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2010 DIGILAW 599 (JK)

Nadeem Shepherd v. Commissioner SMC

2010-12-06

MUZAFFAR HUSSAIN ATTAR

body2010
1. One Mrs. Sadaf Zarin alongwith petitioner was granted permission under Control of Building Operation Act, 1988 (for short Act of 1988), for construction of double storey residential with attic after dismantling three storey house vide order No.804 of 2006 dated 6th Oct. 2006. Petitioner started raising construction of the ground floor and it is stated at Bar that the construction at the level of ground floor is complete. The construction raised to the level of ground floor was objected to by the authorities of the Srinagar Municipal Corporation on the plea that the construction has been raised to this level in breach of the terms and conditions contained in the permission order. 2. In neighborhood of the petitioner, respondents 4 and 5 were authorized to raise construction by the competent authority under the Act of 1988 vide order No. 61 of 2005 dated 12th April 2005. The construction raised by the petitioner as per the allegations made in the writ petition was interfered with by respondents 4 and 5 and show cause notices were issued by the competent authority under the Act of 1988 which constrained the petitioner to institute civil original suit in the court of Sub Judge Municipal Magistrate Srinagar. In this behalf para 11 of the writ petition is noticed as under:- "That the respondents No. 4 and 5 started interference into the construction work of the petitioner by using muscle power as a result of which the petitioner had to suspend his construction work for some time. Since the petitioner was a lonely person as such he as being harassed by the respondents No. 4 and 5 were impressed upon by the petitioner that they should pull down the construction of their house which offended the building norm in regard to leaving of 12 ft. gap on the northern side to the edge of plot No.274, so that the petitioners could raise the construction on the party wall keeping the side of his building blind, but the private respondents did not accede to the request of the petitioner. gap on the northern side to the edge of plot No.274, so that the petitioners could raise the construction on the party wall keeping the side of his building blind, but the private respondents did not accede to the request of the petitioner. The petitioner was therefore, constrained to file a civil suit against the respondents in the court of Municipal Magistrate Srinagar seeking the perpetual injunction against the respondents No.4 and 5 from interfering or cause interference into the construction work of the petitioner over plot No. 274 in pursuance of building permission order No. 804 of 2006 dated 6.10.2006 and mandatory injunction commanding the respondents 1 to 5 to pull down the construction raised by respondents No. 4 and 5 in contravention of the building permission order No. 226 of 2004 dated 2.6.2004 so as to maintain 12 ft. gap towards the house of the petitioner." 3. The petitioner being aggrieved of the notices issued to him by the respondents No. 2 and 3 challenged the same by filing statutory appeal before the J&K Special Tribunal, Srinagar (for short Tribunal). The tribunal vide order dated 20th Sept. 2007 directed for maintenance of status quo. An application was filed before the tribunal by the petitioner seeking modification of the order of status quo dated 20th Sept. 2007. In the application seeking modification of the order of status quo dated 20th Sept. 2007, the petitioner prayed that he be allowed to raise construction on spot in terms of the permission granted by the competent authority. The tribunal vide its order dated 15th May 2008 which is impugned in this petition modified its earlier order dated 20th Sept. 2007 and permitted the petitioner to undertake construction of residential house strictly in accordance with the terms and conditions of the permission granted by BOCA vide its order No. 804 of 2006 dated 6th Oct. 2006. The authorities of the Municipal Corporation were directed to monitor the construction on spot through its field agency and to ensure that the construction is undertaken by petitioner strictly as per permission. It was further directed that in case any deviations are notice by the Municipal Corporation they will be at liberty to demolish that portion. Ward Officer concerned was directed to submit status report to the tribunal after every seven days. It was further directed that in case any deviations are notice by the Municipal Corporation they will be at liberty to demolish that portion. Ward Officer concerned was directed to submit status report to the tribunal after every seven days. Between two beneficiaries of the permission granted by the authorities for raising construction, the petitioner alone has challenged the order of the tribunal before this court in this writ petition. Besides praying for issuance of writ of certiorari for quashing the impugned order, prayers have also been made for issuance of writ of mandamus to command the respondents to demolish four storey structure with attic constructed by respondents 4 and 5 in violation of building permission order No. 226 dated 2.6.2004 and No. 61 dated 12.04.2005 and retrieve 12 ft fire gap between the house of private respondents No. 4 and 5 and that of the plot of petitioner, or in the alternative it is prayed that respondents be directed to allow the petitioner to raise the construction of the first floor of the building on the existing ground floor. 4. Heard ld counsel for parties. Considered the matter. 