Sanjay Dhar, J
1 By this common judgment, two writ petitions, one filed by Sh. Shabir Ahmed Gojawari [WP(C) No. 1914/2020] and the other filed by Srinagar Municipal Corporation [WP(C) No. 1701/2021] challenging judgment dated 10.09.2020 passed by the Jammu and Kashmir Special Tribunal, Srinagar (hereinafter referred to as “the Special Tribunal”), are proposed to be disposed of. Before coming to the grounds of challenge raised by the writ petitioners in these two writ petitions, it would be apt to briefly refer to the facts leading to the filing of the present writ petitions.
2 Vide building permission Order No. 3048 of 2018 issued by the Srinagar Municipal Corporation in terms of Sections 243 and 244 of the Jammu and Kashmir Municipal Corporation Act, 2000 (hereinafter referred to as the “Act of 2000”) read with Jammu and Kashmir Municipal Corporation Building Bye-laws, 2011 (hereinafter referred to as the “ Bye-laws of 2011”), the private respondents, namely Aijaz Ahmad Baba, Manzoor Ahmad Baba and Nisar Ahmad Baba were accorded permission for execution of repairs/restoration by way of retrofitting to strengthen the existing three storeyed heritage building with attic without any change in size, shape and height so as to keep the façade intact in its original position. The building is located at Estate Nursing Garh, Hari Singh High Street, Srinagar. It appears that the private respondents deviated from the sanctioned plan while raising construction of the building. Accordingly, a notice dated 25.03.2019 under Section 254 of the Act of 2000 was issued by the petitioner-Srinagar Municipal Corporation (hereinafter referred to as the “Corporation”) to the private respondents requiring them to stop the construction in question. It also appears that when the private respondents did not comply with the aforesaid notice, a communication dated 26.03.2019 was addressed by the Corporation to the Police Station Shergari, Srinagar in terms of Section 254(2) of the Act of 2000 seeking assistance in removal of persons engaged at site. Another notice, in terms of first proviso to Section 253(1) of the Act of 2000 dated 02.04.2019 was issued by the Corporation to the private respondents, whereafter, a notice of demolition, in terms of Section 253(1) of the Act was issued by the Corporation on 05.04.2019 against the private respondents directing them to demolish/pull down the structure within a period of 7 days from the date of said notice.
3 Aggrieved by notice dated 05.04.2019, the private respondents filed a statutory appeal before the Special Tribunal. On 09.04.2019, the learned Special Tribunal, while issuing notice to the Corporation, directed the parties to maintain status quo. In the meantime, the private respondents applied for modification of Building Permission dated 17.05.2018 and their request was acceded to by the Corporation, whereafter, vide Order No.184 dated 27.11.2018, a revised building permission was granted in favour of the private respondents. As per the said revised building permission, the private respondents were given permission for restoration/reconstruction of three storeyed heritage building with attic on existing plinth within the parameters to restore its de-facto position, meaning thereby that the private respondents were permitted to reconstruct three storeyed building with attic on existing plinth within the parameters to restore its de-facto position.
4 According to the writ petitioners, despite the status quo order passed by the learned Special Tribunal, the private respondents continued to raise construction and raised a five storeyed structure. The Corporation sensing that the private respondents have violated the status quo order passed by the learned Special Tribunal, sealed the structure vide order bearing No.PS/Com/3365-78 dated 23.07.2020.
5 Aggrieved by the aforesaid order, the private respondents filed a revision petition before the Special Tribunal and vide order dated 29.07.2020, the Special Tribunal stayed the operation of the impugned sealing order and the Corporation was directed to de-seal the building.
6 It is pertinent to mention here that the writ petitioner Shabir Ahmad Gojwari, who claims to be running a business establishment in the vicinity of the building, which is subject matter of the present writ petitions, had filed a civil suit against the private respondents before the civil Court (Municipal Magistrate, Srinagar) seeking a permanent prohibitory injunction to restrain the private respondents from raising illegal construction on spot. It appears that the civil Court passed a temporary injunction restraining the private respondents from raising any illegal, unauthorized construction on spot in terms of its order dated 13.07.2020. The suit is stated to be pending before the civil Court as on date.
