Shabir Ahmad Dar vs UT Of JK And Ors

Ali Mohammad Magrey, J

CM No. 7871/2021

On the set of facts and grounds urged coupled with the submissions made at Bar, the instant application is allowed and the communication bearing No. SMC/W-29/948-95 dated 25.11.2021 appended with the application is taken on record.

CM disposed of.

WP(C) No. 2460/2021

In the instant petition, the petitioner has prayed for the following reliefs:-

"I. By issuance of a writ of mandamus or any other writ, order or direction, in the nature of mandamus, the respondents 2 to 7 be directed to proceed against the respondents 8 and 9 under Municipal Corporation Act and demolish the illegal construction raised by them on petitioner's land and also remove the obstruction caused by the private respondents 8 and 9 by blocking the petitioner's entry to the staircase and to the room located above the said staircase and have also raised a wall on the side of the newly constructed building wherefrom, the petitioner used to enter the room from his side of the building, so that he can make use of the room located in the building purchased by him in terms of Sale deed dated 07.04.1997.

II. The Hon'ble Court may also pass any other order or direction as it may deem fit and proper under the facts and circumstances of the case."

Brief facts:-

I. Petitioner's father is stated to have purchased the share of property, comprising of a shop in the ground floor and various rooms in the first and second floors from Mrs. Mubarak Singh (Devender Kour) and others, which had devolved upon them as widow and daughters of Late Sardar Mubarak Singh, including of appurtenances with compound shown in the site plan annexed with the sale deed for a consideration of Rs. 2.00 lacs.

II. The father of the petitioner in terms of sale deed executed and registered on 07.04.1997, is stated to have sold the said purchased property to the petitioner.

III. Respondents 8 and 9 are alleged to have illegally interfered with the peaceful possession of the petitioner over the property purchased by him and having created such hurdles and impediments which left the petitioner with no option but to file a suit titled Shabir Ahmad Dar Vs. Surinder Kour and Anr., for permanent prohibitory injunction against the respondents 8 and 9, commanding them not to interfere with the suit property comprising of the portion owned and possessed by the petitioner as well as the share belonging to private respondents 8 and 9 as it is and not to demolish it or any part thereof.

IV. The trial Court is stated to have initially passed the interim order, directing the parties to maintain status quo on 16.11.2017, which is subsequently in terms of order passed on 20.08.2021, vacated by dismissing the interim application. This order passed on 20.08.2021, by the Court of Additional District Judge, Srinagar, is the subject matter of the appeal filed before this Court bearing FAO No. 23/2021, and on consideration the coordinate Bench of this Court is stated to have passed the order on 08.09.2021 read with order dated 13.09.2021, directing the parties not to change the nature of the suit property and on noticing the violation, the petitioner is stated to have filed contempt petition bearing CCP(S) No. 482/2021 and in the contempt petition, while issuing notice to respondents 8 and 9, the Court directed the respondents 8 and 9 to file reply/compliance and in the meanwhile, it is stated that vide order dated 02.11.2021, the Court has appointed Mr. Abdul Bar, Joint Registrar (Judicial) High Court of J&K, as Commissioner and directed him to proceed on spot, who on spot inspection has found the violations. It is stated that to avoid the consequences of the contempt, the respondents 8 and 9 are stated to have filed a suit titled Surinder Kour Vs. Commissioner Srinagar Municipal Corporation, Srinagar and Ors., before the Principal District Judge, Srinagar, which on transfer is considered by Additional District Judge, Srinagar, and vide order dated 12.10.2021, the Court is stated to have passed the order of restraint, directing the respondent Municipality not to demolish any part or whole of the bathroom on spot without following the due course of law. It is stated that in the garb of the order dated 12.10.2021, passed in the suit filed by the respondents 8 and 9, further construction is being raised and it was in that context the petitioner filed CM No. 7058/2021, in appeal for placing on record copy of the suit filed by the private respondents 8 and 9 along with some photographs by treating them as pleadings in the contempt petition to show how brazenly the respondent No. 8 has misused the process of law and has committed contempt of the Court. It is stated that petitioner has filed an application before the respondents 2 to 5 for demolishing the encroachment made by respondents 8 and 9 on the petitioner's land and remove the blockade of the Gate leading to the staircase, as the same has been encroached but instead of taking action on the said application, the respondents 2 to 5 have posted the matter on 30.11.2021, as is evident from the communication of respondent No. 3, addressed to respondent No. 4 on 27.11.2021, so as to facilitate the raising of construction by respondents 8 and 9 on the petitioner's land.

V. The inaction on the part of the respondents 2 to 7, has formed a ground for the petitioner to file the present writ petition, seeking directions upon the respondent Municipal Corporation to take action against the respondents 8 and 9 as warranted in terms of the Provisions of J&K, Municipal Corporation Act, 2000.

Heard learned counsel appearing for the petitioner, perused the records and considered the matter.

Mr. M. A. Qayoom, learned counsel appearing for the petitioner has referred to and relied upon the Provisions of Municipal Corporation Act, 2000, dealing with the authority of the Commissioner to sanction the erection of any building and without permission, no erection can be allowed, which requires demolition.

Mr. M. A. Qayoom, learned counsel appearing for the petitioner while reiterating the pleadings for the relief claimed has supported the same by referring the Judgment of Hon'ble Apex Court reported in AIR 2020 SC 3969.

Admittedly, the subject of the dispute qua interference of respondents 8 and 9 with the peaceful possession of the property, purchased by the petitioner as also raising of construction in violation of orders passed by this Court in appeal bearing FAO No. 23/2021 as also in contravention of the Municipal Laws, is the subject matter of two suits titled above, one filed by petitioner and another filed by respondents 8 and 9 and the appeal bearing FAO No. 23/2021 as also the contempt petition bearing CCP(S) No. 482/2021.

At this stage, the Court without recording any finding or making any observation, is only inclined to seek response from respondents, therefore, notice in main petition as well as in CM returnable within one week.

List the matter before the Roster Bench along with FAO No. 23/2021 and CCP(S) No. 482/2021 on 10.12.2021, without treating the same as part heard or a tied matter.