Sanjay Gupta vs State Of J&K And Others
2022 Latest Caselaw 828 j&K

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

                                             OWP No. 628/2012
                                             IA Nos. 1/2018, 863/2012
                                             Reserved on : 20.04.2022
                                             Pronounced on :23.05.2022

Sanjay Gupta                                               .....Petitioner(s)

                      Through: Mr. Rahul Pant, Sr. Advocate with
                               Ms. Shreya Nagpal, Advocate
                Vs.

State of J&K and others                                  ..... Respondent(s)

                      Through: Mr. Rajneesh Raina, Advocate


Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE

                              JUDGMENT

1. The petition in hand has been filed by the petitioner on the grounds that

the petitioner is owner in possession of the land measuring 1144.25

square feet comprised in Khasra No. 330-Min situated at Maheshi Gate,

Gurudwara Sunder Singh Road, Jammu which was purchased by him on

07.03.1989 from one Kesar Singh S/o Sh. Ram through a registered sale

deed executed on 07.03.1989 and registered with the court of learned

Sub-Registrar, Jammu on 08.03.1989. It is averred that as per the sale

deed the land which was purchased by the petitioner from Kesar Singh

measured about 5½ marlas and taking advantage that the petitioner

normally resides outside J&K in connection with his job, an unnecessary

dispute was raised by the neighbours which was ultimately settled in

terms of a compromise deed and the petitioner was left with an open

land measuring 882.75 sq.ft. only. Subsequently, some more land

adjoining to the land, which was earlier part of 5½ marlas and given

away in compromise deed, was purchased back by the petitioner vide

sale deed dated 06.07.2010.

2. It is averred that with a view to raise the construction of his residential

house, the petitioner had earlier applied for grant of building permission

on the aforesaid 882.75 sq.ft. before the Jammu Municipal Corporation

and after completion of all the requisite formalities the building

permission case of the petitioner was placed before the Building

Operations Control Authority for approval and sanction, who after

considering the no objection certificate from all requisite quarters and

after due verification of the title of the petitioner and in the light of no

objection certificates issued by Revenue and Nazool authorities, granted

permission to the petitioner vide order dated 24.04.2000 passed by the

respondent No. 2. However, the petitioner could not raise the

construction of his residential house in pursuance of the permission

granted within the period of its validity, as such, once again he applied

to the respondent No. 2 for revalidation and the request of the petitioner

was acceded to and permission granted was revalidated for three years in

pursuance of the order dated 18.09.2003, however, during this period

also the petitioner could not raise construction because of the third party

dispute raised by neighbor.

3. It is further averred that the petitioner once again approached the

respondent No. 2 to seek further extension of three years and the request

was again accepted and the building permission was further extended for

a further period of three years w.e.f. 17.09.2008 vide order dated

17.12.2008, however, the respondents asked the petitioner to file an

undertaking to the effect that if the learned civil court gave any adverse

judgment against the petitioner, the same could be abided by him, which

was submitted by the petitioner.

4. It is further averred that while the petitioner was making necessary

preparation to commence the building construction and was out of

station in connection with employment, he was informed that the

respondent No. 2 had trespassed on his land and started leveling the

same by using JCB and the fencing erected by the petitioner had been

dismantled, even nallah which existed towards the northern side of the

plot of the petitioner had been damaged. The petitioner rushed to the

respondents and met the then Commissioner, however, after having

failed to find any logical response from the then Commissioner and

threatening posture, the petitioner was constrained to file a suit for

permanent prohibitory injunction against the Jammu Municipal

Corporation and others seeking a decree restraining them from

interfering or causing any interference or damage to the property of the

petitioner and had also sought injunction against the respondents for

revoking, recalling or cancelling the building permission as the

respondent No. 2 had threatened to do so during the course of meeting

with the petitioner. In the suit, the learned trial court vide order dated

25.05.2010, directed the parties to maintain status quo and the moment

the order of status quo was served upon the respondents, i.e., on

26.05.2010, the respondent No. 2 immediately kept the building

permission granted in favour of the petitioner in abeyance on the ground

that there was some dispute between the petitioner and his neighbor

going on in the civil courts. It is averred that the petitioner challenged

the order of keeping the building permission in abeyance dated

25.05.2010 through the medium of OWP No. 1147 of 2010 but later on

the said writ petition has been withdrawn with liberty to file fresh, in

view of the settlement arrived at between the petitioner and his neighbor,

namely, Chaina Ram.

