Jammu & Kashmir High Court
Anoop Uppal vs Jammu Municipal Corporation on 5 March, 2026
HIGH COURT OF JAMMU & KASHMIR AND LADAKH 2026:JKLHC-JMU:689
AT JAMMU
WP(C) No. 2153/2025 Reserved on: 11.02.2026
CM No. 4911/2025 Pronounced on: 05.03.2026
CM No. 5874/2025 c/w Uploaded on: 05.03.2026
CCP(S) No. 382/2025
Whether the operative part or full
judgment is pronounced: Full
1. Anoop Uppal, Age 70 years,
S/oChuni Lal R/o 242/4
Near Aap Shambhu Mandir,
Roop Nagar,
Tehsil & District Jammu.
2. Anu Radha Age 61 years,
Wd./o Darshan Kumar
R/o H. No.7 Nar Singh Kucha,
Panjtirthi, Tehsil & District Jammu
3. Saroj Rajput, Age 51 years,
D/o Sansar Singh Jasrotia
R/o H. No. 332 Exchange Road,
Tehsil & District Jammu.
4. Dev Kumar Age 72 years,
S/o Krishan Daas
R/o H. No. 230 Ustad Mohalla,
Tehsil&District Jammu.
5. Sanjay Pandoh Age 55 years,
S/o Late Om Parkash Pandoh
R/o 376 Jullaka Mohalla,
Tehsil&District Jammu.
6. Sitanshoo Sharma, Age 39 years,
S/o Sh. Kastori Lal Sharma
R/o 27-B Basant Nagar Janipur,
Tehsil & District Jammu.
7. Raman Bajaj, Age 54 years,
S/o Late Kailash Chander
R/o 149-A Dogra Hall,
Tehsil & District Jammu
.... Petitioner(s)
Through:- Mr. Nirmal K. Kotwal, Sr. Adv
with Mr. Rajveer Singh Isher, Adv.
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Vs.
1. Jammu Municipal Corporation
through its Commissioner,
Town Hall, Jammu.
2. District Magistrate, Jammu
3. Add. District Magistrate, Jammu
4. Executive Engineer,
PWD (R&B) Division,
Jammu-East
5. Assistant Executive Engineer,
PWD (R&B) Division,
Jammu-East
6. Naresh Kumar Gandotra,
S/o Sh. Prem Nath Gandotra,
R/o H. No. 5-6 Friends Colony,
Trikuta Nagar, East-Ext,
Jammu
7. Mrs. Shobha Gandotra,
W/o Lt. Sh. Rajesh Kumar Gandotra,
R/o 70-Exchange Road,
Jammu .....Respondent(s)
Through:- Ms. Priyanka Bhat, Advocate
vice Mrs. Monika Kohli, Sr. AAG
for R-2 & R-3
Mr. Mayank Gupta, Advocate
for R-1.
Mr. Nirmal Kotwal, Advocate
vice Mr. Ravinder Gupta, AAG
for R- 4 & R-5
Mr. Piyush Gupta, Advocate for R-6
& R-7.
CORAM: HON‟BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
Prayer:
1. Petitioners, through the medium of the instant writ petition, have
sought the following reliefs:
i) Issue a writ of certiorari quashing the impugned order
No. 41 of 2025 dated 26.07.2025 passed by the
Commissioner, Jammu Municipal Corporation
(respondent No.1)
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ii) Issue a writ of mandamus directing the respondent No.1
to permit the petitioners to open their shops already
found safe by the committee of officers headed by
executive engineer PWD (respondent No.4)Factual Matrix:
2. Petitioners are aggrieved of order No. 41/2025 dated 26.07.2025
issued by the Commissioner, Jammu Municipal Corporation,
whereby it has been directed that a firm empanelled for safety audit
of buildings by the Municipal Corporation, Jammu shall inspect and
furnish a detailed report within one week regarding the safety of the
building situated at 70, Exchange Road, Jammu.
3. By virtue of the aforesaid order, the Commissioner, Jammu
Municipal Corporation, directed that the said inspection shall be
carried out in the presence of representatives of the owners, i.e.,
respondent Nos. 6 and 7, as well as the tenants, i.e., the petitioners.
The petitioners claim to be tenants and are running their respective
businesses in the shops owned by respondent Nos. 6 and 7 for several
decades at 70, Exchange Road, Jammu. It is the specific case of the
petitioners that they have been carrying out lawful business activities
from the said shops for decades and that the shops are their sole
source of livelihood. It has also been clarified that the building
consists of residential and commercial portions, and the petitioners
are tenants in the commercial portion situated on the ground floor.
4. It is the specific case of the petitioners that respondent Nos. 6 and 7,
with mala fide intention to forcibly evict them, submitted an
application dated 29.08.2024 before the Jammu Municipal
Corporation seeking declaration of the building as unsafe. Pursuant
thereto, respondent No. 1 directed respondent Nos. 6 and 7 to obtain
a safety/unsafety certificate from the Public Works Department vide
communication dated 07.10.2024. Thereafter, respondent No. 4,
Executive Engineer, PWD (R&B), Jammu East, issued
communication dated 13.11.2024 declaring the building unsafe.
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5. Based on the aforesaid communication, the Commissioner, Jammu
Municipal Corporation, issued notice dated 07.01.2025,
purportedly under Section 258(2) of the Jammu Municipal
Corporation Act, 2000, directing demolition or securing/repair of
the building within a period of 30 days from the receipt of the said
notice, failing which, it was conveyed that action under rules shall
be initiated against the petitioners. Although the said notice was
addressed to respondent Nos. 6 and 7 but the same directly
affected the petitioners, who were occupying the shops in question.
Feeling aggrieved thereof, the petitioners preferred writ petition
bearing WP(C) No. 299/2025, challenging the aforesaid notice
dated 07.01.2025 and the communication dated 13.11.2024 on
various grounds including violations of natural justice congenial
between private owners and Municipal Authorities and also
absence of any scientific inspection.
6. The further case of the petitioners is that they came to know of the
aforesaid demolition notice only upon receiving eviction notice
dated 22.01.2025 issued by respondent No. 1 claiming that the
building had been declared unsafe and had to be vacated.
