| HC sets-aside Tribunal order, directs SMC to seal offending portion of building constructed | | | Early Times Report
JAMMU, Jan 29: In an appeal filed by SMC against the order of Special Tribunal, Justice Sanjay Dhar of Jammu & Kashmir and Ladakh High Court set-aside the order of Tribunal and directed SMC to seal the unauthorized portion.
2 Vide building permission Order No. 3048 of 2018 issued by the Srinagar Municipal Corporation in terms of Sections 243 and 244 of the Jammu and Kashmir Municipal Corporation Act, 2000 (hereinafter referred to as the 'Act of 2000') read with Jammu and Kashmir Municipal Corporation Building Bye-laws, 2011 (hereinafter referred to as the ' Bye-laws of 2011'), the private respondents, namely Aijaz Ahmad Baba, Manzoor Ahmad Baba and Nisar Ahmad Baba were accorded permission for execution of repairs/restoration by way of retrofitting to strengthen the existing three storeyed heritage building with attic without any change in size, shape and height so as to keep the facade intact in its original position. The building is located at Estate Nursing Garh, Hari Singh High Street, Srinagar. It appears that the private respondents deviated from the sanctioned plan while raising construction of the building. Accordingly, a notice dated 25.03.2019 under Section 254 of the Act of 2000 was issued by the petitioner-Srinagar Municipal Corporation (hereinafter referred to as the 'Corporation') to the private respondents requiring them to stop the construction in question. It also appears that when the private respondents did not comply with the aforesaid notice, a communication dated 26.03.2019 was addressed by the Corporation to the Police Station Shergari, Srinagar in terms of Section 254(2) of the Act of 2000 seeking assistance in removal of persons engaged at site. Another notice, in terms of first proviso to Section 253(1) of the Act of 2000 dated 02.04.2019 was issued by the Corporation to the private respondents, whereafter, a notice of demolition, in terms of Section 253(1) of the Act was issued by the Corporation on 05.04.2019 against the private respondents directing them to demolish/pull down the structure within a period of 7 days from the date of said notice.
Justice Sanjay Dhar after hearing both the sides observed that if we have a look at Byelaw No. 2.1.1, it defines 'unauthorised building' as a building undertaken after a building permit has lapsed or after a building permit has been revoked. The reasoning adopted by the Tribunal that, once a building permission has been issued and is valid even if the said building is raised in contravention of the building permission, the same would not qualify to be an unauthorized building, is absolutely flawed. What byelaw No. 2.1.1 conveys is that unauthorized building is a building which is undertaken without grant of permission, meaning thereby if a building activity is undertaken regarding which there is no permission, it would constitute an unauthorized building. To quote an example, if there is a building permission for raising three storeyed building and the person concerned constructs an additional fourth floor, the additional 4th floor would constitute 'unauthorized building'. Any deviation from the building permission would always constitute an unauthorized construction. The Tribunal by adopting flawed reasoning which is against the logic and common sense has termed the 'unauthorized construction' of the private respondents as authorized one and thereafter set aside the sealing order. The ground on which the Tribunal has quashed the order of sealing is absolutely perverse and liable to be set aside.
With these observations High Court disposed of the petition with the direction that the impugned order passed by the Special Tribunal is set aside; the private respondents are at liberty to approach the Commissioner, Srinagar Municipal Corporation with a petition for compounding of the deviations and if and when such a petition is made by the private respondents before the Commissioner, the same shall be considered by the said authority in the light of the building permission granted in favour of the private respondents, the relevant building byelaws, the zonal plan and all other relevant statutes and guidelines on the subject; The offending portion of the building constructed by the private respondents shall be sealed by the petitioner-corporation till such time a decision is taken by the Commissioner, Srinagar Municipal Corporation with regard to the question of compounding of deviations; and in case the deviations are not compounded/ regularized by the Commissioner, the private respondents shall ensure that offending portion of the building is demolished or, in the alternative, the Corporation shall undertake demolition of the offending portion in accordance with law.
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