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2013 DIGILAW 760 (JK)

Masjid Noor v. State Of J&K

2013-12-30

ALI MOHAMMAD MAGREY

body2013
1. Writ petition, OWP no. 759/2012 has been filed by one Ali Muhammad Lone, President of Masjid Noor, seeking a direction to the respondents to take appropriate action against respondent no. 5 who is alleged to be raising construction in violation of the permission granted in his favour by the Chairman Building Operations Controlling Authority vide order no. 42 of 2012 dated 24.4.2012. 2. It is stated in the petition that Masjid Noor is situated at Rajbagh Extension, Harco Lane, Srinagar, in which five time prayers are offered. For the last few years commercial establishments like offices, educational, institutions and now hotels are coming up which is a source of impediment in offering prayers. The private respondent no. 5 alongwith others is stated to have purchased a migrant's house known as Tara House which is 80 to 100 feet away from the Masjid. A two storeyed house belonging to one Ghulam Hassan Kangoo is stated to be situated between the Masjid and said Tara House. Respondent no. 5 is stated to have obtained building permission for roofing over the existing second storied residential building and construction of compound walling. However, it is alleged that respondent no. 5 demolished the second storey, i.e., 3rd floor of the building, and started raising columns so as to convert it into a hotel. It is stated that the petitioner took up the matter with the Ward Officer and the Chairman, SDA, but no action was taken. 3. Respondent no. 5 in his reply has stated that he owns property which comprises of land measuring 03 Kanals and 04 Marlas situated at Rajbagh, Srinagar. There exists a three storeyed structure on the said plot of land with roof and attic. The roof and the attic floor of the building got gutted in fire in which the ceiling of the third storey, windows and doors were damaged. Walls of the third storey, by and large, remained intact. The answering respondent was granted building permission for providing roofing over the existing gutted three, storey residential building and construction of compound walling. After the respondent commenced his construction on spot, one Ghulam Hassan Kangoo filed a suit in the court of Municipal Magistrate against him. Another suit is stated to have been filed by one Showkat Hussain Bhat. The subject matter in both the suits was identical. After the respondent commenced his construction on spot, one Ghulam Hassan Kangoo filed a suit in the court of Municipal Magistrate against him. Another suit is stated to have been filed by one Showkat Hussain Bhat. The subject matter in both the suits was identical. The learned Municipal Magistrate, after hearing the parties and considering the matter in both the injunction matters, passed a detailed order on 14.07.2012. The operative portion of the order reads as under: "Having regard to the above discussed facts and circumstances of the case as well as the position of the law, the applications for temporary injunction are disposed of with the direction that non-applicants/defendants 1 and 2 of first suit who are also defendants 4 and 5 of second suit are not barred to raise construction on spot if strictly in accordance with building permission pending final disposal of the main suit. The orders passed in the first suit on 28.05.2012 and in the second suit on 13.06.2012 are accordingly modified." 4. Against the aforesaid order, Ghulam Hassan Kangoo is stated to have filed an appeal before the II Additional District Srinagar. The appellate Court vide its order dated 24.08.2012 is stated to have dismissed the appeal. 5. Aforesaid Ghulam Hassan Kangoo is stated to be Secretary of the Committee of Masjid Noor. He, having failed in his suit to prevent construction by the answering respondent, is stated to have manipulated a resolution in the Intizamiya Committee for filing the instant writ petition on behalf of the Masjid. Acting on the said resolution, it is alleged, the present writ petition has been filed. It is categorically denied that the respondent is committing any violation of the building permission granted in his favour. 6. In their reply filed on behalf of respondents 3 and 4, it is stated that respondent no. 5 was raising the construction in violation of the building permission which resulted in proceedings under the Control of Building Operation Act 1988 and finally an order of demolition under section 7(3) of the Act was passed against respondent no. 5. It is further submitted that against the aforesaid demolition order, respondent no. 5 has filed statutory appeal before the Special Tribunal which is pending and that vide its order dated 05.09.2012 the Tribunal has ordered maintenance of status qua which is still pending. 5. It is further submitted that against the aforesaid demolition order, respondent no. 5 has filed statutory appeal before the Special Tribunal which is pending and that vide its order dated 05.09.2012 the Tribunal has ordered maintenance of status qua which is still pending. It is also stated that in compliance of the orders passed by this Court on. 07.11.2012, the subject matter of the writ petition has been sealed by the Municipal Corporation on 10.11.2012. Meanwhile, the petitioner tiled another writ petition, OWP no. 686/2013, challenging the order dated 05.09.2012 passed by the Tribunal in the appeal filed by respondent no.5. 