Jammu & Kashmir High Court - Srinagar Bench
Abdul Qayoom Dar vs Union Territory Of Jk & Ors on 1 December, 2021
S. No. 55
Suppl. List. 2
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 76/2020
Abdul Qayoom Dar ...Petitioner(s)
Through: Mr. M. M. Dar, Adv.
Vs.
Union Territory of JK & Ors. ...Respondent(s)
Through: Mr Moomin Khan, SC for R-1 to 4.
Mr A. Chesti, Adv. for R-5 and 6.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE MOHD AKRAM CHOWDHARY, JUDGE
ORDER
01.12.2021
1. Heard. Mr M. M. Dar, learned counsel for the appellant and Mr
Moomin Khan, learned standing counsel for respondent Nos. 1 to 4 and
Mr A. Chesti, learned counsel for respondent Nos. 5 and 6.
2. The appellant Abdul Qayoom Dar has preferred this Letters Patent
Appeal so as to challenge the judgment and order dated 29th May 2020
passed by the learned Single Judge dismissing his writ petition WP (C)
No. 3324/2019 on the ground that it is not maintainable as he has
already chosen a remedy of a civil suit in respect of the cause of action
on which the writ petition is based.
3. The controversy in the writ petition was essentially in respect of the
constructions sought to be raised by the 5th and 6th respondent on plot
of land bearing Survey No. 2726 situate in estate Natipora Naik-bagh
Nowgam, Srinagar.
4. The aforesaid respondents took the building permission to construct a
residential house on the aforesaid land which was duly granted by the
competent authority vide order No. 3156 of 2018 dated 7 th August 2018.
Subsequently, according to the Bye-Laws, the said permission was
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modified and a fresh permission was accorded vide order No. 104 of
2018 dated 24th September 2018 and the residential building upto three
storey. The said building permission was yet again modified vide order
No. 85 of 2019 dated 2nd July 2019 and the aforesaid respondents were
permitted to construct ground+4 storeyed with permission to use the 4th
floor for commercial purposes as the land fell in the mixed area zone as
per the new Master Plan. Finally, another order No. 364 of 2019 was
issued on 29.10.2019 modifying the above permission regularization
some deviation in the construction as per the previously sanctioned
plan.
5. The appellant who alleges that he is a resident of the adjoining building
and is an interested party, who is obliged to ensure that no illegal
construction takes place in the vicinity particularly in the adjoining land
which may affect his privacy or easementary rights, instituted a civil
suit for a decree of mandatory and prohibitory injunction restraining the
5th and 6th respondent and for a direction upon the municipal authority
to demolish the alleged construction. During the pendency of the above
suit, as the appellant came to know that the respondents have been
granted sanction to construct a building, so he filed a writ petition in the
High Court challenging the 3rd order i.e., 85 of 2019 dated 2nd July 2019
by which permission was granted to the 5th and 6th respondent for
raising Ground+4 storey building with right to use top floor for
commercial purposes. The appellant therein also made a prayer that the
illegal construction so far raised by the aforesaid respondents be also
directed to be demolished.
6. It is in the aforesaid background that the writ petition came up for
consideration wherein two objections were raised to the effect that the
writ petition is not maintainable as the matter is sub-judice in a civil
suit filed by the appellant himself and that the challenge to the sanction
order dated 2nd July 2019 does not survive as it stands merged in the
subsequent permission dated 29th October 2019.
7. The learned Single Judge seized of the writ petition in view of the
pleadings of the parties wherein it was clearly revealed that the
appellant had filed a civil suit and the copy of the plaint thereof reveals
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that it is with respect of the same cause as has been raised by the
appellant in the writ petition, dismissed the writ petition holding that it
is not entertainable being a parallel proceeding in presence of the
aforesaid suit.
8. In order to examine whether the cause of action or the issues in the civil
suit and the writ petition were the same, it is appropriate to consider the
reliefs claimed in both the proceedings.
9. A perusal of the writ petition would reveal that the appellant therein has
made the following prayers:-
a. By issuance of writ, order or direction, in the nature of
Certiorari, the building permission vide order No. 85 of 2009
dated 02.07.2019 issued by respondent corporation in favour
of private respondents be quashed.
b. By issuance of writ, order or direction, in the nature of
Mandamus, the respondents be commanded to demolish the
illegal construction of commercial complex which is being
raised by the respondent No. 5 and 6 on spot.
c. By issuance of writ, order or direction, in the nature of
mandamus, the respondent No. 1 be commanded to conduct
impartial enquiry in the matter with regard to grant of three
number of building permission by Srinagar Municipal
Corporation in favour of private respondents.
d. Any other writ, order or direction which this Hon'ble Court
may deem just and proper in the circumstances of the case
may be issued against the respondents and in favour of
petitioner as same shall be in the interest of justice and
equity."
