Safiya Malik

The High Court of Jammu & Kashmir and Ladakh, Single Bench of Justice Wasim Sadiq Nargal, has dismissed a writ petition challenging the order of the J&K Special Tribunal concerning a construction deviation. The Court upheld the Tribunal's finding that the deviation in question was minor and had been lawfully compounded under the Jammu & Kashmir Unified Building Bye-Laws, 2021. It stated that no procedural impropriety, jurisdictional error, or infringement of legal rights was established to warrant interference under Article 226 of the Constitution. The Court further held that the petitioner lacked locus standi to maintain the proceedings, terming the petition an abuse of process of law.

The case arose from a demolition notice issued by the Srinagar Municipal Corporation (SMC) to a private respondent for exceeding the sanctioned building area by 118 sq. ft. on a plot earmarked for residential use. The sanctioned area was 1763 sq. ft., but the constructed area totalled 1881 sq. ft., reflecting a 7% deviation. This deviation, according to SMC, was minor and fell within compoundable limits under the prevailing byelaws.

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Earlier, in WP(C) No. 1411/2022, the High Court had set aside a Tribunal order dated 24.05.2022 for failing to determine whether the deviation was minor or major before directing the application for revised building permission. The Court remanded the matter for fresh adjudication, instructing the Tribunal to decide the appeal expeditiously while maintaining status quo.

The petitioner in the present case, who was not a party to the earlier litigation, challenged the subsequent Tribunal order dated 29.05.2024. It was contended that the Tribunal failed to comply with the High Court’s earlier directions, did not address objections regarding land use, and repeated the errors annulled in the previous round of litigation.

The petitioner argued that the Tribunal had an obligation to refer to and follow the High Court’s remand order, but instead passed its decision without addressing core issues in the demolition notice, particularly the alleged contravention of land use norms. The petitioner further claimed that the earlier judgment was in rem, entitling him to challenge its violation.

In response, the private respondent contended that the petition was proxy litigation, pointing out the petitioner had remained inactive during earlier proceedings and only filed a representation on 03.06.2024 after the Tribunal’s latest order. It was argued that the petition lacked bona fides and locus standi, as the deviation had already been compounded under the Unified Building Byelaws and accepted by the relevant authorities.

The SMC’s status report confirmed that the deviation had been regularised through an order dated 19.11.2024, increasing the sanctioned area to 1881 sq. ft. It also stated that the petitioner’s representation was rejected on 04.02.2025, noting that the deviation was within compoundable limits and that no contravention of the building permission was found. The petitioner had not challenged either the revised building permission or the rejection of his representation.

Justice Nargal examined whether the Tribunal failed to adjudicate the matter afresh as per the High Court’s earlier remand, whether it had jurisdiction to regularise the deviation without independent determination of its nature, and whether the petitioner had locus standi.

On the first issue, the Court recorded: "Upon perusal of the impugned order dated 29.05.2024... it is evident that the Tribunal has taken cognizance of the extent of deviation... constituting approximately 7% deviation... found that such deviation was compoundable... and had been regularized by the competent authority." The Court found that the Tribunal had evaluated facts, the legal framework, and the authority of SMC to regularise minor deviations.

The Court stated: "The Tribunal’s approach cannot be termed as perfunctory or mechanical... The Tribunal has applied its mind to the relevant issue of legality of construction... and has rightly regularized in accordance with law." It stated that regularisation of a compoundable deviation cannot be revisited unless shown to be illegal, mala fide, or ultra vires.

On the second issue, the Court reiterated the limited scope of judicial review under Article 226, noting: "This court while exercising writ jurisdiction cannot re-evaluate/re-appreciate the evidence unless... the order... is perverse, irrational or in violation of any statutory provisions." The Court observed that the Tribunal was competent to compound the violation, which was found minor after thorough enquiry.

Addressing the petitioner’s claim of land use violation, the Court observed: "The petitioner has... failed to place on record any zoning map, notification, or official document to substantiate this allegation... Mere assertions... cannot form the basis for invalidating an administrative decision."

On locus standi, the Court stated: "The petitioner was not a party to those proceedings nor has any personal or legal right been pleaded as having been infringed... such a general assertion of public interest is not sufficient to invoke the extraordinary writ jurisdiction of this Court." It held that the petition was an indirect attempt to reopen concluded litigation without demonstrating any specific legal injury.

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Justice Nargal concluded that the petitioner had not established procedural infirmity, violation of legal rights, or jurisdictional error. The Court held: "The writ petition which is devoid of any merit is hereby dismissed alongwith all connected applications." It recorded that the deviation had been regularised by the competent authority, that the petitioner was neither an immediate neighbour nor directly affected, and that there was no cogent material to show illegality or arbitrariness in the SMC’s actions.

The Court found no ground to interfere with the Tribunal’s order or the SMC’s regularisation decision, stating that mere dissatisfaction with statutory actions, absent demonstrable illegality, cannot justify exercise of writ jurisdiction.

Advocates Representing the Parties

For the Petitioners: Mr. R.A Jan, Senior Advocate with Ms. Humaira Sajad, Advocate

For the Respondents: Mr. Jahangir Iqbal Ganai, Senior Advocate with Ms. Mehnaz Rather, Advocate; Mr. Bikramdeep Singh, Deputy Advocate General

Case Title: Noor Mohammad Dar v. Srinagar Municipal Corporation & Ors.

Case Number: WP(C) 1499/2024 CM (4032/2024)

Bench: Justice Wasim Sadiq Nargal