Tanzeem Khursheed Zargar vs J&K Special Tribunal & Ors
2022 Latest Caselaw 1861 j&K/2

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

                         WP(C) No. 1197/2022
                         CM No. 2955/2022

                                            Reserved on18.10.2022
                                            Pronounced on 29.10.2022

Tanzeem Khursheed Zargar

                                                       ...Petitioner(s)

                  Through: Mr. A.Hanan Kalwal, Advocate.

                               V/s

J&K Special Tribunal & Ors.

                                                    ...Respondent(s)

                  Through:Mr. Moomin Khan, Adv. for no. 2 to 4.
                          Mr. Azhar ul Amin, Adv. for no. 5 to 8.

Coram:HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE

                                JUDGMENT

1. Petitioner is aggrieved of the order dated 02.05.2022 passed by

Respondent No.1-J&K Special Tribunal Srinagar, whereby the

Tribunal has rejected the Application of the petitioner for not

impleading him as a necessary party and has allowed the appeal by

directing the Municipal authorities to consider the regularization of

the minor deviations, if any, made by the private respondents 5 to 8

under the enabling provision of Master Plan-2035 and the J&K

Unified Building Bye-Laws.

FACTS

2. Brief facts of the case, which led to filing of the present writ petition

under Article 226 of the Constitution of India by the petitioner is that P a g e |2

the petitioner and the private respondents are living in the close

vicinity of each other and are in possession of the proprietary land.

The case of the petitioner is that in the year 2021, the private

respondents 5 to 8 started dumping of building material for renovation

of their old structure and feeling aggrieved of the same, the petitioner

approached the civil court by way of the suit and the learned court

directed the parties to maintain status quo. However, the private

respondents subsequently produced the permission/sanction granted

by Municipal Corporation vide order No.235 of 2021 dated

17.07.2021, which reads as under:-

"....for restoration of existing double storey with attic residential house over existing parameters without any change in shape size height and without dismantling the structure on the plot of land compromising survey No. 894/2. And the total built up area 805.0 s.fts. & attic floor 402.0 s.fts...."

3. Further stand of the petitioner is that the private respondents under the

garb of the permission started to dismantle the existing structure and

started to construct the new structure without adhering to the terms

and conditions of the building permission by dismantling first the

existing structure and then by building the structure upto 1200 sq.fts

built up area and by increasing the height of the structure there by

violating the privacy of the petitioner resulting in infringement of the

right to privacy.

4. Pursuant to the complaint of the petitioner, the official respondents

took note of the violation of the building permission granted to the

private respondents, and issued demolition notice under Section P a g e |3

235(1) of J&K Municipal Corporation Act, 2000 vide No.

SMC/Enf/1890-95 dated 24.11.2021. Feeling aggrieved of the same,

the private respondents herein assailed the demolition notice by way

of appeal before the J&K Special Tribunal, Srinagar. As per the stand

of the petitioner, the petitioner feeling aggrieved of the violation of

the permission granted to the private respondents because of the

change in shape, size and height of the existing structure and being

affected party, filed an application in the aforementioned appeal

seeking impleadment in the proceedings as being necessary party.

5. It is the specific case of the petitioner that the Tribunal without

hearing the petitioner has passed the impugned order that too without

deciding the application seeking his impleadment and allowing the

appeal leaving no option to the petitioner but to challenge the order

impugned dated 02.05.2022 by way of the present writ petition.

6. Learned counsel for the petitioner urged that the order impugned

dated 02.05.2022 passed by the J&K Special Tribunal Srinagar be set

aside on the ground that the same has been passed with non-

application of mind and in violation of the rules governing the field.

Learned counsel argued that the private respondents have violated the

building permission granted to them and accordingly, the order

impugned cannot sustain the test of law and deserves to be set aside. It

has further been urged that the deviations are of such nature that if

regularized same will be fatal to the rights of the petitioner.

P a g e |4

7. The main plank of argument raised by learned counsel for the

petitioner is that the order impugned dated 02.05.2022 deserves to be

quashed and set aside on the ground that the petitioner is an affected

party and the Tribunal has brushed aside his contention raised in the

application. The Tribunal has not touched this aspect of the matter nor

has his application been accorded any consideration and, accordingly,

submitted that the order impugned cannot sustain the test of law and is

liable to be set aside.