7. In the writ petition, OWP no. 759/2012, while issuing notice, a Coordinate Bench of this Court on 14.06.2012 ordered the Municipal authorities to ensure that construction, if any, raised by respondent no. 5 in accordance with the plan approved by the Building Operation Controlling Authority. Subsequent thereto, on a statement made before the Court that the respondent no. 5 had proceeded ahead with the illegal construction, another Coordinate Bench of this Court on 07.11.2012 directed the respondents 3 and 4 to seal the premises of respondent no. 5 to ensure that there is no further construction on spot. Meanwhile, the petitioner also filed Contempt petition no. 527/2012 on 01.09.2012 alleging violation of the Court orders. 8. The allegation that offices, business establishments, hotels and educational institutions in the locality cause impediment in offering five time prayers sounds somewhat farcical and a statement of pretence. If such a concept in religion is allowed to be institutionalised and accepted, then, I am afraid; every locality would have to be cleared off, since we have mosques and places of worship in every street, nook and corner. What then about the places of holy pilgrimages? It is unfortunate that religion and such holy place of worship is sought to be brought into disputes of civil nature objected at fulfilment of personal aggrandisement and attainment of ulterior motives. Such a practice is deplorable in strongest of terms. Though these matters are being disposed of by this order for a different reason, but I deem it in place to mention that it is distressful that the cause of action is sought to be founded on a totally unacceptable proposition. 9. It is not comprehendible what locus standi does the petitioner have to file the writ petition. Though these matters are being disposed of by this order for a different reason, but I deem it in place to mention that it is distressful that the cause of action is sought to be founded on a totally unacceptable proposition. 9. It is not comprehendible what locus standi does the petitioner have to file the writ petition. It is axiomatic from the averments made in the writ petition that none of his rights, muchless a fundamental right, is alleged to have been violated or is being violated. Bringing in a concocted and frivolous cause, would not entitle the petitioner to approach this Court in exercise of its extra ordinary writ jurisdiction. True, there are some assertions relating to breach of the provisions of Master Plan and the provisions of Municipal laws made in the petition, but for maintenance of writ petition he has to show that his right is involved or is being infringed. This is not public interest litigation where one does not need to show involvement of his personal right, but it is a petition filed for protection on enforcement of personal rights and there is no such right of the petitioner involved. 10. Nonetheless, On 23.12.2013, when all these matters came up for further consideration, Mr. M. A. Dar, learned counsel for respondent no. 5 made a statement at the Bar that respondent no. 5 would furnish an undertaking to raise the construction strictly in accordance with the building permission granted in his favour by the competent authority and that he may be permitted to complete the same. The learned counsels for the petitioner and the official respondents did not object thereto and, in fact, consented to such a course and the disposal of these matters. Then statements were taken on record. 11. Accordingly, after hearing and with consent of the learned counsel for the parties, all these petitions - the two writ petitions alongwith connected CMPs and the Contempt petition - are disposed of. It is provided that respondent no. 5 shall furnish a written undertaking before the Registrar Judicial to the effect that he will raise the construction on the spot strictly in accordance with the permission granted in his favour. The Registrar Judicial will issue a certificate to the effect that respondent no.5 has furnished the requisite undertaking where after the official respondents 3 and 4 shall de-seal the premises of respondent no. The Registrar Judicial will issue a certificate to the effect that respondent no.5 has furnished the requisite undertaking where after the official respondents 3 and 4 shall de-seal the premises of respondent no. 5 who in turn will be free to proceed ahead with the construction in accordance with the permission. This order will not absolve the Municipal and the concerned authorities to ensure that the construction is carried out strictly in accordance with building permission. Further, it is ordered that the Deputy Commissioner, Srinagar, either personally or through some of his reputed officers would keep a strict vigil on the progress of constructions so undertaken by respondent no.5 and ensure that no violations are allowed to be committed by him. It is made clear that this order would not bind the respondent no.5 from approaching the concerned authorities for grant of any modification in the building plan in accordance with law or the exercise of such power by such concerned authorities to accord consideration to such modifications, if requested for. 12. Interim orders passed by the Court from time to time in these petitions shall stand merged in the aforesaid final order. 13. OWP No. 686/13 titled Ali Mohmmad Lone v. State of State and ors as also contempt Petition (OWP) 527/12 titled Masjid Noor v. Dr. G.N. Qasba and ors shall also stand disposed of. Registry to place copy of this order on the file of OWP No. 686/13 as also in Contempt petition No. 527/12.