Jammu & Kashmir High Court
Ravinder Singh And Ors vs Om Parkash on 9 May, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
Case: OWP No.522/2013 C/W
CPOWP No. 185/2013
OWP No. 1067/2014
Reserved on: 08.05.2025.
Pronounced on : 09.05.2025
Ravinder Singh and ors ....Petitioner/Appellant(s)
Om Parkash
Through :- Mr. S.K.Anand Advocate.
V/s
Om Parkash
State and others
Through :- Mr Sunil Sethi Sr. Advocate with
Mr. Nayeem Sheikh Advocate
Mr. S.S.Nanda Sr. AAG
CORAM:
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
1 Since the cause of action and subject matter of these petitions are
closely related, as such, I propose to decide these petitions together by this
judgment.
2 Through the medium of instant writ petition, the petitioners have
challenged order dated 14.03.2013, passed by respondent No.4, whereby he has
set aside his earlier order dated 11.02.2013, thereby reviewing the same, which
was passed after hearing the appeal on merits. The petitioner also seeks a direction
upon the Municipal Authorities to demolish the unauthorized construction raised
by respondent No.5, in violation of the approved plan and the rules of the J&K
Control of Building Operation Act, 1988 (hereinafter referred to as the
"Act of 1988"). It is further prayed that an inquiry be initiated against respondent
No.4 for gross abuse and misuse of powers for extraneous considerations.
Factual Matrix:
3 The petitioners are residents of Karan Nagar, Jammu, and have been
residing there from the last more than 40 years. Respondent No.5 is stated to be
the owner in possession of land measuring 08 marlas and 24 sq. ft falling under
khasra No. 95, Khata No. 442 min, and Khewat No. 119 min situated at Karan
Nagar, Tehsil and District Jammu. Respondent No.5 applied to the Jammu
Municipal Corporation for permission to raise construction on the aforesaid land .
The Corporation accorded permission to construct a ground, first, and second
floor vide its order dated 26.11.2010. The permission was granted for following
construction(s) :
(i) 1150 sq. ft. for residential purposes at the ground floor,
(ii) 649 sq. ft. residential and 501 sq. ft. commercial at the first
floor, and
(iii) 1150 sq. ft. residential at the second floor.
4 The permission so granted stipulated that a front setback of 40 ft. and
a rear setback of 20 ft. was to be maintained. Respondent No.5 had categorically
stated in his application that he intended to construct two shops on the first floor
and the rest for residential purposes, in keeping with the area's zoning regulations,
which predominantly allowed residential use. Although the Municipal Authorities
permitted a mixed residential-commercial construction as per the approved plan,
respondent No.5 raised construction in violation of the sanctioned plan. He
constructed the building using RCC columns in the shape of large halls, evidently
for commercial use. Respondent No.5 had a total plot area of 2200 sq. ft. As per
the sanctioned plan, he was allowed to cover 1150 sq. ft. for residential use on the
ground floor. However, with the apparent connivance of Municipal Authorities,
he managed to construct 1856 sq. ft. for commercial use on the ground floor. This
serious violation could not have occurred without the negligence or collusion of
the concerned Authorities, who are duty bound to monitor such activities.
Moreover, while respondent No.5 was allowed 649 sq. ft. for residential use and
501 sq. ft. for commercial use on the first floor, however, he ended up covering
1856 sq. ft. for commercial purposes. He also constructed a 410 sq. ft. projection
slab that was not permitted in the sanctioned plan and not in accordance with the
master plan. For these violations, respondent No.5 was served with a notice
dated 12.11.2011 under Section 7(1) and under Section 12(1) of J&K Control of
Building Operation Act, 1988 . He was subsequently served another notice dated
31.07.2012 under Section 7(3) of the said Act. It was stated in the said notice that
his reply to the earlier notice was factually incorrect and unsatisfactory. It was
highlighted in the said notice that the construction adversely affected the planned
development of Jammu city and violated zoning regulations. Consequently, in
exercise of powers under Section 7(3) of the Act of 1988, respondent No.5 was
directed to demolish the unauthorized construction within five days, failing which
the Municipal Authorities would proceed with demolition at his risk and cost.
