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Judgment
Petitioners seek quashing of Order No.123 dated 03.12.2018 issued by respondent no.4 in favour of respondent no. 6 and also a direction to
respondents to demolish the structures that have come up in violation of the said permission. Petitioners have further sought a direction against the
respondents not to allow respondent no.6 to carry on a business/ trading activity in the premises under the garb of aforesaid permission.
Case set up by petitioners is that respondent no.6, after obtaining permission in question issued by respondent no.4, has started construction of
Commercial Complex for trading activity by abusing the building permission granted to him for construction of Single Storeyed Godown and One side
Compound Wall. It is averred that respondent no.6 has violated the terms and conditions of permission granted, and has raised the construction without
leaving setbacks on three sides of the Godown and has raised a big Commercial Complex on the said land. Petitioners are aggrieved of the impugned
permission on the ground that the construction, which is being raised, is a Commercial Complex and is located in the heart of the residential area/
residential colony and the said permission has been issued without applying the mind. It is also maintained that respondent no. 6 has raised construction
in violation of the aforesaid permission granted. The nuisance caused by such activities is violative of the right of the petitioners as guaranteed by the
Constitution, as the right to life includes to live a peaceful and healthy life.
In brief, the grievance which has been put forth by petitioners in writ petition on hand is that the permission has been granted by respondent no.4 for
raising construction of Single Storey Godown and a Compound wall, without taking into consideration the fact that the construction, in respect of which
permission has been granted, is being carried in residential area and respondent no.6 has even violated the sanction/ permission inasmuch as he has not
left the setbacks on three sides of the construction so raised by him and that Commercial Complex is being raised by respondent no.6 in violation of
the permission. It is their further case that by allowing such construction to carry on the trading activity in residential area, violates rights of petitioners
to live peaceful and healthy life.
In response to writ petition, respondent no.6 has specifically stated, in his Reply, that he has raised construction strictly in accordance with
permission granted by Municipality and he is not raising any type of Commercial Complex and there is no violation of the permission granted. It is also
his case that petitioners have no right/locus to challenge the permission granted.
Heard and considered.
With the consent of learned counsel for parties, the matter is taken up for final disposal.
The grievance as projected by petitioners in writ petition is that the permission to raise construction of Single Storey Godown with Compound Wall,
has been sanctioned by respondent no.4 in favour of respondent no.6, notwithstanding the fact that the area is a residential area/colony. Copy of
permission, impugned in this writ petition, is on the file. The permission has been granted for raising construction of Single Storey Godown and One
Side Compound Wall, by Executive Officer, Municipal Council Sopore in favour of respondent no.6. it would be apt to reproduce hereunder terms and
conditions of the said permission:
1) That the proposed land does not fall under Abi-Awal and Shamilat category
2) That there is no violation of the RD Act Municipal Act and other relevant laws on the subject.
3) That there is no construction towards lanes/Drains/Roads / Cannel / State / Kacharrie land/land.
4) That the proposed construction is made at the distance of 15 feet away from HT Line as provided in the relevant Act.
5) That there is not count case pending before any court of law against proposed construction/land in which construction will be raised.
6) That the construction is carried strictly in accordance with the approved Site/Building Plan (copy enclosed)
7) That the sanction holder shall keep his own provision of the roof projection, human excreta solid waste and other waste.
8) This sanction does not prove/disprove the ownership of the land or any other property whatsoever available at the site.
9) That the applicant shall maintain sufficient setbacks of the structure as per the approved plan.
10) That the sanction shall remain in force for a period of two years from the date of issuance of this order.
11) The applicant shall not deposit any debris at site after the completion of construction work which may cause in convenience in public movement.
12) The applicant shall deposit requisite building permission fee as per the schedule in the chest of this institution against proper receipt for 2400
sft’s @ Rs. 10 per square feet amounting to Rs. 24,000/-
13) That in case of any dispute the decision of the issuing authority will be final.
14) That the Construction work shall be under taken under the close supervision of Structural Engineer and requisite earth quake safety measures are
adhered.
15) That the owner of the estate shall keep the copy of the Building permission available during the construction process of the construction.
16) That the owner shall not make use of the estate unless completion certificate is obtained from the Municipality.
17) That no column Structure is allowed without the proper permission for residential building.
18) This permission is Valid subject there is no objection from any con-shares in case of any objection the permission issued will be remain in
obeyance.
That the owner shall not make use of the estate unless completion certificate is obtained from the Municipality. In case the construction or
reconstruction or a part thereof has been carried in contravention of Municipal Act 2000 or any bye-laws or any of the aforesaid terms and conditions,
the same is liable to be demolished or pulled down as the case may be at the risk and cost of the sanction holder without any prior notice and the
permission issued will be treated as cancelled/revoked.
Impugned permission has been granted by Municipal Council, Sopore, after obtaining required opinion and NOCs from concerned departments.
Petitioners have, however, not shown any ground as to in what capacity they have a right or locus to challenge the permission/ sanction, given by
respondent no. 4 in favour of respondent no.6 as it has been issued strictly in accordance with provisions of the Municipal Act and Rules. The
construction is being raised as per the sanction/ permission. The grievance of petitioners is that construction has been raised in violation of said
sanction-order and respondent no.6 has violated building permission, by raising Commercial Complex and without leaving setbacks as were required to
be adhered to. So far as the violation though committed by respondent no. 6 and concerned authorities not acted for which the permission has been
granted, are at liberty to take appropriate action to remove such violations.
Insofar as construction of Godown with compound wall is concerned, if it has been raised in accordance with Permission order No.123 dated
03.12.2018, petitioners have no right to that extent.
Even otherwise, respondent no.6 during course of arguments, has in clear cut terms submitted that he has raised construction strictly in accordance
with the permission granted in his favour and has not committed any violation nor has raised any Commercial Complex and in case there is any
violation of the permission, respondent no.4 is at liberty to take appropriate action in accordance with law.
This writ petition, at this stage, is disposed of with an observation that respondent no.6 shall raise construction strictly in accordance with the
permission granted and in case any deviation of the said sanction/plan, accorded for raising such construction, the concerned respondents of the
Municipal Council, Sopore, shall be at liberty to remove such violation and take appropriate action in accordance with law.
Disposed of along with connected CM(s).