8. Per contra, Azhar-ul-Amin, learned counsel for private respondents 5

to 8 has raised an issue with regard to maintainability of the present

writ petition in light of the fact that the petitioner has already availed

the remedy of filing the suit before the civil court and had obtained

status quo order on misrepresentation of the fact that the construction

has been undertaken by the private respondents without any

sanction/permission. Learned counsel further argued that permission

has already been granted in favour of the private respondents by the

competent authority, the petitioner immediately withdrew the said suit

as not pressed after the private respondents filed the written statement

and brought the permission/sanction on record. He further argued that

the permission for restoration/re-construction on the existing

parameters was granted vide order No.235 of 2021 dated 19.07.2021.

Learned counsel has also argued that the Tribunal has discharged the

caveat on the ground of the petitioner having no locus standi and had

recorded the finding that the houses of the petitioner and the private

respondents are separated by 11 feet public pathway and this was

precisely the reason the caveat was discharged as the petitioner has no P a g e |5

locus in the present proceedings. His further argument is that the

Tribunal has only directed the Srinagar Municipal Corporation to

decide the case of the private respondents for regularization of minor

deviations, if any, under permissible norms within a period of two

weeks from passing of order dated 31.05.2022, as such the writ

petition is not maintainable.

9. It is the specific case of private respondents that the petitioner

immediately after the dismissal of his caveat filed appeal before the

civil court against the order of withdrawal of suit filed by him, which

is pending adjudication before the court of learned 3rd Additional

District &Sessions Judge, Srinagar and this aspect of the matter has

been deliberately concealed by the petitioner by filing the present writ

petition with a view to mislead this Court and had played fraud with

this Court to get interim order passed in his favour. Learned counsel

further argued that the present writ petition is not maintainable as the

remedy in the form of present writ petition is not available to him as

he is stranger to the proceedings which has culminated in the issuance

of impugned order which is called in question by way of present writ

petition filed under Article 226 of the Constitution of India.

10.It has been further argued by the counsel for the private respondents

that the learned Tribunal by virtue of impugned order has decided

nothing but directed the statutory authority to decide the case of

private respondents under enabling provisions of the statute and the

writ petition which is preferred by the petitioners seeks direction P a g e |6

contrary to the statute, whichis not maintainable. It is the further

stand of the private respondents that the present writ petition is sheer

abuse of process of law as the petitioner has filed the present writ

petition and initiated the parallel proceedings when already he has

availed the remedy of filing appeal against the suit which the

petitioner has later on withdrawn. It is the specific case of the private

respondents that there is alternate and efficacious remedy provided

under Section 401 of J&K Municipal Corporation Act, 2000, and the

present writ petition is barred, as such. Lastly the learned counsel has

argued that the present writ petition is not maintainable, as by virtue

of the aforesaid writ petition, challenge has been thrown to the

building permission granted by the statutory authority in favour of the

private respondents and the official respondents were directed to

restrain to act under the enabling provisions of the statute, which is

not permissible.

11.This Court vide Order dated 07.09.2022, granted last and final

opportunity to the official respondent Nos. 2 to 4, to file reply within

four weeks but inspite of this, reply has not been filed till date.

12.When the case was taken up today, Mr. Moomin Khan, learned

counsel for the respondent Nos. 2 to 4 submits that he does not wish

to file reply and sought permission of this Court to address arguments

in absence of the reply. He was permitted to make submissions,

accordingly, he argued that the writ petition is not maintainable and is

liable to be dismissed as the petitioner has no locus to call in question P a g e |7