5. Ld counsel for the petitioner submitted that petitioner is not in a position to raise the construction of building on the terms and conditions of the permission issued in favour of petitioner by the competent authority, in as much as the respondents 4 and 5 have raised the structure on spot allegedly in violation of the terms and conditions of the permission granted in their favour. Ld counsel further submitted that the petitioner having been presented with fait accompli is not in a position to raise construction on the terms and conditions of permission granted to him and that he shall be permitted to raise construction of the first floor of his house on the ground floor which he has already constructed. The ld counsel also submitted that the respondents 1 to 3 are duty bound to maintain parity between the petitioner and respondent No.4 and 5 in the matter of raising construction. The ld counsel for petitioner submitted that though civil suit has been instituted but same is not maintainable in view of the prayer contained in section 14 (b) of the Act of 1988 and thus pendency of such suit would not come in the way of filing and maintaining of this writ petition. The ld counsel for petitioner submitted that though civil suit has been instituted but same is not maintainable in view of the prayer contained in section 14 (b) of the Act of 1988 and thus pendency of such suit would not come in the way of filing and maintaining of this writ petition. Ld counsel, accordingly, prayed that relief sought for in the writ be allowed in favour of the petitioner. Ld counsel also prayed that construction of private respondents be ordered to be demolished same having been allegedly raised in violation of the permission granted by the competent authority. Ld counsel referred to and relief upon the judgment of the Hon'ble Supreme Court in case titled Friends Colony Development Committee, Appellant v. State of Orissa and ors, Respondents reported in AIR 2005 SC 1 , The ld counsel also referred to and relied upon case titled Salahudeen Babu, Appellant v. P.T. Prabhakar and ors, Respondents reported in AIR 2005 Madras 243. 6. Mr. B.A. Khan ld counsel for official respondents 1 to 3, submitted that the permission was granted to private respondents in the year 2004-05 and construction were raised by said respondents. Ld counsel further submitted that if the respondents 4 and 5 have deviated from the permission granted to them, the petitioner should have raised the objection. The ld counsel submitted that the petitioner filed application for grant of permission for raising construction in the year 2006 which was allowed in his favour. Ld counsel submitted that as the disputed questions of fact are involved in this case so the petition is not maintainable. 7. Mr. M.M. Iqbal ld counsel, for respondent No.4 submitted that two suits one filed by respondent No.4 and another by petitioner are pending adjudication before the ld Sub Judge Municipal Magistrate Srinagar and the issue involved therein being almost identical, thus, the writ petition is not maintainable. Ld counsel submitted that the issue raised in this writ petition can be gone into and considered by the ld trial judge in both the cases. Ld counsel also submitted that the order passed by the tribunal is an interim order and the petition is not maintainable against such order. Ld counsel accordingly prayed for dismissal of writ petition. 8. Ld counsel submitted that the issue raised in this writ petition can be gone into and considered by the ld trial judge in both the cases. Ld counsel also submitted that the order passed by the tribunal is an interim order and the petition is not maintainable against such order. Ld counsel accordingly prayed for dismissal of writ petition. 8. The order dated 15th May 2008, which is impugned in this writ petition, on the face of it is legally valid order and no fault can be found with it. The tribunal could not permit the petitioner to raise construction in violation of the terms and conditions of the permission granted for such construction. Tribunal is a creature of statute and is duty bound to enforce the statute. On the application of the petitioner or at his request the order of status quo was passed in the appeal which has been modified and petitioner has been permitted to raise construction strictly in accordance with the terms and conditions of the permission granted. This is what in law the tribunal could do. The tribunal would not permit the petitioner to raise construction in violation of the terms and conditions of the permission granted for raising construction. The statutory authority which is responsible to ensure raising of construction in accordance with the terms and conditions of the permission order in view of the mandate contained in the Act of 1988 is duty bound to initiate action as and when it is found constructions are liaised in breach thereof and/or in violation of other provisions of the Act of 1988. Statutory authority cannot be restrained to perform its statutory functions enjoined upon it by the Act of 1988, and no high prerogative writ can be issued in such circumstances. 9. The petitioner is one of the beneficiary of the permission order, alone is aggrieved of the order of the tribunal. The other beneficiary of the permission is not aggrieved of the order. 10. 9. The petitioner is one of the beneficiary of the permission order, alone is aggrieved of the order of the tribunal. The other beneficiary of the permission is not aggrieved of the order. 