Munish Bhatia & Anr. @APPELLANT@Hash State Of Jammu & Kashmir And Anr.

Through the medium of instant application, petitioners have sought re-hearing of petition bearing CRMC No.58/2014 & connected IAs, which came to be dismissed vide order dated 07.09.2018.

In the petition, it has been stated that petitioner had challenged FIR No.02 of 2014 registered by respondent No.2 under Section 5(1)(d) of J&K Prevention of Corruption Act, Samvat 2006 and Section 120-B RPC, before this Court in a petition bearing CRMC No.58/2014. The case set up by the petitioners in the aforesaid petition was that the petitioners had constructed a building in Gandhi Nagar after obtaining proper permission from Jammu Municipal Corporation. They were served with a notice of demolition dated 17.12.2012 by the Jammu Municipal Corporation. Feeling aggrieved of demolition notice, Petitioner No.1 filed an appeal before J&K Special Tribunal Jammu, which was allowed by the Tribunal on 16.05.2013 and the violation was compounded and the compounding fee was accepted by the Jammu Municipal Corporation. That in order to harass the petitioners, a false and frivolous FIR No.02 of 2014 dated 09.01.2014 came to be registered by respondent No.2 against the officials of Jammu Municipal Corporation and the petitioners with regard to said building. The impugned FIR was registered by respondent No.2 and investigation was sought to be carried out against the petitioners. The whole allegation, on the basis of which the impugned FIR registered, was with regard to change of nature of land use from residential to commercial which is factually incorrect, because the order of the Tribunal clearly states that violation has been compounded at a residential rate. That during the course of the proceedings before this Court, petitioners placed on record certain documents and one document was dated 02.03.2017 whereby the Vigilance Organization indicates that the impugned investigation has been recommended for closure. That the petition filed when came up for hearing, the Court was apprised about the said letter, but during passing of the final order, this letter has not been considered. That final order has been passed on 07.09.2018 whereby the petition has been dismissed.

It has further been stated in the petition that in order to do complete justice with the petitioners, re-hearing of the petition is required because the said letter dated 02.03.2017 has not been considered.

During the course of arguments, petitioners' counsel has also stated that certain other points which he had raised during arguments have neither been considered nor any reference has been made in the order dated 07.09.2018.

The other side has filed objections and has not disputed letter dated 02.03.2017. Learned counsel for respondents has raised objection that once petition under Section 561-A of Cr.P.C. has been decided, the same cannot be re-heard.

Mr. A.W. Giri, Dy.SP (ACB) has also appeared along with CD file. After perusal, the CD file was returned to him in open Court.

I have considered the rival contentions. From the perusal of file i.e. CRMC No.58/2014, which came to be dismissed vide order dated 07.09.2018, it is evident that there has been annexed a letter dated 02.03.2017, whereby the Vigilance Organization indicated that the impugned investigation has been recommended for closure; this letter has been written by AIG (Hqrs) Director of Vigilance, J&K Jammu to Commissioner JMC. The letter reads as under:-

"GOVERNMENT OF JAMMU AND KASHMIR VIGILANCE

ORGANISATION J&K JAMMU

The Commissioner

Jammu Municipal Corporation

Jammu.

No:-VO-Munci-G-92/2012-3978-80

Dated 02/03/2017

Subject:- Complaint against Shri Satish Khajuria, Chief Enforcement Officer, Municipal Corporation, Jammu.

Sir,

Kindly refer your office letter No.MJ/Acctts/1249 dated 15.07.2016, regarding the above cited subject. The instant matter has been approved to be closed in this office.

I am directed to convey you accordingly.

Yours faithfully,

( Altaf Ahmad Shah )

AIG (Hqrs)

For Director of Vigilance

J&K Jammu.

Copy to the:-

SSP (JMU) VOJ for information. This is in reference to his office letter No.SSP/Clt/2012/288/VOJ dated 18.12.2012."

From perusal of order dated 07.09.2018 passed by this court in CRMC No.58/2014, it is evident that this letter has not been considered by this court while passing the order. There is no reference of this letter in the order. This letter goes to root of the case; now law is settled that High court being court of record has inherent power to re-hear the petition, if the order has been pronounced without jurisdiction or in violation of principle of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by fraud; non consideration of vital document, which goes to root of case, would amount to non-hearing of the party. Courts are meant to do substantial justice and not to thwart the justice due to technicalities. The document in question has not been denied by respondents and copy of the same is also in C/D file.

So without commenting on merits of the case, this petition is allowed and main matter shall be re-heard in last week of December, 2018. Registry to list the main case accordingly. This petition is disposed of and shall become part of main case i.e. CRMC No.58/2014.