7 The learned Special Tribunal, by virtue of the impugned order dated 10.09.2020, decided the appeal filed by the private respondents against the demolition notice dated 05.04.2019 as also the revision petition filed by the said respondents against the sealing order dated 23.07.2020 by formulating a common judgment which is impugned herein. The Tribunal has, while recording that the private respondents have deviated from the sanctioned building plan by raising height of the building up-to 51 feet instead of permitted 40 feet and the said deviation has been converted into full fledged floor and attic floor, held that the Corporation cannot be allowed to demolish the same as it would subject the private respondents to huge loss and that if the deviations are not compounded, it would amount to bringing down the whole construction which will cause huge prejudice to the rights and interests of the private respondents. Accordingly, the Special Tribunal regularized the deviations committed by the private respondents while raising the construction of the building in question by compounding the same against payment of composition fee.
8 Regarding the sealing order, the Tribunal held that the construction raised by the private respondents does not fall within the meaning of “unauthorized building” as contained in Bye-law 2.1.1 because the private respondents have been permitted to raise the construction on spot. Thus, according to the Special Tribunal, the order of sealing issued by the Corporation is bad in law and cannot sustain in the eyes of law.
9 The writ petitioners have challenged the impugned order passed by the Tribunal on the grounds that the impugned order dated 10.09.2020 is without jurisdiction as the Tribunal has no power to compound the illegal construction and that no revision lies before the Tribunal against an order of sealing issued by the Corporation. It has been contended that raising of height of a building by more than 1.5 per cent beyond permissible limit and construction of an additional floor beyond permissible limit amounts to major deviation and, therefore, a non-compoundable item. It has also been contended that the Tribunal has fallen into error by holding that the deviations made by the private respondents do not fall within the ambit of “unauthorized building” as defined in the Byelaws of 2011 because all deviations of building permission constitute “unauthorized construction”. Therefore, it was not open to the Tribunal to de-seal the structure and allow the private respondents to violate the order(s) of the Tribunal.
10 The private respondents in their reply to the writ petitions have raised a preliminary objection to the maintainability of the writ petition on behalf of petitioner Shabir Ahmad Gojwari. It has been submitted that the said petitioner has no locus standi to file the writ petition as none of his legal or civil rights is affected by the impugned order passed by the learned Special Tribunal. It has been submitted that the issue, which is subject matter of the present writ petitions, is between the Corporation and the private respondents and, as such, merely because the petitioner Shabir Ahmad Gojwari is running his business establishment adjacent to the building of the private respondents, does not give any cause of action to him against the private respondents. It has been submitted that, as per the Master Plan and the Building Bye-laws in vogue, there is no limitation to the height of the building and as per the building byelaws, the height of a building can be raised up to 70 feet, therefore, the Special Tribunal was well within its jurisdiction to compound the deviations as regards the height of the building.
11 I have heard learned counsel for the parties and perused the pleadings filed by the parties and the record produced by the Corporation.
12 Before coming to merits of the case, it would be apt to deal with the preliminary objection raised by the private respondents with regard to the maintainability of the writ petition filed at the instance of Sh. Shabir Ahmad Gojawari, who claims to be running a business establishment adjacent to the building which is subject matter of the present writ petitions. As already noted, the contention of the private respondents is that merely because petitioner Shabir Ahmad Gojawari is running his business establishment in the vicinity of the building in question does not mean that any of his rights, statutory or civil, is violated by raising of the construction by the private respondents. It has been contended that the issue, whether the private respondents have deviated from the sanctioned plan while raising the construction on spot and if so, whether the same could be compounded, is a matter between the Corporation and the private respondents. No other person has right to intermeddle in an issue which is primarily between the Corporation and the private respondents.
