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2013 DIGILAW 575 (JK)

Parvaiz Majid Baba v. Commissioner, SMC, Srinagar

2013-09-24

Mansoor Ahmad Mir

body2013
1. Order bearing No. SMC/Enf/12815-26 dated 17.12.2012, passed by respondent No.1 under Section 8 of the Jammu & Kashmir Control of Building Operations Act, 1988, for short the Act, directing sealing of six storied building situated at Rajbagh, Srinagar, falling under survey Nos.1346, 1347, 1348, 1349 and 1353, was subject matter of the appeal before the Jammu & Kashmir Special Tribunal, Srinagar. The tribunal dismissed the appeal vide order dated 03.01.2013. The petitioner, feeling aggrieved, has questioned both the orders by the medium of present writ petition on the grounds taken in the writ petition. 2. Precisely, the case of the petitioner is that order passed by respondent No. 1 is in breach of the orders passed by this court in OWP No. 596/2010 and civil court (Principal District Judge, Srinagar) in a suit filed by the petitioner. It is also averred that respondent No. l has passed the order of sealing without jurisdiction and in breach of the mandate of the Act. 3. Respondents, besides the other grounds, have resisted the writ petition on the ground that petitioner has raised the construction in violation of the permission granted and that is why respondent No.1 was constrained to pass impugned order. It is also contended that order impugned in OWP No. 596/2010 was made by mistake. It is apt to reproduce relevant portion of para-28 of the reply filed by respondents 1, 2, 3 and 5 herein: "It is further submitted that since the answering respondents, as already submitted had issued the communication impugned in OWP No.596/2010 due to some misunderstanding and decided to withdraw the same, as such, the writ petition i.e. OWP No.596/2010 had become infractous. It is further submitted that the interim order passed in OWP No.596/2010 was innocuous as the same permitted the petitioner to carryout internal work without violating the plan submitted by him with the application, as such, the answering respondents had no urgency to seek vacation of such interim order. Since the petitioner continued with the constructional activity in violation of the plans submitted by him, as such, the answering respondents had no option but to seal the premises in order to prevent him from further violating the permission or the plans submitted by him. Since the petitioner continued with the constructional activity in violation of the plans submitted by him, as such, the answering respondents had no option but to seal the premises in order to prevent him from further violating the permission or the plans submitted by him. Therefore, action of the answering respondents in sealing the building is valid and justified in law." Respondents, after noticing the alleged violation of the building permission, appears to have passed order impugned in OWP No. 596/2010 under Section 7 of the Act. This court while considering OWP No. 596/2010, passed order dated 17.10.2010, operative portion of which reads as under: "Till next date of hearing and subject to objections of the other side impugned demolition process shall remain stayed. In case, any internal work is required to be done, petitioner shall be allowed to do without violating the plan submitted by him with the application seeking permission." Respondents without seeking vacation/ modification of the order of this court passed in OWP No. 596/2010 passed order under Section 8 of the Act, which was subject matter of the appeal before the Special Tribunal and now the subject matter of this writ petition. The appeal against the impugned order under Section 8 of the Act before the Special Tribunal was dismissed, vide order dated 03.01.2013, while holding that order was not appealable in terms of mandate of Section 13 of the Act. But while dismissing the appeal, the tribunal directed the respondents to conduct proceedings under Section 7 of the Act. It is apt to reproduce operative part of the order dated 03.01.2013 herein: "For the reasons stated hereinabove, the appeal is not maintainable, as such, is hereby dismissed. But in the interest of justice, the respondents are hereby directed to initiate the proceedings under Section 7 of the Act as earlier as possible. A copy of this order be sent to the respondent No. 2. File of this Tribunal be consigned to records after it due completion." The said direction of the tribunal is without jurisdiction and is beyond its powers and competence and runs contrary to the direction passed by this Court in OWP No. 596/2010. In one breath the tribunal has held that order passed under Section 8 was not appealable and in second breath passed direction beyond the scope of the lis. In one breath the tribunal has held that order passed under Section 8 was not appealable and in second breath passed direction beyond the scope of the lis. The moot question arise for consideration is that whether, in the given circumstances of the case, respondent No.1 was within his powers to make order under Section 8 of the Act? As discussed, hereinabove, respondent No. 1 has specifically averred that order passed under Section 7, impugned in OWP No. 596/2010, was result of misunderstanding meaning thereby no proceedings under Section 7 of the Act have been conducted. It is apt