Manzoor Ahmad Bhat vs Chairperson J&K Special Tribunal & Others

Sanjeev Kumar, J

1) The petitioner is aggrieved of and has called in question order dated 05.09.2023 passed by the J&K Special Tribunal, Srinagar [“the Tribunal”] in an appeal titled “Manzoor Ahmad Bhat vs. Commissioner, Srinagar Municipal Corporation & Ors.” whereby the appeal filed by the petitioner against the demolition notice bearing No.SMC/Enf/1972-78 dated 02.08.2018, issued by respondent No.3, has been dismissed.

2) The impugned order is assailed, primarily, on the following grounds:

(I) That at the relevant point of time when the impugned construction was raised some 20 years back, the area of Pandach near Police Station was not within the limits of Srinagar Municipal Corporation [“SMC”] and, therefore, SMC had no jurisdiction or authority to issue impugned notice of demolition but this aspect of the matter has not been appreciated by the Tribunal;

(II) That the impugned notice of demolition was issued in violation of principles of natural justice, in that, the petitioner was not given adequate opportunity of being heard;

(III) That the Tribunal did not appreciate the fact that the offending structure was an old one and could not have been constructed under the nose of the Khilafwarzi Officers and other officials of the SMC;

3) Having heard learned counsel for the petitioner and perused the material on record, I am of the considered opinion that the order passed by the Tribunal is perfectly legal and falls within four corners of law. Indisputably, the offending structure, which is consisting of four storeyed commercial building with attic, is all raised without any building permission from SMC. It is also amply clear from the record that when the notice of demolition was issued by SMC dated 2nd August, 2018, the petitioner had raised only ground floor of the structure, that too without permission. It is only after the petitioner filed an appeal before the Tribunal and having been granted the order of status quo, he acting in sheer violation of the order of status quo succeeded in raising the construction of four storeyed commercial structure. This was not possible without the active connivance of the Municipal authorities. The Tribunal has taken note of the fact that the entire construction was raised by the petitioner without any building permission and that the petitioner had misused the forum of the Tribunal and raised the construction during the pendency of the appeal, that too, when the interim order of status quo was operating.

4) The Tribunal has also noted that though in the appeal filed by the petitioner, the respondents had failed to produce any notification or order by virtue of which Pandach area was included in the limits of SMC despite repeated orders yet the Tribunal could find such order/relevant notice from another file which was subjudice before it. It is not the case of the petitioner that he was served with a demolition notice under Section 253(1) of the J&K Municipal Corporation Act, 2000, without first having been served with a show cause notice under first Proviso to Section 253(1) of the Municipal Corporation Act. The petitioner was put on show cause notice but he failed to submit his reply within the time stipulated therein.

5) It is in these circumstances a notice of demolition was served upon the petitioner calling upon him to pull down the offending structure within a period of seven days commencing from the date of issuance of notice i.e. 2nd August, 2018. Instead of contesting the show cause notice and putting forth his defence, the petitioner filed an appeal and succeeded in obtaining an interim order of status quo. The order of status quo was, however, subject to a bond of Rs.10.00 lacs (rupees ten lacs) to be executed by the petitioner. The Tribunal has correctly noted down the sequence of events to demonstrate that in the instant case, the petitioner and the SMC authorities were hand in glove. It is after repeated directions by the Tribunal, the SMC filed a status report along with photographs on 25.05.2022, from which it came to light that the petitioner had, in flagrant violation of the order of status quo granted by the Tribunal, carried out the construction and had even succeeded in raising four storeyed commercial building with attic. Learned counsel for the petitioner could not produce any building permission, either before the Tribunal or before this Court.

6) The plea of the petitioner that it was an old building is falsified by the status report along with photographs dated 25.05.2022 submitted before the Tribunal. In these circumstances when the petitioner had become law unto himself and had the audacity to violate the order of status quo passed in his appeal, the Tribunal had no option but to dismiss the appeal and vacate the order of status quo. As is rightly observed, not only the petitioner is liable to be proceeded for committing contempt of the court but he is also bound to deposit a sum of Rs.10.00 lacs before the Tribunal representing the amount of bond which he had submitted at the time of obtaining the order of status quo. The Tribunal has rightly directed the Commissioner, SMC, to enquire into the matter and fix the responsibility of the officer(s) who permitted the petitioner to raise a huge structure despite there being an order of status quo passed by the Tribunal. It is high time that Commissioner, SMC, should rise to the occasion and fix the accountability of the officers/officials concerned and bring them to justice.

7) For all these reasons, I find no merit in this petition and the same is, accordingly, dismissed. The Commissioner, SMC, as already directed by the Tribunal, shall demolish the offending structure and submit compliance report and follow-up action taken report before the Tribunal.