13 The question whether an applicant has locus standi to invoke the extraordinary jurisdiction under Article 226 of the Constitution, has been a matter of discussion and deliberation before this Court as well as before the Supreme Court in a number of cases. In this regard, it would be apt to refer to the judgment of the Supreme Court in the case of Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmad and others, (1976) 1 SCC 671 in which it has been held that an applicant should ordinarily be one who has a personal or individual right in the subject matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. It has been further held that as a general rule, infringement of some legal right or prejudice to some legal interest in hearing the petitioner is necessary to give him a locus standi in the matter. The issue has been elaborately dealt with by the Supreme Court in paras (35) to (39) of the said judgment and the same are reproduced as under:
“35.The expression "ordinarily" indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, r even though he has no proprietary or even a fiduciary interest in the subject- matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject matter of the proceedings will be covered by this rule. The principles enunciated in the English cases noticed above, are not inconsistent with it.
36. In the United States of America, also, the law on the point is substantially the same. "No matter how seriously infringement of the Constitution may be called into question said Justice Frankfurter in Coleman v. Miller. This is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate apart from a political concern which belongs to all". To have a "standing to sue", which means locus standi to ask for relief in a court independently of a statutory remedy, the plaintiff must show that he is injured, that is, subjected to or threatened with a legal wrong. Courts can intervene only where legal rights are invaded. "Legal wrong" requires a judicially enforceable right and the touch stone to justiciability is injury to a legally protected right. A nominal or a highly speculative adverse affect on the interest or right of a person has been held to be insufficient to give him the "standing to sue" for judicial review of administrative action. Again the "adverse affect" requisite for "standing to sue" must be an "illegal effect''(l). Thus, in the undermentioned cases, it was held that injury resulting from lawful competition, not being a legal wrong, cannot furnish a "standing to sue" for judicial relief.
37.It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved';(ii) 'stranger'; (iii) busybody or meddlesome interloper.Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.
38. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer-circle the. bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outerzone may not be "persons aggrieved.
39. To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed ? Has he suffered a legal wrong or injury, in the sense that his interest, recognised by law. has been prejudicially and directly affected by the act or omission of the authority, complained of ? Is he a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something ? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public ? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority ? Is the statute, in the context of which the scope of-the words "person aggrieved" is being considered. a social welfare measure designed to lay down ethical or professional standards of conduct for the community ? or is it a statute dealing with private rights of particular individuals ?
14 From the above, it is clear that the Supreme Court has, after analyzing the issue at length, laid down broad tests for coming to a conclusion whether a writ petition on behalf of an applicant is maintainable. Thus, for deciding whether a writ petition is maintainable at the instance of an applicant, it has to be seen whether the applicant is a person whose legal rights have been infringed or whether he is a person who has suffered a legal grievance and a decision has been rendered against him depriving him of something or whether he has a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public and if so, whether he would be prejudicially affected in exercise of that right by the act of usurpation of jurisdiction on the part of the authority. In the light of the aforesaid tests, let us now proceed to consider the facts of the instant cases.
15 It is an admitted fact that the petitioner Shabir Ahmad Gojawari has filed a civil suit against the private respondents before the civil Court for adjudication of his civil rights as against the private respondents and he has sought an injunction to restrain the private respondents from raising construction which is in deviation of the sanctioned building permission. It is also not in dispute that petitioner Shabir Ahmad Gojawari is running his business establishment adjacent to the building of the private respondents. Whether any of his civil rights is violated by the deviations that may have been committed by the private respondents while raising construction of their building on spot, is a question to be decided by the civil Court. The regularization and compounding of these deviations in terms of the impugned judgment of the Special Tribunal has the potential of rendering the suit filed by the petitioner Shabir Ahmed Gojawari as infructuous. Therefore, if the order of compounding of deviations passed by the Special Tribunal, is left unchallenged, it may have adverse consequences to the case of the plaintiff in the civil suit. Thus, it is a case where the petitioner Shabir Ahmad Gojawari has a special and substantial grievance of his own beyond the grievance of other persons living in the vicinity, as such, it cannot be stated that petitioner Shabir Ahmad Gojawari is a busy body or a stranger at whose instance the writ petition would not be maintainable. He has a substantial interest in challenging the impugned order passed by the Special Tribunal. The writ petition at his instance is, therefore, held to be maintainable.
