DR. KAMAL FAROOQI Vs. STATE OF J&K

JUDGEMENT

(1.) The appellant-writ petitioner approached this Court through the medium of OWP No.206/2017 to assail the order passed by the Jammu& Kashmir Special Tribunal, Srinagar (for brevity, "the Special Tribunal') dated 27.02.2017. In the aforesaid writ petition, the appellant also sought a writ of mandamus for directing the respondents to demolish the construction of two storied residential house constructed by respondent Nos. 10& 11 in survey No.836 as also to restore the shape and position of the irrigation canal falling under survey No.860 in estates Zakoora by removing encroachment made by respondent No.11. The writ petition was dismissed by a learned Single Judge of this Court vide order dated 16.03.2017 primarily on the ground that the appellant-writ petitioner had no locus to maintain the writ petition. This is how, the appellant is before this Court with the instant letters patent appeal.

(2.) Before appreciating the grounds of challenge taken by the appellant in this appeal to assail the judgment of the learned Single Judge, it would be worthwhile to notice few facts. The appellant claims to be in possession of land measuring 1 kanal 10 marlas comprising in khasra No.841 min situated at Zakoora, which he claims to have been purchased by his wife. The land owned and possessed by the appellant is reportedly recorded as "bagh-ekhushki" in the revenue record and therefore, fit for raising residential construction. The appellant also claims to have raised three storied house on the aforesaid land. The appellant also claims that in the adjacent land falling in survey No.860 there has been an irrigation canal passing through, over which the appellant has been exercising the riparian right. It is further submitted that respondent Nos. 10 and 11, who are husband and wife, have purchased the land measuring 1 kanal in survey No.836, which is recorded as "abi awal" in the revenue record.

(3.) The grievance raised by the appellant is that respondent Nos. 10 and 11 in league with the revenue as well as municipal authorities started illegal construction of their residential house by illegally changing the land user and in the process also encroached upon the irrigation canal. The appellant further claims that being a conscious citizen and being adversely affected by illegal construction, he objected to the raising of illegal construction before different authorities. He even approached the Civil Court also, where a civil suit between the parties is stated to be pending. The appellant also claims to have approached the revenue authorities under Section 133(A) of the Land Revenue Act and the provisions contained in Prohibition of Conversion of Land Act, 2010. He, therefore, submits that no action has been taken by the revenue authorities including the Divisional Commissioner and the Financial Commissioner. The appellant has further submitted that since the whole construction raised by respondent No.11 was illegal without seeking prior permission/sanction from the Srinagar Municipal Corporation, as such, the Chief Enforcement Officer, Srinagar Municipal Corporation issued a notice of demolition on 14.01.2017 directing respondent No.11 to demolish the illegal construction of two storied residential house within a period of seven days. It is this notice of demolition issued by the Srinagar Municipal Corporation, which was challenged before the Special Tribunal.