the order passed by the Tribunal wherein he was not the party in the

proceedings. Besides, he has also argued that the petitioner has an

alternate and efficacious remedy available under the statue.In case if

he is aggrieved of passing of the order of Tribunal, writ petition under

Article 226 of the Constitution of India is not the remedy to call in

question the order passed by the Tribunal. Since the petitioner has not

availed the remedy provided under the statue, the present writ petition

is liable to be dismissed. Besides, learned counsel argued that the

official respondents were directed by the Tribunal to consider the

regularization of the minor deviations, if any, in the existing structure

of the private respondents under the enabling provisions of Master

Plan-2035 and the J&K Unified Building Bye-Laws and have been

directed to issue completion certificate in favour of the private

respondents in accordance with law, and because of the rider by virtue

of interim order dated 14.06.2022, the official respondents are not in a

position to proceed in the matter and, accordingly, has prayed for

dismissal of the writ petition and vacation of the interim order. He has

further projected that the caveat application filed by the petitioner

before the Tribunal was dismissed and the caveat was discharged and

thus, it has been observed by the Tribunal that the present controversy

appears to be outcome of some personal enmity between the two

neighbors i.e. appellant and the caveator.

ANALYSIS:-

13. I have heard learned counsel for the parties at length and perused the

record.

P a g e |8

14. It is clear that the petitioner after having failed before the civil court

has chosen to withdraw the suit filed by him before the court of

learned Civil Subordinate Judge/Municipal Srinagar and has initiated

parallel proceedings by way of filing the present petition under Article

226 of the Constitution of India. The petitioner threw challenge to the

order impugned passed by the Tribunal dated 02.05.2022, by virtue of

which the caveat application filed by the petitioner was dismissed and

the caveat was discharged.

15.In K.S. Rashid and Sons v. Income Tax Investigation Commission,

AIR 1954 SC 207, a Constitution Bench of the Hon'ble Supreme

Court considered the issue that when the remedy under Section 8(5) of

the Taxation of Income Tax (Investigation Commission) Act, 1947

has been pending, whether the High Court could entertain the writ

petition. The Hon'ble Apex Court held that a person may

choose/effect where it will proceed with the alternative remedy or

with the writ petition, but both cannot be pursued simultaneously. It

would be advantageous to reproduce paragraph 4 of the aforesaid

judgment hereunder:

4. So far as the second point is concerned, the High Court

relies upon the ordinary rule of construction that where the

legislature has passed a new statute giving a new remedy, that

remedy is the only one which could be pursued. It is said that

the Taxation on Income (Investigation Commission) Act, 1947,

itself provides a remedy against any wrong or illegal order of

the Investigating Commission and under Section 8(5) of the Act, P a g e |9

the aggrieved party can apply to the appropriate Commissioner

of Income Tax to refer to the High Court any question of law

arising out of such order and thereupon the provisions of

Sections 66 and 66-A of the Indian Income Tax Act shall apply

with this modification that the reference shall be heard by a

Bench of not less than three Judges of the High Court. We think

that it is not necessary for us to express any final opinion in this

case as to whether Section 8(5) of the Act is to be regarded as

providing the only remedy available to the aggrieved party and

that it excludes altogether the remedy provided for under

Article 226 of the Constitution. For purposes of this case it is

enough to state that the remedy provided for in Article 226 of

the Constitution is a discretionary remedy and the High Court

has always the discretion, to refuse to grant any writ if it is

satiated that the aggrieved party can have an adequate or

suitable relief elsewhere. So far as the present case is

concerned, it has been brought to our notice that the appellants

before-us have already availed themselves of the remedy

provided for in Section 8(5) of the Investigation Commission

Act and that a reference has been made to the High Court of

Allahabad in terms of that provision which is awaiting decision.

In these circumstances, we think that, it would not be proper to

allow the appellants to invoke the discretionary jurisdiction

under Article 226 of the Constitution at the present stage, and

on this ground alone, we would refuse to interfere with the

orders made by the High Court. Dr Tek Chand argues that the P a g e | 10

Income Tax authorities have not referred all the matters to the

High Court which the appellants wanted them to do. But for

this there is a remedy provided in the Act itself and in case a

proceeding occasions a gross miscarriage of justice, there is

always the jurisdiction in this court to interfere by way of

special leave. In the result, we dismiss the appeals but in the

circumstances of the case make no order as to costs.

16. A Constitution Bench of the Hon'ble Supreme Court in A.V.

Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj

Wadhwani, AIR 1961 SC 1506 held that even where a party has

approached the alternative forum, the Court should entertain a writ

petition or not, a straitjacket formula cannot be formulated. The Court

may examine the facts and circumstances of the case and decide as to

whether it was to entertain the petition or not. However, where the

petitioner has already approached the alternative forum for

appropriate relief, it is not appropriate that the writ petition should be

entertained. The rule is based on public policy and motivating factor is

that of existence of the parallel jurisdiction in another Court.