16 One of the main contentions raised by the writ petitioners challenging the impugned order of the Tribunal is that the Tribunal does not have jurisdiction to compound the deviations committed by the private respondents while raising the offending construction. The contention of the writ petitioners in this regard is two fold: (i) that as per the provisions contained in the Act of 2000, the Special Tribunal does not have power to compound the deviations (minor or major) and,(ii) that the deviations made by the private respondents while raising the construction are non-compoundable in nature as they have raised height of the building up to 51 feet which is more than 1.5 per cent of the permissible limit.
17 If we have a look at the notice of demolition issued by the Corporation that was subject matter of challenge in the appeal before the Tribunal, it has been issued in terms of Section 253(1) of the Act of 2000. Subsection (2) of Section 253 of the Act provides for a remedy of appeal against an order made under Section 253(1) to the Tribunal. There is no provision in the Act of 2000 that confers power upon the Special Tribunal/Appellate Authority to compound the deviations. The power to compound the deviations has been conferred upon the Commissioner of Municipal Corporation in terms of Section 254(5) of the Act of 2000 which reads as under:
“254(5) Where the owner of the building submits the revised plan, after the work has been stopped by him or the work is completed by him and deviations from the sanctioned plan are minor in nature, the Commissioner may subject to the special and general directions of the State Government under Section 2355, compound the cases of deviations”.
18 From a perusal of the aforesaid provision, it is clear that in relation to deviations of minor nature, the Commissioner of Municipal Corporation is authorized to compound the same. As against this, in terms of Regulation 9 of J&K Control of Building Operations (Revised) Regulations, 2001 (hereinafter referred to as the Regulations of 2001”), the appellate officer has been conferred with power to compound an offence of minor nature. However, in the instant case, the Corporation has proceeded against the private respondents in accordance with the provisions contained in the Act of 2000 and not in accordance with Control of Building Operations Act, 1988 and the the Regulations of 2001. Therefore, an order of demolition passed by the Corporation in terms of Section 253(1) of the Act of 2000 is appealable before the Special Tribunal as provided under Section 253(2) of the said Act and not in terms of Regulation 9 of the Regulations of 2001. The Appellate Authority does not have power to compound the deviation under the Act of 2000 and the said power has been vested with the Commissioner of Municipal Corporation.
19 Mr. Z.A.Shah learned Senior Counsel appearing for the private respondents has submitted that because the Commissioner is vested with power to compound the deviations, the Tribunal which is an appellate authority against an order of the Commissioner, is deemed to be vested with power to compound the minor deviations. I am afraid the argument of learned Senior Counsel cannot be accepted for the reason that the appellate authority, in the instant case being a creature of statute viz. Act of 2000, as such, its powers and jurisdiction are defined and circumscribed by the provisions contained in the Act of 2000. An appellate Authority created by a statute cannot go beyond what is provided in that statute.
20 The manner in which the appellate Authority i.e the Special Tribunal has to exercise its powers is itself provided in the provisions contained in sub-sections (2) to (6) of Section 253 of the Act of 2000, which read as under:
“(2) Any person aggrieved by an order of the Commissioner made under sub-section (1) may prefer an appeal against the order to the Special Tribunal within the period specified in the order for the demolition of the erection or work to which it relates.
(3) Where an appeal is preferred under sub-section (2) against an order of demolition, the Tribunal may stay the enforcement of that order on such terms, if any, and for such period, as it may think fit:
Provided that where the erection of any building or execution of any work has not been completed at the time of the making of the order of demolition, no order staying the enforcement of the order of demolition shall be made by the Tribunal unless reasonable opportunity of being heard is afforded to the Commissioner and security sufficient in the opinion of the Tribunal has been furnished by the appellant for not proceeding with such erection or work pending the disposal of the appeal.
(4) Save as provided in this section no court shall entertain any suit, application or other proceedings for injunction or other relief against the Commissioner or restrain him from taking any action or making any order in pursuance of the provisions of this section.
(5) Subject to the order made by the Tribunal on appeal, the order of demolition made by the Commissioner shall be final and conclusive.
(6) Where no appeal has been preferred against an order of demolition made by the Commissioner under sub-section (1) or where an order of demolition made by the Commissioner under that sub-section has been confirmed on appeal, whether with or without variation, the person against whom the order has been made shall comply with the order within the period specified therein or, as the case may be, within the period, if any, fixed by the Tribunal on appeal, and on the failure of the person to comply with the order within such period, the Commissioner may cause the erection of the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act”.