5. It is contended that vide order dated 09.04.2011, the court of learned 1 st

Civil Subordinate Judge (Municipal Magistrate), Jammu restrained the

Jammu Municipal Corporation and its officers from interfering in the

suit land till disposal of the main suit, subject to an undertaking that in

case the defendants succeed in proving their ownership over the disputed

land, the petitioner would immediately surrender the vacant possession

of the suit property, to which an appeal was preferred by the Jammu

Municipal Corporation before the learned 1 st Additional District Judge,

Jammu, which was dismissed by the appellate court vide order dated

30.08.2011. The respondents have also preferred the civil revision

petition against the order of appellate authority which too was dismissed

by the High Court vide order dated 22.12.2011.

6. It is further contended that while the petitioner was pursuing his remedy

before the civil court and had been granted an injunction against the

respondents by the trial court vide order dated 09.04.2011, the

respondent No. 2 informed the petitioner that he could not be allowed to

raise the construction as the building permission had since been kept in

abeyance and the petitioner reasoned with the respondent No. 2 that the

abeyance order has already become infructuous in view of the

compromise deed with the neighbor, however, the respondent No. 2

persisted without any logical reason. Therefore, the petitioner once again

approached the High Court for challenging the infructuous order dated

25.05.2010. The respondents were put to notice through Dasti service,

who on coming to know about filing of the writ petition, instead of filing

their response, immediately placed the matter before the Building

Operation Control Authority on 04.06.2011 and with a view to render

the aforesaid petition infructuous, issued order dated 25.07.2011

withdrawing the building permission granted in favour of the petitioner.

The petitioner challenged the aforesaid order dated 25.07.2011 through

the medium of OWP No. 1143/2011 and the High Court vide order dated

17.11.2011 partially allowed the petition by quashing the order dated

25.07.2011, however, the prayer of the petitioner for extending the

period of validity of sanction granted by the respondent No. 2 for the

period for which it remained in abeyance and incapable of being

operated, was not allowed. The petitioner was given liberty to file afresh

before the respondent authorities to seek permission for raising

construction on the land.

7. It is further contended that the petitioner submitted his fresh application

on 25.11.2011, however this time the petitioner applied for seeking to

raise the commercial construction, as the area where the land is situated

had been fully developed as commercial area and the Chief Town

Planner had also earlier written to the respondent No. 2 on 11.12.1999

that the land use of the area earmarked in the Jammu Master Plan is

commercial, where the petitioner's plot is located and recommended the

same.

8. It is contended that as per the provisions of Jammu Municipal

Corporation Building Bye-Laws, 2011, the petitioner became entitled to

raise the construction as per the plan submitted by him on account of

failure of the respondent No. 2 to take a decision in the matter of either

granting sanction or receiving the same under intimation to the

petitioner. Also, the petitioner with a view to deposit the building

permission fee made an application to the respondent No. 2 on

16.03.2012 requesting to intimate him about the exact building

permission fee so that he could commence his building operation,

however, this letter too has not been responded by the respondent No. 2.

The respondent No. 2 and his officers have told the petitioner that he

would not be allowed to raise any construction on the land on the ground

of deemed permission by operation of law. It is further contended that

the petitioner made further representations to the respondent No. 2

through email on 01.04.2012 and 02.04.2012, but there is no response.

Therefore, the petitioner is left with no other option but to approach this

Court.

