CM(M) No.68/2024 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 29.04.2025 Pronounced on: 06.05.2025 CM(M) No.68/2024 JAVAID HUSSAIN BABA ... PETITIONER(S) Through: - Mr. F. A. Wani, Advocate. Vs. STATE OF J&K AND OTHERS …RESPONDENT(S) Through:- Mr. Bikramdeep Singh, Dy. AG-for R1 to R7. Mr. T. H. Khawaja, Advocate-for R8 CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) The petitioner, through the medium of present petition, has challenged order dated 05.06.2017 passed by the J&K Special Tribunal, whereby the order of demolition dated 30.08.2016 issued by Srinagar Municipal Corporation in respect of the construction raised by respondent No.8 at Mohalla Syed Afzal Shri Bhat, Alamgari Bazar, Srinagar, has been set aside and respondent Srinagar Municipal Corporation has been directed to regularize the unauthorized construction raised by respondent No.8 in case the same falls within the ambit of the Act and the Rules framed thereunder. 2) The facts emanating from the pleadings of the parties are that respondent No.8 without obtaining permission of CM(M) No.68/2024 Srinagar Municipal Corporation raised construction of a residential premises at Mohalla Syed Afzal Shri Bhat, Srinagar. It seems that the petitioner, who happens to be the brother of respondent No.8, filed a civil suit before the Court of 1st Civil Subordinate Judge (Municipal Magistrate), Srinagar, seeking a permanent prohibitory injunction against respondent No.8 and the Municipal authorities restraining respondent No.8 and his associates from raising any sort of illegal construction on spot. An interim order came to be passed by the learned Sub Judge on 24.06.2016, whereby respondent No.8 and his associates were temporarily restrained from raising any sort of illegal and unauthorized construction on spot. 3) It seems that respondent No.6-Ward Officer during his visit found that respondent No.8 is raising unauthorized construction on spot and, accordingly, a notice under Section 254 of the J&K Municipal Corporation Act was issued to respondent No.8 directing him to stop the process of construction forthwith. Thereafter respondent No.4 issued a show cause notice to respondent No.8 in terms of Section 253(1) of the Municipal Corporation Act asking him to show cause within 48 hours as to why construction raised in contravention of the provisions of the Act be not demolished. It seems that respondent No.8 failed to show CM(M) No.68/2024 cause in response to the aforesaid notice, which prompted respondent No.4 to issue demolition notice under Section 253(1) of the Act vide his communication dated 30.08.2016. This demolition notice came to be challenged by respondent No.8 by way of an appeal before the J&K Special Tribunal and on 05.06.2017, impugned order came to be passed by the learned Tribunal whereby the notice of demolition was set aside and the respondent Corporation was directed to regularize the structure raised by respondent No.8 if the same falls within the ambit of the Act and the rules framed thereunder. 4) It also appears that the petitioner had approached this Court by way of writ petition bearing OWP No.1150/2016 projecting his grievance about the illegal construction raised by respondent No.8. This Court vide order dated 03.10.2016, disposed of the writ petition after noticing that the petitioner had already filed a civil suit against respondent No.8 and respondent No.8 had already filed an appeal against the demolition order before the J&K Special Tribunal. 5) The petitioner has challenged the impugned order passed by the Tribunal on the grounds that the learned Tribunal has showered undue benefit upon respondent No.8 while passing the impugned order. It has been CM(M) No.68/2024 submitted that it was not open to the learned Tribunal to direct the respondent Corporation to regularize illegal construction made by respondent No.8. It has been contended that, admittedly, respondent No.8 had raised construction on spot without permission from the Municipal authorities, as such, there was no ground available to the Tribunal to quash the demolition notice. 6) Respondent No.8, in his reply to the writ petition, has submitted that he has an independent right to seek regularization of the construction raised by him which cannot be denied to him. It has been further contended that the construction has been raised by him on the spot where his house was already existing and that the construction does not violate any zonal regulations. It has been submitted that the construction raised by respondent No.8 is covered by the regularization policy. It has been contended that the learned Tribunal has simply directed the respondent Corporation to regularize the impugned structure if it is covered by the rules and, as such, it cannot be stated that there has been any positive direction issued by the Tribunal against the respondent Corporation for regularization of the construction. 