NADEEM SHEPHERD Vs. COMMISSIONER SMC

JUDGEMENT

(1.) One Mrs. Sadaf Zarin alongwith Petitioner was granted permission under Control of Building Operation Act, 1988 (for short Act of 1988), for construction of double storey residential with attic after dismantling three storey house vide order No. 804 of 2006 dated 6th Oct. 2006. Petitioner started raising construction of the ground floor and it is stated at Bar that the construction at the level of ground floor is complete. The construction raised to the level of ground floor was objected to by the authorities of the Srinagar Municipal Corporation on the plea that the construction has been raised to this level in breach of the terms and conditions contained in the permission order.

(2.) In neighborhood of the Petitioner, Respondents 4 and 5 were authorized to raise construction by the competent authority under the Act of 1988 vide order No. 61 of 2005 dated 12th April 2005. The construction raised by the Petitioner as per the allegations made in the writ petition was interfered with by Respondents 4 and 5 and show cause notices were issued by the competent authority under the Act of 1988 which constrained the Petitioner to institute civil original suit in the court of Sub Judge Municipal Magistrate Srinagar. In this behalf para 11 of the writ petition is noticed as under:

(3.) The Petitioner being aggrieved of the notices issued to him by the Respondents No. 2 and 3 challenged the same by filing statutory appeal before the J&K Special Tribunal, Srinagar (for short Tribunal). The tribunal vide order dated 20th Sept. 2007 directed for maintenance of status quo. An application was filed before the tribunal by the Petitioner seeking modification of the order of status quo dated 20th Sept. 2007. In the application seeking modification of the order of status quo dated 20th Sept. 2007, the Petitioner prayed that he be allowed to raise construction on spot in terms of the permission granted by the competent authority. The tribunal vide its order dated 15th May 2008 which is impugned in this petition modified its earlier order dated 20th Sept. 2007 and permitted the Petitioner to undertake construction of residential house strictly in accordance with the terms and conditions of the permission granted by BOCA vide its order No. 804 of 2006 dated 6th Oct. 2006. The authorities of the Municipal Corporation were directed to monitor the construction on spot through its field agency and to ensure that the construction is undertaken by Petitioner strictly as per permission. It was further directed that in case any deviations are notice by the Municipal Corporation they will be at liberty to demolish that portion. Ward Officer concerned was directed to submit status report to the tribunal after every seven days. Between two beneficiaries of the permission granted by the authorities for raising construction, the Petitioner alone has challenged the order of the tribunal before this Court in this writ petition. Besides praying for issuance of writ of certiorari for quashing the impugned order, prayers have also been made for issuance of writ of mandamus to command the Respondents to demolish four storey structure with attic constructed by Respondents 4 and 5 in violation of building permission order No. 226 dated 2.6.2004 and No. 61 dated 12.04.2005 and retrieve 12 ft fire gap between the house of private Respondents No. 4 and 5 and that of the plot of Petitioner, or in the alternative it is prayed that Respondents be directed to allow the Petitioner to raise the construction of the first floor of the building on the existing ground floor.