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2017 DIGILAW 467 (JK)

Balwant Singh v. J&K Special Tribunal

2017-07-27

SANJEEV KUMAR

body2017
JUDGMENT : 1. Impugned in these two petitions is the orders passed by the respondent No. 1 dated 18.11.2013 as well as order dated 25.11.2013. So far as order dated 18.11.2013 is concerned, by virtue of aforesaid order, application filed by the petitioner for being impleaded as party respondent in the Appeal preferred by respondent No. 5 before the J&K Special Tribunal has been dismissed. Similarly, by virtue of order dated 25.11.2013, impugned in these petitions, the Appeal preferred by respondent No. 5 has been partly allowed. The petitioner is aggrieved of both the orders aforesaid and has challenged the same inter alia on the following grounds:- (i) That orders impugned suffer from legal infirmity as the same have been passed by respondent No. 1 contrary to the directions passed by this Court on 23rd October, 2013 in OWP No. 1406/2011 and OWP No. 1405/2011. (ii) That the petitioner being a person interested in the outcome of the Appeal filed by respondent No. 5 was proper and necessary party and, therefore, his application for being impleaded as party respondent could not have been rejected by respondent No. 4. 2. The petitioner has thus challenged the orders impugned in the context of facts which he has briefly stated in the writ petitions. The petitioner claims that respondent No. 5, who is owner in possession of adjoining piece of land, encroached upon his land also under the garb of construction plan approved by the Jammu Municipal Corporation. Faced with the aforesaid situation, the petitioner claims that he filed a complaint before respondent No. 2 against respondent No. 5 for raising illegal and unauthorized construction in Khasra No. 518 of village Paloura Tehsil and District Jammu and consequently, a show cause notice dated 12.01.2011 was issued by respondent No. 3, which was followed by another notice issued by respondent No. 2 on 22.01.2011, under Section 7(3) of the J&K Control of Building Operations Act, 1988 in which respondent No. 2 pointed out major violations committed by respondent No. 5 by raising construction contrary to the Plan approved. Being aggrieved, respondent No. 5 preferred an Appeal before respondent No. 1 and during its pendency, the petitioner claims that he moved an application for intervention but the same was rejected by respondent No. 1 which made the petitioner to approach this Court through OWP No. 1406/2011. 3. Being aggrieved, respondent No. 5 preferred an Appeal before respondent No. 1 and during its pendency, the petitioner claims that he moved an application for intervention but the same was rejected by respondent No. 1 which made the petitioner to approach this Court through OWP No. 1406/2011. 3. It is submitted by the petitioner that writ petition aforesaid was allowed by this Court and vide order dated 23.10.2013, directing respondent No. 1 to consider his claim for being arrayed as party respondent in the Appeal filed by respondent No. 5 by correctly appreciating the law laid down in Anil Kumar Dubey v. State of J&K and ors, 2010 (1) JKJ 881 . In terms of the aforesaid order, the matter came up for consideration again before respondent No. 1 who vide order dated 18.11.2913 again rejected the application of the petitioner for being impleaded as party respondent and further allowed the Appeal preferred by respondent No. 5 by passing a subsequent order dated 25.11.2013. It is in this background, the petitioner has once again approached this Court through the medium of the instant writ petitions. 4. Admittedly, the dispute as projected in these petitions by the petitioner is essentially a private civil dispute between the petitioner on the one hand and the respondent No. 5 on the other hand. The petitioner claims that respondent No. 5 has encroached upon his proprietary land which the latter has succeeded under the garb of building permission granted by respondent No. 3. 5. The claim of the petitioner is resisted by respondent No. 5, who submitted that the construction has been raised by him on his own land and that too after seeking proper building permission from respondent No. 3 which was accorded to him after completion of all the requisite formalities. Therefore, he submits that the dispute raised by the petitioner is one which can only be adjudicated upon by the Civil Court and the petitioner has already approached the Civil Court where a suit filed by him is stated to be pending. It is also contended by learned counsel for respondent No. 5 that in the aforesaid civil suit pending adjudication before the Civil Court, initially there was an order of status quo which too has been vacated after hearing the respondent No. 5. It is also contended by learned counsel for respondent No. 5 that in the aforesaid civil suit pending adjudication before the Civil Court, initially there was an order of status quo which too has been vacated after hearing the respondent No. 5. In short, counsel for respondent No. 5 contends that insofar as the issuance of impugned show cause notice is concerned, the same is a matter between the respondent No. 5 and the Jammu Municipal Corporation, as the issue for adjudication before the J&K Special Tribunal was as to whether the construction raised by respondent No. 5 was in tune with the building permission granted or in violations thereof with which the petitioner had no concern. He was therefore, not an interested person but rank intermeddler. 