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2022 DIGILAW 479 (JK)

Mohammad Ismail Beigh v. Commissioner, Smc

2022-09-08

SANJEEV KUMAR

body2022
JUDGMENT 1. In this petition, the petitioner has called in question order dated 24th August, 2022, passed by J&K Special Tribunal, Srinagar, on an appeal filed by the petitioner against the notice of demolition issued by respondent No.2 under Section 253(1) of the Municipal Corporation Act, 2000 [the Act]. 2. The order aforesaid is assailed, primarily, on the ground that the J&K Special Tribunal, while dismissing the appeal of the petitioner and upholding the order of demolition, could not have directed Srinagar Municipal Corporation to carry out the demolition in terms of the notice upheld by the Tribunal. 3. Learned counsel for the petitioner argues that even after the dismissal of the appeal, it was open to the petitioner to apply for compounding of the violation or even apply under Regulation No.2.1.2(c) of the Srinagar Municipal Corporation (Building) ByeLaws, 2011, for building permit with regard to the constructed building and get the building permission subject, of course, to the fulfilling of the requirements of Rules and Regulations governing the constructions in the Municipal areas of Srinagar Municipal Corporation. 4. In order to appreciate the grounds of challenge raised by learned counsel for the petitioner, it is necessary to set out few facts. 5. The petitioner is owner in possession of a double storeyed structure situated at Tengpora-Byepass, Batamaloo, near Petrol Pump, Srinagar. In the aforesaid structure, the petitioner is carrying on the business of import, sale and distribution of colour coated sheets, GC/GP sheets, fibre glass, TMT bars (iron steels), screw with caps etc. etc. under the name and style of M/S Empire Enterprises. The Municipal Corporation authorities, on finding that the petitioner had raised column structure of ground floor and first floor without obtaining any permission from the authorities, issued a show cause notice to the petitioner which was followed by a notice of demolition dated 18th October, 2021 issued by Chief Enforcement Officer, SMC, under Section 253(1) of the Act. It is this notice which the petitioner assailed by way of an appeal before the J&K Special Tribunal, Srinagar. 6. The case set up by the petitioner before the Tribunal was that he had not raised any fresh construction and had only repaired the old existing building without making any material structural changes. It is this notice which the petitioner assailed by way of an appeal before the J&K Special Tribunal, Srinagar. 6. The case set up by the petitioner before the Tribunal was that he had not raised any fresh construction and had only repaired the old existing building without making any material structural changes. The appeal was contested by Srinagar Municipal Corporation and it was brought to the notice of the Tribunal that the entire structure was constructed by the petitioner by erecting columns and by laying slab, which, on the face of it, was a fresh construction. It was also brought to the notice of the Tribunal that the petitioner had raised entire construction without seeking any building permit from the respondent authorities. 7. Having heard learned counsel for the parties and perused the material on record, the Tribunal came to be conclusion that the construction was raised by the petitioner afresh and that the petitioner had not obtained any prior permission from the authorities of Srinagar Municipal Corporation and, therefore, there was no wrong in the demolition notice issued by the Corporation. The Tribunal, while dismissing the appeal, also provided that Srinagar Municipal Corporation shall ensure carrying out of the demolition notice within 15 days from the receipt of the order. 8. Apart from raising the aforesaid grounds of challenge, the petitioner is, in particular, aggrieved of the operative portion of the order in so far as the Tribunal directs Commissioner, Srinagar Municipal Corporation, to carry out the demolition under an intimation to the Tribunal within a period of 15 days. 9. Having heard learned counsel for the petitioner and perused the material on record, I am of the view that once the appeal of the petitioner is dismissed by the Tribunal and the order of demolition issued by Srinagar Municipal Corporation is upheld, the petitioner cannot claim to have a right to approach the Municipal Authorities for compounding of the structure raised without permission nor can he take the benefit of Bye-law No.2.1.2(c), which was pressed into service by the petitioner to contend that even if it is conceded that the offending construction is without permission, he can still approach the authorities to get the building permit with respect to the already constructed structure after paying penalty of Rs.10,000/ as envisaged in Clause (c) of Bye-law 2.1.2. 10. 10. With a view to deal with the contention of learned counsel for the petitioner, it is appropriate to set out Bye-law 2.1.2(c) of the Srinagar Municipal Corporation (Building) Bye-Laws, 2011 hereinbelow: '2.1.2. Dealing with Unauthorized Building. (a) xxx xxx xxx xxx xxx (b) xxx xxx xxx xxx xxx (c) If a building is deemed to be Unauthorized Building solely on account of a Building permit not having been obtained prior to commencement of construction and if the said building is in conformity with all provisions of Building Bye-Laws, the owner may apply for a Building Permit/regularization. Further construction may be undertaken after obtaining a valid Building Permit. Penalty of Rs.10,000/ for undertaking such Unauthorized Building shall be payable before a Building Permit is granted.' 11. From a plain reading of clause (c), it is abundantly clear that if a building is deemed to be 'unauthorized building' solely on account of a building permit not having been obtained prior to commencement of construction and if the said building is in conformity with all provisions of Building Bye-Laws, the owner may apply for a building permit/regularization. Further construction may be undertaking after obtaining a valid building permit. A penalty of Rs.10,000/ for undertaking such unauthorized building shall be payable before a building permit is granted. 12. In the instant case, from the reading of impugned notice of demolition, it is abundantly clear that not only petitioner has raised the entire construction without building permission but has even violated the land use as per the Master Plan. The respondent Municipal Corporation has, before the Tribunal, brought on record that the entire area where the building in questions exists is a residential area and, therefore, no commercial construction can be permitted to be raised in the said area. 13. There is no dispute, rather petitioner admits that the building is a commercial and is being also used for commercial activities. In that view of the matter, Clause (c) of Bye-Law No.2.1.2 of the aforesaid Bye-Laws is not attracted. That apart, the petitioner has already availed of the remedy under sub-section (2) of Section 253 of the Act by filing an appeal before the Special Tribunal and, as is ordained in sub-section (5) of Section 253 of the Act, the order of demolition made by the Commissioner shall be final and conclusive subject only to the order made by the Tribunal on appeal. Since the Tribunal has already dismissed the appeal and has upheld the order of the Commissioner and, therefore, the order of demolition against the petitioner has become final and conclusive. There is, thus, nothing wrong in the Tribunal directing the Commissioner, Srinagar Municipal Corporation, to give effect to the order of demolition and direct demolition of the offending structure. 14. In view of the aforesaid, I do not find any merit in this petition and the same is, accordingly, dismissed.