Srinagar, Apr25: The High Court of Jammu & Kashmir and Ladakh reprimanded the authorities of Srinagar Municipal Corporation (SMC) over dereliction of duties for permitting to raise construction of multi storey shopping complex in Estate Parimpora, Srinagar in “derogation and violation” of building permission.
The court was hearing a plea challenging an order issued by Commissioner SMC in 2017 granting permission in favour of private respondents for raising construction of Single Storeyed Joinery Workshop at Estate Parimpora, Srinagar.
However, the private respondents in violation of the building permission accorded raised construction of a multi storey shopping complex.
A court of Justice Vinod Chatterji Koul noted that SMC functionaries permitted private respondents to raise construction in question in “derogation and violation” of building permission.
The court while taking note of the building permission underscored that it unambiguously stipulates that permittee shall commence the proposed construction only in presence of concerned Ward Officer or Building Inspector or the concerned Enforcement Officer in accordance with the sanctioned plan whereas in the present case the construction in question has been raised in absence of functionaries of SMC.
The court noted that building permission further envisages that the Ward Officer or Building Inspector shall monitor the construction strictly as per approved plan and shall forward status report to competent authority and officer authorized on this behalf.
However, the court pointed out that in the case in hand, construction in question has never been monitored by functionaries of SMC as is evident from perusal of reply of respondent.
Not only this, the court underscored, the building permission also stipulates that the Structural Engineer and Architect Construction Engineer shall be responsible for strict adherence of the provision of the Building Bye Laws and permittee shall be bound to adhere to their instructions in accordance with the prescribed Byelaws.
Justice Koul further noted that it is also provided that the permittee shall in no case change the use of the building permitted for.
“All these conditions have been violated with impunity by respondent 6&7 (private respondents) and respondent-SMC functionaries remained mute spectators,” the bench noted.
The court observed that dereliction of duties on the part of functionaries of SMC is abundant from the reply of Chief Enforcement Officer, SMC. These important aspects of the matter are not ignorable.
Allowing the plea, the court said that if there is any deviation, the Tribunal is within its powers to pass such an order as it deems fit and appropriate after taking into account and considering the case set up by the parties before it.
Nevertheless, Justice Koul said that permission granted is revisable under and in terms of Section 403 of the J&K Municipal Corporation Act 2000 inasmuch as it empowers the government to pass such an order that it thinks fit so as to satisfy itself about the correctness, legality, propriety or regularity of any proceeding or order passed by any officer of the government or commissioner or any officer subordinate to him.
Justice Koul recorded that insofar as challenge to order, granting permission for raising construction is concerned, Section 3 of J&K Special Tribunal Act, 1988, provides that where an appeal, revision or review petition lies to the government, it shall be presented to Tribunal and that any reference to the government shall be construed as a reference to the Tribunal.
“Thus, the power of revision exercisable by the government in terms of provisions of Section 403 of J&K Municipal Act, 2000, is exercisable by the Special Tribunal. In such circumstances any challenge to the building permission granted by respondent-SMC, is revisable by the State Government, i.e., the J&K Special Tribunal,” the court said.
Disposing of the plea, the court granted the petitioner the right to approach the Tribunal with a revision petition against the permission while raising all grounds that petitioner deems appropriate.
However, the court directed the Tribunal that delay in filing the motion against building permission by petitioner shall not be taken as impediment by the Tribunal in entertaining and considering the same.
“It is made clear here that in the event a revision and/or any other motion is preferred by the petitioner, the Tribunal shall take note of all that has been observed herein above,” Justice Koul said.
The bench directed the SMC to stop any kind of construction going on or permitted to be raised by private respondents on the site till outcome of the proceedings, if any, pending or initiated by petitioner before the Tribunal.
