Brij Lal vs J&K Special Tribunal And Others
2021 Latest Caselaw 295 j&K

                                    h475




              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU



                                               OWP No.864/2008


Brij Lal                                                   ...Petitioner(s)


                          Through:- Mr. Manpreet Singh, Advocate
       V/s

J&K Special Tribunal and others                         ...Respondent(s)
                         Through:- None

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
           HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                            JUDGMENT (Oral)

1. This petition by the writ petitioner filed under Article 226

of the Constitution of India is directed against order dated

18.07.2008 passed by respondent No.1 [ "the impugned order"] in

file No. STJ/302/2007 entitled Shamboo Nath and another v.

Chairman, Municipal Committee, Akhnoor and others, whereby

the appeal preferred by respondent Nos. 2 and 3 has been

considered as revision petition and the order impugned has been

set aside in the exercise of revisional jurisdiction.

2. Before adverting to the grounds of challenge urged, it

is necessary to notice few admitted facts.

The petitioner, claiming to be a lawful owner in

possession of land comprised in Khasra No.338 situate in Ward

No.9 Akhnoor, applied before respondent Nos. 4 to 6 for building

permission to raise construction of two shops. As is claimed, on

completion of all requisite formalities, building permission was

granted by respondent Nos. 4 to 6 vide letter dated 16.08.2007.

While the petitioner was raising the construction as per the

approved site plan and the building permission granted by

respondent Nos. 4 to 6, respondent Nos.2 and 3 rank strangers

filed an appeal before respondent No.1 assailing the building

permission dated 16.08.2007 granted by respondent Nos. 4 to 6.

On being put on notice, the petitioner appeared before

respondent No.1 and besides meeting the contentions of

respondent Nos. 2 and 3 on merits, also raised preliminary

objection with regard to the maintainability of the appeal.

Respondent No.1 ruled in favour of the petitioner insofar as

maintainability of the appeal is concerned but invoked the suo

moto revisional jurisdiction and set aside the order on the

following grounds:-

"1. No area is earmarked as Commercial/residential.

2. The impugned order has been passed by the President Municipal Committee (who is ex-officio

Chairman) and there is no NOC (No objection certificate)/participation/ of other Members of Committee as per SRO 229 dated 18.08.2005.

3. In order to set at rest the controversy in future/till rules be framed by the, concerned to earmark commercial/residential, areas and in interest of justice before permission is granted, besides approval of all the Members indicated above. It will be proper to hear the necessary affected parties more particularly the persons in the vicinity.

4. Rules be framed by the concerned to earmark commercial/residential areas."

3. The petitioner feeling dissatisfied and aggrieved by the

impugned order has filed the instant petition. The impugned order

has been assailed primarily on the following grounds:-

i) That once the Tribunal held that the appeal preferred by respondent Nos. 2 and 3 was not maintainable, the only course open to the Tribunal was to dismiss the appeal and exercise of revisional jurisdiction that, too, suo moto was uncalled for.

           ii)    Once it was conceded that in the absence of any
                  master      plan       having        been      prepared       and

implemented by the Municipal Committee, Akhnoor, there was no distinction with regard to commercial and residential areas in the developmental plan.

iii) The Tribunal did not appreciate that the building permission was granted in favour of the

petitioner only after all requisite formalities had been completed and the Committee had passed the requisite orders.

4. Respondent Nos. 2 and 3 have filed their objections

and have opposed the maintainability of this petition on the

ground that the building permission granted in favour of the

petitioner was dehors the Rules and Regulations and, therefore,

the Tribunal has rightly exercised the suo moto revisional powers

and set aside the impugned order.

5. Having heard learned counsel for the petitioner and

perused the record, I am of the view that the impugned order

passed by the Tribunal is not sustainable in law. True it is that

once the preliminary objection raised by the petitioner with regard

to the maintainability of appeal at the instance of a stranger to the

lis was upheld, there was no occasion or justification to invoke

the suo moto revisional jurisdiction.

6. From a perusal of the impugned order as also

provisions of the Municipal Act, 2000, it is not forthcoming that

against the order of grant or refusal of building permission, a

revision before the Government is maintainable. The Tribunal has

not indicated the source of power to exercise suo moto revisional

jurisdiction. On that score alone, this writ petition is liable to

succeed. Otherwise also, I do not find any case on merits to

assail the building permission granted by the Municipal

Committee in favour of the petitioner.

7. From a reading of the objections filed by the

Municipal Committee filed before the Tribunal, it is abundantly

clear that the Building Operation Controlling Authority of the

respondent in majority has approved the site plan of the petitioner

after completing all the requisite formalities. The stand of the

Municipal Committee that since there is no master plan indicating

residential or commercial zones in the area of operation of

Akhnoor Municipality, it is competent for them to grant building

permission for construction of two shops even in the area, which

may be predominantly inhabited for residential purpose. As a

matter of fact, the Tribunal in the order impugned has also noticed

this position and has held that in the Akhnoor Municipal area

there is no specific earmarking of commercial or residential zones

for development. I am also not in agreement with the Tribunal

that in the absence of Rules and Regulations, it is incumbent upon

the municipal authorities to hear the affected parties before

building permission in favour of a person is granted.

8. As is held by this Court in the case of Indira

Memorial Public School v. State of J&K and others, 2011(II)

SLJ 630, before grant or refusal of permission, the competent

authority is not obliged in law to put any third party or public at

large on notice so as to provide right of hearing to any such

person. Therefore, no third party has any right to approach the

competent authority to say that permission should not to be

granted to a person, who has applied for the same in terms of the

provisions of the Jammu & Kashmir Control of Building

Operations Act, 1988.

9. For the foregoing reasons, I find merit in this petition.

The same is, accordingly, allowed. The impugned order dated

18.07.2008 passed by respondent No.1 is set aside.

(Sanjeev Kumar) Judge JAMMU.

16.03.2021 Vinod.

Whether the order is speaking : Yes Whether the order is reportable: Yes/No

VINOD KUMAR 2021.03.18 11:13 I attest to the accuracy and integrity of this document