Ulfat Jan vs State of Jammu & Kashmir and Others

Massodi, J

The appellant's writ petition registered as OWP No.593/2008 having been dismissed by the Writ Court vide its judgment and order dated 3rd

September 2008, the appellant has come up with instant Letters Patent Appeal to call in question the judgment and order.

The Appeal arises against the following backdrop:

The appellant and private respondents have acquired properties known as 'Regal Building' and 'Regal Cinema', comprising Survey Nos.489/138

and 140 Min, adjacent to each other at Residency Road, Srinagar. The parties are entangled in a dispute regarding the exact area of the land

acquired by them, from erstwhile owners. The private respondents claim to have acquired 06 Kanals 01 Marias 182 Sft of/land whereas the

appellant insists that only an area of measuring 05 Kanals 15 Marias & 52 feet, has been acquired by the private respondents. The dispute

between the parties is essentially regarding ownership rights in respect of a strip of land measuring 18 x 95.5 sfts. The parties admittedly are

engaged in litigation over the strip of land in question and two civil suits titled Ulfat Jan v. Mohammad Ashraf and Ulfat Jan v. SMC and others, are

pending disposal before the Civil Court at Srinagar. In Civil suits, the appellant has also disputed the private respondents' right to raise construction

on the disputed strip of land.

The appellant, apprehending that the private respondents may persuade the Building Operations Controlling Authority (BOCA) (herein alter

referred to as ""Authority"") respondents 3 & 4 herein, to grant permission in their favour for raising construction on the disputed strip of land, filed a

writ petition in the year 2007 before this Court, seeking a direction against grant of building permission in favour of the private respondents. The

writ petition registered as OWP No.581 /2006, was disposed of on 16th August 2007 with a direction to the Building Operations Controlling

Authority (BOCA), to consider request of the private respondents for permission to raise proposed construction on their proprietary land in

accordance with Building Permission Rules. The Authority was, however, directed to hear the appellant and consider any genuine objections the

appellant may have against the proposed permission, before the permission was accorded in favour of the private respondents to subject

documents produced by the private respondents in support of their application including the certificate, issued by Assistant Commissioner Nazool,

to proper verification.

It is pertinent to mention that the appellant sometime in 2005 also applied for grant of permission for raising construction on the disputed strip of

land. The application did not find approval as the Assistant Commissioner Nazool vide his No.849/AC/BP-05 dated 19.9.2005, recalled earlier

No Objection Certificate (NOC) granted, for further verification.

The private respondents after, in wake of judgment in OWP No.581/2006, decks were cleared for making a fresh bid for obtaining building

permission from the Authority, submitted an application with the proposed building plans to the Authority. The building proposal, submitted by the

private respondents, after usual formalities was approved subject to verification from Assistant Commissioner Nazool. The decision in this regard

was notified on 12.7.2008.

The appellant aggrieved of the approval to the building proposal submitted by the private respondents for raising construction on spot, filed a

writ petition - OWP No.593/2008., asking for following reliefs:

i) Certiorari, the approval accorded in favour of the private respondents by the respondents 3 to 5 as provided in the press release issued in daily

newspaper ""Aftab"" in its issue dated 12.07.2008 be quashed and not he acted upon in any manner, mode or method.

ii) Mandamus, commanding the respondents not to issue building permission in favour of the private respondents unless the direction passed by the

Hon'ble court in OWP No.581/2006 is complied with in its letter and spirit and in the event, the permission has been accorded, same be kept in

abeyance and in that event, the private respondents be also commanded not to act upon the said permission by any manner, mode or method.

The case set up by the appellant was that the building proposal was approved without complying with the direction of this Court dated

1(5.8.2007 in OWP No.581/2006. The appellant complained that though on the building proposal submitted by the private respondents was

considered and approved by the Authority, the building proposal submitted by the appellant was not even considered. The appellant pleaded that

Authority had accorded approval to the building proposal submitted by the private respondents in a mechanical manner and assailed the decision

as illegal, unfair, unreasonable, in violation of statutory and fundamental rights of the appellant as also depicting colorable exercise of jurisdiction.

The appellant admitted that though the building proposal of the private respondents had been approved subject to verification from Assistant

Commissioner Nazool, yet formal permission had not been granted to the private respondents to raise the proposed construction.

The respondents 3 & 4 in their reply reiterated that the building permission case of the private respondents was only approved subject to

verification of Assistant Commissioner Nazool and formal order for grant of permission has not been issued as the respondent No.4 vide his

communication No/328-29/CAN-BP/08 dated 15th July 2008, had opposed grant of permission without re-verification of the documents placed

by the private respondents with the building proposal. The respondents 3 & 4 insisted that the writ petition was not maintainable as the appellant

had a statutory remedy of Appeal available before the Appellate Authority - J&K Special Tribunal.

The private respondents in their reply sought dismissal of the writ petition on the ground that the petition raised disputed questions of fact and

that the appellant has on the same cause of action filed a civil original suit, pending adjudication in the court of Municipal Magistrate, Srinagar and

obtained an order of injunction on 27th of May 2006, restraining the private respondents from raising any construction on the subject matter of the

writ petition. The respondents insisted that the respondents in compliance of the order of the Civil Court had set apart disputed strip of land and

decided not to raise any construction on it, and that the building proposal submitted by the private respondents did not include the disputed strip of

land under construction area.

