High Court · 2023

ORDER 04.08.2023

1. Through the medium of the instant petition, the petitioners have challenged order dated 28.10.2015 (hereinafter impugned order) passed by J&K Special Tribunal (hereinafter the Tribunal) in the appeal titled as “Mohammad Sultan Sofi Vs. Chairman BOCA”.

2. It is being stated by the petitioners in the petition that they jointly purchased two storied residential house along with land measuring 4 marlas and 237 sqft covered under survey no. 795 min and 796 min, situated at 105 Karan Nagar, Srinagar, (hereinafter the property) from its erstwhile owners in terms of sale deed dated 25.03.2008 after sanction for sale came to be accorded by Divisional Commissioner, Kashmir vide order dated

18.01.2002.

3. It is being next stated that upon purchase of the property, the petitioners started residing therein.

4. It is being further stated that prior to the purchase of the property by the petitioners, the respondent-Corporation had issued a demolition order dated

17.07.2007 in the name of the respondent 5 herein, calling upon him to demolish the house existing on the property on the ground that the said respondent has undertaken the said construction of the house without proper permission.

5. It is being next stated that the respondent 5 feeling aggrieved of the demolition order dated 17.07.2007, filed a statutory appeal before the Tribunal on 18.07.2007 and it was during the pendency of the appeal that the respondent 5 herein sold the property as an attorney, to the petitioners herein in terms of sale deed dated 25.03.2008.

6. It is being further stated that the appeal filed by respondent 5 came to be dismissed by the Tribunal in terms of the impugned order dated 28.10.2015, which is being assailed by the petitioners herein in the instant petition, inter alia, on the grounds that the residential house constructed on the land purchased by the petitioners, had been decades old and that the same was renovated by the erstwhile owners, and that the Tribunal did not appreciate the said fact and proceeded to dismiss the appeal and that the demolition order was bad in law and that the Tribunal failed to appreciate the said plea as the show cause notice required to be issued under section 7(1) of the BOCA Act, 1988 had never been served upon the Respondent 5 and that without complying with the said requirements, the respondents issued the demolition order under Section 7 (3), thus, denying an opportunity of hearing to the appellant/respondent 5 and that the Tribunal failed to appreciate the grounds urged in the appeal and that otherwise also the construction raised had been undertaken as per rules laid down by the law and that the Tribunal was not supposed to pass any order on the impugned notice till December 2015 in view of Civil Code Amendment Act 2014, which had kept all demolition notices issued prior to passing of the Act, on hold.

7. Objections have been filed to the petition by the respondents wherein it is being stated that the Respondent 5 herein had undertaken reconstruction of the house in question without proper permission resulting into issuance of the show cause notice dated 11.07.2007 followed by demolition order dated

17.07.2007.

8. It is being admitted in the objections that the said Respondent 5 preferred an appeal against the demolition order dated 17.07.2007 and that the Tribunal decided the said appeal rightly upon appreciation of facts and circumstances of the case. It is further stated in the objections that neither the show cause notice nor the demolition notice came to be issued by the respondents arbitrarily and same did not violated the rights of the petitioners.

9. It is being further stated in the objections that (Civic Laws Special Provisions Act, 2014) passed by the State Legislature provided for a policy of regularization of unauthorized construction raised within the municipal limits of Srinagar city, yet the petitioners did not approach to the respondents for regularization of the construction within the time frame prescribed therein. Heard learned counsel for the parties and perused the record.

10. Perusal of the record inasmuch as the pleadings of the parties indisputably would demonstrate that the construction in question had been undertaken without any permission. It is also not in dispute that the show cause notice dated 11.07.2007 followed by demolition order dated 17.07.2007 stands issued in respect of the property in question by the respondents against respondent 5 herein who admittedly is the father of the petitioners and had challenged the demolition order before the Tribunal claiming himself to be the owner of the property in question, which position is not disputed by the petitioners in the instant petition, though the petitioners claim to have purchased the property in terms of sale deed dated 25.03.2008.

11. Be that as it may, perusal of the record available on the file would reveal that the respondent Corporation had furnished a report to its standing counsel defending the case before the Tribunal forming Annexure P-5 with the petition indicating therein the land use of the site , the present use of the structure as residential and also providing that no infringement of the rights of the adjacent property owner besides reflecting the area under coverage construction as 900 sq ft at plinth area with total plot area of 1255 sq ft. In view of the aforesaid report which has not been disputed and denied by the respondents in their reply filed to the petition it is manifest that there has been no violation committed by the petitioners while undertaking construction be it qua land use or the area under coverage or the right of the adjacent property owners. The only allegations against the petitioners is that the construction has been raised without obtaining prior permission from the competent authority. It also needs to be put on record that during the pendency of this petition the Government of Jammu and Kashmir came up with a policy under and in terms of “J&K Civic Laws Special Provisions Act, 2014”, providing for regularization of un-authorized constructions raised within the municipal limits of Srinagar City upon being applied within a period of one year upto 31st March 2018, and the petitioners admittedly herein have not applied for regularization of their construction probably owing to the pendency of the petition.

12. Having regard to the facts and circumstances of the case, the status report supra furnished by the respondents to their standing counsel forming Annexure-P-5 not having been denied and disputed by the respondents inasmuch as provision of the Act of Special Provisions Act 2014, inasmuch as the fact that the petitioners herein have raised construction of a residential house without there being any kind of violation as stated in annexure P-5 and that a considerable period of time has passed since the date of raising of construction and the demolition of the said construction of a residential house would be unjust and unfair at this stage, as such, it is deemed appropriate to dispose of this petition as follows:- “The petitioners to lay a formal application before the respondents for seeking regularization of the construction in question within two weeks time from today whereafter on receipt of the application, the respondents to accord effective consideration to the said application of the petitioners keeping in mind the observations made herein above and take a decision thereon within eight weeks thereafter. Till a decision as directed above is taken by the respondents, the operation of the impugned order of the Tribunal as also demolition notice dated 17.07.2007 shall remain in abeyance”. Disposed of. SRINAGAR: 04.08.2023 “S. Nuzhat” (Javed Iqbal Wani) Judge