5 Respondent No.5 challenged the aforesaid notices before the J&K
Special Tribunal, Jammu, ("Tribunal" for short") by filing an appeal in terms of
Section 13 of the Act of 1988. The Tribunal dismissed the appeal on 11.02.2013,
holding that the violations were major and non-condonable under applicable
regulations. Relevant paragraph of the said order is reproduced herein below:
"Regulation 11 of the Control of Building Operation Regulations,
1998 gives the Tribunal, as the Appellate Authority, the discretion to
compound minor offences. However, as clearly specified in
regulation 11(2)(ii) no violation of the prescribed setbacks can be
condoned that too when there are major ones. Regulation 11(2)(iii)
says that any violation of the permissible ground coverage by more
than 10 per cent cannot be condoned. It can, therefore, be seen that
the violations which have taken place in this case are of a kind
which cannot be condoned under law. It can, therefore, be seen that
the appellant has violated the conditions in the Building Permission
granted to him with respect to the permissible ground coverage and
the setbacks at the rear and on one side and that these violations
are not condonable in terms of the Regulations. This being the case,
the appeal fails and is hereby dismissed".
6 Subsequently, respondent No.05 filed an application for rehearing
the appeal. It is stated that, as there is no provision in law for rehearing a
dismissed appeal, the Tribunal, for extraneous reasons, proceeded to rehear the
matter and passed a fresh order dated 14.03.2013. Relevant paragraph of the said
order is reproduced herein below:
"With the consent of learned counsels for both sides, the order dated
11.02.2013 is modified to the extent that the respondents shall
reassess the violation vis-à-vis norms and not as per what had been
recorded in the permission. Building line in existence may also be
kept in view. The respondents shall finalize the reassessment within a
period of one month from today and shall be free to take fresh action
against any construction not covered under rules, including against
those in the neighbourhood as the photographs produced by the
learned counsel for the appellant indicate existing as well as under
construction buildings towards centre line of the road, whereas
impugned construction has been claimed to be way behind and within
norms of set backs for a plot size of up to 2200 sq. ft."
7 The order dated 14.03.2013 has been challenged on the ground that it
is violative of the principles of natural justice; is contrary to law and facts, and
hence not sustainable in the eyes of law. The act of respondent No.4, the Tribunal
in rehearing the appeal, despite its prior adjudication and in the absence of any
legal provision, is arbitrary and unconstitutional.
8 This Court, while entertaining the writ petition on 17.04.2013, issued
notice to the respondents. On 05.06.2013 when the matter was again taken up this
Court directed the parties to maintain status quo in respect of the construction
which was the subject matter of the writ petition. However, on the alleged
violation of the status quo order dated 05.06.2013, petitioner No.1 filed a
contempt petition bearing No. CPOWP No. 185/2013.
9 It is pertinent to mention here that during the pendency of the writ
petition, the respondent No.5 also filed a writ petition against the present
petitioners, bearing OWP No. 1067/2014. In that petition, he alleged that the
petitioners in OWP No. 522/2013 and private respondents in OWP No. 1067/2014
have raised construction of their respective houses without obtaining formal
building permission under the applicable Municipal laws, particularly the Act of
1988. It was specifically alleged that respondent No.7 (petitioner No.4 in OWP
No. 522/2013) had raised construction in violation of building permission.
Respondent No.5 in OWP No. 522/2013 and petitioner in OWP No. 1067/2013
sought directions upon the official respondents to initiate appropriate action,
including demolition, against respondents No.4, 5, and 6 for raising construction
without proper permissions, and against respondent No.7 for violating the
approved building permission.
10 Heard learned counsel for the parties and perused the record.
11 Mr. Sunil Sethi, learned Senior Counsel, assisted by
Mr. Nayeem Sheikh, learned counsel appearing for respondent No.5 in OWP No.
522/2013, has raised a preliminary objection regarding maintainability of the writ
petition. He has contended that the petitioners have no locus standi to file the
present writ petition, as none of their fundamental, legal, or statutory rights have
been infringed. Therefore, they are not entitled to invoke the extraordinary writ
jurisdiction of this Court. He further submits that the writ petition is otherwise not
maintainable, as the petitioners have no cause of action to challenge the order
dated 14.03.2013, which was passed by the Tribunal after rehearing the appeal of
respondent No.5. The petitioners have no concern with the said appeal or its
disposal as they were not party to the proceedings before the Tribunal. It is further
submitted that that the petitioners have filed the present writ petition without
disclosing any reason or justification as to how and why they are aggrieved by the
impugned order.
