HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU WP(C) No. 952/2022 CM No. 2860/2022 CM No. 2861/2022 Shamsher Singh Manhas …..Appellant(s)/Petitioner(s) Through: Mr. Sarfraz Hamid Rather, Advocate vs UT of J&K and anr. .…. Respondent(s) Through: Mr. S. S. Nanda, Sr. AAG for R-1 Mr. Rajesh Kumar Thappa, AAG for R-2 Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE ORDER 28.02.2025 1. The petitioner besides impugning the notices dated 12.04.2022 and 29.05.2019 and the order dated 11.12.2020 issued by respondent No. 2, has also impugned the order dated 30.11.2021 passed by the learned Tribunal in the appeal preferred by the petitioner against order dated 11.12.2020, whereby the petitioner was directed to demolish the un- authorized construction within a period of 5 days from the date of service of notice. 2. Reply stands filed by the respondents wherein it is stated that the learned Tribunal while passing the order dated 30.11.2021 has not done any illegality while referring to the pendency of the PIL and Serial No. 13 2 WP(C) No. 952/2022 directions of the Division Bench issued in PIL No. 22/2018. It is further stated that the petition deserves outright dismissal because the land/structure of the petitioner is located within the radius of 1.5 km which has been declared local area of Patnitop. 3. Mr. Sarfraz Hamid Rather, learned counsel for the petitioner submits that the learned Tribunal has dismissed the appeal vide order dated 30.11.2021 only on the premise that respondent No. 2 has proceeded against the petitioner in terms of the directions of the Hon’ble High Court in PIL No. 22/2018 titled, ‘Harcharan Singh vs. State & ors.’ and no finding on the merits of the claim of the appellant has been returned by the learned Tribunal. 4. Mr. S. S. Nanda, learned Senior AAG appearing for respondent No. 1 has submitted that the learned Tribunal has rightly passed the order, as such, no interference is warranted. 5. Mr. Rajesh Kumar Thappa, learned AAG appearing for respondent No. 2 has argued that the petitioner has raised un-authorized construction and that is why he was proceeded in accordance with law and the learned Tribunal has rightly passed the order. 6. Heard learned counsel for the parties and perused the record. 7. The Hon’ble Division Bench vide order dated 11.11.2020 directed the Departments of Revenue, Environment and Forest and Patnitop Development Authority to take steps for retrieval of the land which is in illegal encroachment and directed the steps be taken by the concerned authority for removal of illegal and un-authorized 3 WP(C) No. 952/2022 construction as well, in accordance with law. Pursuant to the directions issued by the Hon’ble Division Bench, the respondent No. 2 has proceeded against the petitioner by issuing a show cause notice before passing order dated 11.12.2020 which was impugned by the petitioner before the learned Tribunal through the medium of appeal under the provisions of J&K Control of Building Operations Act. The learned Tribunal has not returned any finding on the merits of the claim of the appellant and has simply dismissed the appeal by observing that as the Hon’ble High Court is seized of the matter, so it is not advisable to question the actions initiated by the Patnitop Development Authority. A perusal of the order passed by the Division Bench reveals that the concerned authority was directed to remove the illegal and unauthorized construction in accordance with law. Respondent No. 2 in accordance with law directed the petitioner to remove the alleged unauthorized construction in respect of which, the petitioner preferred an appeal before the statutory authority. Once the petitioner had availed the statutory remedy of appeal, the learned Tribunal ought to have decided the same on merits and not simply on the ground that it is not advisable to question the propriety of actions initiated by respondent No. 2. 8. In view of the above, the present petition is allowed. The order dated 30.11.2021 passed by the learned Tribunal is set aside and the matter is remanded back to the learned Tribunal. The learned Tribunal shall 4 WP(C) No. 952/2022 decide the appeal afresh in accordance with law and after affording opportunity of hearing to the contesting parties. 9. Disposed of. (RAJNESH OSWAL) JUDGE Jammu 28.02.2025 Neha-II Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No NEHA KUMARI 2025.03.01 13:12 I attest to the accuracy and integrity of this document