Aar Kay Electronic And Another vs J&K Spl. Tribunal And Others

Vinod Chatterji Koul, J

In the instant petition filed under Article 226 of the Constitution of India, the petitioners seek indulgence of this Court in granting them the following reliefs:

i) to quash or set aside order dated May, 25, 2004 passed by respondent No. 1;

ii) To direct and command respondent No. 4 to raise construction strictly as per the approved site plan by a writ of “MANDAMUS”.

iii) to prohibit respondents from converting residential area into commercial area by a writ of “PROHIBITION”.

iv) to direct respondents Nos.2 and 3 to compel respondent No.4 to Act as per the report furnished by Town planner, Udhampur- Doda Distt. Udhampur vide its office report No.BAP/TP/UD/2003-04/43 dated 2.6.2003 by a writ of “MANDAMUS”.

The aforesaid reliefs have been claimed by the petitioners on the grounds that they are owners and in possession of two shops situated Near Talab Salain, Udhampur, where they are carrying on business since long; that they purchased two shops through sale deed dated 09.02.2004 with land approximately measuring 452 Sft and out of the said land they are in possession of 18 ft. 10 inch x 22ft 9 inchs, and rest of the land has been occupied by respondent No.4, which is approximately 1 ft. 3 inchs x 18 ft. 10 inchs; that a suit has been filed by them before the Munsiff, Udhampur (for brevity ‘Trial court’) for the remaining portion of the land in which they have sought mandatory and permanent prohibitory injunction; that the land of the respondent No.4 is on the eastern side of their land who sought permission from the authorities for raising construction, and after getting approval for construction she started construction unauthorizedly and illegally by encroaching upon the land of the petitioners approximately 1 ft. 3 inchs x 18 ft. 10 inchs and in violation of proposed building plan approved by the official respondents. At the time when respondent No.4 started construction of the basement by exposing the foundation of eastern wall of the petitioners’ shop, a complaint was lodged by them before the Administrator, Municipality, Udhampur, who while acting upon their complaint issued notice to the said respondent on 29.03.2004.

It is contended that the aforesaid notice was challenged before the J&K Special Tribunal, Jammu (for brevity ‘Tribunal’) without impleading the petitioners as party and the Tribunal vide order dated 25.05.2004 (for brevity ‘impugned order’) disposed of the appeal in favour of respondent No.4, compounding all the illegal, unauthorized and major violation of respondent No. 4.

The impugned order dated 25.05.2004, passed by the Tribunal is, thus, sought to be quashed precisely on the following grounds:

i) Order impugned of respondent No. 1 is in violation of J&K Control of Building Operations Act, 1988, as such the order is required to be set aside,

ii) The Tribunal without taking into consideration the J&K Town Planning Act, 1963 and J&K Town Planning Rules of 1973, made an order whereby compounded the illegal un-authorized major violation of respondent No. 4 and the same is required to be quashed;

iii) The construction of respondent No. 4 is absolutely in violation of the report of Town Planner, Udhampur- Doda Distt. Udhampur, converted residential into commercial constructing basement ground floor and first floor covering whole of the plot area, leaving no set back and also covering some land of the petitioners;

Respondent No.4 has filed objections, disputing the maintainability of the writ petition on the ground that there is no violation of the rights of the petitioners and that petitioners have raised disputed questions of facts which cannot be adjudicated in this writ petition as they are seeking quashment of an order passed by the Tribunal in which they are not a party. It is further averred that there is no illegality committed by the Tribunal while passing the impugned order.

Respondents 2 and 3 in their objections have also raised the ground as regards maintainability of the writ petition. They state that petitioners have projected disputed questions of fact which cannot be adjudicated upon in a writ petition. It is also contended by respondents that petitioners are having a dispute with respondent No.4 in respect of land, as they are having the adjacent land over which respondent No.4 is in a process of raising construction and petitioners are apprehending encroachment of their which in fact is a pure civil matter. It is further averred that petitioners are seeking quashment of an order passed by the Tribunal in which they are not party.

