Gurcharan Singh vs J. and K. Special Tribunal and Others

Syed Bashir-ud-Din, J.—Writ Petitioner Gurcharan Singh is a tenant of respondent No. 6, after he obtained the lease of the Shop No. 4

measuring 27' x 12' in the Commercial Complex of Respondent No. 6 at Maisuma Budshah Chowk Srinagar way back in November, 1994. The

landlord Respondent No. 6 is engaged in constructional activities in raising floors above the petitioner's rented shop. He has got sanction u/s 4 of

the Jammu and Kashmir Control of Building Operations Act 1988 read with Clause (7) (2) of J & K Control of Building Operations regulations

1998, hereinafter for short 'Act' and 'Regulation' vide Order No. 215/ 99 dated 1-7-1999 of the Competent authority. Petitioner pleads that soon

after he got knowledge of this sanction order he filed an appeal before the Appellate forum of Jammu and Kashmir Special Tribunal. The Tribunal

on 11-9-1999 dismissed the Appeal. Petitioner challenging the sanction as also the above order of Appellate forum on the ground that the sanction

has been given in violation of the various clauses of the regulations and that sanction is issued by an incompetent authority without any enquiry. The

sanction to raise construction is blocking the rare open site of the petitioner's shop and thereby interfering with conduct of his business. The

permission is stated to have been obtained in breach of various Acts, though it is not specifically made out and shown how the sanction is granted

in violation of any other Act. The Appellate order is stated to have been passed on an erroneous view of non-application of provisions of Section 5

of the Limitation Act and the decision of the appellate forum that the Appeal is barred is not as per law. Certiorari for quashing the sanction and

appellate Tribunal order and Mandamus for stopping the construction activities in pursuance of the sanction is prayed.

Official Respondents 1 to 5 in reply have contended that the sanction granted for raising 2nd and 3rd floor of the existing two storied building

wherein, in the ground floor petitioner's rented shop in question is located, in addition to permission granted for raising four storied shopping

complex, is granted by competent authority in exercise of powers vested in the authority under the Act and the regulation. The sanction/ permission

is averred to have been granted strictly in accordance with the provisions of law and the sanction does not in any way affect the rights or interests

of the petitioner, a tenant. This petitioner's shop has entrance from three sides viz. Southern, Western and Northern sides. The sanction does not

permit at all respondents to raise any construction or to carry any constructional activities to block entrance to petitioner's shop. The provisions of

the Act and the regulation have been strictly complied with in the matter of permission. Petitioner has no cause to file this petition as his rights are

not in any way adversely affected by the said sanction or the constructional activities.

Reply of respondent No. 6 though squarely in accord with the above reply of respondents 1 to 5 in addition has pleaded that the shop of

petitioner is in ground floor as is clear from the lease deed executed on 13-11-1994 and the rectification Memo (of this lease deed) executed on

7-8-96. The constructional activities pursuant to the permission granted is with regard to raising of second and third floor over the existing two

storied building. The constructional activities of the above floors hardly interferes with the conduct of business of the petitioner or in any manner

blocks his entrance to the shop. In fact petitioner has filed this petition in concert and in liasion with one one Manjeet Singh, who runs shop by

trade name M/s. P. M. Brothers who is in dispute and is litigating with the respondent No. 6. Even said Manjeet Singh has filed OWP No. :

505/99 where petitioner is a party.

The construction in no way jeopardizes the rights of the petitioner and the Shop No. 4 is located in the ground floor of the building in question.

The Appeal has been rightly dismissed. Petitioner has no locus to challenge the sanction in question or file appeal against the order of Competent

authority, Petitioner has got a valid sanction which is in accordance with law. The IIIrd and IVth floor of the building has been also raised. The

sanction has been acted upon challenging the sanction bilatedly, speaks for itself. The sanction cannot be challenged by petitioner with the object of

helping said Manjeet Singh of M/s. P. M. Brothers.

Counsel for the parties heard. On examination of matter, it is fairly revealed that Respondent No. 6 has been given sanction by the authority

under the Act and the Regulation. The sanction in addition to construction of four storied Shopping-complex covers raising on second and third

floor of the existing two storied building housing the petitioner's shop in question in ground floor. The sites are earmarked and building plan duly

authenticated, enclosed thereto. The authority has specifically stated that the provisions of the Act and Regulation have been strictly followed. The

construction activities is not in any manner interfering with with conduct of business by the petitioner on spot in the ground floor. No right(s) of

petitioner to carry on business may be even as tenant is adversely effected. Petitioner has even failed to question the validity of the sanction in

appeal. The circumstances that the Appeal has failed on limitation cannot detract from the main question that the petitioner has failed in appeal to

throw challenge to the sanction. The contention that the appeal has been dismissed on erroneous assumption of law of limitation, does not appear

well founded.

That the Special Tribunal in its order dated 11-11-1999 (Annexure-E) has given reasons to hold that the Appeal is barred by time. The

limitation in the face of specific provisions in the Act and non application of the enabling provisions of Section 5 of the Limitation Act to the Special

law like the Act in question, has been correctly interpreted and applied. The impugned order is not ex facie infirm. The reference to Mohammad

Yousuf Magray Vs. Haji Ghulam Hassan and Others, is not applicable to the facts and circumstances of this case. The question of condonation of

delay in exercise of inherent powers by a Tribunal was not a matter before Court in that case. The cited decision regarding condonation or delay in

filing appeals/applications not covered by Section 5 of the Limitation Act under the inherent powers of the High Court is quite different from

exercise of any such powers by Tribunal in the face of specific provisions of the Act, and exclusionary provisions of the Limitation Act.

Respondents contention that the Writ Petition is filed to block the construction with a view to oblige and help one Manjeet Singh of M/s. P. N.

Brothers in the face of pleas taken in reply cannot be ruled out and in any case this averment is not refuted in as much as petitioner has not filed

rejoinder or other material to show otherwise. Petitioner, a tenant in the ground floor is not shown as to how his rights and interests are adversely

effected in raising construction of 3rd and 4th floor of the building. This is more so when as per the reply plea, the shop has entrance at least from

three sides. The citation Onkar Nath Vs. Ram Nath Gupta and Others, , cited by the counsel for petitioner to show that the petitioner has locus to

question and to challenge the raising of construction in this case is not applicable to the facts and circumstances of the case. Here it is not the case

of unauthorised construction without obtaining sanction. It is a case where sanction is issued and as per the authority strictly in accordance with the

provisions of Act and regulations. A mere omnibus statement that provisions of the Act or Regulations have not been followed will not suffice.

After all there is a presumption of correctness of the official Acts. It is not a case of unauthorised construction being completed, forcing petitioner

to abandon the litigation by change of the circumstances based on difficulty in getting such construction demolished later on.

Petitioner has no where alleged or pleaded that any of his tenancy or other rights are effected except that he complains of the construction

interfering with the conduct of his business, which assertion as observed above, in the face of the replies of the respondents, is not a fact.

In result, no case is made out for admitting this petition to hearing and a fortiorari dismissed at threshhold.