7. The matter did not end there. The Jammu Municipal Corporation
issued yet another order dated 26.07.2025 vide No. 41/2025,
allegedly in compliance with the direction passed by this Court on
16.07.2025, wherein after hearing both the parties as well as
considering the clarification of the Executive Engineer, Division
Jammu East, regarding issuing contradictory reports dated
13.11.2024 and 26.05.2025, it was held that the firm empanelled
for safety audit of the building by Municipal Corporation, Jammu,
shall be directed to inspect and furnish a detailed report within a
week with regard to the safety of the building situated at 70,
Exchange Road, Jammu, and the Commissioner, Municipal
Corporation, Jammu, through the aforesaid order dated
26.07.2025, directed that the said inspection shall be done in the
presence of representatives of the owners as well as the tenants.
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8. The aforesaid notice and the communication were called in
question by the petitioners in another petition which came to be
registered as WP(C) No. 299/2025. However, this Court, vide
order dated 08.08.2025 passed in the instant matter has kept the
order impugned dated 26.07.2025 in abeyance.
9. It has been brought to the notice of this Court by the learned senior
counsel for the petitioner that this Court, vide order dated
02.04.2025 in WP(C) No. 299/2025, has passed a detailed order,
wherein the following direction was issued:
“06. Keeping in view the peculiar facts and circumstances
of the case and the urgency involved, this Court direct
respondent nos. 4 and 5 to constitute an expert committee
of the engineering wing, afresh, with a view to conduct an
on spot inspection of all the shops occupied by the
petitioners and the building as well separately. The entire
exercise of carrying on the inspection and submitting the
report to this Court with regard to the condition of the said
shops as well as building shall be done strictly in
accordance with the procedure as envisaged under the
Municipal Corporation Act and the rules framed
thereunder by associating the petitioners and other
stakeholders including the landlord of the said building as
well as all the tenants of the shops on or before the next
date of hearing.
07. It is made clear that the assessment of the building and
taking of the samples of the shops in question be carried
out in presence of the owner of the building/shops, the
tenants (petitioners herein) occupying the said shops and
the representatives of PWD(R&B) by notifying the date in
advance so that all the parties are aware of such process.
The entire exercise shall be carried out in presence of
respondent no. 3 (Additional District Magistrate Jammu)
and the report be submitted by respondent no. 4 (Executive
Engineer PWD (R&B) Division Jammu East and
respondent no. 5 (Assistant Executive Engineer PWD
(R&B) Sub-Division No. 1 Jammu East in consultation
with respondent no. 1 (Commissioner, Jammu Municipal
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Corporation) under the supervision of respondent no. 3
before this Court on or before the next date of hearing.
08. Learned counsel for the petitioners is directed to give
the detailed particulars of all petitioners, who are occupying
the said shops and are before this Court today against
proper receipt to Mr. Ravinder Gupta, learned AAG so that
they are notified well in advance.”
10. Thus, from a bare perusal of the aforesaid order, it is apparently
clear that this Court directed respondent Nos. 4 and 5 to constitute
an expert committee of the Engineering Wing afresh with a view to
conduct on-spot inspection of all the shops in question occupied by
the petitioners and the building as well, separately, strictly in terms
of the procedure envisaged under the Municipal Corporation Act
and the Rules framed thereunder, by associating the petitioners and
other stakeholders, including the landlords of the said building,
i.e., respondent Nos. 6 and 7 herein, as well as the tenants of the
shops (petitioners herein).
11. This Court further made it clear that the assessment of the building
and taking of samples of the shops in question shall be carried out
in the presence of the owners of the building/shops, the tenant-
petitioners occupying the said shops, and the representatives of
PWD (R&B) Department, by notifying the date in advance so that
all parties are made aware of such process. The entire exercise was
required to be carried out in the presence of the Additional District
Magistrate, Jammu. The order further reveals that the report was
required to be submitted by respondent No. 4, Executive Engineer,
PWD (R&B), Division Jammu East, and respondent No. 5,
Assistant Executive Engineer, PWD (R&B), Sub-Division No. 1
Jammu East, in consultation with respondent No. 1,
Commissioner, Jammu Municipal Corporation, under the
supervision of respondent No. 3 before this Court.
12. In compliance with the aforesaid order, a Committee was
constituted pursuant to the order passed by this Court, wherein all
the stakeholders were taken on board. The said Committee
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conducted on-spot inspection of the building as well as the shops.
The Assistant Executive Engineer, PWD (R&B), Sub-Division
Gandhi Nagar, Jammu, submitted the report on 26.05.2025, stating
clearly that the shops occupied by petitioner Nos. 1 to 5 and 7 were
structurally safe, and insofar as one shop was concerned, minor
repairs were required to make the same fit for public use.
13. Pursuant to the aforesaid order, the Assistant Executive Engineer
has submitted a detailed report, which has been placed on record
with the instant petition. From a bare perusal of the report, it is
apparent that the shops which are occupied by the petitioners are
safe and fit for public use, the details of which find mention in the
inquiry report barring one shop, i.e., Shop No. 5, which has been
declared fit for use subject to removal of the wooden plank roof
and laying of an RCC slab.
14. Once it is the specific case of the petitioners that the inspection had
already been conducted by the Engineering Wing after taking on
board all the stakeholders in compliance with the order passed by
this Court, and the report submitted by the Engineering Wing holds
the field as on date and has not been called in question by any
person, there was no occasion for the Commissioner to have issued
the aforesaid order which is impugned in the instant petition.
15. The petitioners, with a view to fortify their claim, have placed on
record the aforesaid report, which was later submitted to the
Additional District Magistrate, Jammu, who concurred with and
endorsed the same.
16. According to Mr. Nirmal Kotwal, learned senior counsel, the
Commissioner ought to have relied upon the report submitted by
the PWD (R&B) Department which was pursuant to the direction
issued by this Court, and which report was submitted after taking
on board all the stakeholders, and no grievance was ever raised by
any party challenging the said report, and thus there was no
occasion for the Commissioner to raise doubts about the said
report which had been accepted by all.
