Mohammad Tariq Reshi and Others vs State and Others

Sunil Hali, J.—With the consensus of learned counsel for the parties, this petition is taken up for final disposal at its admission stage.

Motivated by the erstwhile Chief Minister for investing in development projects in the State of Jammu & Kashmir, petitioners established a unit

for the activity of manufacturing, processing and cultivation of Aromatic/Medicinal plants and cut flower. In order to establish such unit, petitioners

purchased land measuring 152 kanals and 02 marlas from its erstwhile owners, situated at Zeetyar Boulevard, Srinagar. The acquired property in

addition to land, consist of one single storeyed tin roofed building, a single storeyed annexy, garage and a tin roofed shed with land underneath and

appurtenant thereto. These structures were constructed prior to 1971 by the erstwhile owners.

In order to establish eco-friendly heritage park as well as floriculture project, two green houses were set up by the petitioners for the purposes

of nurturing the plants. It is the setting up of two green houses which has triggered controversy in the present writ petition. The respondents issued

a notice to the petitioner on 15th of March, 2006 asking him as to why single storeyed structure raised by them may not be demolished in

pursuance to the directions issued by this Court in OWP (PIL) No. 159/2002.

Reply is stated to have been filed by the petitioners in which it has been emphasized that the structure was already in existence prior to 1971, no

fresh structure has been raised or constructed by the petitioners on the said land. It is further stated that the single storeyed bungalow of Late

Maharaja Hari Singh/Dr. Karan Singh was already in existence much before coming into force of the Master Plan and the directions issued by the

High Court.

On this reply having been received by the respondents, a Committee is stated to have been constituted on the request of the parties. The

Committee after considering the objections/reply submitted by the petitioners dropped the said construction from the list of illegal constructions.

The matter should have rested here. However, the respondents are stated to have entered the premises of the petitioners and destroyed the

green houses erected by them and causing damage to their property which was in the shape of objects of craft, detachable realings etc. It is this act

of the respondents which has been questioned by the petitioners on the following grounds :

a) that the green houses set up by the petitioners do not fall within the definition of ""building"" as provided u/s 2 of the Control of Building

Operations Act of 1988;

b) that even if it is construed to be a building, even then a notice as contemplated by Section 7 of the Act was required to be issued to the

petitioners before demolishing the same;

c) that there is no direction from the High Court to demolish any structure in violation of the statute.

On the other side case of the respondents is that the setting up of the green houses is squarely covered by the definition ""building"", as such, in

terms of the directions issued by the High Court prohibiting any constructional activity of a building within the prescribed area, is required to be

demolished. This in fact is the only ground on which action is defended by the respondents.

I have heard learned counsel for the parties.

The controversy in the present writ petition is confined only to two issues, i.e.:

1) Whether setting up of green houses is covered by the definition of the building as contemplated by the Act;

2) Even if it is construed to be a building, whether respondents have the power to demolish the same without subscribing to the provisions of law.

Mr. Jan, learned counsel for the petitioners, stated that the setting up of the green houses is not covered by the definition of the building.

According to Mr. Jan, no constructional activity as such has been undertaken in setting up of the green houses. It is a structure which is detachable

and can be removed from one place to another.

What is asserted is that it is not an immovable property and is not covered by the definition of the building which contemplates any structure

which has permanency. The argument of Mr. Jan cannot be brushed aside looking to the nature of the structure that has been raised on spot. Prima

facie a green house is not a structure which has permanency. The respondents, in their objections, have not contested the plea raised by the

learned counsel for the petitioners. Even if it is assumed that it is a building, as stated by the respondents, any violation in raising such a construction

has to be addressed in the scheme of the Act. If in the opinion of the respondents it was a building covered by the definition, they could not, on an

ex parte decision, direct demolition of the said structure. The petitioners were required to be heard in the matter, more particularly when the case

of the petitioners specifically was that it is not a building but a movable structure intended only to nurture the plants. The respondents after receiving

the reply of the petitioner could have referred the matter to some expert to find out exactly as to whether such type of structure was covered by the

definition of the building or not. This, however, has not been done by the respondents. After taking a unilateral decision that it is a building and

constructional activities have been undertaken, they have demolished the same causing loss to the property of the petitioner.

Placing reliance on a judgment of this Court, what has been stated by the respondents is that any constructional activity raised within the

prescribed area is required to be demolished in terms of the directions issued by the Court.

While scanning through the directions issued by this Court, it is nowhere mentioned therein that any illegal construction being raised is required

to be demolished without adhering to the provisions of the Statute. Mr. S.A. Vakil, learned counsel for the respondents, could not show any such

direction that once the respondents find that any illegal construction is being raised within the prescribed limits, same is required to be demolished

without notice. This, in my opinion and after persuing the directions of the Court, cannot be permitted. Even if any construction has been raised

which violates the directions of the Court, even then the defaulting party is required to be informed before any demolition process is undertaken.

This has not been done in the present case. After having said so, the question is what relief can be granted to the petitioners. Mr. Jan states that he

is entitled to two reliefs i.e. (a) a direction be issued to the respondents that before proceeding to initiate any action against the petitioners, same

must be in conformity with the requirements of the statute; (b) since the demolition has resulted into loss to the property of the petitioners, the

petitioners are required to be compensated for the damage cause by the demolition.

Regarding first direction there can be no doubt that the respondents are required to comply with the statute before proceeding to take action

against the petitioners. If any green house is raised by the petitioners and the respondents deem it to be within the definition of building, they are

required to hear the petitioners in the matter to explain his position that the said house/structure is not a building as defined under the Act but is

intended only to protect and nurture the plants. On receipt of such reply, the matter can be examined by the experts in this behalf. So what is

emphasized is that before proceeding in the matter respondents are required to follow the statute governing such areas. However, in the present

case while ordering demolition of the petitioners green houses, the statute has been violated.

Regarding second direction, as stated by Mr. Jan, the act of the respondents has caused both mental and physical damage to the petitioners;

this damage is required to be assessed by the respondents. There is no finding as to how much of damage has been caused to the petitioners. I

leave this open to the petitioners to take up the matter with the authorities concerned.

This petition is allowed. Cost of Rs. 1000/- is awarded in favour of the petitioners to be paid by the respondents.