Mohammad Hanief Bhat vs Ut Of Jk And Others

This writ petition has been filed by one Mohammad Hanief Bhat S/O Mohammad Sultan Bhat R/o Kursoo Rajbagh Srinagar, Kashmir, for issuance

of writ of certiorari to quash building permission bearing Order no. 119 of 2019 dated 29.7.2019, issued by respondent-Corporation in favour of private

respondents 7 and 8 for raising construction. He has also sought issuance of writ of mandamus directing the respondents 1 to 6 to strictly implement

provisions of Srinagar Municipal Corporation Act and Building Bylaws / Regulations framed thereunder with a further direction to official respondents

not to allow private respondents to raise any construction on spot in pursuance of the building permission.

The case set up by petitioner is that he owns and possesses residential house. Adjacent thereto is a landed property belonging to private

respondents 7&8. In the month of November-December 2018, private respondents, without obtaining any permission from Srinagar Municipal

Corporation, started raising illegal construction of a commercial complex on their landed property and due to timely action of respondent-Corporation,

the construction was stopped and demolition notice was issued on 31.12.2017. Thereagainst, private respondents filed an Appeal before J&K Special

Tribunal, which was disposed of with a direction to private respondents to put forth their claim before the authority of respondent-corporation.

Respondent Corporation by Order no.3884 of 2019 dated 11.05.2019, issued Building Permission in favour of private respondents to raise construction

of three storeyed residential house and erection of compound walling on the plot of land. It is averred that in the month of July 2019 respondent-

Corporation issued yet another building permission vide Order no.119 of 2019 dated 29.07.2019. It is this building permission, of which petitioner is

aggrieved as according to petitioner, it regularised deviation of ground floor and granted permission for for raising 1st and 2nd floor having stilt parking

in ground floor, 1st floor for coaching centre and 2nd floor for residential purpose. It is averred that the private respondents have violated the terms

and conditions of the permission and have started raising of the construction without maintaining any kind of set-backs on spot, as a result of which a

complaint was filed by neighbours as well as the petitioner before the Srinagar Municipal Corporation and consequent thereupon vide communication

dated 14.03.2020, the Ward officer, Ward No.30, was asked by Joint Commissioner, Planning, Srinagar Municipal Corporation, to submit status/action

taken report in regard to the construction work on spot.

It is further case of the petitioner that the respondent corporation has issued two building permissions in favour of the private respondents in a span

of two months without first conducting any kind of spot inspection as to the status of the construction and the deviations, if any, made on spot. It is

maintained that action of respondent-corporation in issuing building permission is outcome of malice and a vivid abuse of power and authority on the

part of respondent corporation.

In response to writ petition, respondents 7 and 8 have stated in their objections, before filing instant writ petition, another writ petition, being WP(C)

no.1293/2020 was filed, although in the name of Muhammad Yaseen Khanday and another, before this Court, in which status quo order was passed.

It is claimed by respondents that petitioner is not a resident of Kursoo Rajbagh and same has been falsely stated by him in order to prevent

respondents from regularising deviation and to grab the building from them. It is specially made mention of by respondents that they have raised

construction strictly in accordance with permission granted by Srinagar Municipal Corporation only after inspection of the site for regularization of the

deviations of ground floor, 1st and 2nd floor and there is no violation of permission.

Heard and considered.

Learned counsel for petitioner, as projected in writ petition on hand, has stated that second building permission has been granted by respondent-

corporation on the premise that private respondents had raised the construction and had deviated from the sanction plan and pursuant to directions

passed by the J&K Special Tribunal, the deviations have been regularized. The preposition carved out by petitioner is that respondent-corporation

while issuing subsequent building permission is prima facie unwarranted, illegal and unreasonable. It is submitted that in November-December 2018,

private respondents started raising of illegal and unauthorized construction and consequent thereupon demolition notice was issued against them which

was subsequently challenged before the Special Tribunal Srinagar and for the first time, it was in the month of May 2019 that building permission for

residential house was issued by the Srinagar Municipal Corporation but after a period of just two months, another building permission came to be

issued regularising the deviations, when fact of the matter is that till issuance of building permission, vide order dated 29.7.2020, private respondents

had not raised any sort of construction on spot and that the order of Special Tribunal was issued in January, 2019 and at that time no building

permission was in existence.

With the consent of learned counsel for parties, the matter is taken up for final disposal.

The grievance of petitioner is that the construction has been raised in violation of permission and respondents 7&8 have violated building permission

by raising Commercial Complex, without leaving setbacks as were required to be adhered to.

It may be pertinent to mention here that if the construction has been raised in accordance with building permission granted vide Order no. 119 of

2019 dated 29.7.2020, petitioner has no right to that extent. Even otherwise, respondents 7 and 8 during course of arguments, have in clear cut terms

submitted that they have raised construction strictly in accordance with the permission granted in their favour and have not committed any violation

and in case there is any violation of the permission, respondent-corporation is at liberty to take appropriate action in accordance with law.

This writ petition, in view of case set up by parties, is disposed of with an observation that respondents 7 and 8 shall raise construction strictly in

accordance with the permission granted and in case of any deviation of building permission, accorded for raising the construction, the respondent-

corporation shall be at liberty to remove such violation and take appropriate action in accordance with law.

Disposed of along with connected CM(s).