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17. According to Mr. Nirmal Kotwal, learned senior counsel,
reopening of an issue which already stood concluded by this Court
would amount to acting in derogation to the mandate and spirit of
the order passed by this Court, wherein a direction was issued to
reconsider the issue in the light of the report already submitted by
the Engineering Wing. However, the Commissioner, in most
contemptuous manner on his own has rejected the said report,
which was beyond his jurisdiction once the matter already stood
concluded by this Court and the Court appointed committee
comprising of the engineering wing of PWD (R&B) has already
declared the shops as safe.
18. The record reveals that this court in the earlier round of litigation
after hearing all the parties, passed a final judgment on 16.07.2025
in WP(C) No. 299/2025 quashing the order dated 07.01.2025 and
directing the Commissioner, JMC, to reconsider the matter strictly
in the light of the report submitted by PWD (R&B) Department
dated 26.05.2025, after affording an opportunity of hearing to all
the stakeholders by passing a reasoned order within two weeks but
the Municipal Commissioner, acting as super authority, over and
above this Court and in flagrant violation of the direction passed
by this Court, has issued the impugned order which, is not
sustainable in the eyes of law, being contemptuous and tantamount
to reopening an issue which already stood concluded by this Court.
19. Surprisingly, respondent No. 1, instead of complying with the
binding directions of this Court, passed a fresh order No. 41/2025
dated 26.07.2025, which is impugned in the present petition,
whereby respondent No. 1 directed that a further audit be carried
out by a private empanelled firm, thereby evading the obligation to
decide the matter finally.
20. The learned Counsel for the petitioners submits that the impugned
order is evasive, non-speaking, and has the effect of nullifying the
binding directions of this Court dated 16.07.2025. It is further
submitted that, by virtue of the impugned order, the issue which
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had already been clinched has been reopened, thereby prolonging
the agony and uncertainty faced by the petitioners.
21. As per the petitioners, the impugned order is in violation of the
judgment passed by this Court dated 16.07.2025, whereby,
directions were issued to reconsider the matter in light of the report
of respondent No. 4 dated 26.05.2025, after hearing all parties by
passing a fresh order.
22. It is further submitted that the impugned order is non-speaking,
devoid of any reasoning, finding, or reference to the report
submitted by PWD (R&B) dated 26.05.2025, and thus the action of
respondent No. 1 falls within the realm of abuse of process. The
learned counsel submits that the impugned order is contemptuous
and ignores the findings of the competent public authority, i.e.,
PWD (R&B), thereby denying finality to judicial adjudication and
causing undue harassment to the petitioners.
23. It has also been alleged that the decision of the Commissioner is
intended to aid the private interest of respondent Nos. 6 and 7 at
the cost of public justice. Lastly, it is submitted that the impugned
order is arbitrary, illegal, and violative of the principles of natural
justice and is liable to be quashed.
24. Therefore, this Court, after feeling prima facie satisfied on the very
first day of hearing, vide order dated 08.08.2025, has kept the
aforesaid order dated 26.07.2025 in abeyance by making it clear
that the Municipal Commissioner shall be at liberty to take a
decision in accordance with the direction dated 16.07.2025 passed
in WP(C) No. 299/2025.
Submissions on behalf of the respondents:
25. Reply stands filed on behalf of respondent Nos. 1, 6 and 7.
26. Mr. Mayank Gupta, learned counsel appearing on behalf of
respondent No. 1, while raising preliminary objections, submits
that the present writ petition is not maintainable as the same
constitutes a second round of litigation initiated by the petitioners
on the same cause of action, wherein the same petitioners had
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already challenged notice dated 07.01.2025 and communication
dated 13.11.2024 by filing a writ petition which was registered as
WP(C) No. 299/2025, whereby directions were issued to
respondent Nos. 6 and 7 to demolish, secure, or repair the building
situated at House No. 70, Exchange Road, Jammu.
27. It is further submitted that respondent No. 1 convened a personal
hearing on 21.07.2025 in his office chamber, which was attended
by officials of the Municipal Corporation, owners (respondent
Nos. 6 and 7), and the tenants (petitioners herein). After hearing
the parties, following directions were issued:
“(a) The Executive Engineer, PWD (R&B) Division Jammu East
was asked to furnish an explanation regarding the contradiction in
the reports dated 13.11.2024 and 26.05.2025.
(b) The Joint Commissioner (Works) was directed to ensure that a
representative of the firm empanelled with JMC for Building
Safety Audits appears on the next date of hearing.”
28. Thus, the respondents have justified the issuance of the impugned
order on the ground of carrying out the safety audit by an
independent third party, which firm was directed to carry out a
comprehensive safety inspection of the building situated at 70,
Exchange Road, Jammu, in the presence of both the owners and
tenants and submit a detailed report within one week. However,
respondent No. 1 has not filed any para-wise reply to the
averments made by the writ petitioners and has instead filed the
reply by taking only preliminary objections.
29. Another set of reply also stands filed on behalf of respondent Nos.
6 and 7, wherein objections have been raised that no cause of
action has accrued to the petitioners for filing the instant petition.
Respondent Nos. 6 and 7 have justified their stand by asserting that
the building is unsafe and have also justified the action of the
Jammu Municipal Corporation by virtue of the impugned order.
Respondent Nos. 6 and 7, while filing their reply, have also
questioned the report submitted by the Engineering Wing of PWD
(R&B) pursuant to the order passed by this Court, although no
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formal challenge has been made by respondent Nos. 6 and 7 to the
said report before any competent forum.
30. The record further reveals that the instant petition was listed
before this Court on 08.08.2025, wherein the Coordinate Bench of
this Court was pleased to keep in abeyance the impugned order
dated 26.07.2025 issued by respondent No. 1. While granting the
aforesaid interim protection, this Court further clarified that the
Municipal Commissioner shall be at liberty to take a decision
strictly in accordance with the directions dated 16.07.2025 passed
in WP(C) No. 299/2025.
