MOHAN KISHAN RAINA Vs. STATE

JUDGEMENT

(1.) Petitioner owns plot No. 486 situated at Jawaharnagar, Srinagar with build up house. The house was constructed on spot in the year 1960-61 pursuant to approved map and permission acorded thereto.(Annexure P1 to P5). Petitioner in the wake of militancy migrated to Jammu in 1990. In May, 1998 he came to know the house with roof is gutted and needs repairs and placement of tin roof over the structure. Petitioner through his friend and attorney holder Sheikh Talaf Mehmood under took repairs and maintenance of the building. However, the respondents did not allow him to do so and instead petitioner initiated process to dismantal the existing structure. The attorney, holder under took to demolish the structure of his own and thereby held back respondents from dismantling the structure. There is no necessity for petitioner to seek any fresh permission as petitioner has not made any deviation from the original plan and has not committed any violation. Though under Migrant Property Act, District Magistrate was bound to maintain and look after the house in question yet petitioner through attorney holder took steps to maintain, it and up-keep the property. Petitioner has prayed for writ of prohibition to restrain the respondents from dismantelling the two storied house of petitioner on the plot and to allow him to undertake necessary repairs and put on tin-roof over the structure.

(2.) Respondents in reply on the affidavit of Administrator S.M.C., has questioned the maintainability of writ, Petitioner is stated to have filed appeal before J&K Special Tribunal regarding the subject of this writ and the said appeal has been dismissed on 30.4.1999. Demolition order in terms of Section 7(3) of Control of Building Operation Act has been passed on 14.8.1999, against which an appeal lies. There is mis-representation of facts. Petitioner has suppressed the real facts. Petitioner in fact did apply for the construction of two storied house which was granted vide order No. 465 of 1998 dated 16.11.1998, subject to terms and conditions contained therein. The petitioner deviated from the sanctioned plan when he constructed shopping complex and completed three storied structure, besides raised columns for 4th storey as well. Respondents initiated process for demolition under the Control of Building Operation Act in respect of the deviation. Petitioner filed an appeal before the Tribunal and the appeal was dismissed on 30.4.1999. A notice u/s 12 of the J& K Control of Building Operation Act, 1988 (Annexure P-1) is served upon petitioner for stopping the construction but petitioner did not stop as a consequence another notice u/s 7(1) of Control of Building Operations Act, 1988 was issued to him on 11.8.1999 (Annexure D-2) calling upon him to show cause as to why construction in-contravention of the aforesaid Building permission be not demolished. The petitioner again failed to reply. It was only thereafter that the demolishing order in terms of Section 7(3) of the Act came to be passed against the petitioner on 14.8.1999 (Annexure D-3). The petitioner has. failed to avail statutory remedies and petition is prayed to be dismissed. Heard. Record Perused.

(3.) After the structure was gutted, petitioner did apply for the construction of two storeyed house which was granted on 16.11.1998 subject to terms and conditions contained therein. Respondents found that petitioner had deviated from the sanctioned plan and permission, by constructing shopping complex, with addition of one more storey and laying of columns for 4th storey as well. Proceedings were initiated for demolish/on under the Act in respect of the above deviation against which an appeal was filed before the Special Tribunal which appeal was dismissed as premature. Notice u/s 12 of the Act was issued to petitioner calling upon him to stop unauthorised construction on 4.4.1999 after noting the deviations and violation of the plan and permission. As petitioner failed to comply with this notice he got another notice u/s 7(1) of the Act on 11.8.1999 to show cause as to why the construction raised in contravention of the provisions of the Act be not altered/ demolished'/pulled-down to remove the contravention, failing which appropriate action u/s 7(3) of the Act would follow. Again petitioner failed to respond and to show cause, leaving no option to the respondents except to issue notice of demolising u/s 7(3) of the Act requiring petitioner to demolish the alteration or pulldown the part of the building in respect of the deviation of the sanctioned plan and to remove the contravention in specified period and in case petitioner again failed to do so within specified period, then the prescribed officer of S.M.C with or without assistance of the Police force at petitioner's cost is to remove the structure. Petitioner did not move in the matter.