6. The contentions raised by respondent No. 5 were further rebutted by learned counsel for the petitioner, who submits that since the land was encroached by respondent No. 5 under the garb of building permission granted by the Jammu Municipal Corporation, as such, he was interested to see that the construction raised in violation of the building permission is demolished and the encroachment on his land is vacated. 7. Heard learned counsel for the parties and perused the record, particularly the orders impugned passed by respondent No. 1. 8. It is trite law that a person, who seeks to be impleaded as party in a cause must show that he is either a necessary or a proper party. Who is a necessary party and who is proper party is well defined under Order 1 Rule 10 of the Code of Civil Procedure. A necessary party would be one in whose absence a suit or proceeding may not proceed but the proper party would be the one whose presence in the cause may help the Court in determining the lis effectively. 9. In the given facts and circumstances, it cannot be said that the petitioner was either a necessary party or a proper party in the proceedings, i.e., Appeal which was filed by respondent No. 5 before the J&K Special Tribunal against the order of demolition issued by the Jammu Municipal Corporation for acting in violation of the sanctioned building plan. 9. In the given facts and circumstances, it cannot be said that the petitioner was either a necessary party or a proper party in the proceedings, i.e., Appeal which was filed by respondent No. 5 before the J&K Special Tribunal against the order of demolition issued by the Jammu Municipal Corporation for acting in violation of the sanctioned building plan. That being the position, a stranger cannot be permitted to meddle in the proceedings unless he demonstrates before the Court that apart from being a necessary party, he is a person aggrieved and in case he is not heard in the matter, he would suffer a serious legal injury. It is true that on an earlier occasion when the application of the petitioner for intervention was rejected, he had come to this Court by way of writ petition, OWP No. 1406/2011 and the Hon’ble Court taking note of wrong application of law laid down in Anil Kumar Dubey’s case, allowed the writ petition and remanded the matter to respondent No. 1 for fresh consideration in the light of law laid down in Anil Kumar Dubey’s case. Accordingly, the matter appears to have been considered by respondent No. 1 afresh and the finding that in view of purely a dispute of civil in nature raised by the petitioner which is the subject matter of adjudication in a Civil Court, the petitioner was not in any way an interested party and, therefore, cannot be said to be aggrieved of the order of demolition issued by the Jammu Municipal Corporation. 10. Under these circumstances, application moved by the petitioner was rejected. Consequently, the Appeal was heard on merit and vide order impugned dated 25th November, 2013, the same has been partly allowed directing the respondent No. 5 to demolish the major violations committed by him by raising construction beyond permissible limits and issuing directions to maintain the rear setback as is required under the rules. The view taken by respondent No. 1 is unexceptionable and, therefore, cannot be found fault with. The view taken by respondent No. 1 is unexceptionable and, therefore, cannot be found fault with. The dispute which the petitioner has raised is a pure civil dispute which can only be adjudicated upon by a Civil Court and the same cannot be agitated before the J&K Special Tribunal, who merely exercises appellate jurisdiction against the orders passed by the Jammu Municipal Corporation under the provisions of Jammu Municipal Corporation Act and the Control of Building Operation Act, as the case may be. The apprehension of the petitioner that in view of the impugned orders passed by respondent No. 1, respondent No. 5, who has succeeded in raising construction on his land would assert his ownership and possession even on the land owned and possessed by him, is an apprehension which is without any basis. The petitioner, who claims to have filed civil suit, if succeeds in the aforesaid suit, would be entitled to get back his land as well as the structure raised thereon. Anyway, these are the matters which fall within the realm of civil jurisdiction of the courts. The order impugned in the Appeal before respondent No. 1 was the one which was purely between the respondent No. 5 and the Jammu Municipal Corporation and, therefore, the petitioner could not be said to be interested in the outcome of the aforesaid Appeal. 11. Viewed thus, there is no merit in these petitions which are dismissed accordingly.