31. However, Ms. Priyanka Bhat, learned counsel appearing on behalf
of Mrs. Monika Kohli, learned Sr. AAG for respondent Nos. 2 and
3, has not filed any separate reply and has instead relied upon the
reply filed by respondent No. 1. Similarly, no separate reply has
been filed by Mr. Ravinder Gupta, learned AAG appearing on
behalf of respondent Nos. 4 and 5. Rather, Mr. Nirmal Kotwal,
learned Senior Counsel, has placed reliance upon the report
submitted by PWD (R&B) pursuant to the directions passed by this
Court dated 02.04.2025 in WP(C) No. 299/2025, and has
submitted that there was no occasion for respondent No. 1 to have
issued the impugned order in light of the said report.
Legal analysis:
32. Heard learned counsel for the parties at length and perused the
record.
33. I have also perused the impugned order passed by respondent No.
1, minutely.
34. It appears that the reason for issuing the impugned order was the
alleged contradictory reports dated 13.11.2024 and 26.05.2025.
Being influenced by the said reports, the Municipal Commissioner
directed that a firm empanelled for safety audit by the Municipal
Corporation, Jammu, shall inspect and furnish a detailed report
regarding the safety of the building situated at 70, Exchange Road,
Jammu, in the presence of representatives of the owners as well as
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the tenants. However, this Court is of the view that the order
passed by the Commissioner is in flagrant violation of the
judgment passed by this Court dated 16.07.2025 in WP(C) No.
299/2025, whereby a specific direction was issued to reconsider
the matter strictly in light of the report of respondent No.4, i.e.,
PWD (R&B), Jammu East dated 26.05.2025, after hearing all
parties and passing a fresh order within two weeks. The
Commissioner, while passing the impugned order, has violated the
said direction with impunity and brushed aside the report
submitted by the committee of engineers constituted pursuant to
the order dated 02.04.2025 passed by this Court in the earlier
round of litigation.
35. It is trite that once a competent court issues a direction requiring
reconsideration strictly in light of a specified report, the scope of
such reconsideration stands circumscribed by the judicial mandate
itself. The authority is bound to act within the contours of the
directions issued and cannot reopen or re-agitate the foundational
issue which stood concluded by virtue of the expert determination
obtained pursuant to the orders of this Court.
36. Reconsideration “in light of the report” necessarily obligated the
authority either to accept the findings of the expert body or, in the
alternative, to record cogent, legally sustainable and reasoned
grounds for differing from such findings. In absence of any such
recorded reasons, the direction for a fresh safety audit through
another agency amounts to abdication of the duty cast upon
respondent No. 1 and cannot be sustained in law.
37. This Court cannot lose sight of the fact emerging from the record
that the petitioners are shopkeepers dependent upon the said
premises for their livelihood, who have been carrying on their
businesses in the subject premises and have suffered severe
prejudice, financial loss and interruption of livelihood for nearly
two years on account of an initial official report declaring the
building structurally unsafe. The said report, which formed the
basis of administrative action by the Municipal Commissioner and
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was also noticed by this Court at an interim stage, has now been
rendered factually incorrect upon a detailed, court-supervised
inquiry conducted by the Engineering Wing of the PWD
Department under the supervision of a Magistrate. The subsequent
technical report categorically concludes that the building is
structurally safe, thereby vindicating the consistent stand taken by
the petitioners from the very inception. The reliance upon an
erroneous report has thus resulted in avoidable litigation,
prolonged closure of shops, loss of income and mental anguish to
the petitioners, which squarely warrants judicial scrutiny.
38. At the outset, it is necessary to observe that the determination as to
whether a building is structurally safe or unsafe squarely falls
within the exclusive domain of technical experts, i.e. the
competent Engineering Wing or a duly authorized technical
agency. Courts of law do not possess the technical expertise to
independently assess structural safety, nor are they expected to
substitute expert opinion with judicial assessment. Once a
competent engineering authority, after conducting an extensive
technical exercise under the supervision of a Magistrate, submits
its report, there remains no legal justification either for this Court
or for the administrative authorities to doubt the findings recorded
therein, unless the same is shown to be perverse, mala fide, or
subject matter of challenge before any appropriate fora.
39. The Hon‟ble Apex Court in “State of Tamil Nadu and others v.
K. Shyam Sunder and others” (2011) AIR SC 3470, has
authoritatively held that in matters involving technical and expert
determination, courts should ordinarily refrain from substituting
their own views for that of expert bodies and must show due
deference to expert opinion, by holding as under:
“V. Interference by the Court with expert body’s opinion
42. Undoubtedly, the court lacks expertise especially in disputes
relating to policies of pure academic educational matters.
Therefore, generally it should abide by the opinion of the expert
body. The Constitution Bench of this Court in University Of
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Mysore v. C.D. Govinda Rao AIR 1965 SC 491 (AIR p. 496 , para
13) held that “normally the courts should be slow to interfere
with the opinions expressed by the experts”. It would normally be
wise and safe for the courts to leave such decisions to experts who
are more familiar with the problems they face than the courts
generally can be. This view has consistently been reiterated by
this Court in Neelima Misra v. Harinder Kaur Paintal ( 1990) 2
SCC 746 , (1990) 13 ATC 732, AIR 1990 SC 1402, Victoria
Memorial Hall v. Howrah Ganatantrik Nagrik Samity ( 2010) 3
SCC 732 , AIR 2010 SC 1285, Basavaiah (Dr.) v. Dr. H.L
Ramesh ( 2010) 8 SCC 372 and State of H.P v. H.P Nizi
Vyavsayik Prishikshan Kendra Sangh (2011) 6 SCC 597.”