17. In Jai Singh v. Union of India, (1977) 1 SCC 1 : AIR 1977 SC 898

the Hon'ble Supreme Court considered a case wherein the petitioner

filed a writ petition which was dismissed in limine. Subsequently, he

filed a suit agitating the same subject-matter. The Court held that suit

was not maintainable as a person cannot be permitted to pursue two P a g e | 11

parallel remedies in respect of the same subject-matter at the same

time.

18. In Bombay Metropolitan Region Development Authority,

Bombay v. Gokak Volkart Ltd., (1995) 1 SCC 642 : (1995 AIR SCW

808), the petitioner therein had filed a writ petition during the

pendency of the appeal before the Statutory Authority. The Hon'ble

Apex Court held that such a writ was not maintainable.

19. Thus, from the aforementioned enunciation of law, it is clear that a

person may have a right to choose the forum for redressal of his

grievance, but he/she cannot be permitted to choose two forums in

respect of the same subject-matter for the same relief. If parallel

proceedings are allowed, they may give rise to forum hunting,

wherein, a party who filed a suit and was not able to get the interim

relief abandons the remedy before the civil Court and approaches the

remedy of filing the writ petition, it will amount to abuse of the

process of the Court by forum hunting.

20.In the peculiar facts and circumstances of the present case, it is

emphatically clear that the present writ petition is totally an abuse of

process of Court, more particularly, when the petitioner has already

availed the remedy of filing appeal against the order dated 15.02.2022

by virtue of which the civil suit along-with the interim application was

dismissed in a Civil Suit No. 488/N filed by the petitioner by way of

misrepresentation of the facts seeking stay on the construction by P a g e | 12

urging that the construction was undertaken by private respondents

without any permission. When the private respondents filed the

written statement before the civil court and the sanction/permission

was brought on record, the petitioner immediately withdrew the

aforesaid suit as the petitioner anticipated the fate of the said suit.

After having failed before the civil court, the petitioner has chosen to

file the present writ petition against the order of the Tribunal, in which

his caveat was discharged.

21.Once the petitioner has chosen to file appeal before the civil court,

she, by no stretch of imagination can initiate parallel proceedings

before this Court under Article 226 of the Constitution of Indiaby

abandoning the remedy before the civil Court and approach the

remedy of filing the writ petition. Thus, the present writ petition

tantamount to abuse of the process of Court.

22.The issues involved in both the proceedings i.e., present writ petition

and civil court, are directly or indirectly or substantially the same and

the petitioner after having availed the remedy of appeal against the

order whereby his civil suit has been dismissed as not pressed, has

filed the present writ petition which is not maintainable as the

petitioner by no stretch of imagination can initiate the parallel

proceeding on the same subject matter being a stranger to the

proceedings, having no locus standi.

23.The petitioner was not a necessary party before the Tribunal in which

the private respondents have preferred the appeal under Section 253 of P a g e | 13

J&K Municipal Corporation Act, 2000 against the notice of

demolition bearing No. SMC/Enf/1890-95 dated 24.11.2021 issued by

Chief Enforcement Office, SMC Srinagar. This was precisely the

reason that the Tribunal did not deem it proper to decide the

application allegedly filed by the petitioner seeking impleadment as

party, more particularly, when the caveat application filed by the

petitioner before the Tribunal was dismissed and caveat discharged.

The petitioner has no locus standi to challenge the order of the

Tribunal as the petitioner was a stranger to the proceedings before the

J&K Special Tribunal, Srinagar. The petitioner has filed the present

writ petition challenging the order of the Tribunal, whereby no

adverse order has been passed by the Tribunal, and has yet to become

party and has got interim order which is harshly working against the

private respondents by virtue of which the official respondents have

been restrained to consider the case of the private respondents for

regularization of minor deviations under the enabling provisions of

the Master Plan-2035 and the Srinagar Municipal Corporation

(Building) Bye-Laws. The Tribunal has also recorded the finding that

the caveator (petitioner herein) has no locus standi as the houses of the

petitioner and the private respondents are separated by 11 feet public

pathway. This was precisely the reason that the caveat was

discharged.

