise construction as per

the approved plan. It follows that respondent No. 8 indirectly permitted respondents 11 and 12 to deviate from what petitioner calls ""colony

design"" and raise a construction as per their requirements. It remains to be known whether all the residential houses constructed by allottees in the

Housing Colony follow same pattern or design. In any case, whether respondent No. 8 having regard to its rules, regulations and by-laws is

competent to allow deviation from ""colony design"" and whether, all plot holders of Friends Enclave, Humhama have adhered to a single ""colony

design"" is again a question to be dealt at different level. As regard petitioner's claim that respondent No. 8 was not competent to permit

construction in violation of ""colony design"", the controversy is to be resolved elsewhere. Respondents 11 and 12, have constructed double storey

residential house and double storey garage/servant room as per the building plan. Respondents 5 to 7, therefore, are not under a statutory

obligation to interfere with the construction.

Petitioner's grievance is that respondents 11 and 12, encroached upon a strip of land adjoining plots C-6 and C-7 by constructing a retaining

wall around strip with an intention to annex it with their plots. Respondents 11 and 12 admit that they have no right or interest in the strip of land

earmarked by respondent No. 8 as part of green belt. The stand taken by the respondent 11 and 12, is that a retaining wall is being constructed in

accordance with the permission granted by respondent No. 8 and is aimed at preventing soil erosion. The stand taken is reinforced by the

respondent No. 8 its reply to the petition. The respondent No. 8 has taken a categoric stand that construction of retaining wall undertaken by

respondents 11 and 12 is not unauthorized and that it is not to change the character of the strip in question.

It would be advantageous to extract relevant Part of Para 2 of the reply filed by the respondent No. 8:

Initially plot No. C5 and C6 at the aforesaid Enclave were leased out in favour of Shri Abdul Majeed Wani and Shri Muneer Ahmed Wani by

way of a perpetual lease deed registered in the Court of Sub-Registrar, Budgam in the year 2001. On taking over possession of the aforesaid

plots, the said allottees and other plot holders complained to the answering respondent that the said plots being extreme plots on the parcel of the

land having a deep gorge on its northern side, has become unsafe due to frequent soil erosion as also on account of extensive cracks having been

developed on the adjoining slope, therefore, sought permission for raising a retaining wall around the slope in order to avoid damage to their land.

The respondent Corporation after conducting a spot inspection of the aforesaid plots and on evaluation found the complaint of the said allottees

genuine, as such, granted permission for raising of retaining wall around the slope in order to prevent further damage to the said plots. While

permitting the said allottees to raise the retaining wall, they were also permitted to undertake plantation on the slope, however, without claiming any

right whatsoever.

The stand taken by the respondent No. 8 makes it further clear that it is not the respondents 11 and 12 or for that matter respondent No. 10 who

approached the respondent's Corporation for grant of permission to construct a retaining wall as is sought to be projected by the petitioner. It is

important to note that green belt is not restricted to only Plot Nos. C-5 and C-6. The green belt, as is evident from the record available on the file,

is a long strip of land running parallel to the residential plots and the strip in question adjoining the Plots C-5 and C-6 is, only a part of the green

belt that runs on the northern slope of the Housing Colony. The green belt is being maintained with the assistance of Srinagar Municipal

Corporation The Corporation has build a retaining wall all along the green belt except the slope adjoining Plot Nos. C-5 and C-6. It is in the said

background that Original Allottees were allowed to construct a retaining wall in order to prevent soil erosion. The communication addressed by

respondent No. 8 to the Original Allottees may be reproduced here under:

THE J&K CO-OPERATIVE HOUSING CORPORATION LTD.

Ref. No. JKCHC/12/FE/2815

Dated 13.4.2011

Shri Muneer Ahmad Wani,

S/o. A.H. Mohd. Wani

R/o Panzgam, Kupwara

Sir

Please refer to your application regarding allotment of strip of land adjoining to your plot No. C-6 situated at Friends Enclave in Tehsil & District

Budgam, for permission to raise plantation on the slope and to retain/raise the retaining wall around the slope. In this regard it is to inform your

goodself that your above referred request has been considered by the J&K Cooperative Housing Corporation Ltd., and the permission is hereby

granted to raise plantation on the slope and to retain/raise the retaining wall around the slope at your own cost without claiming any right

whatsoever.

Yours faithfully

Managing Director

THE J&K CO-OPERATTVE HOUSING CORPORATION LTD.

Ref. No. JKCHC/12/PE/2816

Dated 13.4.2011

Sh. Abdul Majid Wani

S/o. Amir-u-din Wani,

R/o Srinagar

Sir,

Please refer to your application regarding allotment of strip of land adjoining to your plot No. C-5 situated at Friends Enclave in Tehsil & Distt.