7) The respondent Corporation has also filed its reply to the writ petition, in which the facts mentioned hereinabove CM(M) No.68/2024 have been narrated and it has been submitted that pursuant to the directions of the Tribunal, respondent No.8 has applied for regularization of construction and his case is under process but a final decision in the matter has not been taken because of pendency of the present writ petition. 8) I have heard learned counsel for the parties and perused the record. 9) So far as the facts narrated hereinbefore are concerned, the same are not in dispute. It is not in dispute that respondent No.8 has raised construction on spot without obtaining prior permission from the Municipal authorities. Learned counsel for respondent No.8 has contended that the petitioner has no locus standi to file the instant petition. 10) In the above context, it has to be noted that the petitioner happens to be the brother of respondent No.8. He claims that he is the co-owner of the property on which the construction has been raised by respondent No.8. It is also not in dispute that the petitioner has filed a suit against respondent No.8 and Municipal authorities voicing his grievance about the raising of unauthorized construction by respondent No.8. It is also admitted case of the parties that the petitioner had filed an intervention application before CM(M) No.68/2024 the Tribunal during the pendency of the appeal against the demolition notice. Whether any of the civil rights of the petitioner is violated by the unauthorized construction that has been raised by respondent No.8 on spot is a question to be decided by the civil court. However, the regularization of unauthorized construction by respondent Corporation in terms of the impugned order of the learned Tribunal has the potential of rendering the suit filed by the petitioner as infructuous. Therefore, if the order of regularization of unauthorized construction of respondent No.8 that may be issued by the respondent Corporation is left unchallenged, it may have adverse consequences to the case of the petitioner in the civil suit. Thus, it is a case where the petitioner has a special and substantial grievance of his own, as such, it cannot be stated that he is a stranger on whose instance the present petition would not be maintainable. The petitioner has a substantial interest in challenging the order passed by the Tribunal. Therefore, the petition at his instance is held to be maintainable. 11) Coming to the merits of the petition. The learned Tribunal has itself come to a conclusion that the construction raised by respondent No.8 on spot is unauthorized, inasmuch as he has not sought permission from the Municipal authorities. Therefore, it was not open CM(M) No.68/2024 to the learned Tribunal to set aside the impugned order of demolition issued by respondent Municipal Corporation against respondent No.8. The order of the learned Tribunal to this extent is not sustainable in law. Similarly, it was not open to the Tribunal to direct the respondent Corporation to accord consideration to the regularization of unauthorized construction raised by respondent No.8 as no such application was made by respondent No.8 before the Municipal Corporation at the relevant point of time. 12) However, it has to be noted that respondent No.8 has an independent right of approaching the respondent Corporation praying for regularization of unauthorized construction raised by him. Neither this Court nor the Tribunal can interdict respondent No.8 from exercising his said right. It is for the respondent Corporation to consider any such prayer that may have been made by respondent No.8 in the light of bye-laws, zonal plan and all other statutes and guidelines holding the field. Since the respondent Corporation is the competent authority which can consider such prayer, therefore, it would be well within its jurisdiction to take a call on any such prayer that may have been made by respondent No.8. 13) In view of what has been discussed hereinbefore, the writ petition is allowed and the impugned order dated CM(M) No.68/2024 05.06.2017 passed by the learned Tribunal is set aside, leaving it open to the respondent Corporation to take a call on the application of respondent No.8, which is stated to be already under process with the respondent Corporation, in accordance with building bye-laws, zonal plan and all other statutes and guidelines holding the field. In case the respondent Corporation decides to regularize the construction, then the demolition notice shall be deemed to have been withdrawn and if the respondent Corporation declines to do so, it shall be at liberty to proceed ahead with the demolition notice dated 30.08.2016. (Sanjay Dhar) Judge Srinagar, 06.05.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 06.05.2025 02:03