Respondent No.4 has also filed counter affidavit, wherein it is stated that writ petition involves disputed questions of fact which cannot be adjudicated in this writ petition, because Vikas Gupta, the brother of petitioner No.2, is an architect in the Town Planning Section of the Udhampur, who has prepared the site plan and was supervising the construction which was completed in accordance with the site plan prepared by him and after the construction was completed, he made a demand to the father-in-law of respondent No.4 to give him the Hall existing on the first floor of the shops of the petitioners which Hall was purchased and owned by the father-in-law of respondent No.4 from its owner before petitioners purchased the shops in the ground floor and on refusal to give the Hall to Vikas Gupta he started blackmailing respondent No.4 and her father-in-law, as such, the instant petition is actuated with malice and blackmailing. It is also contended that along the Ramnagar Road, there are two shops of the petitioners and one shop and deodi of respondent No.4 in the same building line and on the first floor of two shops of the petitioners is a Hall of the father-in-law of respondent No.4 and two rooms, kitchen, bathroom and varanda. The construction has been made at the back of the shops which neither contravenes any master plan, Ribbon Development Act or any by-laws of the Municipality and the excess construction has been compounded by the Tribunal and she has already deposited the compounding fee. The said order has not been challenged by the Municipality and the petitioners have no locus standi to challenge the same.

Respondent No.4 has placed on record a copy of judgment dated 30.04.2012 passed by learned Munsiff, Udhampur, in a suit File No.137/Civil titled Rajinder Kumar and another vs. Smt. Jyoti Gupta (respondent No. 4 herein). The said suit has been dismissed by the Trial court while holding that plaintiffs (petitioners herein) themselves admitted that the construction raised by defendant (respondent No.4 herein) was complete prior to the institution of the suit and that the whole building has been erected by the defendant and during the course of such construction the original owner never made any complaint/ objection. It was further observed that after completion of construction if the suit shops have been purchased by the plaintiffs, they also have stepped into the shoes of the original owner, whose right to sue for demolition of an encroachment already stands waived-off. The Trial court held that there exists no right in favour of the plaintiffs, the infringement of which give any cause to them to institute the suit.

Heard learned counsel for the parties and perused the material on record.

Perusal of the record reveals that permission was granted to respondent No.4 for raising construction of ground floor and 1st floor on an area of 722 sft each, however, construction was raised by respondents No.4 on the extended area without permission; in consequence of which a show cause notice was issued to respondent No.4. Thereafter, a demolition order was issued by the Municipality, which was challenged by respondent No.4 before the Tribunal.

Learned Tribunal, after hearing learned counsel for the parties and considering the material on record, passed a well-reasoned order by observing that there was nothing on record to show that the construction was raised to the detriment of any person as it was raised for residential and commercial purpose by the appellant/respondent No.4 without obtaining due permission for the same. No master plan or zoning regulations are in force in the town of Udhampur, so that the construction raised by appellant/respondent No.4 without permission could be said to have been raised by him in violation of the rules. The Tribunal held that the construction raised was in a way a minor violation as the same had been raised without due permission on extended area, which was allowed to be compounded subject to the payment of Rs.25/-per sft. for basement floor area comprising of 1522 and at the rate of 12.50/- per sft. of the extended area of 722 sft. on ground floor and 1st floor of the house for residential purpose.

Learned counsel for respondent No.4 submits that the Tribunal, after considering the case of respondent no.4 and the facts and circumstances of the case, accepted the appeal by compounding the excess construction which compounding fee has been deposited with respondent no.2 and the respondent no.2 got satisfied. The above said order passed by the Tribunal has not been challenged by the official respondents 2 and 3, but has been challenged by the petitioners who were neither necessary nor proper parties and, therefore, the petitioners have no locus standi to file the instant petition.

From the averments made in the objections filed by the respondents 2, 3&4, it is clear that petitioners are having dispute with respondent no.4 with respect to the land. It is mentioned in the instant petition that petitioner and respondent no.4 are having the adjacent land over which respondent no.4 is in a process of raising construction. The petitioners are apprehending that respondent no.4 is encroaching upon their land. There are also allegations against brother of petitioner No.2, namely, Vikas Gupta, who is an architect in the Town Planning Section of the Udhampur and is said to have prepared the site plan and was supervising the construction which was completed in accordance with the site plan prepared by him and after the construction was completed, had made a demand to the father-in-law of respondent No.4 to give him the Hall existing on the first floor of the shops of the petitioners, which in fact is a pure civil matter and only Civil Court can decide the same after taking evidence of the parties. However, there is a further reference of raising of construction by respondent no.4 in violation of the approved site plan and thereafter there is also a reference of the notice dated 29th March 2004, issued by the respondents against the respondent no.4 which are matter of record. There are also allegations that on refusal to give the Hall to Vikas Gupta, he started blackmailing respondent No.4 and her father-in-law. It is also alleged that he prepared the plan for construction and supervised the construction and charged Rs.14,800/- for the said work in addition to Rs.5000/- for getting the plan sanctioned from the Municipality, Udhampur.