12 Mr. Sethi, learned Senior Counsel, referring to a judgment of the
Supreme Court in the case of State of West Bengal vs Kamal Sengupta (Civil
Appeal No. 1694/2006, decided on 16.06.2008) argued that the Tribunal did not
commit any illegality in reviewing its order dated 11.02.2013. It is submitted that
the said order was based on misrepresentation made by respondent No.2 and 3,
who claimed that the setbacks left on site were within norms and consistent with
the prevailing building line for the plot size involved. Based on his
misrepresentation, the appeal filed by respondent No.5, was initially dismissed.
He, therefore, filed an application seeking rehearing of his appeal, which was duly
considered by respondent No.4. Consequently, vide order dated 14.03.2013, the
earlier order was modified to the extent that respondents No.2 and 3 i.e the
Municipal Authorities, were directed to reassess the alleged violations with
reference to applicable norms, and not merely on the basis of what had been
recorded in the original permission. The Tribunal further directed that the
Municipal Authorities should also consider the existing building line and finalize
the reassessment within one month from the date of the order. Additionally, the
Tribunal allowed the Municipal Authorities to take fresh action against any
construction not covered under rules, including those in the neighborhood of
respondent No.5. The said direction was based on photographs produced by
learned counsel for respondent No.5, which showed existing and under
construction buildings extending towards the centerline of the road, whereas the
construction raised by respondent No.5 was claimed to be located behind this line
and within setback norms for plots up to 2200 sq. ft.. According to the learned
Senior Counsel, respondent No. 5 in OWP No. 522/2013 and the petitioner in
OWP No. 1067/2014 had filed an RTI application before the Municipal
Authorities. In response, the Municipal Authorities, vide communication dated
16.06.2014, replied to the said RTI application. It is stated in the said
communication that, as per the available records, no building permission has been
granted in favour of respondents No. 4, 5, and 6 in OWP No. 1067/2014.
13 Based on the aforesaid pleadings and the submissions made, two
questions arise for determination:
(i) Whether the present writ petition is maintainable ?
(ii) Whether a Tribunal constituted under the provisions of the
Administrative Tribunals Act can review its own decision ?
14 Regarding the first issue, it is indeed true that the petitioners were not
parties to the lis before the Tribunal. However, it is evident from the proceedings
that while modifying its earlier order dated 11.02.2013, the Tribunal vide its order
dated 14.03.2013, directed the Municipal Authorities to reassess the alleged
violations in accordance with the applicable norms and the prevailing building
line. The Municipal Authorities were further granted liberty to initiate fresh action
against any unauthorized construction, including those in the surrounding area.
15 In light of these directions, the demolition notice which had been
impugned in the appeal before the Tribunal was held to be no longer necessary
and was accordingly set aside.
16 From the perusal of the aforesaid proceedings, it is observed by this
Court that the writ petition is not maintainable, as it has been filed merely on the
basis of apprehension. No action has been initiated against the petitioners in
OWP No. 522/2013 pursuant to order dated 14.03.2013, which was passed by the
Tribunal. In that order, the Tribunal directed the Municipal Authorities to reassess
the violations and permitted them to take fresh action against any construction not
covered under the applicable norms, including constructions in the vicinity of
respondent No.5. From a perusal of order dated 14.03.2013, it is revealed that it
has been passed by the Tribunal in relation to unauthorized constructions in the
locality. As of now, no action has been taken against the petitioners. In the event
that any such action is initiated, the petitioners would obviously be given an
opportunity of hearing through a notice issued by the Municipal Authority, in
accordance with law.
17 The present writ petition challenges the action which the petitioners
apprehends may be taken on the basis of impugned order passed by the Tribunal. I
am of the opinion that mere permitting the Municipal Authorities to take action
against any construction not covered under the applicable rules does not give them
any cause of action to approach this Court. I find the present writ petition is
premature at this stage as no formal action adversely affecting the rights of the
petitioners is either initiated or taken. The writ, on mere apprehension, is not
maintainable, unless there is material on record to indicate that the adverse action
is imminent or there is real threat of invasion of rights of the petitioners.. In the
instant case, nothing of this sort has been placed on record.
18 For the foregoing reasons, the writ petition is not maintainable.
However, this Court deems it necessary to address the second issue: whether the
Tribunal has the power to review its own order.