to reproduce Sections 7 and 8 of the Act herein: "7. Order of demolition of building in certain areas. (1) Where the erection or re-erection of any building has been commenced or is being carried on or has been completed without the permission referred to in section 4 or in contravention of any condition subject to which any permission has been granted, the Authority shall issue a notice in writing calling upon the person to show cause within a period of 48 hours, why the building should not be altered or demolished as may be deemed necessary to remove the contravention. (2) The Authority shall cause the notice to be affixed on the outer door of some conspicuous part of the building whereupon the notice shall be deemed to have been duly served upon the owner or the occupier of the building. (3) If the person to whom the notice has been given refuses or fails to show cause within a period specified under sub-section (1) or if after hearing that person, the Authority is satisfied that the erection or re-erection of the building is in contravention of the provisions of this section, the Authority shall by order direct the person to demolish, alter or pull down the building or part thereof so far as is necessary to remove the contravention within a period not exceeding five days as may be specified in the order and if the person fails to comply with the direction, the Authority may itself cause the erection or re-erection to be demolished after the expiry of the said period and may for that purpose use such Police Force as may be necessary which be made available to him by the Police Department on requisition. (4) All expenses incurred for such demolition shall be recoverable from the owner and/ or the occupier in the same manner as arrears of land revenue. 8. Power to seal unauthorized construction. (1) It shall be lawful for the Authority concerned, at any time, before or after making an order of demolition under section 7 to make an order directing the sealing of such erection, re-erection or work or of premises in which such erection, re-erection or work is being carried on or has been completed for the purpose of carrying out the provisions of this Act, or for preventing any dispute as the nature and extent of such erection or work. (2) Where any erection, re-erection or work on any premises in which any erection, re-erection or work is being carried out, has or, have been sealed, the authority concerned may for the purpose of demolishing such erection or work in accordance with the provisions of this Act, order such seal to be removed. (3) No person shall remove such seal except,-- (a) under an order made by the Authority concerned under sub-section (2); or (b) under an order made in an appeal under this Act." 4. While going through the said provisions, one comes to an inescapable conclusion that competent authority can make an order of demolition under Section 7 of the Act if any construction is made in contravention of permission or without permission meaning thereby that if a construction is raised without permission or in breach of the permission, the authority has to proceed in terms of mandate of Section 7 of the Act. It has to draw proceedings, issue a notice calling upon the said encroacher to show cause why the said construction should not be altered or demolished, as may be deemed necessary, to remove the contravention and the said authority is also within his powers to seek police assistance. 5. Section 8 of the Act provides that authority concerned can order sealing of the said contravention--building before or after order of demolition under Section 7 of the Act. Thus, Section 7 of the Act is the condition precedent to draw proceeding under Section 8 of the Act. The power under Section 8 of the Act cannot be exercised in vacuum. Section 8 of the Act provides that authority concerned can order sealing of the said contravention--building before or after order of demolition under Section 7 of the Act. Thus, Section 7 of the Act is the condition precedent to draw proceeding under Section 8 of the Act. The power under Section 8 of the Act cannot be exercised in vacuum. Admittedly, no such proceeding has been conducted/drawn under Section 7 of the Act and tribunal has directed initiation of proceedings under Section 7 of the Act. Respondent No. 1, in his objections, has admitted that earlier order passed under Section 7 of the Act, impugned in OWP 596/2010, has been passed because of some misunderstanding and same is suggestive of the fact that no proceedings under Section 7 of the Act are pending. The writ petition (OWP No.596/2010) is still on the dockets of the court and interim order passed therein is still in operation. Thus, order passed by respondent No.1 in terms of Section 8 of the Act is not tenable and consequently the order made by appellate authority to initiate proceedings under Section 7 of the Act is without jurisdiction. 6. In the given circumstances of the case, the writ petition is allowed and orders dated 17.12.2012 made by respondent No.1 under Section 8 and 03.01.2013 passed by Special Tribunal, in so far as it relates to direct the respondents to initiate proceedings under Section 7 of the Act, are quashed. However, this order shall not come in the way of respondents for conducting proceedings and drawing action in terms of mandate of the Act.