Mohammad Ismail Beigh v. Commissioner, Srinagar Municipal Corporation & Ors.

O R D E R 16.09.2022

Heard Mr. Arfat Rashid Lone, learned counsel assisted by Ms Gazala Shamus, learned counsel for the appellant.

The appellant has preferred this writ petition against the judgment and order of the learned Single Judge dated 8th September 2022 whereby his writ petition has been dismissed.

The appellant raised a building within the limits of Srinagar Municipal Corporation without obtaining a sanction of a building plan. The appellant contends that the aforesaid building is in existence for long and that after the devastating floods of September 2014, he had only carried out necessary extensive repairs in the same and had not raised any new construction, but even then notice under Section 253 of the Srinagar Municipal Corporation Act was issued to him to demolish the building.

The appellant preferred an appeal before the tribunal and the same was dismissed on 24th August 2022. The said order was challenged by the appellant by filing the writ petition which has been dismissed by the impugned order. The learned Single Judge while dismissing the writ petition has categorically relied upon the findings recorded by the tribunal that the constructions were raised by the appellant afresh without obtaining any prior permission from the authorities of the Municipal Corporation.

Section 243 of the Act provides that any person intending to erect a building has to apply for sanction of the building plan to the Commissioner. The Act further provides for the manner and mode in which an application for sanction of the building plan has to be submitted. At the same time, Section 246 of the Act provides for the specific sanction of the building plan by the Commissioner provided the plan does not contravenes any of the provisions of sub-Section 2 of Section 250. A conjoint reading of both the above provisions i.e, 243 and 246 amply demonstrates that no building within the municipal limits can be erected without prior sanction of the building plan by the Commissioner.

Section 253 of the Act lays down that where an erection of any work has been commenced, or is being carried on or has been completed without or contrary to the sanction referred to in Section 246 or in contravention of any condition subject to which such sanction has been accorded or in contravention of the provisions of this Act or bye- laws made there-under, the Commissioner may in addition to any other action that may be taken under the Act, make an order directing that such erection or work be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed within such period as may be specified in the order of demolition. In other words, the Act mandates for obtaining a prior sanction of a building plan before commencing the construction and in case any building is found to have been erected without the sanction of the building plan, the Commissioner is authorized to pass an order of demolition as contemplated by Section 253 of the Act.

The appellant in the present case is not having any sanction plan for the construction of the building or for its repairs, and, as such, whatever constructions have been raised by him are in violation of the provisions of the Act namely Section 243 and 246 of the Consequently, the said construction are liable to be demolished under Section 253 of the Act.

Learned counsel for the appellant submits that the finding of the tribunal that the constructions have been raised by him afresh is perverse and for the purpose has relied upon two documents, namely, Value Added Tax Registration Certificate dated 17th July 2013 and the copy of FIR dated 7th November 2014.

The aforesaid Value Added Tax Registration Certificate mentions the existence of a go-down of the address of the building in dispute. The said document is not a conclusive proof of the fact that the construction as existing on the said land whether a building or a godown have been raised in accordance with the provisions of the Municipal Act or that they are in accordance with the bye-laws. Similarly, the FIR which gives the address of the appellant as that of the building in question is also not a proof as to when the construction were raised or if at all they have been raised whether they are in accordance with law.

In addition to the above, learned counsel for the appellant submits that he had been paying municipal taxes in respect of the said building and therefore it cannot be said that the constructions are illegal. The payment of municipal taxes also do not establish that the constructions are after obtaining sanction of the building plan.

In view of the aforesaid facts and circumstances, once it is established on record that the appellant had not obtained any sanction for the construction of the building, the construction raised by him would be classified as ‘unauthorized’ and are liable to be demolished under Section 253 of the Act.

Learned counsel for the appellant in the end submitted that under the bye-laws, unauthorized building has to be dealt with in a particular fashion and that straightaway an order for demolition cannot be passed. He relied upon Clause 2.1.2 (c) which provides that if a building is deemed to be unauthorized building only on account of Building Permit not having been obtained prior to commencement of construction and if the said building is otherwise in conformity with the provision of the building bye-laws, the owner may apply for building permission.

We have repeatedly asked the counsel if the appellant has ever applied for a building permit even though it may have been raised without the sanction of the building plan, but the answer is in the negative.

Learned counsel for the appellant submits that since the matter was sub-judice, he could not apply for a building permit, meaning thereby that till date, the appellant has not applied for a building permit.

In view of the aforesaid facts and circumstances, as the appellant has constructed the building without obtaining prior sanction of the building plan and at the same time has not even applied so far for any building permit, the construction are not liable to be saved.

We do not find any error or illegality on part of the writ court in dismissing the writ petition for any reason.

Accordingly, the appeal is devoid of merit and the same is dismissed leaving it open to the appellant to apply for the building permission if it is so advised and open to him in law. (PUNEET GUPTA) (PANKAJ MITHAL) JUDGE CHIEF JUSTICE SRINAGAR 16.09.2022