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Judgment
Javed Iqbal Wani, J
The instant application has been filed by the applicant/petitioner for seeking clarification/modification of judgment dated 22.11.2021 passed in OWP No. 1947/2014.
Before adverting to the application, it would be appropriate to refer hereunder facts germane herein.
The petitioner while maintaining OWP No. 1947/2014 supra, prayed for the following reliefs:
i) Certiorari for the quashment of the order No. 01/BS/2014, dated 24.04.2014 issued by the respondent No. 3 as the same has been issued by the respondent No. 3 in an illegal, arbitrary and mala fide manner.
ii) Declaring that the building permission in respect of the building namely Gopal Bhawan situated at Kachi Chhowni, Jammu is deemed to be accorded to the petitioner by the respondents.
iii) Prohibiting the respondents including their employees and agents from interfering in the peaceful execution of development, renovation, strengthening and construction work of the property namely Gopal Bhawan situated at Kachi Chhowni, Jammu as per the proposed plan.
The aforesaid reliefs came to be prayed by the petitioner on the premise that he purchased a commercial property, namely, “Gopal Bhawan” situated at Kachi Chhowani, Jammu (for short “the property”) in an auction ordered by the High Court on 12.02.2009 for an amount of Rs.1,51,00,000/- and after the purchase of the same, petitioner applied to the respondent 2 for grant of building permission under Section 4 of the J&K Control of Building Operation Act, 1988 (for short ‘the Act of 1988’). The petitioner claimed to have completed all requisite formalities in this regard with the respondents besides having deposited an amount of Rs.1,49,065/- with the respondents as requisite building permission fee, besides depositing an amount of Rs.6,000/- for malba security.
The petitioner contended in the petition that the respondents, however, did not dispose of his permission case within statutory time frame, as a consequence whereof the petitioner intended to undertake constructional activities on spot under the guise of deemed permission provided under Regulation 7 of the Regulations framed under the Act of 1988 and simultaneously filed OWP No. 474/2013 before this Court as the petitioner was not allowed to carry on constructional activities, which writ petition came to be disposed of on 25.10.2013 in presence of the counsel for the respondents directing the respondent-authority to take a decision on the petitioner”s proposal in accordance with law, rules, regulations and Master Plan while reserving a right for the petitioner to seek appropriate remedy in the event cause arises. The aforesaid order dated 25.10.2013 passed by the Court was stated to have not been complied with by the respondents, resulting into filing of the Contempt petition bearing No. 08/2014, in response whereof, the respondents filed a statement of facts along with order dated 24.04.2014 informing the petitioner that no building permission for roof replacement can be issued owing to the dismantling of the building (Old Structure), for which the building permission for raising fresh construction after dismantling the old structure, the petitioner had to apply afresh.
Aggrieved of the communication dated 24.04.2014 supra the petitioner maintained OWP No. 1947/2014 supra, whereunder the instant application has arisen. The said writ petition 1947/2014 came to be finally disposed of by this Court on 22.11.2021 with the following operative portion:
“Having regard to what has been observed, considered and analyzed hereinabove, the writ petition deserves to be allowed and is accordingly allowed. The respondents are commanded to accord consideration for grant of building permission in favour of the petitioner for erection of the building having been applied for on 18.02.2013 under receipt No. 9123 on the premise of “deemed permission” contemplated under Regulation 7(iii) of the Regulations, 2001, subject to the conditions contained in clause (a) to (j) appended thereto, within a period of two months from the date copy of the judgment is served upon the respondents, uninfluenced of the impugned order dated 24.04.2014.”
It is being stated in the instant application that instead of Regulations of 2001, Regulations of 1998 were applicable to the case and that the said mistake needs to be rectified.
Heard learned counsel for the parties and perused the record.