The Writ court vide order dated 03.09.2008, dismissed writ petition on the ground that the appellant failed to establish a prima facie case over

the land, other than the disputed strip of land and that as per stand of the official respondents the permission had been granted strictly in

accordance with the law. The Writ Court was of the opinion that the appellant had an alternative efficacious remedy available in the form of an

Appeal under J&K Building Operation Act 1998, to the Appellate Authority.

The Writ Court judgment and order dated 3rd September 2008 are questioned on the grounds that the Writ Court returned a finding qua the

land without summoning record and erroneously held the disputed strip of land to be outside the purview of permission. The Writ court is said to

have not considered important aspects of the matter referred to in the writ petition qua grant of building permission and adherence to statutory

guidelines to be followed by the respondents. The Writ Court, it is pleaded, has passed the judgment and order in question oblivious to the fact

that the appellant in violation of the Court directions in OWP No.581/2006 had denied the appellant right of opportunity of being heard. The

appellant insists to have assailed before the Writ Court the decision making process and not the building permission and that the Writ Court has

erroneously taken the writ petition as a challenge to the sanction/ permission for raising construction on the subject matter of writ petition.

Heard and considered.

Section 5, Control of Building Operations Act 1988, empowers the Authority, constituted u/s 3 of the Act, to receive applications in writing

with proposed building plans from a person intending to raise construction within the area over which Authority has jurisdiction and to grant or

refuse the permission to raise proposed construction. Section 13 of the Act provides for an Appeal against the order, granting or refusing

permission to raise construction u/s 5 of the Act. Such appeal in terms of Section 13 of the Act read with Regulation 10 of Control of Building

Operations Regulations, 1998, is to lie before the J&K Special Tribunal.

In terms of Section 13 of the Act what may be appealed against before the J&K Special Tribunal is the order, sanctioning the building plan or

refusing permission and not any order or proceedings before the Authority, at an earlier stage, while the building permission case is being

processed. In the present case the proceedings before the Authority have not concretized into permission/ sanction order. The matter was still at

the formative stage and the Authority, on going through the building proposal, approved it subject to the verification of respondent No.2. In the

circumstances even the approval granted was conditional and it was wide open for the Authority to change its decision once an adverse report was

received from respondent No.2. In the said background there is substance in the case set up by the appellant that the Writ Court erroneously

treated the conditional approval order notified on 12.7.2008 as permission/ sanction order notwithstanding the stand taken by the parties. There is

also merit in the argument that the appellant as on 12.7.2008, did not have a cause to approach the Appellate Authority in terms of Section 13 of

the Act. This, however, does not change the complexion or outcome of the matter. The argument advanced by the learned counsel is self defeating

and dilutes the cause for the appellant to invoke extra ordinary jurisdiction of this Court. The Authority, as already pointed out, was yet to take a

final decision in the matter as is evident from the stand taken by the appellant as well as respondents 3 and 4 in their reply before the Writ Court.

The right course for the appellant was to wait for the end result of building proposal submitted by the private respondents before the Authority. In

the event the conditional approval granted by the Authority to the aforesaid building proposal would shape up into the permission order, the

appellant would have right to fall back upon the alternative efficacious remedy u/s 13 of the Act. Needles to mention that in case the Authority

refused to grant permission in favour of the private respondents to raise the proposed construction, grievance of the appellant would be addressed

appellant's part, in the matter.

The argument advanced by learned counsel for the appellant that what the appellant questioned before the Writ Court was the ""decision

making process"" and not the permission/sanction order, is specious and better to be ignored. It needs to be emphasized that the Authority had not

even taken the ""decision making process"" to its logical end on the date the writ petition was filed by the appellant. The authority was still in the

process of taking a decision in the matter and the process was to be taken to its logical end only when the response from respondent No.2 was

received and dealt with. Similarly the case sought to be set up by the appellant that the conditional approval to the building proposal submitted by

the private respondents notified on 12.7.2008 was granted in violation of the order dated 16.8.2007 in OWP NO.581 /2006 is preposterous and

belied by the record. In the first place, as admitted by the appellant in the para 8 of the writ petition, the Authority in February 2008 issued a

Public Notice, duly published in local press, signifying its intention to consider the building proposal in question submitted by the private

respondents and the appellant well aware of the consideration to be so accorded, responded through her Lawyer vide No.33/LN dated

18.2.2008. Furthermore as already pointed out the decision making process as on 12.7.2008, was still in progress and the appellant was left with

an opportunity to approach the respondent No.2 as also the respondent 3 and 4 with her objections and the objections if genuine would find

consideration by the respondents.

From the above discussion it emerges that the writ petition was premature, not maintainable and liable to be dismissed at the threshold, though

for grounds other than the grounds on which the petition has been dismissed by the Writ Court.

For the reasons discussed, we dismiss the writ petition. The appeal in the said background is to meet the same fate and is accordingly

dismissed.