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2009 DIGILAW 523 (JK)

Anil Kumar Dubey v. Special Tribunal, J&K

2009-10-30

HAKIM IMTIYAZ HUSSAIN

body2009
1. Petitioner Anil Kumar Dubey is aggrieved of order dated 2nd April 2008 passed by the J&K Special Tribunal, Jammu on his application for impleadment has party in an appeal pending before the Tribunal under section 13 of the J&K Control of Building Operations Act, 1988. 2. Respondent Raj Kumar Dubey is raising construction in Ward no. 3, Katra. Petitioner states that the respondent has while raising the construction, committed violations as the construction is not in accordance to the permission/sanction granted by respondent no. 3. The said respondent has also started encroaching upon the private lane of the petitioner and one Roshan Lal Dubey. Even door has been installed making the entrance of the door in the private lane of the petitioner and Roshan Lal Dubey. Respondents 2 and 3 served a notice upon respondent no. 4 asking him for demolition of the unauthorized/illegal construction. An appeal was filed by respondent no. 4 before the J&K Special Tribunal Jammu which is pending disposal before the Tribunal. The present petitioner applied to the Tribunal to implead him as a party in the case. The matter was considered by the Tribunal and vide order dated 2nd April 2008 the Tribunal has found that since there is no provision under the Control of Building Operation Act, 1988 on the basis of which the petitioner can be impleaded as a party, the Tribunal is not empowered to adjudicate upon the civil rights of the parties. The application has accordingly been dismissed vide order dated 2/4/2008, impugned in the present petition. 3. The order of the Tribunal has been challenged on various grounds inter alia that the order is arbitrary, incorrect, and without due application of mind. It is stated by the petitioner that the petitioner is an interested party and being the complainant in the matter pending before the respondent no. 1 is fully conversant with the facts of the case and was in a better position to explain the violations and the contravention to the sanctioned plan, committed by respondent no. 4. Respondents have filed their reply. 4. It is stated by them that the petitioner seeks to get alleged civil rights adjudicated from the J&K Special Tribunal when a civil suit titled Raj Kumar Dubey v. Anil Kumar & Ors pertaining to the alleged rights of the respondent and the petitioner is already pending adjudication before the Court of ld. 4. Respondents have filed their reply. 4. It is stated by them that the petitioner seeks to get alleged civil rights adjudicated from the J&K Special Tribunal when a civil suit titled Raj Kumar Dubey v. Anil Kumar & Ors pertaining to the alleged rights of the respondent and the petitioner is already pending adjudication before the Court of ld. Munsiff Katra, wherein the petitioner as defendant in the said case has filed his written statement too. 5. Heard, I have considered the matter. I have gone through the order impugned. 6. Perusal of the order impugned would show that the Tribunal has dealt with the matter in a most perfunctory manner. In a cryptic order which is impugned in the present petition, the Tribunal has rejected the application of the petitioner. 7. Though no provision under the Control of Building Operation Act, 1988 provides for impleadment of a private individual as party in the proceedings under the Act, but the courts have in suitable cases, where violation of the building plan issued by the BOCA is alleged, permitted the interested parties to act as interveners. 8. In Mani Ram Jandial & Ors v. Chairman, J&K Special Tribunal & Ors, 1992 KLJ 396, relied upon by the learned counsel for the petitioner, this court allowed the applicants therein to be heard as interveners after finding that they had an interest in the matter. The court on the issue of locus of a third person to act as intervene observed: 5. In this case the foremost question that should attract the attention of the court is that of an intervenors locus to assail an order passed in proceedings in which he was not formally made a party. Mr. Gupta has vehemently urged that the rule or locus-standi has been broadened and its amplified countours can safely take this case into its compass. He has referred to historical cases reported in AIR 1982 SC page 149 and AIR 1981 SC 344. 6. The apex court of the country approved the tendency of broadening of rule of locus-standi rather than restricting it. This has been done to ensure growth of healthy system of administrative law. In a developing socio-economy, with a growing awareness of corporate interest and social rights, the need for throwing the gates of justice open for public interest litigation was over-felt. This has been done to ensure growth of healthy system of administrative law. In a developing socio-economy, with a growing awareness of corporate interest and social rights, the need for throwing the gates of justice open for public interest litigation was over-felt. Law and law courts from a machinery which can successfully be enhaged to bring about the much coverted socio-economic change. 7. This court has allowed the applicants to be heard as intervenors only after finding that they had an interest in the lis and in view of the liberal construction of the rule of locus as laid down in the above rulings, I have no hesitation on their behalf is maintainable. 9. After I come to the conclusion that the petitioners have a right of filing this writ petition, I would like to detail out some silent features of the order impugned in this petition:- a) That the Special Tribunal seems to have been influenced by the existence of words "shopping complex" in the sanction plan. According to the Tribunal, the site plan does not show that the shops were ever intended to be opened on any -side other than the road. The Tribunal proceeds to observe as under:- "Once it is agreed that the plans were meant for, construction of shops and that the sanction was also granted for the same, it does not appeal to common sense, that the shops would have opened towards the parking area of the Cinema house instead of road side. The argument of the respondents has no merit and is accordingly rejected". b) That the Tribunal has considered the order impugned before it to be beyond law in so far as it kept in abeyance the sanction already issued because no law permits that. The grievances of the intervenors have been turned down as the same have been said to be misplaced and pre-mature. c) That the Tribunal has observed that the question as to whether the alleged construction in the said locality would amount to nuisance and disturbance and would violate the legal rights of the petitioners was a question of fact which the intervenors could agitate before a proper forum. c) That the Tribunal has observed that the question as to whether the alleged construction in the said locality would amount to nuisance and disturbance and would violate the legal rights of the petitioners was a question of fact which the intervenors could agitate before a proper forum. d) The Tribunal has on one hand held the construction to be quite in accordance with the law and on the other proceeded on the assumption of that being an encroachment, hold the same, to be of minor nature and compounded the same by directing the respondent no.2 to deposit a compounding fee of Rs. 4500/. 10. In various other cases also the Tribunal as well as this court has permitted private individuals, who are not party to the sanctioned building plan issued by the BOCA, to act as intervener where the building plan is in one way or the other under examination by the Tribunal. 11. In such matters, the question which would arise for determination is whether the party seeking right of hearing is an interested party in the matter or not. In this background, I find that the Tribunal should have considered this aspect also and returned a finding on the issue whether the petitioner is an interested party in the matter or not. This has not been done as there is no observation of the Tribunal on this issue, in the order impugned. 12. In the circumstances, I allow this petition and set aside the order impugned. Let the Tribunal reconsider the matter and pass appropriate order in light of the observations made above. Order accordingly.