It may be true that where serious disputed questions of fact are raised requiring appreciation of evidence, and for determination thereof, examination of witnesses would be necessary, it may not be convenient to decide the dispute in a proceeding under Article 226 of the Constitution of India. As far as the power of this Court to entertain a writ petition on disputed questions is concerned, I may refer to the decisions of the Supreme Court in the cases of Arya Vysya Sabha and others v. The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and others, (1976) 1 SCC 292, Rourkela Shramik Sangh v. Steel Authority of India Ltd., and another (2003) 4 SCC 317; and Himmat Singh v. State of Haryana and others (2006) 9 SCC 256. Therefore, when disputed questions are involved, this Court will not entertain the writ petition and adjudicate upon such dispute, as it is for the parties to approach the civil Court for deciding the issue.

The crucial aspects of the matter as emanate in the present case, cannot be glossed over. On facts as well, this Court cannot disregard the core jurisdictional issue that the matter on hand involves complex factual aspects, which cannot be adjudicated in exercise of writ jurisdiction. It is pertinent to mention here that a Constitution Bench of the Supreme Court in Thansingh Nathmal and others v. Superintendent of Taxes, Dhubri and others, AIR 1964 SC 1419, while dealing with the scope of jurisdiction of the High Court under Article 226 of the Constitution of India, has said that the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except territorial restrictions which are expressly provided in the Articles, but exercise of jurisdiction is discretionary and it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to writ jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again, the High Court does not generally enter upon a determination of questions, which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed.

When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated, or that the petition against the party, against whom relief is claimed, is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in writ jurisdiction, or for analogous reasons. [See: Smt. Gunwant Kaur and others v. Municipal Committee, Bhatinda and others (1969) 3 SCC 769].

The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated.

It needs to be emphasised that a writ petition under Article 226 is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition. [Vide: Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and others].

The Supreme Court in Punjab National Bank v. Atmanand Singh 2020 SCC Online SC 433, while setting-aside the judgements of both the learned Division Bench and Single Bench of the High Court of Judicature of Patna, has made it clear that when a petition raises questions of fact of complex nature, which may for their determination require oral and documentary evidence to be produced and proved by concerned party, the High Court should be loath in entertaining such writ petitions and instead must relegate the parties to remedy of a civil suit and had it been a case where material facts referred to in writ petition are admitted facts or indisputable facts, the High Court may be justified in examining claim of writ petitioner on its own merits in accordance with law. However, the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under general law, civil or criminal are available. Writ jurisdiction is not intended to replace ordinary remedies by way of a civil suit inasmuch as jurisdiction under Article 226 being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant. In the present case, respondents seriously dispute the facts and submissions made by petitioners in the instant writ petition. In that situation, no factual finding could be recorded without consideration of evidence to be adduced by parties and it is not, therefore, an appropriate case in which this Court would exercise its writs jurisdiction.

Considering the facts and circumstances of present case and for reasons mentioned in preceding paragraphs as also taking into account well settled principle of law laid down by the Supreme Court in a catena of decisions, as referred to hereinbefore, this Court finds that since present case involves disputed questions of facts inasmuch as the claim of petitioner is seriously under dispute as is apparent from the stand taken by respondents and material available on record and discussed in foregoing paragraphs, the present writ petition is not maintainable, hence, the same is liable to be dismissed.

For the reasons discussed above, writ petition sans any merit and is, accordingly, dismissed with connected CM(s). Interim direction, if any, shall stand vacated.

Needless to say that petitioner is at liberty to take recourse to other alternative remedy as may be permissible in law and the same be decided on its own merits in accordance with law uninfluenced by the observations on factual matters made herein above.