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2011 DIGILAW 700 (JK)

Zameer Ahmad Thakur v. State & Ors.

2011-12-12

HASNAIN MASSODI, MOHAMMAD YAQOOB MIR

body2011
1. Dissatisfied with the order dated 11.10.2011 passed In OWP No. 1311/2011 and IA No. 2081 /2011 instant appeal has been preferred. 2. By virtue of impunged order, after hearing both the parties, the writ petition has been admitted to hearing and the status quo has been directed to be maintained till final disposal of the main petition. It is also recorded that the learned counsel for the respondents (appellants herein) intends to file reply which, in the view of the writ court, was not required as the case hinges upon the factual aspect of the matter, that too revolving around the notices served upon the respondents. 3. Basically vide order No.213 of 2009 dated 01.08.2009, issued by respondent No.2, sanction has been accorded in favour of Zameer Ahmad (appellant), Fayaz Ahmad Sofi (appellant), Mst. Rafiqa, Mst. Safiya and Mohammad Amin for construction of three storeyed residential building with two shops in ground floor after dismantling the existing building as shown in the plan enclosed therewith. 4. Respondent No.4 noticing the deviation has formulated a deviation report, mentioning therein that the permittees are constructing fully commercial building with basement floor by way of R.C.C columns which is in total violation of the sanctioned plan. 5. Based on said report, respondent No.3 has issued the show cause notice under Section 7(1) of the Jammu and Kashmir Control of Building Operation Act, 1988 (hereinafter referred to as the "BOCA") intimating the appellants about the deviation. When the appellants failed to respond, the respondent No.3 issued order dated 17.8.2010 where-under appellants have been directed to demolish/pull down the construction so far as it deviates the sanctioned plan. 6. Against the said order appellant No. 1 has preferred appeal before the Jammu & Kashmir Special Tribunal, Srinagar. The said appeal has been decided on 15.7.2011. Learned Tribunal has recorded a finding that notice issued under Section 12(1) is shown to have been given on 28.6.2010 but there is no receipt. Notice under Section 7(1) given on 28.7.2010 has been received by one Nasir Hussain Thakur when the said notice was in the name of Mr. Zameer Ahmad Thakur. Notice under Section 7(3) has been issued on 17.8.2010 but there is no evidence of it having been served. Then the Tribunal has recorded that the Authority should have followed the principles of natural justice, therefore, on such count demolition notice is quashed. Zameer Ahmad Thakur. Notice under Section 7(3) has been issued on 17.8.2010 but there is no evidence of it having been served. Then the Tribunal has recorded that the Authority should have followed the principles of natural justice, therefore, on such count demolition notice is quashed. Then has recorded the finding that the appellant has admitted that there is violation of no consequence. 7. In the aforesaid premises Tribunal accepted the appeal and directed the violation of excess area measuring 992 sft. each of the three storeyed building, total area measuring 2976 sft. to be compounded after charging a fee at the rate of Rs.25(twenty five) per sft. worked out to Rs.74,400/ to be deposited in the Additional Treasury under major head 8448-Deposit and be send to the Municipality Chest by way of treasury challan within one month failing which respondents have been left free to demolish the deviated portion of the structure. 8. Dissatisfied with the order dated 15.7.2011, passed by the Appellate Authority, respondent authorities filed the writ petition which on consideration has been admitted. 9. Respondents in their writ petition have projected grievance vis-a-vis compounding of the deviation as the unauthorized construction of fully commercial building in flagrant violation of the building permission is a major offence so was not compoundable. 10. Learned counsel for the appellants would contend that the learned Tribunal has concluded that the requisite notices of show cause and demolition were not served in consonance with the provisions of BOCA, therefore, there was no question of demolition and compounding of the offence but still appellants, with all bonafides, volunteered to admit the deviation and to pay the penalty. It being so, the writ petition was not required to be admitted and order of status quo granted without following the principles governing the grant or otherwise of such relief works harshly against the appellants and being illegal may be set aside. In support of this contention, much reliance is placed on the judgment reported in AIR 2000 SC 1573 . 11. We have bestowed our thoughtful consideration to the facts and circumstances of the case as well as submission of learned counsel for the appellant. It shall be quite relevant to notice as to what the Hon'ble court in the judgment Union of India v. Era Educational Trust & anr ( AIR 2000 SC 1573 ) has laid down. 12. 11. We have bestowed our thoughtful consideration to the facts and circumstances of the case as well as submission of learned counsel for the appellant. It shall be quite relevant to notice as to what the Hon'ble court in the judgment Union of India v. Era Educational Trust & anr ( AIR 2000 SC 1573 ) has laid down. 12. In the reported judgment the High Court in exercise of powers under Article 226 of the Constitution had granted ad-interim relief to run the Medical College when the Central Government had rejected such permission on the basis of recommendations of Medical Council. Noticing this position, the Hon'ble Apex Court has held that "The extraordinary powers under Article 226 are to be exercised for rendering justice in accordance with law. Medical College cannot be established except with the previous sanction of the Central Government as provided under the Indian Medical Council Act, 1956 (102 of 1956). Unfortunately, by granting this interim mandatory order. Without allowing the respondents therein time to file counter affidavit, the court not only violated the norms for grant of interim relief, but has also violated the principles of natural justice and has allowed the petition on the date of its admission". 13. Further has held that "May be order XXXIX of the CPC would not be applicable at the stage of granting interim relief in a petition under Article 226 or 227 of the Constitution but at the same time various principles laid down under Order XXXIX for granting ad interim or interim reliefs are required to be taken into consideration". 