Habibullah Kak And Another vs J&K Special Tribunal Srinagar & ...
2021 Latest Caselaw 832 j&K/2

                                                            S.No.206

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

CJ Court

                         OWP No.1052/2009

Habibullah Kak and another.                 ...Petitioner(s)/Appellants.
Through:   Mr. Parvez Nazir, Advocate.

                                  Vs.
J&K Special Tribunal Srinagar & Ors.                 ....Respondent(s)
Through:   Mr. Moomin Khan, Advocate.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                            O R D E R

30.07.2021

01. The writ petition is directed against the judgment and order dated

26.10.2009 passed by the Jammu & Kashmir Special Tribunal in file No.

STS/1789/06/Misc : Habibullah Kakk and Anr. v. Building Operations

Controlling Authortiy & Others.

02. The facts as revealed from the pleadings are that petitioners were

granted permission to construct a building on 25.05.2005 by the Building

Operation Controlling Authority (hereinafter for short BOCA). The

petitioners undertook the construction of the building but before its

completion a notice dated 26.06.2006 under Section 7(3) of the J&K

Control of Building Operation Act, 1988 (hereafter for short the BOCA

Act), was issued for demolition of the same. The petitioners preferred an OWP No.1052/2009 1|Page appeal under Section 13 of the BOCA Act before the J&K Special Tribunal,

Srinagar. Unfortunately, the appeal was dismissed in default on 29.02.2008.

The petitioners moved application for recall of the above order and for

restoration of the appeal vide application dated 28.04.2008 and also filed an

application for condoning the delay in moving the recall/ restoration

application.

03. The appeal was restored but the BOCA preferred writ petition being

OWP No.19 of 2009 contending that it could not have been restored without

considering the delay condonation application. Accordingly, the High Court

vide order dated 07.09.2009 allowed the writ petition remanding the matter

for consideration of delay condonation application first. In furtherance

thereof J&K Special Tribunal has dismissed the same holding that there is

no provision in COBA Act enabling condonation of delay and, therefore,

the application is not maintainable. Conseuquently, the appeal stands

dismissed in default.

04. Heard Mr. Parvez Nazir, learned counsel for the petitioners and Mr.

Moomin Khan, learned counsel for the respondents.

05. The submission of Mr. Parvez Nazir, learned counsel for the

petitioners, is that even assuming that the provisions of the Code of Civil

Procedure and that of the Limitation Act are not applicable to the

proceedings under the BOCA Act nonetheless the Courts and the Tribunal

have inherent power and jurisdiction to restore the case if dismissed for

want of prosecution and if necessary after condoning the delay in filing such

an application. It is further submitted that the BOCA Act nowhere

prescribes any limitation for filing an application for recall/ restoration of OWP No.1052/2009 2|Page the appeal. The application for condonation of delay was filed as a measure

of abandon precaution.

06. Mr. Moomin Khan, learned counsel for the respondents, has

defended the impugned order of the J&K Special Tribunal on the ground

that as the provisions of the Code of Civil Procedure and Limitation Act are

not applicable and that the BOCA Act do not contain any provision for

condoning the delay, the Tribunal has rightly held that the delay

condonation application was not maintainable so as to reject it.

07. There is no controversy to the fact that the provisions of the Civil

Procedure Code as a whole and that of the Limitation Act may not be

applicable to the proceedings under the BOCA Act before the J&K Special

Tribunal under the Jammu & Kashmir Special Tribunal Act, 1988 read with

Jammu & Kashmir Special Tribunal Rules, 1986. Therefore, without going

into as to the applicability of the Civil Procedure Code and the Limitation

Act, we proceed to decide the lis involved in this writ petition otherwise.

08. It may be noted that in exercise of powers conferred under Section 9

(wrongly mentioned as Section 10) of the Jammu & Kashmir Special

Tribunal, Act, 1988, (for short the Act of 1988) the Government has framed

Jammu & Kashmir Special Tribunal Rules, 1986 (for short the Rules of

1986).

09. The Rules of 1986 specifically lays down that the Tribunal on the

date fixed for hearing or the adjourned date of hearing, if the appellant does

not appear when the appeal is called out, may in its discretion dismiss the

appeal in default and similarly has the power to proceed exparte where the

respondent fails to appear. Thus, according to Rule 18 and 19 of the Rules OWP No.1052/2009 3|Page of 1986, the Tribunal is vested with the power to dismiss the appeal in

default and to proceed exparte, if necessary.

10. The Rules of 1986 nowhere specifically provides for moving of an

application for recall of any order or an order dismissing the appeal in

default or even for setting aside the exparte order. In a way the Rules of

1986 are completely silent on the above aspect.

11. In Associated Cement Companies Ltd. v. P. N. Sharma and another

: AIR 1965 SC 1595, the Supreme Court has categorically laid down that

the Tribunals in India exercise the same judicial powers which inherently

vest in courts of a sovereign State. Thus, like the courts, the tribunals also

have the inherent jurisdiction even if they are of limited jurisdiction. If the

Tribunal has the power to do something, it also has the inherent power to

undo the same.

