Excelsior Correspondent
Srinagar, Dec 10 :The Jammu and Kashmir Special Tribunal has set aside the order of sealing of a multi-storeyed complex issued by the Srinagar Municipal Corporation (SMC) by recording that the Corporation has completely allowed the construction of structure and issued the order of sealing at a very belated stage in contravention of laws.
Observing that the Corporation remained silent and did not take action on time against the illegal constructions in Srinagar city and after completion of such construction issue sealing orders without following the procedure of law, the member bench-III of the Special Tribunal said the impugned sealing order has attained nullity in the eyes of law and set aside the same.
Tribunal directed the Commissioner SMC to examine the matter in light of the provisions of law and new Master Plan and initiate process after verification of ownership of land and building in question from the revenue department within one month.
Tribunal has noted that the Corporation is firstly allowing the illegal constructions and after their completion is issuing sealing orders instead of taking action at the time of construction of such structures giving a golden opportunity to the violators to challenge the same before the forum (Tribunal) as such are putting burden on the forum.
“The case is shrouded in mystery, especially with the relevant record admittedly misplaced by the Enforcement Wing of SMC. As a result, the occupants of the building are caught between the devil and the deep blue sea”, Tribunal said.
Tribunal for not responding by the SMC to the pleas where-under the sealing orders are challenged said that in absence of any stand taken by the SMC, the Tribunal would not like to step into his shoes or spoon-feed the SMC.
Tribunal recorded that in majority of cases it has been observed that while appeals against the demolition orders issued by the SMC several years ago, the illegal constructions either raised in violation of building permissions or without any permission have since been completed and are in functional.
The said position has also been confirmed by the CEO SMC in a number of cases pending before the tribunal, where multi-storeyed commercial complexes have come up in residential areas against the zonal regulations and land use as mentioned in the Master Plan.
“It is noted with concern that these reports are not place before the Commissioner by the Enforcement Wing and instead the burden is transferred to the Tribunal while the illegal constructions continue unabated”, the member recorded adding with “Even in cases dismissed or disposed of by the Tribunal, no demolition of illegal constructions are carried out for obvious reasons due to inaction or delay caused in taking such by SMC”.
Tribunal also recorded that in some cases, complaints are not registered under the relevant provision of law by the police or necessary assistance is not provided and also the Corporation is ill-equipped to execute such demolition orders with non-availability of machinery.
The Tribunal while dealing with instant sealing order said the same has been issued without initiating action under JK Municipal Corporation Act and was issued without any intent for its execution and apparently without ascertaining the ownership of land in question from the revenue department.
“The sealing order has been issued more than three years ago does not shed any light on the age of the structure in question and during the intervening period, the building in question remained functional with more than two dozen shops flourishing on the ground and first floor for the last several years”, reads the judgment.
The Tribunal observed that in case the Commissioner SMC decides to initiate any action under law in respect of illegal structures, it shall have to be in consonance with law. “The Commissioner has remained oblivious to the illegal constructions in Srinagar city. This despite repeated bugle calls sounded by the Tribunal for the last more than a year”, Member said.
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