19 The Supreme Court, in the case of Kapra Mazdoor Ekta Union v.
Management of Birla Cotton Spinning and Weaving Mills Ltd., (2005) 13 SCC
777 addressed the issue of whether a Tribunal can review its own order, and held
as under:
"Applying these principles it is apparent that where a Court or quasi
judicial authority having jurisdiction to adjudicate on merit
proceeds to do so, its judgment or order can be reviewed on merit
only if the Court or the quasi judicial authority is vested with power
of review by express provision or by necessary implication. The
procedural review belongs to a different category. In such a review,
the Court or quasi judicial authority having jurisdiction to
adjudicate proceeds to do so, but in doing so commits a procedural
illegality which goes to the root of the matter and invalidates the
proceeding itself, and consequently the order passed therein. Cases
where a decision is rendered by the Court or quasi judicial
authority without notice to the opposite party or under a mistaken
impression that the notice had been served upon the opposite party,
or where a matter is taken up for hearing and decision on a date
other than the date fixed for its hearing, are some illustrative cases
in which the power of procedural review may be invoked. In such a
case the party seeking review or recall of the order does not have to
substantiate the ground that the order passed suffers from an error
apparent on the face of the record or any other ground which may
justify a review. He has to establish that the procedure followed by
the Court or the quasi judicial authority suffered from such
illegality that it vitiated the proceeding and invalidated the order
made therein, inasmuch the opposite party concerned was not heard
for no fault of his, or that the matter was heard and decided on a
date other than the one fixed for hearing of the matter which he
could not attend for no fault of his. In such cases, therefore, the
matter has to be re-heard in accordance with law without going into
the merit of the order passed. The order passed is liable to be
recalled and reviewed not because it is found to be erroneous, but
because it was passed in a proceeding which was itself vitiated by
an error of procedure or mistake which went to the root of the
matter and invalidated the entire proceeding"
20 The Supreme Court in Grindlays Bank Ltd. vs. Central
Government Industrial Tribunal and others, AIR 1981 SC 606 has held as
under:
"Furthermore, different considerations arise on review. The
expression 'review' is used in the two distinct senses, namely:
(1) A procedural review which is either inherent or implied in a court
or Tribunal to set aside a palpably erroneous order passed under a
misapprehension by it, and
(2) A review on merits when the error sought to be corrected is one of
law and is apparent on the face of the record.
21 Applying the aforesaid principles, it is apparent that where a Court
or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to
do so, its judgment or order can be reviewed on merit only. The party seeking
recall of order need not demonstrate that the order suffers from an error apparent
on the face of the record. It suffices to show that the procedure followed was so
flawed that it vitiated the entire proceedings. In such cases, the matter has to be
reheard in accordance with law, without delving into the merits of the previous
order. The order was recalled not because it was erroneous, but because it was
passed in a vitiated proceedings, without looking into the relevant documents.
22 Coming to the present case, from a perusal of the impugned order, it
is revealed that the Tribunal has not committed any procedural illegality or
mistake of the nature that vitiated the proceeding itself.
23 However, as per the enactment of Article 323A of the Constitution
regarding the expeditious adjudication of service disputes/complaints, the
Tribunals established under the Act have been freed from the shackles of the
procedure enshrined in the Code of Civil Procedure (CPC). At the same time, they
have been vested with certain powers of a Civil Court, including the power to
review their decisions. This is clearly reflected from the plain language of Section
22 of the Administrative Tribunals Act, which is reproduced below:
"Section 22. Procedure and powers of Tribunals.
(1) A Tribunal shall not be bound by the procedure laid down in the
Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by
the principles of natural justice. Subject to the other provisions of
this Act and any rules made by the Central Government, the
Tribunal shall have power to regulate its own procedure, including
the fixing of places and times of its inquiry and deciding whether to
sit in public or in private.
(2) A Tribunal shall decide every application made to it as
expeditiously as possible, and ordinarily every application shall be
decided on a perusal of documents and written representations and
after hearing such oral arguments as may be advanced.
(3) A Tribunal shall have, for the purposes of discharging its
functions under this Act, the same powers as are vested in a Civil
Court under the Code of Civil Procedure, 1908 (5 of 1908), while
trying a suit, in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and
examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to Sections 123 and 124 of the Indian Evidence Act, 1872
(1 of 1872), requisitioning any public record or document or a copy
thereof from any office;
(e) issuing commissions for the examination of witnesses or
documents;
(f) reviewing its decisions;
(g) dismissing a representation for default or deciding it ex parte;
(h) setting aside any order of dismissal of any representation for
default or any order passed by it ex parte; and
(i) any other matter which may be prescribed by the Central
Government.