21 From a reading of aforesaid provisions, it is clear that the Tribunal has power to stay the enforcement of order of demolition, it has also power to confirm the order of demolition on an appeal or it can vary the said order. The statute nowhere provides or vests power of compounding of deviations upon the appellate authority, instead the said power has been specifically vested with the Commissioner of Municipal Corporation. As against this, under Regulations of 2001, the appellate authority i.e the Tribunal has been specifically vested with the power to compound the minor deviations. The Tribunal being an appellate authority created by the statute i.e Act of 2000 cannot exercise its power beyond those that have been vested upon it by the statute. The argument of learned Senior Counsel appearing for the private respondents, therefore, cannot be accepted.
22 Having held that the Special Tribunal in the instant case had no power to compound the deviations of any nature whatsoever, the learned Tribunal by compounding the deviations has travelled beyond its jurisdiction while passing the impugned order. It was only the Commissioner of Municipal Corporation who, being vested with the requisite power, could consider the matter regarding compounding of deviations and pass appropriate orders in terms of Section 254(5) of the Act of 2000.
23 The question whether the deviations and contraventions committed by the private respondents while erecting the building in question, are minor in nature or in other words, are compoundable in nature, has to be decided by the Commissioner in the first instance and not by the Tribunal. The contention of the writ petitioners that the deviations were non- compoundable in nature and the contention of the learned appearing for the private respondents that these deviations were compoundable in nature being not in violation of the relevant building byelaws and the Master plan/land use, are matters which can be determined and decided in the first instance by the Commissioner, Srinagar Municipal Corporation. Therefore, this Court would desist from rendering any opinion on this aspect of the matter at this stage lest it may prejudice the respective cases of the parties.
24 Another question that has been deliberated upon by learned counsels appearing for the parties is as regards the jurisdiction of the Tribunal to entertain the revision petition against the order of sealing passed by the Corporation. Mr. Jehangir Iqbal Ganai, learned Senior Counsel appearing for the petitioner Shabir Ahmad Gojwari has vehemently contended that an order of sealing passed by the Corporation in terms of clause 2.1.2(b) of Byelaws of 2011 is not revisable before the Special Tribunal. It has been contended that the power of revision under Section 403 of the Act of 2000 is conferred on the Government and not on the Special Tribunal and Section 3 (1) of the J&K Special Tribunal Act, 1988 (“the Act of 1988” for short) does not apply to the statutes which have come into existence after the promulgation of the Act of 1988. To elaborate his argument, the learned Senior Counsel has contended that in Section 253(2) of the Act of 2000 , word “Special Tribunal” has been expressly used while providing for appellate forum against an order of demolition passed by the Commissioner, but the legislature has intentionally not used the word “Special Tribunal” in Section 403 of the Act which provides for power of revision and instead in the said provision, the revisional authority has been mentioned as the Government.
25 Per contra, Mr. Z.A.Shah, learned Senior Counsel has submitted that Section 3 of the Act of 1988 clearly indicates that if a statute provides for remedy of appeal, revision or review before the Government or a Minister, the same would lie before the Special Tribunal and, therefore there is no manner of doubt in holding that the revision petition against a sealing order passed by the Corporation, which is revisable under section 403 of the Act of 2000, before the Goverment would lie before the Tribunal.
26 It is to be noted that clause 2.1.2 (b) of the Byelaws of 2011 vests power with the competent Authority to seal a plot or a building if unauthorized construction is not stopped. Before determining the question whether the Special Tribunal has jurisdiction to entertain a revision petition against an order of sealing passed under Byelaws of 2011, it would be apt to trace out the source of the Bye-laws of 2011. These Building Byelaws of 2011 have been framed by the Srinagar Municipal Corporation in exercise of its powers under Section 395 D of the Act of 2000 and they have also been approved by the Government vide Notification dated 21.09.2011. These byelaws, inter alia, provide for the regulations relating to building infrastructure, slope, height, corridors and passages, boundary wall/compound wall, basement etc. Byelaw 5.8.2 provides for penalties and violations and it defines compoundable items and non-compoundable items. As already noted, Subsection (5) of Section 254 vests powers with the Commissioner to compound the deviations of minor nature subject to special and general directions of the State Government under Section 255 of the Act of 2000. As per Section 255 of the Act, the Government is vested with power to give special or general directions in the matter of policy in relation to compounding of cases involving deviations from the sanctioned plan as is required to be followed by the Commissioner for compounding of such cases under subsection (5) of Section 254 of the Act.