9. The respondents have filed objections, whereby they resisted the petition

filed by the petitioner on the ground that the respondents have granted

building permission to the petitioner to raise a residential construction

vide order dated 24.04.2000 and the building permission was revalidated

thrice vide different orders and the latest building permission was

validated from 17.09.2008 for three years. It is further averred in the

objections that some dispute between the petitioner and one Chain Ram

was erupted, leading to filing of a complaint against the petitioner

regarding his ownership over the land before the respondents and after

receiving the complaint the respondents passed the order, which was

subject impugned in OWP No. 762/2011 and kept the permission in

abeyance. During investigation, it was found that the respondents are the

real owner of the land and the petitioner with the help of some forged

documents has succeeded in getting the building permission and after

coming to know that the petitioner is not the real owner of the land, the

building permission granted in favour of the petitioner was withdrawn

vide order dated 25.07.2011.

10. It is further averred in the objections that the petitioner has challenged

the order of withdrawal of permission before the High Court by filing a

writ petition being OWP No. 1143/2011 and vide order dated

17.11.2011 the Court decided the writ petition and quashed the order of

withdrawal of permission and directed the petitioner to apply afresh. The

petitioner had also filed a civil suit and the same is pending before the

learned Municipal Magistrate, Jammu, wherein the petitioner has sought

similar relief which the petitioner is seeking in the present writ petition.

Since the matter in controversy is directly called in question by availing

two different remedies, hence the petition deserved outright dismissal. It

is further averred that the BOCA has approved construction of boundary

wall, subject to the title verification and demarcation by the revenue

authorities, however, the petitioner never got title verification. Even, it

was again intimated to the petitioner through letter dated 12.04.2012 that

his case was placed before the BOCA and the authority has desired to

get the demarcation and title verification of the land and all the other

members of the authorities, i.e., CTP, TPO, PDD, S&D, PHE and Urban

Transport Environment Improve Committee have not issued no

objection certificates in favour of the petitioner and without the accent of

above said members the building permission cannot be acceded.

11. Further averred that after grant of permission it came to the notice of the

respondents that the petitioner is encroaching upon the Municipal land

which was in possession of the respondents and when the respondents

objected, the petitioner lodged a claim against the said land and also

relied upon the permission granted in his favour. In the khasra girdawari,

the respondents are mentioned as the real owner. The sale deed executed

between the petitioner and one Kesar Singh does not disclose the true

location of the property, khasra number is not mentioned and the vendor

Kesar Singh has also not disclosed his source of title over the land in

question and such type of transfer is not valid under Transfer of Property

Act.

12. Heard learned counsel for the parties.

13. Precise and only grievance projected by the petitioner is that he has

submitted the site plan of proposed construction on the land in question

along with application for building permission for raising commercial

construction along with the requisite documents including the title on

25.11.2011, but the authority has neither rejected nor accorded building

permission despite lapse of more than sixty days. It is averred that the

petitioner has acquired an indefeasible right of deemed sanction under

Regulation 7(3) of Control of Building Operations Regulations.

14. It is necessary to have a look at the provisions of Scheme. Regulation 7

of Control of Building Operations Regulations deals with grant of

building permission, the same is reproduced as under:-

"7. Grant of Permission (1) The Chairman of the Authority shall place the application and Building Plan alongwith the Inspector's report before the Authority for its consideration.

(2) The Authority shall either grant the permission subject to such conditions as may be specified or refuse to grant permission on such grounds as may also be specified and recorded.

(3) The Authority shall decide the matter within a maximum period of sixty days from the date of submission of the application and in case no decision can be taken within this stipulated period, the permission shall be deemed to have been accorded.

(4) In case the Authority refuses the grant of permission the grounds of such refusal shall be communicated to the applicant in writing within seven days from the date of the decision.

(5) The permission shall be issued only after the applicant deposits the building permission fees as approved by the competent authority."

15. Regulation 7(3) reproduced herein above, no doubt, envisages that the

authority is required to decide the application within a period of max. 60

days failing which, it creates an indefeasible right of deemed permission.