40. Similarly, the Bombay High Court in “Anahita Pandole (Dr.) v.
State of Maharashtra & Others”, Writ Petition No. 1132/2002
along with connected matters, decided on 05.05.2004, has held
that where a statutory expert body is vested with authority to
render technical recommendations, the administrative head is
bound to act in accordance with such expert opinion and cannot
substitute it with his personal view. It was observed as under:
“26. Equally fundamental, to our mind, is the objection
to the validity of the approach which has been adopted
by the Municipal Commissioner in the present case. The
Heritage Conservation Committee is an expert body
charged and vested with a special obligation under the
provisions contained in D.C Regulation 67. Regulation
67(2) mandates that the Commissioner “shall act on the
advice of in consultation with” the Heritage
Conservation Committee. The power of the Municipal
Commissioner to overrule the decision of the Committee
is confined to exceptional cases and for reasons to be
recorded in writing. The power is to be exercised by the
Commissioner himself and is not to be delegated to any
other Officer. In our judgment delivered on 19th April,
2003, we had occasion to consider the status of the
Heritage Conservation Committee and the role and
position of the Municipal Commissioner in relation to
the recommendations of the Committee. We have held
that the Municipal Commissioner must invariably act in
accordance with the expert recommendations of the
Committee. Committee consists of experts drawn from
the areas of urban conservation, environment and
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history, apart from experts with experience in structural
engineering. What the Municipal Commissioner has
done in the present case is simply to reject the view of
the Heritage Conservation Committee and to substitute
his own personal opinion for the view which has been
formed by the Heritage Committee. What the Municipal
Commissioner does is to tell us that he does not agree
with the Committee. There are no exceptional reasons
for the Municipal Commissioner to have overridden the
Heritage Committee…
47. The present case relates to the illuminated hoarding
admeasuring 16 ft. × 12 ft. erected in the compound of
Islam Club situated at N.A Purandare Marg,
Chowpatty. Chowpatty sea face buildings have been
listed at Sr. No. 458 of the Heritage List. The Heritage
Committee has dealt with this hoarding at Sr. No. 22 in
its second list and has come to the conclusion that
Guidelines 1 and 3 of its guidelines are violated by the
hoarding. The Expert Committee appointed by this
Court was also of the view that the hoarding was liable
to be removed since it was in violation of Guidelines
16(a) and (g) framed by the Municipal Corporation. The
Municipal Corporation had not accepted the
recommendation and was of the view that the hoarding
should be retained since it is on a Grade III building.
We have specifically disapproved of the approach of the
Municipal Commissioner and overruled his findings in
regard to Grade III structures. For the reasons already
indicated in the body of the main judgment, we are of
the view that the Municipal Commissioner was not
justified in interfering with the well considered findings
of the Heritage Conservation Committee. We do not find
any merit in the petition which is accordingly rejected.”
41. Once the committee of engineers was constituted in compliance
with the directions passed by this Court vide order dated
02.04.2025, and the said committee submitted a detailed report
regarding each and every shop occupied by the petitioners and the
residential building in the presence of the Additional District
Magistrate, Jammu, the Commissioner was legally bound to
follow the said report in its letter and spirit and was under a legal
obligation qua the petitioners to have acted in furtherance of the
said report by allowing the petitioners to carry on their business in
their respective shops in conformity with the findings recorded
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therein. However, to the contrary, the Commissioner, respondent
No. 1 herein, has acted in contravention of the directions passed
by this Court dated 16.07.2025 and has brushed aside the report
of the Committee of engineers constituted pursuant to the order
passed by this Court in the earlier round of litigation. Prima facie,
it appears that the Commissioner, under a misconception of law,
with a view to overreach the directions passed by this Court, issued
the impugned order which tantamount to reopening an issue which
already stood concluded by virtue of the report submitted by the
said committee and that too after giving an opportunity to all the
stakeholders. Once a competent expert body has rendered its
findings pursuant to judicial directions, the administrative authority
cannot sit in appeal over such findings, nor can it arrogate to itself
the power to order a fresh inquiry through another agency.
42. This Court, in the earlier round of litigation, had already quashed
the impugned notice/order dated 07.01.2025 issued by respondent
No. 1, whereby directions were issued to respondent Nos. 6 and 7
to demolish, secure or repair the building strictly as per norms and
rules within 30 days, failing which action under rules was to be
initiated. Though the said notice was addressed to respondent
Nos. 6 and 7, but in a way it directly pertains to the petitioners,
who are the tenants of the shops in question. This Court, while
quashing the aforesaid notice dated 07.01.2025, had directed
respondent No. 1 to reconsider the matter strictly in light of the
report of respondent No. 4 dated 26.05.2025, after hearing all the
parties by passing a fresh order within a period of two weeks.
However, instead of reconsidering the matter in light of the said
report, the Commissioner, in violation of the directions of this
Court, has brushed aside the said report and issued fresh
directions to an empanelled firm for conducting a safety audit and
furnishing a detailed report which was beyond his domain.
43. Thus, this Court is of the considered view that the order issued by
the Commissioner, which is the subject matter of the instant
petition, is contrary to the directions passed by this Court and
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appears to be an attempt to overreach the binding directions
issued by this Court and therefore cannot sustain the test of law
and is liable to be set aside. A duty was cast upon the
Commissioner to reconsider the matter strictly in light of the
report of respondent No. 4 dated 26.05.2025, instead of referring
the matter to another empanelled private firm for safety audit by
ignoring the report already submitted by the committee of
engineers constituted under the supervision of the Additional
District Magistrate, Jammu, pursuant to the directions passed by
this Court dated 02.04.2025.
44. An administrative order which disregards a binding judicial
direction and fails to assign reasons for discarding an expert
report placed before it is arbitrary. Reasoned decision making is
an essential facet of fairness in administrative action, and absence
of reasons renders the exercise of power susceptible to judicial
correction.
45. Further, where administrative action results in closure of
commercial establishments and deprivation of livelihood despite a
subsisting expert certification of structural safety, such action
must also satisfy the test of proportionality. Closure of shops
declared safe by a duly constituted technical committee would be
disproportionate to the object sought to be achieved and therefore
constitutionally impermissible.
46. It is well settled that once a Court-appointed inquiry committee
has concluded its inquiry after due testing and technical
evaluation of a building, the administrative authorities are
denuded of any power to constitute another committee or order a
parallel inquiry on the same issue. Any such action would not
only amount to reopening a settled issue but would also constitute
a clear attempt to overreach and nullify the binding judicial
directions. The action of the Municipal Commissioner in referring
the matter afresh to an empanelled firm, despite the subsistence of
a valid and unchallenged expert report, prima facie reflects an
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excess of jurisdiction, rendering the impugned order legally
unsustainable.