27 From the above, it is clear that the Government, in exercise of its powers under Section 255 of the Act by incorporating byelaw 5.2.8 in the building bye-laws of 2011 has given policy directions relating to compounding of cases involving deviations from the sanctioned plan. Thus, the entire exercise for compounding of offences in terms of By-laws of 2011 owes its origin to the provisions contained in the Act of 2000. It can, therefore, be safely stated that the order of sealing which was subject matter of challenge before the Tribunal owes its genesis and origin to the provisions contained in the Act of 2000 and the said order is revisable in terms of Section 403 of the said Act which reads as under:
“403.Power of revision- The Government, may at any time, for the purposes of satisfying itself as to the correctness, legality, propriety or regularity of any proceeding or order passed by any officer of the Government or the Commissioner or any officer subordinate to him, call for and examine the record and may pass such order with reference thereto as it may think fit”.
28 From a reading of aforesaid provision, it is clear that any order passed by any officer of the Government or the Commissioner or any officer subordinate to the Commissioner is revisable before the Government. The question that begs for answer is whether the expression “Government” appearing in Section 403 of the Act of 2000 can be construed as “Special Tribunal” by taking aid of provisions contained in Section 3 of the Act of 1988 which reads as under:
“3.Appeals, revisions etc. to the Tribunal.
(1) Notwithstanding anything contained in any law made by the 1[Legislative Assembly of the Union territory of Jammu and Kashmir], an appeal, revision or review petition which under any such law lies to the Government of the Union territory of Jammu and Kashmir or a Minister shall, from such date as may be appointed by the Government of the Union territory of Jammu and Kashmir by notification in the Official Gazette, lie or be so preferred, brought, made or presented to the Tribunal and accordingly any reference in any provisions of such law, which relate to the matters aforesaid, to the Government of the Union territory of Jammu and Kashmir or the Minister shall be construed as a reference to the Tribunal.
(2) The Tribunal shall also excise all the jurisdiction, powers and authority in relation to such appeals, revisions and review petitions as the Legislature may by law provide”.
29 From a bare reading of subsection (1) quoted above, it is clear that if under any law made by the State legislature, an appeal, revision or review lies to the Government or the Minister, the same would now lie or be presented to the Tribunal and, therefore, the reference which relates to the Government or the Minister shall be construed as reference to the Tribunal. A reading of subsection (1) does not, in any manner, infer that it is only in case of those statutes which had come into existence at the time of promulgation of the Act of 1988, that the reference to Government or the Minister has to be construed as reference to the Tribunal and not in respect of those statutes that have been promulgated thereafter. This is further clarified from the fact that vide S.O No. 1229 (E) dated 31.03.2020, the expression “State Legislature” has been substituted by “Legislative Assembly of UT of Jammu and Kashmir, meaning thereby that even in case of statutes that may be promulgated by the legislative assembly of UT of Jammu and Kashmir, which is yet to come into existence, the reference to the Government or the Minister will have to be construed as reference to the Tribunal. The contention of learned Senior Counsel appearing for the petitioner in this regard, therefore, appears to be without any substance.
30 So far as subsection (3) of Section 3 of Act of 1988 is concerned, it provides that the Tribunal shall also exercise jurisdiction in relation to such appeals, revisions and review petitions as the legislature may by law provide. This means that the Tribunal would exercise jurisdiction not only in respect of those appeals, revisions and review petitions as are to be preferred before the Government or the Minister, but it will have jurisdiction even in relation to such appeals, revisions and review petitions where the statute may specifically provide so. The word “also” appearing in subsection (3) of Section 3 is significant in this regard which conveys that, in addition to whatever has been provided under Subsection (1) of Section 3, the Tribunal would exercise its jurisdiction in respect of appeals, revisions and review petitions as the statute may provide.