10. The ld counsel for petitioner argued and admitted at bar that civil suit instituted by petitioner, in which he has sought relief of perpetual injunction against respondents 4 and 5 from interfering or causing interference into the construction work with further relief of mandatory injunction to pull down the construction raised by respondents 4 and 5 allegedly in contravention of the building permission order, is still pending on the files of Sub Judge Municipal Magistrate Srinagar. But the ld counsel submitted that as the suit is not maintainable in view of bar contained in section 14 (b) of the Act of 1988 so pendency of the such suit would be no bar in filing of this writ petition. The contention raised by the ld counsel for the petitioner is misconceived for the following two reasons:- If the suit was not maintainable, the petitioner should have withdrawn the same and then filed this petition. It appears that the petitioner is not himself convinced as to whether the suit is maintainable or not in law. As the petitioner in view of the submission made in paragraph 11 of the writ petition has admitted that he has prayed for issuance of decree of mandatory injunction to command the respondents 1 to 3 to pull down the construction raised by respondents 4 and 5, same relief cannot be sought in this writ petition. The issues raised are to be put to trial as to whether respondents 4 and 5 have raised construction in terms of permission granted or not. After leading evidence and consideration thereof, the ld trial judge can pass a decree in accordance with law. The issue raised in respect of Section 14 of the Act of 1988 about the maintainability of the suit is to be considered and answered in the backdrop of the scheme of the provisions of the Act of 1988. What proceeds section 14 of the Act of 1988 which provides for bar of `jurisdiction' are provisions of the Act of 1988 which provides for `initiation of action' against person who while raising the construction deviates from permission granted to him. What proceeds section 14 of the Act of 1988 which provides for bar of `jurisdiction' are provisions of the Act of 1988 which provides for `initiation of action' against person who while raising the construction deviates from permission granted to him. When it is brought to the notice of the authority under the Act of 1988 that a deviation has been committed or is in the process of being committed, competent authority has to issue notice and in terms of the provisions of the statute, is authorized to issue show cause notice for demolition of the construction raised illegally. The aggrieved person is authorized to challenge the orders/notices in statutory appeal u/s 13 of the Act of 1988. It is in this backdrop that in terms of Section 14 of the Act of 1988, the jurisdiction of civil court barred to make any interim order whether by way of injunction or stay in any other manner against the order of the Authority concerned or the appellate officer and further in terms of clause (b) section 14 the civil court jurisdiction to entertain any suit or proceeding in respect of demolition of any building is barred. Reading section 14 in conjunction with proceedings provisions of the Act of 1988 more particularly section, 5, 7, and 13, it becomes clear on the face of the Statute that a suit which is instituted for issuance of a decree to restrain the authorities from demolishing such building which is either raised or is being raised in violation of the permission granted and/or other provisions of law attracts bar of jurisdiction put on the court to entertain such type of suits. Civil court will have no jurisdiction to entertain such type of suit(s). The suit for seeking demolition of construction raised by any person in violation of the permission granted cannot be said to be not maintainable in terms of section 14 of the Act of 1988. 11. The issue of maintainability of the suit of petitioner is to be considered by the trial court as and when raised or suo moto by court and a finding is to be recorded about the maintainability of the suit. This court in writ jurisdiction cannot return a finding about the maintainability or not maintainability of the suit when the issue is neither directly nor substantially involved in the writ proceedings. 12. This court in writ jurisdiction cannot return a finding about the maintainability or not maintainability of the suit when the issue is neither directly nor substantially involved in the writ proceedings. 12. The judgment referred to and relied upon by the ld counsel for petitioner at bar provide that the statutory authority is duty bound to demolish the construction as and when it is found that it has been raised in breach of the provisions of the statutes and in violation of the terms and conditions of the permission granted. These issues are to be substantially dealt with in suit pending, if same is found to be maintainable. The petitioner approached the statutory authority also and it is submitted by the Id counsel for petitioner that a representation is already filed which is pending consideration before the competent authority, in which it is stated that construction of respondents 4 and 5 being illegal be pull down and in such eventuality petitioner will also demolish first floor raised by him. Respondent-competent authority is duty bound to consider representation of the petitioner and take decision thereon in accordance with law. 13. The petitioner cannot seek a direction for being permitted to violate law on the plea that other person has allegedly violated it. The court cannot issue any direction on negative parity. That is against judicial ethics and legal philosophy. 14. For the above stated reasons, this petition being meritless, is dismissed. However, the dismissal of this writ petition shall not prevent the official respondents to finally consider and take decision in accordance with law on the representation of the petitioner if same is pending consideration.