10. A reading of the above prayer would reveal that the appellant has
basically prayed for the quashing of the building permission No. 85 of
2019 dated 2nd July 2019 granted in favour of 5th and 6th respondent and
an ancillary relief for a direction to demolish the illegal construction
was also sought.
11. In comparison to the reliefs sought in the writ petition, the appellant in
the suit for permanent and mandatory injunction had prayed for the
following reliefs:-
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A. A decree of mandatory injunction be passed in favour of the
plaintiff and against the defendants whereby the official
defendants may be directed to demolish the illegal
construction of shopping complex which is being raised by
the defendant No. 4 and 5 on spot and;
B. A decree of permanent injunction be passed in favour of the
plaintiff and against the defendants whereby the defendant
No. 4 and 5 be permanently restrained from constructing any
building on spot as same shall be in the interest of justice,
equity and good conscience.
C. Any order, decree or relief which this Hon'ble Court may
deem fit and proper be also passed in favour of the plaintiff
and against the defendant.
12. The aforesaid reliefs in the suit were simply of injunction and had
nothing to do with the permission granted to the 5th and 6th respondent
for the construction of a building on the plot in question. The said
permission(s) was evidently not the subject matter of the civil suit.
13. In view of the above, the issues involved in both the proceedings were
directly or indirectly or substantially the same rather distinct except for
one of the reliefs for the demolition of the illegal construction which
depended upon the first relief. The reliefs relating to quashing of the
building permission was neither the subject matter of the suit nor could
have been otherwise available to the appellant in a suit. Accordingly,
the writ court could not have dismissed the writ petition of the appellant
as a whole on the ground of pendency of the civil suit holding it to be a
parallel proceeding. Only one of the reliefs claimed in the writ petiton
could have been held to be common and could have been denied leaving
open the other issue regarding the validity of the building permission
granted to respondent Nos. 5 and 6.
14. It may pertinent to mention here that the suit as filed by the appellant
has already been dismissed as withdrawn on 13th November 2021. A
certified copy of the said order was presented by the counsel for the
appellant before the court and the same was not denied by the
respondents.
15. Learned counsel for the appellant submits that the appellant had no
option to withdraw the suit as he was advised that he could not have
MOHAMMAD ALTAF NIMAsucceeded therein for a decree of mandatory and prohibitory injunction
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until and unless the building permission granted to the 5th and 6th
respondent are set-aside by the competent court of jurisdiction which
was not possible in the suit.
16. Notwithstanding the above, the writ petition was not maintainable
otherwise also for the simple reason that the building permission, if any,
granted to a person is revisable by the Government in exercise of its
power under Section 403 of the J&K Municipal Corporation Act 2000.
The aforesaid provision reads as under:-
"403. Power of revision. - The Government may at any
time, for the purposes of satisfying itself as to the
correctness, legality, propriety or regularity of any
proceeding or order passed by any officer of the
Government or the Commissioner or any officer
subordinate to him, call for and examine the record and
may pass such order with reference thereto as it may
think fit."
17. The aforesaid provision empowers the Government to revisit the
correctness, legality, propriety of any order passed by any officer of the
Government or the Commissioner or any officer subordinate to him.
The permission granted by the competent authority is in the shape of an
order passed by the competent authority i.e., on behalf of the
Commissioner, Srinagar Municipal Corporation, and, as such, is clearly
revisable in nature. The Commissioner in context with the Act means
the Municipal Commissioner under the Act.
18. Section 3 of the J&K Special Tribunal Act, 1988, provides that where
an appeal, revision or review petition lies to the Government, it shall be
presented to the Tribunal and that any reference to the Government
shall be construed as a reference to the tribunal. Therefore, the power
of revision exercisable by the Government under Section 403 of the
J&K Municipal Corporation Act 2000 is exercisable by the Special
Tribunal in accordance with Section 3 of the J&K Special Tribunal Act
1988. In view of the above, any challenge to the building permission
granted by the competent authority i.e., the Srinagar Municipal
Corporation is revisable by the State Government i.e., the J&K Special
Tribunal. Accordingly, in the light of the above remedy available to the
appellant, the writ petition filed by him directly before this Court
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challenging the permission granted was not entertainable. The remedy
of revision thereunder is not said to be illusory or ineffective.
19. Therefore, in the facts and circumstances, if the writ court has
dismissed the writ petition for one reason or the other, as the same was
not maintainable in law, we do not deem it proper to interfere with the
impugned judgment and order and the appeal is dismissed with liberty
to the appellant to avail the alternative remedy of revision as pointed
out above.
(MOHD AKRAM CHOWDHARY) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
SRINAGAR
01.12.2021
Altaf
Whether the order is reportable? Yes/No
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