24.Furthermore, the petitioner, with a view to mislead this Court and to

get the interim order, has deliberately suppressed the factum of filing

appeal before the civil court against the order of withdrawal of the suit P a g e | 14

and the said appeal is pending disposal as on date before the court of

learned 3rd Additional District & Sessions Judge Srinagar.

25. On the aspect of suppression, equity, clean hands and fraud, the law

is well settled in the following decisions:-

a. In Prestige Lights Ltd., v. State Bank of India [(2007) 8 SCC

449], at paragraphs 33, 34 and 35, the Hon'ble Supreme

Court held as follows:

"33. It is thus clear that though the appellant

Company had approached the High Court under

Article 226 of the Constitution, it had not candidly

stated all the facts to the Court. The High Court is

exercising discretionary and extraordinary

jurisdiction under Article 226 of the Constitution.

Over and above, a Court of Law is also a Court of

Equity. It is, therefore, of utmost necessity that

when a party approaches a High Court, he must

place all the facts before the Court without any

reservation. If there is suppression of material

facts on the part of the applicant or twisted facts

have been placed before the Court, the Writ Court

may refuse to entertain the petition and dismiss it

without entering into the merits of the matter.

P a g e | 15

34. The object underlying the above principle has

been succinctly stated by Scrutton, L.J., in R v.

Kensington Income Tax Commissioners, [(1917) 1

KB 486 : 86 LJ KB 257 : 116 LT 136], in the

following words: "(I)t has been for many years the

rule of the Court, and one which it is of the

greatest importance to maintain, that when an

applicant comes to the Court to obtain relief on an

ex parte statement he should make a full and fair

disclosure of all the material facts, not law. He

must not misstate the law if he can help the Court

is supposed to know the law. But it knows nothing

about the facts, and the applicant must state fully

and fairly the facts, and the penalty by which the

Court enforces that obligation is that if it finds out

that the facts have not been fully and fairly stated

to it, the Court will set aside, any action which it

has taken on the faith of the imperfect statement".

35. It is well settled that a prerogative remedy is

not a matter of course. In exercising extraordinary

power, therefore, a Writ Court will indeed bear in

mind the conduct of the party who is invoking such

jurisdiction. If the applicant does not disclose full

facts or suppresses relevant materials or is

otherwise guilty of misleading the Court, the Court P a g e | 16

may dismiss the action without adjudicating the

matter. The rule has been evolved in larger public

interest to deter unscrupulous litigants from

abusing the process of Court by deceiving it. The

very basis of the writ jurisdiction rests in

disclosure of true, complete and correct facts. If

the material facts are not candidly stated or are

suppressed or are distorted, the very functioning of

the writ courts would become impossible."

b. In Udyami Evam Khadi Gramodyog Welfare Sanstha and

another v. State of Uttar Pradesh [(2008) 1 SCC 560], at

paragraphs 16 and 17, the Hon'ble Apex Court, held as

follows:

"16. A writ remedy is an equitable one. A person

approaching a superior court must come with a pair

of clean hands. It not only should not suppress any

material fact, but also should not take recourse to the

legal proceedings over and over again which amounts

to abuse of the process of law. In Advocate General,

State of Bihar v. M.P. Khair Industries[(1980) 3 SCC

311], this Court was of the opinion that such a

repeated filing of writ petitions amounts to criminal

contempt.

P a g e | 17

17. For the reasons aforementioned, there is no merit

in this appeal which is dismissed accordingly with

costs. Counsel's fee quantified at Rs.50,000."

c. In Shrisht Dhawan Vs M/s Shah Brothers (AIR 1992 SC

1555) at paragraph 20, the Hon'ble Apex Court, held as

follows:

"20. Fraud and collusion vitiate even the most solemn

proceedings in any civilized system of jurisprudence.