Regulation 8 provides that no permission shall be granted unless the

applicant has provided sufficient proof in support of his ownership of the

land. Section 5 of Control of Building Operations Act, 1988 provides for

making an application for permission as contemplated under Section 4 to

concerned authority.

16. In the present case, admittedly, the petitioner approached the

authority/respondent herein by submitting the site plan of proposed

commercial construction on 25.11.2011 which has been received by the

respondents' office on 1st December, 2011. In terms of the regulations

referred herein above the ownership over the land is prerequisite to get

building permission from the authority. The respondents vide letter dated

28.01.2012 have approved the case of the petitioner for raising

construction of boundary wall, subject to verification of title. It is the

case of respondents that vide letter dated 28.01.2012 the petitioner was

requested to get title verification, i.e., much before the expiry of max

sixty days in terms of Regulation 7(3) of Control of Building Operations

Regulations, but the petitioner, instead of answering the

queries/submitting the requisites as asked by the authority, has

approached this Court by filing the present writ petition. The petitioner,

therefore, has no indefeasible right of deemed permission merely on the

plea of expiry of sixty days period.

17. My view is fortified by the observation of the Hon'ble Apex Court in

case titled "Commissioner of Municipal Corporation, Shimla vs. Prem

Lata Sood and ors." reported as 2007(11) SCC 40. Relevant paras 36,

39 & 47 of the aforesaid judgment of the Apex Court is reproduced as

under:-

"36. Section 247 no doubt provides for a legal fiction specifying a period of sixty days, within which the application for grant of sanction of a building plan should be granted, but the said period evidently has been considered to be providing for a reasonable period during which such application should be disposed of. However, only because the period of sixty days has elapsed from the date of filing of application, the same by itself would not attract the legal fiction contained in Section 247 of the 1994 Act. When such an application is attended to and the defects in the said building plans are pointed out, there cannot be any doubt whatsoever that the applicant must satisfactorily answer the queries and/or remedy the defects in the building plans pointed out by the competent authority.

37. XXXXX

38. XXXXX

39. It is now well-settled that where a statute provides for a right, but enforcement thereof is in several stages, unless and until the

conditions precedent laid down therein are satisfied, no right can be said to have been vested in the person concerned. The law operating in this behalf, in our opinion is no longer res integra.

40. XXXXX

41. XXXXX

42. XXXXX

43. XXXXX

44. XXXXX

45. XXXXX

46. XXXXX

47. There cannot be any doubt whatsoever that an owner of a property is entitled to enjoy his property and all the rights pertaining thereto. The provisions contained in a statute like the 1994 Act and the building bye-laws framed thereunder, however, provide for regulation in relation to the exercise and use of such right of an owner of a property. Such a regulatory statute must be held to be reasonable as the same is enacted in public interest. Although a deeming provision has been provided in sub-section (1) of Section 247 of the 1994 Act, the same will have restricted operation. In terms of the said provision, the period of sixty days cannot be counted from the date of the original application, when the building plans had been returned to the applicant necessary clarification and/or compliance of the objections raised therein. If no sanction can be granted, when the building plan is not in conformity with the building bye-laws or has been made in contravention of the provisions of the Act or the laws, in our opinion, the restriction would not apply despite the deeming provision."

18. The judgments cited by learned counsel for the petitioner are

distinguishable to the facts of the case in hand.

19. In view of the facts and circumstances of the case discussed herein

above, this writ petition is disposed of with a direction to the petitioner

to approach the respondents' office to do the needful in terms of letter

dated 28.01.2012 (Annexure-B to the objections) within a period of two

weeks. Thereafter, the respondents are directed to consider the

application submitted by the petitioner dated 25.11.2011 seeking

building permission to raise commercial construction on the land in

question, within a further period of four weeks, of course under rules.

              JAMMU                                                           (Tashi Rabstan)
              23.05.2022                                                            Judge
              Pawan Angotra

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




PAWAN ANGOTRA
2022.05.23 16:13
I attest to the accuracy and
integrity of this document