12. In Mst. Dhani Devi v. Sant Bihari Sharma and others : AIR 1970

SC 759, it was held that in the absence of any Statute or Statutory Rule, the

Regional Transport Authority may devise any reasonable procedure for

dealing with the situation and it has complete discretion in the matter of

allowing or refusing substitution even if there is no provision for

substitution under the procedural law applicable to the tribunal and, as such,

it has the power to substitute the person succeeding the ownership or the

possession of the vehicle. It further laid down that all powers which are not

specifically denied by the Statute or the Statutory Rules should be deemed

to be conferred upon the Tribunal so that they may effectively exercise their

judicial function.

OWP No.1052/2009 4|Page

13. The Supreme Court in the case New India Assurance Co. Ltd., v. R.

Srinivasan : AIR 2000 SC 941, clearly laid down that every court or

judicial body or authority which has a duty to decide a lis between two

parties, inherently possesses the power to dismiss a case in default and it

would have the inherent power and jurisdiction to restore the complaint on

good grounds if shown for non-appearance.

14. In view of the aforesaid facts and circumstances, it is crystal clear

that if the Jammu & Kashmir Special Tribunal has the power under the

Rules of 1986 to dismiss an appeal for default, it has inherent power to

restore it, if good cause for absence is established.

15. The Act of 1988 and the Rules of 1986 nowhere provides for any

limitation for filing of the recall/ restoration application and the limitation of

seven days, as referred to, is only for the purposes of filing the appeal. The

said limitation would not apply for moving the recall/ restoration

application.

16. The Supreme Court in Re: Ramlila Maidan Incident : AIR 2012 SC

(Supp) 266, observed that it is a settled rule of law that wherever provision

of a statute does not provide for a specific time for doing a thing, the same

has to be done within a reasonable time and this reasonable time depends

upon the facts and circumstances of each case. A similar view has been

expressed by the Supreme Court in Londhe Prakash Bhagwan v.

Dattatraya Eknath Mane and others : (2013) 10 SCC 627, and a host of

other decisions wherein it has been reiterated that if no time limit has been

prescribed in a statute to apply before the appropriate forum, in that case the

person aggrieved has to approach the court within a reasonable time.

OWP No.1052/2009 5|Page

17. In the case at hand, no time limit has been prescribed for moving the

recall/ restoration application and therefore, it was open for the petitioners

to approach the Tribunal within a reasonable time. The limitation of seven

days provided for filing the appeal was not applicable for moving such an

application. The appeal was dismissed on 29.02.2008 and the restoration

application was filed on 28.04.2008 i.e., within two months. The aforesaid

period of two months by no stretch of imagination cannot be an

unreasonable long time as normally such applications are supposed to be

filed within thirty days from the date of knowledge of the order. At least, it

is not a case of inordinate delay.

18. In holding that in the absence of any provision under the Act and the

Rules providing for condoning the delay, it was not liable to be condoned,

the Tribunal has placed reliance upon the decision of the Jammu & Kashmir

High Court in the case of Munshi Zulfikar v. State and others : 2007 (2)

JKJ 20[HC] and Pushpa Devi v. Nanak Singh : 1982 KLJ 278. Both the

said cases were in respect to filing of an appeal before the Jammu &

Kashmir Special Tribunal for which admittedly a period of seven days is

allowed for filing. It is in respect of filing of an appeal that the court held

that since the provisions of the Civil Procedure Code and Limitation Act are

not applicable, the delay is not liable to be condoned. The said authorities

have no application to the facts and circumstances of the present case where

no limitation is prescribed for filing a recall/ restoration application and,

therefore, such an application can always be filed within a reasonable time

and it is up to the court or the Tribunal at his discretion to consider it on

merits even if there is some delay.

OWP No.1052/2009 6|Page

19. It is trite to mention that rules of limitation are not meant to destroy

the rights of the parties rather the idea is that every legal remedy must be

kept alive only for a fixed period of time. It is also settled in law that the

power of condonation of delay is a discretionary jurisdiction and has to be

liberally construed and exercised. In case where substantial justice and

technical considerations are pitted against each other, the cause of

substantial justice always deserves to be preferred.

20. Keeping in view the aforesaid facts and circumstances, we are of the

considered opinion that the Tribunal manifestly erred in law in rejecting the

delay condonation application of the petitioners on the ground that it is not

maintainable instead of considering it and the recall/ restoration application

on their own merit.

21. Accordingly, the impugned judgment and order dated 26.10.2009

passed by the J&K Special Tribunal is quashed with liberty to it to consider

the delay condonation and the recall/ restoration application in accordance

with law keeping in mind the observations made hereinabove most

expeditiously preferably within a period of three months.

                        (SANJAY DHAR)                  (PANKAJ MITHAL)
                              JUDGE                     CHIEF JUSTICE
Srinagar
30.07.2021
Abdul Qayoom, PS




               Whether the order is speaking?               Yes.

               Whether the order is reportable?             Yes.



 OWP No.1052/2009                                                    7|Page