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Judgment
The petitioners were granted permission by the respondents vide order No. 3648 of 2019 dated 28.01.2019 and order No. 09 of 2019 dated
30.04.2019 to raise residential house on a plot of land falling under survey Nos. 1690, 1367, 1378, 1379 & 2764 min situate at Chattabal Jamalatta
Srinagar. By virtue of the permission the petitioners were permitted to raise compound wall and other construction as mentioned in the permission
orders. In pursuance to the permission granted by the authorities the petitioners commenced the construction of their residential house. The
respondents vide order No. 190 of 2020 dated 17.08.2020 have kept the building permission in abeyance which accordingly to the petitioners is in
contravention of the rules and regulations qua the permission granted for raising construction of the house. The precise submission made in the petition
is that the respondents- have passed the order which is not as per Section 248 of the Municipal Corporation Act (hereinafter called the Act) and other
provisions of law. There is no good reason for keeping the permission in abeyance. No opportunity of being heard has either been given to the
petitioners before passing the impugned order. The representation filed by the petitioners in this regard has also not been addressed by the
respondents.
Mr. Moomin Khan, Advocate has appeared on behalf of the respondent Nos. 2 to 5. Mr. Jahangir Ganai Iqbal, learned senior counsel has appeared
in the application, filed for impleadment as party respondent by Mohd. Faheem Baba in the writ petition. It is submitted that the action has been taken
by the authorities on a complaint filed by the applicant. The petitioners in league with the revenue officers have changed entries and status of State
land and the encroachment is being made by the petitioners upon the drainage system is what is pleaded in the application. The applicant-Mohd
Faheem Baba has filed application for impleadment and is not before the court as caveator yet the court has heard the applicant in the present
application. The petitioners seek stay of the order impugned in the writ.
From the record it cannot be disputed that the petitioners have permission to raise construction as per the conditions mentioned in the permission
orders. The permission granted has been kept in abeyance by the municipal authority on the ground that the petitioners are raising construction not as
per permission and secured the permission on fraudulent revenue extract. The revenue authorities have been approached by the applicant- Mohd.
Faheem Baba with the plea therein that the petitioners have encroached Nallah drainage system and passage to graveyard used by the inhabitants
residing around the area with the nexus of the then Patwari namely Faheem Ahmad and Shafat Ahmed. The team has been constituted by the office
of the Assistant Commissioner vide No. DCS/SQ/242627 dated 28.09.2020 in pursuance to the directions passed by the Divisional Commissioner vide
No. Div.Com/PS/Misc/2020/1503 dated 25.09.2020, to verify the spot position and demarcate the land in accordance with the revenue record and
ground factual position and further the report is directed to be filed by the team by or before 30.10.2020. It appears that the report has not been
submitted by the members of the committee even if any exercise has been undertaken by the committee in pursuance to the directions of the Assistant
Commissioner, Srinagar.
Learned senior counsel for the petitioners has argued that the permission granted to the petitioners cannot be withdrawn or even kept in abeyance
unless Section 248 of the Municipal Corporation Act is complied with. Further, the petitioners have not been heard in the matter before the impugned
order is passed is another grievance of the petitioners.
It is submitted on behalf of the respondents and the applicant that unless the report of the revenue officials regarding status of the petitioners in the
land under discussion is received no fault can be found with the abeyance order. Taking cue from Section 248 the learned senior counsel appearing on
behalf of the applicant and learned counsel appearing for SMC have argued that the claim of the petitioners to be heard before order of abeyance is
passed is without force as there is no cancellation order against the petitioners and only the permission granted to the petitioner by virtue of two orders
has been kept in abeyance.
Section 248 of the Act states that where the permission for building or work has been accorded and the Commissioner is satisfied that where the
sanction has been accorded in consequence of material misrepresentation or fraudulent statement contained in the notice given or information
furnished under Sections 243, 244 & 245 of the Act, in such situation the sanction can be cancelled and consequently any building work commenced,
erected or done shall be deemed to have been without sanction. It may be mentioned here that there is caveat attached to this provision of cancellation
of the building permission and pertains to providing reasonable opportunity of being heard to the person who is going to be affected by such order.
No doubt Section 248 of the Act does not speak of keeping the order of sanction in abeyance as Section deals with the situation where the
permission order is to be cancelled. Once the permission has been given to the person for raising construction it should not be suspended or revoked
unless misrepresentation or fraudulent statement in the application filed by the person comes to the knowledge of the Corporation. If section 248 of the
Act does not mention of abeyance of the permission order and therefore the petitioners are not required to be heard as is argued on behalf of the
respondents and the applicant then in that case the court is not made aware of any provision in the Act which provides for keeping the permission in
abeyance as has happened in the present case. The argument of the respondents is that if the permission can be cancelled then the corollary to the
same is that the permission can also be kept in abeyance till the final decision is taken in the matter. If the court is to agree with this proposition then
the court is of the view that the person who has been granted permission to raise construction is necessarily required to be heard even where the
permission has only been kept in abeyance though not finally withdrawn or cancelled. The reason to hear the party against whom the abeyance orders
has been passed is that such person gets affected moreso when he has already started raising construction and has invested some amount in it. The
person who is armed with permission cannot be made to suffer as per the whims and caprice of the sanctioning authority or third party who may not
have direct interest in the permission.
It is pertinent to mention herein that the municipality has not even taken the decision to suspend the permission of its own but on the complaint
received from the applicant-Mohd. Faheem Baba as he had alleged that the construction is being raised in contravention of the building permission and
that the permission has been secured upon the false and fraudulent revenue extract. It is surprising to note that while passing abeyance order the
respondents have not even recorded prima facie that the municipal authorities are satisfied that there is some weight in the complaint which requires
abeyance of the permission. The court is in agreement with the submission of the learned counsel for the petitioners that the applicant on whose
complaint the permission has been kept in abeyance is not expert to make allegations which became the basis of the abeyance order. The construction
raised by the petitioners is as per permission or not or the revenue extracts produced by the petitioners before the municipal authorities were
fraudulent and that the petitioners made some encroachment as alleged could not be judged by the complainant-applicant but by the concerned
authorities after making necessary enquiry. Admittedly, the applicant-Mohd. Faheem Baba is not the authority to pass any order in respect of wrong
doing if any found to have been committed by the petitioners.
Even if the permission granted by the municipal authority is to be kept in abeyance for certain reason the order of abeyance must reveal that the
competent authority has applied its mind and this all important factor is prima facie missing in the order impugned. The abeyance order only reflects
the complaint of the applicant-Mohd. Faheem Baba and nothing more. Merely because the abeyance order has been passed on the complaint does not
mean that it can be presumed that the order has been passed by the authority after being satisfied with the allegations leveled in the complaint when
such satisfaction is conspicuously absent in the order.
Keeping in view the discussion made above, the Court is of the considered opinion that the interim directions are required to be passed in the
application in hand. Accordingly, the order impugned is stayed subject to the condition that if any construction is raised by the petitioners the same
shall be at risk and cost of the petitioners and subject to further orders of the Court. It is made clear that this order shall not come in the way of the
respondents-SMC to proceed against the petitioners under law, irrespective of the pendency of the writ petition, in case there is any violation of the
permission by the petitioners or in respect of any other matter concerning the permission. It is further made clear that the above directions do not in
any manner restrict the revenue authorities to make enquiry in the matter as per law. The application is, accordingly, disposed of.
The main case shall come up for filing of objections on 09.02.2021.