‘It pains us’: Jammu and Kashmir and Ladakh High Court slams civic body for ‘fraud’ attempt to evict shopkeepers

“It pains this court to note how these poor shopkeepers would have survived during the intervening period when the shops in question were their sole source of livelihood,” the court stated on March 7.

The order added that one cannot lose sight of the fact that the petitioners are shopkeepers dependent upon the said premises for their livelihood, and have suffered severe prejudice and financial loss for nearly two years on account of an initial official report declaring the building structurally unsafe.

“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,” the order stated.

Justice Wasim Sadiq Nargal set aside the order issued by the Jammu Municipal Corporation commissioner to conduct a fresh safety audit of the building.

Criticising the state’s action, the court added that 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.

Highlighting that administrative discretion cannot be exercised in a manner that jeopardises the subsistence of citizens without lawful justification, the order stated, “The court cannot lose sight of the fact that the petitioners are petty shopkeepers whose livelihood is directly and exclusively dependent upon the shops in question.”

Background

• The matter involved seven shopkeepers running businesses at 70, Exchange Road, Jammu.
• The petitioners, represented by senior advocate Nirmal K Kotwal, alleged that their landlords had sought to forcibly evict them by having the building declared “unsafe” through a Public Works Department (PWD) report in late 2024.
• Following an initial legal challenge, the high court had previously directed a fresh inspection by a committee of PWD engineers under the supervision of an additional district magistrate.
• The court-mandated report, dated May 26, 2025, concluded that the shops were structurally safe and fit for public use.
• Despite these findings, the JMC commissioner issued an order, directing a private empanelled firm to conduct yet another safety audit.
• The petitioners argued this was a mala fide attempt to aid the landlords and prolong the closure of their shops, which served as their sole source of livelihood.

State’s stand

• Appearing for the state, advocate Mayank Gupta submitted that the petition is not maintainable as the same constitutes a second round of litigation initiated by the petitioners on the same cause of action.
• The respondents justified the issuance of the impugned order on the ground of carrying out the audit by an independent third-party firm, which was directed to carry out a comprehensive safety inspection of the building in the presence of the owners and tenants and submit a detailed report within one week.

‘Colourable use of power’

• Any arbitrary administrative action of the municipal commissioner resulting in the closure of the shops, despite a clear-cut finding by the engineering wing declaring them safe, would not only be illegal but would also amount to a direct infringement of the petitioners’ fundamental right to livelihood guaranteed under Article 21 (protection of life and perosnal liberty) of the Constitution, the court stated.
• 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.
• This court reiterates that the law does not permit the adoption of indirect methods to achieve what cannot be done directly.
• If the intention is to seek the eviction of tenants, the only lawful course available is to initiate appropriate civil proceedings for ejectment in accordance with the 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 colourable use of power and an abuse of the administrative process.

‘Attempt to nullify judicial directions’

• Where administrative action results in the closure of commercial establishments and the 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.
• Once a court-appointed 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.
• Judicial and administrative processes must be founded on integrity, truth, and fidelity to law and facts.

‘Commissioner under misconception of law’

• 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 the expert determination.
• 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 the absence of any such recorded reasons, the direction for a fresh safety audit amounts to abdication of the duty cast upon JMC and cannot be sustained in law.
• The report which formed the basis of administrative action by the municipal commissioner and 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 PWD engineering wing 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.
• 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.
• The determination as to whether a building is structurally safe squarely falls within the exclusive domain of technical experts, i.e., the competent engineering wing or a duly authorised 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.
• Prima facie, it appears that the commissioner in Jammu, under a misconception of law, with a view to overreaching the directions passed by this court, issued the impugned order, which is tantamount to reopening an issue which already stood concluded.
• 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.
• An administrative order that 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 the absence of reasons renders the exercise of power susceptible to judicial correction.