Naseema vs Union Territory Of J And K And Ors

Puneet Gupta, J

The petition is admitted to hearing and taken up for final consideration.

The petitioner has challenged order dated 09.07.2021passed by the respondent No.2 on the grounds mentioned in the petition.

The objections to the petition have been filed. The response to the objections also stands filed by the petitioner.

The petitioner was granted permission to raise house vide No.MC/Bud/2021-22/1490-91 dated 12.06.2021 issued by the respondent No.3. It appears that after the permission, the respondents were of the view that the petitioner was not raising the construction as per the permission granted to her as the construction is being raised in violation of Ribbon Development Act and further that the land falls in the buffer zone of irrigation canal running adjacent to the structure where the construction is to be raised. The respondent No.1 as well as the Engineering department had some objections with regard to the permission granted to the petitioner and it was only in pursuance to the said objections from the said agencies that the order impugned came to be passed. It may be mentioned herein that by virtue of order impugned, the permission granted to the petitioner for raising building has been cancelled.

The argument of the petitioner is that the respondent No.2 had no authority to pass the impugned order in terms of the Jammu and Kashmir Municipal Act, 2000 (hereinafter called “the Act”) as the building permission was to be granted by the Committee in terms of SRO 229 dated 19.08.2005 issued by the Government. The permission once granted could not be cancelled by the respondents even without issuing notice to the petitioner. The provisions of the Jammu and Kashmir Municipal Act, 2000 did not provide for cancellation of the sanctioned plan in the manner it has been cancelled by the respondent No.2.

Learned counsel for the respondents has submitted that the petitioner had raised construction in violation of Ribbon Development Act as he has raised the same at 62 ft and not 65 ft from centre of the road. The other contention is that the order impugned has been passed by the authority competent.The violation committed by the petitioner has resulted into cancellation of permission. Last but not the least, the argument is that the writ petition is not maintainable.

The controversy in the present case lies in the narrow compass. The petitioner was granted permission to raise building in favour of the petitioner is not in dispute. It is also not in dispute that the petitioner had raised some construction on spot in pursuance to the permission. The petitioner allegedly raised the construction not in tune with the sanctioned plan and therefore the communications stating the objections which are on record and filed with the writ petition became the reason for issuance of the impugned order.

The perusal of the reply filed by the respondents do not reveal anywhere that the petitioner was given any notice or granted any opportunity to explain his position qua the alleged violation committed by him of the building to be raised or that the area where the building was being raised is the buffer zone as reported by the respondent No.1 and other agencies. The permission granted to the petitioner could not be cancelled unilaterally by the respondents though the competent authority is always at liberty to take measures as envisaged under law against the person who has been given permission to raise building but violates the permission granted by the competent authority. The petitioner cannot put to disadvantage to the extent that the permission granted in her favour is to be cancelled without putting her to prior notice.

As far as the argument of the counsel for the petitioner that the order impugned has been passed by the authority not vested with the powers to pass such order is without substance as the cancellation of the permission will be deemed to have been passed by the competent authority only and the respondent No.3 has just issued the order impugned being the officer of the Municipal Committee.

The petition is required to be allowed on the sole ground that the permission granted earlier to raise construction has been cancelled by the respondents without giving any notice or hearing the petitioner.

The petition is allowed and the order impugned is quashed. However, that does not come in the way of the competent authority to pass fresh order it may deem fit if of the view that there is violation committed by the petitioner qua the permission granted to raise the building or there is any other reason to cancel the same but only after issuing the notice to the petitioner specifying the reasons therein. Till the competent authority issues such notice and passes final order, the construction raised by the petitioner shall not be disturbed. Further, in case the authority passes any adverse order qua the permission earlier granted by the respondents, the construction raised shall not be disturbed for a period of fifteen days so that the petitioner could take recourse to remedy which may be available to her under law against the said order.

Disposed of.