47. This Court is, thus, of the considered view that the Commissioner,
Jammu Municipal Corporation, has not only failed to comply with
the order passed by this Court dated 02.04.2025, but has also acted
in contravention of the binding directions issued by this Court vide
judgment dated 16.07.2025 passed in WP(C) No. 299/2025. Once
the report submitted by the Engineering Wing pursuant to the
directions of this Court had been placed on record and accepted by
both the parties, as the same has neither been challenged before any
competent forum nor set aside, respondent No.1 could neither have
ignored the same nor referred the matter afresh for a safety audit.
48. The Hon‟ble Apex Court in „Maninderjit Singh Bitta Vs Union
of India and ors.‟ (2012) 1 SCC 273, has emphatically reiterated
that orders passed by constitutional courts are binding on all
authorities and must be complied with in letter and spirit, by
holding as under:
“20. ……. Every person is required to respect and obey
the orders of the court with due dignity for the
institution. The government departments are no
exception to it. The departments or instrumentalities of
the State must act expeditiously as per orders of the
court and if such orders postulate any schedule, then it
must be adhered to. Whenever there are obstructions or
difficulties in compliance with the orders of the court,
least that is expected of the government department or
its functionaries is to approach the court for extension
of time or clarifications, if called for. But, where the
party neither obeys the orders of the court nor
approaches the court making appropriate prayers for
extension of time or variation of order, the only possible
inference in law is that such party disobeys the orders of
the court. In other words, it is intentionally not carrying
out the orders of the court. Flagrant violation of the
court’s orders would reflect the attitude of the party
concerned to under-mine the authority of the courts, its
dignity and the administration of justice…”
49. It is evident from the record that the issue regarding the structural
safety of the shops already stood concluded on the basis of the
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report dated 26.05.2025 submitted by the Engineering Wing
pursuant to the directions of this Court. The judgment dated
16.07.2025 passed by this Court directing reconsideration in light
of the said report had attained finality. Therefore, respondent No.1
was under a legal obligation to act in furtherance of the said
judgment and reconsider the matter accordingly, instead of
reopening the issue by directing another safety audit. Viewed from
any angle, the impugned order cannot sustain in the eyes of law, as
the same is arbitrary, contrary to the directions of this Court and
tantamount to reopening an issue which already stood concluded.
50. It is a well-settled principle that judicial and administrative
processes must be founded on integrity, truth, and fidelity to law
and facts. In the present case, the circumstances prima facie
suggest that the initial report declaring the building unsafe was
obtained with the oblique intention of dispossessing the petitioners
from the shops in question without resorting to lawful eviction
proceedings. If an official report is procured or influenced to
achieve such a collateral purpose, the same would amount to
fraud on power and would vitiate all consequential actions
founded thereon. The Supreme Court has also consistently held
that fraud or misrepresentation which induces judicial or quasi-
judicial action renders the proceedings void ab initio. In this
regard, the Hon‟ble Supreme Court in “Vishnu Vardhan @
Vishnu Pradhan v. State of Uttar Pradesh“, 2025 INSC 884,
has held as under:
“61. In decisions abound, the Courts have consistently
nullified orders obtained through fraudulent means. Key
excerpts from some of these decisions read thus:
….c. In A.V. Papayya Sastry v. Govt. of A.P., this Court
held:
21. Now, it is well-settled principle of law that if any
judgment or order is obtained by fraud, it cannot be said
to be a judgment or order in law. Before three centuries,
Chief Justice Edward Coke proclaimed: “Fraud avoids
all judicial acts, ecclesiastical or temporal.”
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22. It is thus settled proposition of law that a judgment,
decree or order obtained by playing fraud on the court,
tribunal or authority is a nullity and non est in the eye of
the law. Such a judgment, decree or order– by the first
court or by the final court–has to be treated as nullity
by every court, superior or inferior. It can be challenged
in any court, at any time, in appeal, revision, writ or
even in collateral proceedings.”
51. The Hon‟ble Supreme Court in “Express Newspapers Pvt. Ltd.
and Others v. Union of India and Others” (AIR 1986 SC 872),
has elaborately explained the doctrine of “fraud on power” and
has held that where statutory power is exercised for a purpose
other than that for which it is conferred, such action stands
vitiated in law, by holding as under:
“119. Fraud on power voids the order if it is not
exercised bona fide for the end design. There is a
distinction between exercise of power in good faith and
misuse in bad faith. The former arises when an authority
misuses its power in breach of law, say, by taking into
account bona fide, and with best of intentions, some
extraneous matters or by ignoring relevant matters.
That would render the impugned act or order ultra
vires. It would be a case of fraud on powers. The misuse
in bad faith arises when the power is exercised for an
improper motive, say, to satisfy a private or personal
grudge or for wreaking vengeance of a Minister as in S.
Pratap Singh v. State of Punjab AIR 1964 SC 72, (1964)
4 SCR 733. A power is exercised maliciously if its
repository is motivated by personal animosity towards
those who are directly affected by its exercise. Use of a
power for an “alien” purpose other than the one for
which the power is conferred is mala fide use of that
power. Same is the position when an order is made for a
purpose other than that which finds place in the order.
The ulterior or alien purpose clearly speaks of the
misuse of the power and it was observed as early as in
1904 by Lord Lindley in General Assembly of Free
Church of Scotland v. OvertownLR 1904 AC 515 “that
there is a condition implied in this as well as in other
instruments which create powers, namely, that the
powers shall be used bona fide for the purpose for
which they are conferred”. It was said by Warrington,
C.J in Short v. Poole Corpn. LR 1926 ChD 66 that: “No
public body can be regarded as having statutory
authority to act in bad faith or from corrupt motives,
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and any action purporting to be of that body, but proved
to be committed in bad faith or from corrupt motives,
would certainly be held to be inoperative.”