Budgam; for permission to raise plantation on the slope and to retain/raise the retaining wall around the slope. In this regard it is to inform your

goodself that your above referred request has been considered by the J&K Cooperative Housing Corporation Ltd., and the permission is hereby

granted to raise plantation on the slope and to retain/raise the retaining wall around the slope at your own cost without claiming any right

whatsoever.

Yours faithfully

Sd/-

Managing Director

The plea that retaining wall is being constructed unauthorized or to encroach upon a strip of land earmarked as part of green belt is L the

circumstances without any substance. The categoric Sand taken by he respondent No. 8 and respondents 11 and 12, that it would continue to be

maintained as green belt and the respondents 11 and 12 are under an obligation to maintain its status, is sufficient to to dispel all doubts about

bonafides of respondents 8, 11 and 12. Whether respondent No. 8 was competent to allow the Original Allottee to raise the retaining wall or

should have instead asked Srinagar Municipal Corporation to raise is an open question to be agitated at a different level, though per se, decision

does not appear to be motivated by any mala fides, as it, without any change in the end object, would save Srinagar Municipal Corporation some

amount, it would be otherwise required to spend on the construction.

The grievance that respondents 11 and 12 by raising construction on the strip allotted in their favour in front of Plot No. C-6 have blocked

petitioner's access and that of Interveners, to the strip earmarked as part of green belt is without any substance. In the first place, the aforesaid

strip has been allotted by respondent No. 8 to the Original Allottee namely Muneer Ahmad Wani. The said Allottee has acquired lease hold right

over strip in the same manner he acquired over other part of Plot C-6 The decision taken by the respondent No. 8 to allot the said strip to make

up the deficiency in area of plot No. C-6 seemingly has not been questioned by petitioner or for that matter any of the Interveners before the

Competent Authority. This apart the strip in his question is part of green belt area running parallel to the residential plots on the northern side of the

Housing Colony It has access through the green belt of which it is a part and the strip and allotted to Original Allottee to make up the deficiency in

area of plot No. C-6 is not the only access to the strip.

Petitioner's case that double storeyed garage/servant room infringes petitioner's right to privacy is a question not to be dealt by this court while

exercising writ jurisdiction under Article 226, Constitution of India read with section 103 Constitution of Jammu and Kashmir. Whether, the

aforesaid building offends right to privacy is available and extend and scope of such distance from the residential house, windows/ventilators if, any,

opening towards the petitioner premises. It is a essentially question of fact to be determined in a civil suit if any, brought by petitioner and to be

determined on the strength of evidence as may be adduced by the parties in support of their respective stand and in rebuttal.

From the above discussion, it is clear that core of controversy between the parties relates to allotment of strip of land by respondent No. 8, in

front of Plot No. C-6 in favour of Original Allottee and presently in possession of respondent No. 11 as his successor in interest and permission

granted by respondent No. 5 in favour of respondents 11 and 12 to construct double storied residential house other than in accordance with

colony design"" and permission to raise a retaining wall around the strip earmarked as part of the green belt area on northern side of the Housing

Colony. Though the petitioner has arrayed respondents 1 to 4 as party respondents, there is not even a whisper in the body of the petition against

respondents 1 to 4 nor any relief claimed against the said respondents. The dispute identified above, is essentially between petitioner as an allottee

or member of the Cooperative Society and respondent No. 8 i.e. Cooperative Society and impleadment of other respondents is to give it colour of

a dispute warranting exercise of writ jurisdiction.

The dispute raised in the petition falls within the purview of J&K Cooperative Societies Act, 1989 and in particular Chapter IX of the Act read

with Para 42 of the bye-laws of the respondent No. 8, Corporation. It may be referred to the Registrar as provided in Jammu and Kashmir

Corporation Societies Act and Rules framed thereunder, as was raised in the matter titled Dr. Muhammad Ismail Parray v. Jammu and Kashmir

Cooperative Housing Corporation decided on 23.8.2003 mentioned in para 12 of the petition, relied upon by the petitioner to draw support to his

stand.

In any case, petitioner or for that matter any of the residents of Housing Colony has to work out his remedy under the Act. Petitioner has not

been able to make out the case for quashment of Order No. 47 of 2013 dated 27.8.2013. The material available on record does not indicate

breach of any statutory obligations on part of other respondents or their reluctance/failure to discharge such obligations, so as to warrant grant of

writ of mandamus as pleaded in the petition.

For the reasons discussed, petition is dismissed. The ad-interim order if any, in force is recalled/vacated. Dismissed.