Javaid Ahmad Khan And Another vs Government Of J&K And Others

Sanjeev Kumar, J

This appeal under Clause 12 of the Letters Patent is directed against an ad interim ex-parte order dated 07.10.2020 passed by the Writ Court in

WP(C) No.1527/2020. The operative portion of the order reads as under:-

“Accordingly, it is directed that the private respondents shall not raise further construction in any manner on spot and the respondent No. 3 shall

also ensure that the order is complied in letter and spirit. The compliance report shall also be placed before the Court by the next date fixed in the

case. The prayer of the learned counsel for the petitioner for sealing of the premises shall be considered after hearing the other side.

The directions shall remain in force till next date of hearing.

The impugned order has been assailed by the appellants, who are respondent Nos. 7 and 8 before the Writ Court, inter alia, on the ground that prior

to the filing of the writ petition, they had filed a caveat petition but the same was not listed by the Registry along with the writ petition and, therefore,

an ex-parte order adverse to their interest came to be passed.

This Court vide order dated 03.11.2020 while issuing notice of the appeal to the respondents also stayed the operation of the impugned order passed

by the Writ Court.

Learned counsel for the appellants submits that he has been raising his construction strictly as per the building permission granted by the Srinagar

Municipal Corporation (SMC) and that the violations pointed out by Competent Authority have been compounded by the order of J&K Special

Tribunal. Learned counsel for the appellants invites attention of this Court to the order No. 271/2019 dated 17.02.2019, whereby the Competent

Authority for building permissions i.e. Commissioner, SMC, accorded permission to the appellants to raise construction as per duly authenticated plan.

Learned counsel appearing for respondent No.7, however, opposes the appeal on the ground that the order impugned is subject to objections of the

appellants and other respondents in the writ petition and, therefore, not a judgment under Clause 12 of the Letters Patent. On merits, the learned

counsel for respondent No.7 urges that the appellants are guilty of raising the construction in violation of the sanctioned building plan. Making

reference to the building permission granted by the SMC, it is submitted that the building permission was granted in favour of the writ petitioner for a

period of three years to be reckoned with effect from 20.03.2016. He, therefore, submits that the building permission has since expired but the

appellants are continuing with the construction.

Having heard the learned counsel for the parties and perused the record, we are of the view that the order impugned is an ad interim ex-parte order

and has been passed by the Writ Court without affording an opportunity of being heard to the appellants, who had filed a caveat petition before filing

of the writ petition. It is because of the negligence on the part of the Registry that the caveat was not put up and accordingly the writ court considered

the matter for interim relief in exparte.

That apart, we do not find any serious infirmity in the impugned order, even if we consider it in the light of the merits of the controversy raised

before the Writ Court. It is true that the appellants are entitled to raise construction strictly as per the permission granted by the competent authority

and anything raised beyond the permission has to be accounted for.

It is equally true that the violations committed by the appellants, for which notice was issued by the Municipal Corporation on 10.09.2020 have been

compounded by the order of the Special Tribunal dated 20.10.2020, passed in Appeal File No. STS/6076/2020 dated 12.10.2020.

In view of the above, we are of the view that the order impugned passed by the Writ Court deserves to be clarified to the following extent:

i) That the appellants herein, who are private respondents before the Writ Court, shall not raise any construction on spot contrary to and in violation of

the subsisting building permission granted by the competent authority of the SMC and the SMC shall ensure that this order is complied with in letter

and spirit and the violations, if any, committed by the appellants are accounted for and dealt with in accordance with law.

ii) The compliance report shall be submitted by the SMC before the Writ Court indicating clearly as to whether the construction raised by the

appellants is in accord with the building permission granted by the competent authority or in violation thereof. The SMC in its compliance report shall

also indicate the action taken for violation of the building permission, if any. It is further clarified that till writ the petition is considered and finally

disposed, the order of compounding violations shall remain intact.

The appeal is, accordingly, disposed of in the above terms.