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2007 DIGILAW 45 (JK)

Mohd. Latief Beigh v. State Of J. &K.

2007-04-09

BASHIR AHMAD KIRMANI

body2007
1. Impugned in this petition is a letter No. LSH(K) 161/2005 dated 19.09.2005 purporting to have been written by Minister of Housing and Urban Development Department whereunder while apparently considering an appeal purporting to have been filed against the order of regularization of existing Single Storied Storeroom situated at 313, Jawahir Nagar, Srinagar, in violation of Building Bylaws and Master Plan, the regularization order No. 292/2005 dated 16.05.2005 purporting to have been passed by BOCA was directed to be re-considered in terms of Master Plan and Building bylaws in accordance with law. 2. The background circumstances appear to be that under the order aforesaid the competent authority regularized the construction of a Single Storied Storeroom adjacent to petitioners house on 16.06.2005 which was overset under concerned Ministers impugned order that is sought to be quashed. Ground projected is that the Minister Incharge had no power to pass the impugned order. In reply respondent-corporation have pleaded that since order of regularization was passed in violation of rules under J&K Control of Building Operations Act, 1988, it was liable to be set aside. 3. I have heard learned counsel and considered the matter. It appears that against demolition notice dated 21.10.2004 purporting to have been issued by respondent no. 4, petitioner filed an appeal before the Special Tribunal. During pendency of appeal he also filed an application for regularization of impugned structure before BOCA which came to be allowed and order of regularization was issued by respondent no. 2 under section 4 of BOCA read with clause 7(2) of J&K Control of Building Operation Regulations 1988, and the petitioner withdrew his appeal from Tribunal. Thereafter the Minister concerned set aside the order apparently in exercise of his appeal power. Incidentally no appeal from whatsoever quarter appears to have been instituted, and as such it is not known as to what prompted the Honble Minister to assure and exercise the appeal power, which as a matter of fact did not lawfully vest in him. Law is clear that under the J&K Special Tribunals Act of 1986, any appellate and revisional power vesting in a "Minister" or "Government", under any statute vests in the Tribunal only after above-said Act, and could as such not be exercised by the Minister. Even under the control of Building Operation Regulations the Tribunal is expressly mentioned as the appellate authority. 4. Even under the control of Building Operation Regulations the Tribunal is expressly mentioned as the appellate authority. 4. For lack of power the impugned order passed by concerned Minister is quashed with liberty to effected persons/ institutions to seek remedy against petitioner before the proper forum if advised. 5. Petition is accordingly disposed of.