14. It shall also be quite relevant to notice as to what has been ruled by the Hon'ble Apex Court as recorded in para 7 of the judgment. Relevant portion is extracted here-under:- " Apart from Order XXXIX even with regard to the Medical education, there are various decisions of this Court laying down the principle, that normally Court should not interfere and even if interference is required in a case of unsustainable order, authority should be directed to re-consider the case on the norms prescribed under the Act and/or the Rules." 15. Para 9 is also quoted here-under: "In the present case, this type of situation has arisen because of interim order passed by the High Court without taking into consideration various judgments rendered by this Court for exercise of jurisdiction under Article 226. Para 9 is also quoted here-under: "In the present case, this type of situation has arisen because of interim order passed by the High Court without taking into consideration various judgments rendered by this Court for exercise of jurisdiction under Article 226. It is apparent that even at the final stage the High Court normally could not have granted such a mandatory order. Unfortunately, mystery has no place in judicial process. Hence, the impugned order cannot be justified by any judicial standard and requires to be quashed and set aside." 16. The factual position of the reported case is quite different to that of the present case. In case of Medical College matters in addition to the principles governing grant of ex-parte injunction, the other guiding factors as laid down by the Hon'ble Apex Court in various judgments are required to be followed and the order under challenge was found to have been passed in ex-parte while departing from observance of the principles governing grant of such relief. Additionally it has been held that the order granted in ex-parte was not even permissible at the final stage of the case. 17. So far as case in hand is concerned, the facts, as noticed hereinabove, are clearly different, however, the guiding principles as laid down the Hon'ble Apex Court have to be observed while passing the order granting or refusing relief. 18. In the instant case it is only after hearing both the parties, learned Single Judge has passed the order. Learned Single Judge seem to have found that legality of the order passed by the Tribunal requires examination and it is only in that background writ petition has been admitted to hearing. 19. So far as recording of reasons and quoting of principles governing grant or otherwise of the interim relief is concerned, it is true that same have not been recorded. The question which arise is as to whether learned Single Judge after hearing both the parties was required to reflect the guiding principles or simple observance, without reflection, is enough. The answer is very simple, when at the level of the High Court in writ jurisdiction learned Single has heard the parties, that means matter has been thoughtfully considered both on facts, law and the governing/guiding principles, therefore, reflection of guiding principles in order of ad-interim relief is not necessary but observance is sine qua non. The answer is very simple, when at the level of the High Court in writ jurisdiction learned Single has heard the parties, that means matter has been thoughtfully considered both on facts, law and the governing/guiding principles, therefore, reflection of guiding principles in order of ad-interim relief is not necessary but observance is sine qua non. Observance thereof must be discernible from the records. 20. On challenge to such order, if on examination of the records, it is discernible that the order has been passed in consonance with facts, law and the guiding principles, then challenge is meaningless. Learned Single Judge in the beginning of the order impugned has recorded "Heard both sides" and thereafter has admitted the petition which means that the Court has considered the material as was available on record and in support thereof has heard the learned counsel for the parties and only then has passed the order of status quo, which cannot be said to have been passed without keeping in view the requisite principles governing the grant or other wise of the relief. 21. Testing the order of status quo on the touchstone of principles governing grant or otherwise of the interim relief, from the records strong case for passing such order existed otherwise object of the lis would get defeated. In absence of such order, the appellants (deviators) would accomplish their task finally and if on conclusion of writ petition the deviation is found to be major, then there is no question of compounding and otherwise if it is concluded that the deviation is minor in nature then compounding is permissible but in the second eventuality all that will happen is that the appellants can complete the construction in all respects. In the former case balance tilts in favour of the respondents. In the later case it tilts in favour of the appellants. For safeguarding the lis and the consequences thereof, no order other than one which has been passed by the learned Writ Court could be passed. 22. It is not always necessary to quote principles governing grant or otherwise of relief, but observance of such principles is sine qua non. When Court has heard the parties, perused the record, that means grant of interim relief is in the background of the facts, law and the principles governing grant or refusal of interim relief. 22. It is not always necessary to quote principles governing grant or otherwise of relief, but observance of such principles is sine qua non. When Court has heard the parties, perused the record, that means grant of interim relief is in the background of the facts, law and the principles governing grant or refusal of interim relief. Now while considering the case in appeal, we are satisfied that the admission of the petition and grant of relief is in accordance with the requirements and was imperative. 23. It is true that the right of appellants to file reply to the main writ petition cannot be denied. Learned Writ Court has simply observed that the reply may not be required but that does not deprive the appellants from filing the reply to the main writ petition. As such, it is made clear that the appellants shall be at liberty to file the reply to the main writ petition within ten days. 24. We request the learned Single Judge to expedite the disposal of the writ petition, therefore, Registry to take steps for listing the writ petition before the learned Single Judge having the roaster in the week commencing 19th of December, 2011. 25. Appeal on aforesaid terms shall stand disposed of along with connected CMP.