52. In “State of Punjab and Another vs. Gurdial Singh and
Others“, (1980 AIR SC 319), the Hon‟ble Supreme Court has
held as under:
“9. The question, then, is what is mala fides in the
jurisprudence of power? Legal malice is gibberish
unless juristic clarity keeps it separate from the popular
concept of personal vice. Pithily put, bad faith which
invalidates the exercise of power — sometimes called
colourable exercise or fraud on power and oftentimes
overlaps motives, passions and satisfactions — is the
attainment of ends beyond the sanctioned purposes of
power by simulation or pretension of gaining a
legitimate goal. If the use of the power is for the
fulfilment of a legitimate object the actuation or
catalysation by malice is not legicidal. The action is bad
where the true object is to reach an end different from
the one for which the power is entrusted, goaded by
extraneous considerations, good or bad, but irrelevant
to the entrustment. When the custodian of power is
influenced in its exercise by considerations outside those
for promotion of which the power is vested the court
calls it a colourable exercise and is undeceived by
illusion. In a broad, blurred sense, Benjamin Disraeli
was not off the mark even in law when he stated: “I
repeat . . . that all power is a trust — that we are
accountable for its exercise — that, from the people, and
for the people, all springs, and all must exist”. Fraud on
power voids the order if it is not exercised bona fide for
the end designed. Fraud in this context is not equal to
moral turpitude and embraces all cases in which the
action impugned is to effect some object which is beyond
the purpose and intent of the power, whether this be
malice-laden or even benign. If the purpose is corrupt
the resultant act is bad. If considerations, foreign to the
scope of the power or extraneous to the statute, enter the
verdict or impel the action, mala fides or fraud on
power vitiates the acquisition or other official act.”
53. This Court cannot also lose sight of the fact that the petitioners are
petty shopkeepers whose livelihood is directly and exclusively
dependent upon the shops in question. They are lawful tenants who
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earn their daily bread from these establishments. Any arbitrary
administrative action of Municipal Commissioner resulting in
closure of the shops, despite a clear cut finding by the Engineering
Wing declaring them safe, subsequently would not only be illegal
but would also amount to a direct infringement of the petitioners‟
fundamental right to livelihood guaranteed under Article 21 of the
Constitution of India. Administrative discretion cannot be
exercised in a manner that jeopardizes the subsistence of citizens
without lawful justification. The petitioners were subjected to
prolonged closure of their shops, avoidable litigation and mental
anguish on the basis of an initial report which has since been found
to be factually incorrect upon a technically detailed inquiry
conducted under judicial supervision. Such circumstances also
warrant deeper examination to preserve public confidence in
institutional reports and regulatory processes. Besides, the
implication and fallout of such false reports in nation building
more particularly, when a building which was actually safe but
declared unsafe at the behest of the landlord is of serious concern.
54. It pains this Court to note that how these poor shopkeepers would
have survived during the intervening period when the shops in
question were their sole source of livelihood. They have remained
entangled in avoidable and uncalled-for litigation, for no fault
attributable to them for such a long time. This prolonged closure
of their establishments has caused financial hardship and
disruption of their daily sustenance, which this Court cannot
overlook while adjudicating the present controversy.
55. Applying the aforesaid principles to the facts of the present case,
the record prima facie reveals that the initial report declaring the
building unsafe has been completely discredited by a detailed
inquiry conducted under judicial supervision. Despite this, the
said report was acted upon to the grave detriment of the
petitioners. This Court is prima facie satisfied that there exist
serious circumstances warranting an inference that the initial
unsafe report may have been engineered at the instance or under
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the influence of the landlord, with an oblique motive to oust the
lawful tenants by bypassing the legally prescribed civil process
for ejectment. This court cannot countenance a situation where
false documentation and engineered misrepresentation was
deployed as a tactical device to deprive citizens of their livelihood
and to entangle them in needless and protracted litigation.
56. The Hon‟ble Supreme Court while emphasizing the vital
distinction between commercial and residential tenancies and the
profound impact of eviction from commercial premises on the
right to livelihood, in “Gauri Shanker and Others v. Union Of
India and Others” (AIR 1995 SC 55), has held as under:
“11. It is also appropriate to state that a commercial
tenancy is much more valuable and precious than a
residential tenancy. In the above decision of the
Supreme Court, this aspect was highlighted to the
following effect in paragraph 34 of the judgment thus:
“Business carried on by a tenant of any commercial
premises may be and often is, his only occupation and
the source of livelihood of the tenant and his family. Out
of the income earned by the tenant from his business in
the commercial premises, the tenant maintains himself
and his family; and the tenant, if he is residing in a
tenanted house, may also be paying his rent out of the
said income. Even if a tenant is evicted from his
residential premises, he may with the earnings out of the
business be in a position to arrange for some other
accommodation for his residence with his family. When,
however, a tenant is thrown out of the commercial
premises his business which enables him to maintain
himself and his family comes to a standstill. It is
common knowledge that it is much more difficult to find
suitable business premises than to find suitable premises
for residence. It is no secret that for securing
commercial accommodation, large sums of money by
way of salami, even though not legally payable, may
have to be paid and rents of commercial premises are
usually very high. Besides, a business which has been
carried on for years at a particular place has its own
goodwill and other distinct advantages…….”
57. Furthermore, this Court reiterates that the law does not permit
adoption of indirect methods to achieve what cannot be done
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directly. If the intention is to seek eviction of tenants, the only
lawful course available is to initiate appropriate civil proceedings
for ejectment in accordance with law. The process of declaring a
building unsafe cannot be misused as a tool to dispossess tenants
or to scuttle their lawful occupation. What cannot be achieved
directly through legal means cannot be permitted to be achieved
indirectly by invoking safety concerns contrary to an authoritative
technical report. Any such exercise would be a colorable use of
power and an abuse of the administrative process.
58. The Hon‟ble Supreme Court in “NOIDA Entrepreneurs
Association v. NOIDA & Others“, (2011) 6 SCC 508, has
reiterated the settled principle that what cannot be done directly in
law cannot be permitted to be achieved indirectly by adopting
circuitous methods, by holding as under:
“22. It is a settled proposition of law that whatever is
prohibited by law to be done, cannot legally be affected
by an indirect and circuitous contrivance on the
principle of “quando aliquid prohibetur, prohibetur at
omne per quod devenitur ad illud”, which means
“whenever a thing is prohibited, it is prohibited whether
done directly or indirectly”.
23. In Jagir Singh v. Ranbir Singh & Anr., AIR 1979 SC
381, this Court has observed that an authority cannot be
permitted to evade a law by “shift or contrivance.”