24 A reading of the above Section makes it clear that even though a
Tribunal is not bound by the CPC, it can exercise the powers of a Civil Court in
relation to the matters listed in clauses (a) to (i), including the power to review its
decisions. The power of a Civil Court to review its judgment or decision is
traceable to Section 114 of the CPC. The grounds for seeking a review are
enumerated in Order 47 Rule 1, which reads as follows:
Order 47 Rule 1: Application for review of judgment
(1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no
appeal has been preferred;
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,and who, from
the discovery of new and important matter or evidence which, after the exercise
of due diligence, was not within his knowledge or could not be produced by him
at the time when the decree was passed or order made, or on account of some
mistake or error apparent on the face of the record, or for any other sufficient
reason, desires to obtain a review of the decree or order, may apply for a
review to the Court which passed the decree or made the order".
25 Since the Tribunal's power to review its order/decision is akin to that
of a Civil Court, the statutorily enumerated and judicially recognized limitations
applicable to a Civil Court's review powers would also apply to the Tribunal
under Section 22(3)(f) of the Act. In other words, a Tribunal can review its
order/decision only if one of the grounds enumerated in Order 47 Rule 1 CPC is
satisfied. This includes:
(i)Discovery of new or important matter or evidence not available despite due
diligence,
(ii)Mistake or error apparent on the face of the record,
(iii)Any other sufficient reason.
26 The Supreme Court, in Kamal Sengupta's case (supra), which has
been relied upon by Mr. Sethi, learned Senior Counsel, laid down the following
principles regarding the review of its own order by the Tribunal. The principles
are as follows:
(i) The power of the Tribunal to review its order/decision
under Section 22(3)(f) of the Act is akin/analogous to the power of a
Civil Court under Section 114 read with Order 47 Rule 1 of CPC.
(ii) The Tribunal can review its decision on either of the grounds
enumerated in Order 47 Rule 1 and not otherwise.
(iii) The expression "any other sufficient reason" appearing in Order
47 Rule 1 has to be interpreted in the light of other specified grounds.
(iv) An error which is not self-evident and which can be discovered
by a long process of reasoning, cannot be treated as an error
apparent on the face of record justifying exercise of power
under Section 22(3)(f).
(v) An erroneous order/decision cannot be corrected in the guise of
exercise of power of review.
(vi) A decision/order cannot be reviewed under Section 22(3)(f) on
the basis of subsequent decision/judgment of a coordinate or larger
bench of the Tribunal or of a superior Court.
(vii) While considering an application for review, the Tribunal must
confine its adjudication with reference to material which was
available at the time of initial decision. The happening of some
subsequent event or development cannot be taken note of for
declaring the initial order/decision as vitiated by an error apparent.
(viii) Mere discovery of new or important matter or evidence is not
sufficient ground for review. The party seeking review has also to
show that such matter or evidence was not within its knowledge and
even after the exercise of due diligence, the same could not be
produced before the Court/Tribunal earlier.
27 Coming to the present case, admittedly, the Tribunal has passed the
impugned order reviewing its earlier decision on the basis of newly discovered
evidence, specifically, the production of photographs by Respondent No. 5.
Therefore, it can be safely stated that the Tribunal was justified in reviewing its
earlier order. As such, the impugned order does not suffer from any illegality.
28 In view of the above discussion, I find that the Tribunal has the
authority to review its order on the grounds stated above. However, since the
petitioners have no locus standi and lack any cause of action to file this petition, I
am of the opinion that it is liable to be dismissed as not maintainable.
Consequently, the instant writ petition is dismissed.
CPOWP No. 185/2013 in OWP No. 522/2013
29 In view of dismissal of the main writ petition itself, no further
adjudication is required in this contempt petition. Accordingly, the proceedings in
this contempt petition are closed.
30 In view of the observations made in OWP No. 522/2013, the instant
writ petition is disposed of with a direction to the Municipal Authorities to
reassess the violations afresh in light of the applicable norms. The authorities shall
be at liberty to take action against any violations in raising construction, including
the construction raised by the petitioner herein (Respondent No. 5 in OWP No.
522/2013) and in his vicinity, in accordance with Act and rules applicable.
Needless to mention that, before initiating any adverse action, the affected parties
shall be afforded an opportunity of being heard.
Interim directions, if any, issued in both the petitions shall stand
vacated.
(MOKSHA KHAJURIA KAZMI)
JUDGE
Jammu
09 .05.2025
Sanjeev Whether order is reportable:Yes/No
