Anchal Katoch vs Chairman Jammu & Kashmir Special Tribunal And Others

Dhiraj Singh Thakur, J

The petitioner challenges the order dated 16.11.2015 passed by the J&K Special Tribunal, Jammu on the ground that the appeal was decided by the Tribunal without deciding the application filed by the petitioner seeking impleadment in the said appeal.Briefly stated that material facts are as under:-

Respondent No. 4, Hardesh Kumar, is alleged to have deviated from the sanctioned plan by raising excess construction than permitted. It was alleged that on a total plot area of 2925 sqft, respondent No. 4 was permitted to cover 1247 at the ground floor and 1049 sqft at the first floor, whereas he had covered 2875 sqft at the ground floor, which is in violation of the master plan. The required setbacks, which were required to be maintained as per master plan, were also not kept. In that regard show cause notices under Section 7(1) and 12(1) of the J&K Control of Building Operations Act, 1988 (in short "the Act") were served upon the said respondent, to which reply was filed. Finally, the Chief Enforcement Officer, Jammu Municipality issued the order under Section 7(3) of the Act for demolition.

Respondent No. 4 challenged the notices as also the order under Section 7(3) before the Tribunal. The Tribunal by virtue of order impugned dated 16.11.2015 dismissed the appeal on the ground that deviations had been made contrary to sanctioned building plan, besides major violations had been committed, which were not compoundable as per law.

From the records it appears that the petitioner filed an application for impleadment as party appellant in the appeal before the Tribunal. The reason for seeking such an impleadment was that she had purchased a portion of plot No. 247-A, measuring 5 marlas 122.5 sqft (65×22-6) vide registered sale deed dated 02.01.2015 and that she had become the owner in possession of the above said land along with the same covered constructed ground floor area. It was urged that the applicant had came to know about the pendency of the appeal before the Tribunal and being a bonafide purchaser and being in possession of the land was required to be arrayed as party appellant in place of respondent No. 4, Hardesh Kumar.

From the records, it can be seen that the said application was considered by the Chairperson of the Tribunal on 25.06.2015, when the case was called and in the presence of the counsel for the parties, the application for impleadment was allowed. Order dated 25.06.2015 reads as under:-"Case called. Counsel for the parties present.The counsel for the parties file an application for impleadment as applicant Smt Anchal Katoch, W/o Shri Sudesh Sharma in place of Hardesh Kumar. In this regard the counsel for the respondent has no objection. Application accepted. List the case on 27.07.2015 for further proceedings."

It needs to be highlighted that whereas the earlier power of attorney filed for respondent No. 4 appears to have been signed on the printed format in the name of M/s Ajay S. Manhas and Danish Butt Advocates & Associates, signed by Danish Butt, Advocate, the subsequent power of attorney in the name of M/s Danish Butt & Associates, was also signed by Danish Butt, Advocate. The order of impleadment dated 25.06.2015 having been passed in the presence of the learned counsel for the parties must be deemed to be in the knowledge of the applicant/ petitioner as also her counsel.

The entire assertion that the appeal had been dismissed without deciding the application for impleadment of the petitioner is, therefore, contrary to the records. The affidavit filed by the petitioner to that extent is also and the arguments advanced by learned counsel for the petitioner based upon the aforementionedfactual matrix, therefore, totally incorrect. It needs to be pointed out that no arguments were advanced otherwise on the legality of the order passed by the Tribunal on merits. The order to the extent the same held the violation to be a major violation and, therefore, not compoundable was not questioned at all. The entire premise of the petitioner, therefore, is clearly without any substratum. Even otherwise, I have gone through the order impugned passed by the Tribunal, which appears to be in accordance with law.

The petition, therefore, is found to be without any merit and is, accordingly, dismissed with cost of Rs.25,000/- to be deposited by the petitioner in the Advocates' Welfare Fund within one month from today.

Registry to post this matter after one month only for purposes of ensuring compliance as regards the deposit of Rs. 25,000/-.10. Records of the Tribunal be sent back forthwith.