Tariq Ahmad Mir vs Union Of India And Others

Sanjeev Kumar, J

In this petition, the petitioner has prayed for the following relief:-

"By way of writ of mandamus/prohibition, the Hon'ble Court may be pleased to restrain the respondents from causing any interference in the construction of first floor/second storey over the existing ground floor of the petitioner, undertaken by him under deemed permission on his proprietary land under Khasra No. 176/165 measuring 06 Marlas situated at Sonwar Srinagar."

Briefly stated the facts leading of filing of this petition are:

The petitioner claims to be owner in possession of land measuring 06 Marlas falling under Khasra No.176/165 situated at Sonwar, Srinagar. He claims that he has purchased this land in terms of Sale Deed dated 29th December, 2006 duly registered by Sub-Registrar, Srinagar on 06.11.2007.

The land aforesaid has already been mutated in favour of the petitioner.

The petitioner states that after purchasing the aforesaid land, he applied for grant of permission to respondent no.3 for raising construction of single storeyed structure, but the same was not considered by the respondents and was delayed without assigning any reason. On expiry of the statutory period, petitioner claims that he raised the construction of ground floor of his residential house, taking permission to raise the construction as deemed to have been granted.

It is stated by the petitioner that while he was raising the construction of the ground floor, respondent no.3 started interference and that constrained the petitioner to file a Suit for permanent prohibitory injunction before the 1st Civil Sub-Judge, Srinagar. The suit, it is stated, was later on compromised and settled before the Lok Adalat.

The petitioner moved an application for seeking permission before the respondent no.3 for grant of permission for raising the construction of first floor/second storey over the existing ground floor. It was done by the petitioner in the year 2012.

It is the grievance of the petitioner that despite the fact that he has completed all the requisite formalities and intends to raise the construction on the existing structure raised on the proprietary land, respondent no. 3 is reluctant to grant permission. It is in this backdrop, the petitioner claims that he has been constrained to file the instant writ petition, seeking relief(s) as prayed for in this writ petition.

Respondent no.3 and also respondents 1 and 2 have submitted their objections. The stand of respondents 1 and 2, as is discernible from the objections, is that the land over which the petitioner intends to raise construction is a defence land. They rely upon their record i.e. GLR maintained by the Defence Estates Officer and submit that the land measuring 03 Kanals and 01 Marla falling under Khasra No. 175/165 is a defence land over which no construction by private individual is permissible. Respondent no.3, in his objections, has not been able to take a specific stand. Respondent no.3 submits that the matter was taken by it with the Defence Estates Officer to verify as to whether the 06 Marlas of land claimed by the petitioner is a defence land or his proprietary land, but no concrete answer from the respondents 1 and 2 has been received. Respondent no.3 has also filed compliance report and has placed on record the consideration order dated 26.03.2018.

Heard learned counsel for the parties and perused the record.

The dispute involved in this petition for determination is only with regard to the title of the land over which the petitioner intends to raise the construction. As is claimed by the petitioner that he is owner in possession of 06 Marlas of land falling under Khasra No.176/165, which he claims to have purchased by way of sale deed duly registered by the competent Registering authority. He has raised the construction of the ground floor; now intends to raise first floor/second storey. Despite the fact that he has approached respondent no.3 for grant of building permission and as is evident from the reply filed by the respondent no.3, the petitioner has not been granted the building permission because of the stand of respondent no. 2 that the land over which the petitioner intends to raise construction is a defence land.

From the pleadings of the parties, particularly the stand taken by the respondents 1 and 2 as also respondent no. 3, it clearly comes to fore that the respondents have not been able to finally determine the title of the land, claimed to be owned and possessed by the petitioner. Though the stand taken by respondents 2 and 3 is that it is a defence land, but there is no concrete evidence on record to come to a definite conclusion with regard to the title of the land in question. The GLR placed on record by respondent No. 2 indicates that the land measuring 03 Kanlas and 01 Marla falling under Khasra No. 175/165 is a defence land but there is nothing on record to show that the total land falling under Khasra No.175/165 is only 03 Kanals and 01 Marla. That is an important aspect which needs to be taken into account while taking decision on the request of the petitioner for grant of building permission. Without looking to the technicalities as pointed out by Mr. T.M. Shamsi, learned ASGI, I am of the view, that the dispute involved in this petition can be resolved by providing as follows:

a) The Defence Estates Officer in association with the Assistant Commissioner, Revenue of the concerned District shall ascertain the title of the land measuring 06 Marlas claimed to be owned and possessed by the petitioner.

b) If upon verification, it is found that the land measuring 06 Marlas comprising khasra No. 176/165 is a defence land, the petitioner shall not be entitled to any building permission and respondents would be within their rights to retrieve the said land after following due process of law and;

c) if, on joint verification, by respondent no.2 and Assistant Commissioner, Revenue of the concerned District, it is found that petitioner in fact is owner in possession of the land measuring 06 Marlas falling under Khasra No. 176/165 and meets other requirements for grant of building permission, respondent no. 3 shall process the case of the petitioner for grant of building permission and take final decision thereon within four weeks' from the date, it receives the report of joint verification conducted by the respondent no.2 and Assistant Commissioner, Revenue of the concerned District.

d) Ordered accordingly.

This disposes of writ petition along with connected IA(s).