It is pertinent to note here that while disposing of the petition supra as above, admittedly this Court referred to Regulation 7(iii) of the Regulations of 2001 instead of Regulation 7 of the Regulations of 1998 also framed under Section 19 of the Act of 1988, as Regulations of 2001 had been issued for Municipal Limit of Srinagar/Local Area of Srinagar outside the limits of Srinagar Municipal when infact the Regulations of 1998 were applicable to the case of the petitioner being admittedly not falling within the Municipal Limits of Srinagar/Local Area of Srinagar, but within the Municipal Limits of Jammu.
The Court at para 16 of the judgment after referring to Sections 4 and 5 of the Act wrongly referred to the Regulation 7 of the Regulations 2001 instead of the Regulation 7 of the Regulations of 1998.
In view of aforesaid position, the instant application merits to be allowed. Accordingly, para 16 of the judgment is recasts as under:-
“16.Before adverting to the controversy involved in the petition it would be advantageous and appropriate to refer to the relevant provisions of the Act and the Regulations being germane herein.
Section 4 of the Act reads as under: -
Control of development and building operation.-No person shall undertake or carry out the development of any site in any Municipal Area, Local Area, Town Area, Notified Area or Area Notified under the Jammu and Kashmir State Town Planning Act, 1963, or erect or re-erect any building or make or extend any excavation or lay out any means of access to a road in such area except with the previous permission of the Authority concerned in writing.
Section 5 of the Act reads as under: -
Application for permission.-(1) Every person desiring to obtain the permissions, referred to in Section 4 shall make an application in writing to the authority or through any agency authorized, in such form and containing such information as may be prescribed by regulations made under this Act.
(2) The Authority shall, within a period of 7 days of the receipt of application under sub-section (1) decline to accept a plan as sufficient for purposes of granting sanction under this Act if it does not bear the signature and seal of a Registered Architect or a Draftsman registered with the Authority.
(3) On receipt of such application the Authority, after making such enquiry as it considers necessary, keeping in view the area and the laws, rules and regulations applicable therein, shall by an order in writing, either grant the permission, subject to such conditions, if any, as may be specified in the order or refuse to grant such permission, under the State Town Planning Act, 1963 or any Master Plan.
(4) Where the permission is refused, the grounds of such refusal shall be communicated to the applicant in writing within a period of 30 days.
Regulation 7 of the Regulations 1988 reads as under: -
Grant of Permission.-(1) The Chairman of the Authority shall place the application and the Building Plan along with the Inspector”s report before the Authority for its consideration
(2) The Authority shall either grant the permission subject to such conditions as may be specified or refuse to grant permission on such grounds as may also be specified and recorded.
(3) The Authority shall decide the matter within a maximum period of sixty days from the date of submission of the application and in case no decision can be taken within this stipulated period, the permission shall be deemed to have been accorded.
(4) In case the Authority refuses the grant permission, the grounds of such refusal shall be communicated to the applicant in writing within seven days from the date of the decision.
(5) The permission shall be issued only after the applicant deposits the building permission fees as approved by the competent authority.
(6) Before granting permission no objection cerficate from Assistant Commissioner (Nazool) for all Government lands and Assistant Commissioner (Revenue) for all non-Government lands shallbe obtained. In addition to this no objection certificate from Chief Town Planner shall also be obtained with reference to the Master Plan/Town Plannng Scheme.
Furthermore, in the entire judgment, Regulations of 1998 be read instead of Regulations of 2001 wherever appearing and the operative portion of the judgment is recast under:
“The respondents are commanded to accord consideration for grant of building permission in favour of the petitioner for erection of the building having been applied for on 18.02.2013 under receipt No. 9123 on the premise of “deemed permission” contemplated under Regulation 7(3) of the Regulations, 1998, within a period of two months from the date copy of the judgment is served upon the respondents, uninfluenced of the impugned order dated 24.04.2014.”
A copy of this order shall be placed on the record files of OWP No. 1947/2014 and the present order shall form part of the judgment dated 22.11.2021 passed by this Court.