31 There is yet another reason to hold that the revisional power under Section 403 of Act of 2000 is exercisable by the Special Tribunal. In this regard, provisions contained in Rule 23 of Jammu and Kashmir Special Tribunal Rules, 1986 are of some significance. It provides that the Tribunal shall have power to call for the record of the subordinate courts/authorities suo motu or on the petition filed by any party. As already noted, the Special Tribunal exercises appellate jurisdiction against the order of demolition passed by the Commissioner of Municipal Corporation. By virtue of this power, the Tribunal becomes an authority superior to that of the Commissioner or any other officer subordinate to him. Thus, the Tribunal in terms of Rule 23 of the Rules of 1986 has power to call for the record of the Commissioner as well as the officers subordinate to him suo motu or on a petition filed by any party. This strengthens the opinion of this Court that the Special Tribunal does have revisional powers in respect of orders passed by the Commissioner and the officers subordinate to him in terms of Section 403 of the Act of 2000. It can, therefore, be safely held that the learned Special Tribunal was well within its jurisdiction to entrain the revision petition against the order of sealing which has been passed by the Commissioner in exercise of powers under Byelaws of 2011 framed under Section 395 D of the Act of 2000.
32 Another question that comes up for consideration is whether the Tribunal was right in holding that the order of sealing dated 23.07.2020 is bad in law. In this regard, the Tribunal has interpreted the expression “unauthorized building” appearing in Building byelaw 2.1.1 to mean a building raised without grant of a building permit. According to the Tribunal, because the private respondents had obtained valid permission from the competent authority for raising the building, therefore, the building raised by them is not unauthorised within the definition of Byelaw No.2.1.1.
33 If we have a look at Byelaw No. 2.1.1, it defines “unauthorised building” as a building undertaken after a building permit has lapsed or after a building permit has been revoked. The reasoning adopted by the Tribunal that, once a building permission has been issued and is valid even if the said building is raised in contravention of the building permission, the same would not qualify to be an unauthorized building, is absolutely flawed. What byelaw No. 2.1.1 conveys is that unauthorized building is a building which is undertaken without grant of permission, meaning thereby if a building activity is undertaken regarding which there is no permission, it would constitute an unauthorized building. To quote an example, if there is a building permission for raising three storeyed building and the person concerned constructs an additional fourth floor, the additional 4th floor would constitute “unauthorized building”. Any deviation from the building permission would always constitute an unauthorized construction. The Tribunal by adopting flawed reasoning which is against the logic and common sense has termed the “unauthorized construction” of the private respondents as authorized one and thereafter set aside the sealing order.
The ground on which the Tribunal has quashed the order of sealing is absolutely perverse and liable to be set aside.
34 For the foregoing reasons, the writ petitions are disposed of with the following directions:
(i) The impugned order passed by the Special Tribunal is set aside;
(ii) The private respondents are at liberty to approach the Commissioner, Srinagar Municipal Corporation with a petition for compounding of the deviations and if and when such a petition is made by the private respondents before the Commissioner, the same shall be considered by the said authority in the light of the building permission granted in favour of the private respondents, the relevant building byelaws, the zonal plan and all other relevant statutes and guidelines on the subject;
(iii) The offending portion of the building constructed by the private respondents shall be sealed by the petitioner-corporation till such time a decision is taken by the Commissioner, Srinagar Municipal Corporation with regard to the question of compounding of deviations; and,
(iv). In case the deviations are not compounded/ regularized by the Commissioner, the private respondents shall ensure that offending portion of the building is demolished or, in the alternative, the Corporation shall undertake demolition of the offending portion in accordance with law.
CCP(D) No. 5/2021
As per the allegations made in the contempt petition, the private respondents are stated to have undertaken glazing work of the impugned structure. In view of the directions passed in the main writ petition, particularly direction No.(iv) , no further orders are required to be passed in the present contempt petition. The same is, accordingly, disposed of in the light of the aforesaid directions passed in the writ petition.