It is a concept descriptive of human conduct....."

d. In S.P. Chengalvaraya Naidu V/S. Jagannath (AIR 1994 SC

853) at paragraph 8, the Hon'ble Apex Court, held as

follows:

8. ..........A fraud is an act of deliberate deception

with the design of securing something by taking unfair

advantage of another. It is a deception in order to

gain by another's loss. It is a cheating intended to get

an advantage.........

e. Lastly, in the case of Ramrameshwari Devi & Ors vs

Nirmala Devi & Ors, the Hon'ble Apex Court emphasized

upon the need for curbing unscrupulous litigation. At P a g e | 18

paragraphs 43, 54 and 55, the Hon'ble Apex Court, held as

follows:

43. We have carefully examined the written

submissions of the learned amicus curiae and the

learned counsel for the parties. We are clearly of

the view that unless we ensure that wrongdoers are

denied profit or undue benefit from the frivolous

litigation, it would be difficult to control frivolous

and uncalled for litigations. In order to curb

uncalled for and frivolous litigation, the courts

have to ensure that there is no incentive or motive

for uncalled for litigation. It is a matter of common

experience that court's otherwise scarce and

valuable time is consumed or more appropriately,

wasted in a large number of uncalled for cases.

54. While imposing costs we have to take into

consideration pragmatic realities and be realistic

as to what the defendants or the respondents had

to actually incur in contesting the litigation before

different courts. We have to also broadly take into

consideration the prevalent fee structure of the

lawyers and other miscellaneous expenses which

have to be incurred towards drafting and filing of

the counter-affidavit, miscellaneous charges

towards typing, photocopying, court fee, etc. P a g e | 19

55. The other factor which should not be forgotten

while imposing costs is for how long the

defendants or respondents were compelled to

contest and defend the litigation in various courts.

The appellants in the instant case have harassed

the respondents to the hilt for four decades in a

totally frivolous and dishonest litigation in various

courts. The appellants have also wasted judicial

time of the various courts for the last 40 years.

26.Thus, from the aforementioned pronouncements, the law has been

settled that suppression of any material fact amounts to abuse of the

process of law and amounts to fraud and would deprive an

unscrupulous litigant from availing equitable or discretionary

remedies under Article 226 of the Constitution of India. In the present

case, the petitioner, with a view to mislead this Court and to get the

interim order, has deliberately suppressed the factum of filing appeal

before the civil court against the order of withdrawal of the suit and

the said appeal is pending disposal as on date before the court of

learned 3rd Additional District & Sessions Judge Srinagar. In these

circumstances, the petitioner is not entitled to claim the discretionary

remedy available under Article 226 of the Constitution of India.

CONCLUSION:-

27.For what has been stated hereinabove and in the light of the settled

legal position: -

P a g e | 20

I. I, hold that the present writ petition is not maintainable and is

liable to be dismissed as the same is sheer abuse of process of

the Court as the petitioner has already initiated parallel

proceedings by way of filing appeal against the order passed by

the court of learned 3rd Additional District & Sessions Judge

Srinagar, which is pending adjudication before the said court

involving the same issue in question, which is subject matter of

the present writ petition. The petitioner has no locus to call in

question the order passed by the Tribunal, wherein the appeal

has been preferred by the private respondents against the order

of demolition issued by the Srinagar Municipal Corporation, in

which the petitioner is not a party and wherein no adverse order

has been passed against the petitioner.

II. The petitioner has deliberately suppressed the material fact of

filing appeal before the court of learned 3rd Additional District

& Sessions Judge Srinagar against the dismissal/withdrawal of

the suit filed by him with a view to mislead this Court and to

get interim order. It clearly proves that the petitioner has not

come to this Court with clean hands. The petitioner has,

accordingly, abused the process of court by filing the writ

petition and accordingly, this is a fit case where cost of

Rs.50,000/- is imposed upon the petitioner to deprecate such

practice of forum hunting and suppression of material facts,

which shall be payable by the petitioner to the private

respondents within a period of four weeks from today as they

are the real sufferers of the interim order passed by this Court P a g e | 21

which is harshly working against the private respondents and

thus, they need to be compensated.

III. Accordingly, the present Writ Petition stands dismissed.

Interim direction shall also stand vacated.

(WASIM SADIQ NARGAL) JUDGE Srinagar 29.10.2022.

Muzammil. Q



            Whether the order is reportable?       Yes