Excelsior Correspondent
JAMMU, Aug 13: In a stern message against “proxy litigation” and belated objections, the High Court of Jammu & Kashmir and Ladakh has dismissed a petition challenging the regularization of a minor deviation in construction of a building in Hyderpora area of Srinagar, ruling that the petitioner had “no locus” and the Special Tribunal’s decision was in full compliance with the law.
Justice Wasim Sadiq Nargal, while pronouncing the verdict in Noor Mohammad Dar Versus Srinagar Municipal Corporation & Others case, held that the petitioner’s claims were “misconceived” and amounted to an abuse of process.
The controversy began with Srinagar Municipal Corporation (SMC) demolition notice dated May 12, 2022 alleging that the building exceeded the sanctioned 1,763 sq. ft. area by 118 sq. ft. (about 7%) and failed to maintain proper setback.
The demolition notice was challenged before the Special Tribunal, which vide order dated May 24, 2022 allowed the construction to continue with the direction to the owner to apply for revised building permission.
The order of the Tribunal was challenged before the High Court in the earlier round of litigation and High Court vide order dated December 19, 2023 quashed the Tribunal’s order and remanded the matter for fresh consideration directing it to determine whether the violation was major or minor before suggesting revised permissions.
The Special Tribunal vide order dated May 29, 2024 held the deviation as minor and within the limits for compounding under the J&K Unified Building Bye-Laws, 2021. Accordingly, the Tribunal remanded the case back to SMC with the direction to compound/regularize the deviation as per the Unified Building Bye-Laws, 2021 and within the framework of the Srinagar Master Plan 2035. Following the Tribunal’s order, SMC vide order dated November 19, 2024 regularized the deviation.
In the second round of litigation, one Noor Mohammad Dar, who was not a party to the earlier litigation, approached the High Court alleging that the Tribunal ignored the High Court’s remand directions and repeated earlier errors and the core demolition notice objection that the construction violated land-use norms-was left unaddressed.
After hearing counsels for the petitioner and respondents, Justice Wasim Sadiq Nargal, while addressing the issue of compliance with earlier directions of the High Court, observed “the Tribunal, in its impugned order, has independently evaluated the facts, nature of deviation, the applicable legal framework under the 2021 Bye-Laws and the authority of the Corporation to regularize minor deviations as such the Tribunal’s approach cannot be termed as perfunctory or mechanical”.
“Once a competent authority regularizes construction that is compoundable under applicable building Bye-Laws, the same cannot be revisited or invalidated unless the regularization is shown to be illegal, mala fide or ultra vires. No such case has been made out by the petitioner”, the High Court said.
About the nature of judicial review, Justice Nargal said, “writ jurisdiction under Article 226 is limited to cases of illegality, irrationality or procedural impropriety. The High Court cannot act as an appellate authority to re-appreciate evidence or reassess factual findings of the Tribunal – the final fact-finding body in such matters”.
On land-use violation allegation, the High Court noticed that petitioner’s claim that construction violated land-use norms was unsupported by evidence as no zoning map, notification, or official document was produced. “Mere assertions without cogent proof cannot be the basis to invalidate an administrative decision”, the High Court added.
Regarding regularization of deviations, the High Court said that once a competent authority lawfully regularizes a compoundable deviation, it cannot be reopened unless shown to be illegal, mala fide or ultra vires. “The 7% deviation was well within permissible limits for regularization and the SMC order dated 19.11.2024 had not been challenged by the petitioner”, the court said.
Moreover, petitioner was not a party to the earlier case or Tribunal proceedings. No personal or direct legal injury was shown; reliance on “public interest” was insufficient in these circumstances, the High Court said and labeled the petition a proxy litigation as the petitioner had been watching from the fence and raised objections only after the Tribunal’s second order.
Accordingly, the High Court dismissed the writ petition.
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