While deciding the said case, the Court placed reliance
on the judgment in Fox v. Bishop of Chester, (1824) 2 B
&C 635, wherein it has been observed as under:-
“To carry out effectually the object of a statute, it must
be construed as to defeat all attempts to do, or avoid
doing in an indirect or circuitous manner that which it
has prohibited or enjoined.”
59. Similarly, in „State of Tamil Nadu and Others vs. K. Shyam
Sunder and Others‟, (2011) AIR SC 3470, the Hon‟ble
Supreme Court again emphasized this doctrine under the heading
“What cannot be done directly cannot be done indirectly” and
observed as under:
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“VI. What cannot be done directly–cannot be done
indirectly
43. “21. It is a settled proposition of law that what
cannot be done directly, is not permissible to be done
obliquely, meaning thereby, whatever is prohibited by
law to be done, cannot legally be effected by an indirect
and circuitous contrivance on the principle of quando
aliquid prohibetur, prohibetur at omne per quod
devenitur ad illud. An authority cannot be permitted to
evade a law by „shift or contrivance‟.” (See: Jagir Singh
v. Ranbir Singh, AIR 1979 SC 381; M.C. Mehta v.
Kamal Nath & Ors., AIR 2000 SC 1997; and Sant Lal
Gupta & Ors. v. Modern Co-operative Group Housing
Society Ltd. & Ors., JT 2010 (11) SC 273).
60. Thus, this Court is of the view that one cannot adopt a different
mechanism to achieve a nefarious design by scuttling the process
envisaged under law, i.e., the filing of a civil suit for ejectment
instead of adopting indirect method of throwing the tenants
outside by getting the building declared as unsafe.
Conclusion:-
61. In the considered opinion of this Court, the impugned order
dated 26.07.2025 is palpably bad in the eyes of law, being
arbitrary and contrary to the binding directions issued by this
Court, and is therefore liable to be set aside. Accordingly, the
same is hereby quashed/set aside for the reasons recorded in the
preceding paragraphs.
62. Since the committee of engineers had already submitted a
detailed report pursuant to the directions passed by this Court in
WP(C) No.299/2025 dated 02.04.2025, in the presence of the
Additional District Magistrate, Jammu, after affording
opportunity to all stakeholders and upon detailed analysis of
relevant parameters, the said committee prepared a
comprehensive status report in respect of each shop, stair and
residential portion of the building. All concerned officers of the
PWD (R&B) are signatories to the said report. The report has
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neither been called in question before any competent forum nor
set aside and as such continues to hold the field.
63. This Court reiterates that reopening of an issue which has already
stood concluded pursuant to the directions passed by this Court,
would amount to overreaching the said direction and acting in
derogation to the mandate and spirit of the judgment dated
16.07.2025, wherein a specific direction was issued to reconsider
the matter strictly in light of the report already submitted by the
Engineering Wing. Respondent No.1 was, therefore, bound to act
in compliance with the said judgment and could not have
reopened the matter, which was beyond his jurisdiction and
contrary to the directions of this Court.
64. In light of the foregoing discussion and the findings recorded
hereinabove, this Court deems it appropriate to allow and dispose
of the petition with the following directions:
a) The petitioners shall be permitted to use and occupy the
shops which have been declared structurally safe and fit for
public use by the Engineering Wing, and possession thereof
shall be handed over to them forthwith so that they may
resume their respective business activities, subject to there
being no other legal impediment. Insofar as Shop No. 5 is
concerned, the technical report indicates that it shall be fit
for occupation only upon removal of the existing wooden
plank roof and laying of an RCC slab. Respondent Nos. 6
and 7 are, accordingly, directed to carry out the said
rectification expeditiously, strictly in accordance with the
technical recommendations contained in the report.
b) To ensure transparency, accountability and to prevent
any misuse of official process, the Chief Secretary, Union
Territory of Jammu & Kashmir, shall constitute an
independent inquiry committee within a period of two
weeks from the date of pronouncement of this judgment,
who shall examine the circumstances leading to the
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issuance of the initial report declaring the building unsafe,
including whether any collusion, undue influence,
procedural violation or mala fide intent was involved. The
said inquiry shall be concluded and the report thereof shall
be submitted before the Registrar Judicial of this Court
positively within a period of four weeks thereafter. Upon
completion of the inquiry, if any officer(s) of the Public
Works Department (R&B), Jammu or the Jammu
Municipal Corporation is found responsible for issuing,
facilitating or endorsing the misleading “unsafe” report,
such officer(s) shall be personally liable to pay costs of Rs.
10,000/- (Rs. Ten Thousand) to each of the seven
petitioners, towards compensation for loss of income,
mental harassment and litigation expenses. The said amount
to the tune of Rs. 70,000/- (Rs. Seventy Thousand) shall be
recovered from the salaries of the delinquent officer (s) in
equal proportion. However, if the inquiry discloses that the
Commissioner (respondent No. 1) himself acted in
derogation of the binding directions of this Court or was
instrumental in disregarding the findings of the court-
constituted committee, then the entire cost liability shall be
borne by the Commissioner in accordance with law. The
report of the inquiry committee shall be placed before this
Court within a period of six weeks from the date of
pronouncement of this judgment. The Registrar Judicial is
directed to forward copy of this judgment to the Chief
Secretary, Union Territory of Jammu and Kashmir for
compliance.
c) The determination of responsibility for purposes of
imposition of costs shall be made strictly on the basis of the
findings recorded in the inquiry and only after affording
due opportunity of hearing to the officer(s) concerned. The
direction regarding personal costs shall operate subject to
such determination. It is, however, directed that the
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aforesaid amount of costs shall, in all circumstances and
irrespective of the ultimate findings of the inquiry, be
deposited before this Court within a period of four weeks
from the date of submission of the inquiry report.
65. The writ petition is, accordingly, disposed of in the above terms
along with all the connected applications.
66. In view of the disposal of the main writ petition, nothing further
survives for adjudication in the contempt petition. Accordingly,
the proceedings in the contempt petition, i.e., CCP(S) No.
382/2025 shall also stand closed.
(Wasim Sadiq Nargal)
Judge
Jammu:
05.03.2026
Michal Sharma/PSWhether the order is speaking : Yes
Whether approved for reporting : Yes