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STATE TIMES NEWS
JAMMU: The High Court of Jammu & Kashmir and Ladakh has upheld the orders of J&K Special Tribunal while deciding the writ petition filed by Building Operation Controlling Authority (BOCA) through its Joint Commissioner, Municipal Corporation, Jammu wherein the BOCA sought direction seeking quashment and setting aside the order of J&K Special Tribunal issued on November 10, 2017 titled Nageen Ara versus Joint Commissioner, JMC. Besides, the BOCA by writ of mandamus also sought a direction to the respondents to demolish the unauthorised construction.
After hearing both sides, Justice Wasim Sadiq Nargal observed that the court do not find any legal infirmity in the impugned order dated November 10, 2017 passed by J&K Special Tribunal, Jammu, which is well reasoned. The challenge thrown by the petitioner to the same under Article 226 of Constitution of India, is devoid of any merit and hence rejected. Resultantly, the order dated November 10, .2017 passed by J&K Special Tribunal Jammu is upheld.
Advocate Rajnish Raina appeared on behalf of petitioner BOCA, Municipal Corporation Jammu while Senior Advocate R K Jain and Advocate Pranav Jain argued on behalf of respondent Nageen Ara, wife of Mansoor Ahmed Mir, resident of Sidhra.
The counsel for the petitioner Advocate Rajnish Raina submitted that respondent Nageen Ara owner of plot measuring 5400 sqft situated at Sidhra, Jammu and she with intention to raise residential construction applied before the BOCA for grant of necessary sanction and accordingly, sanction was duly granted in her favour to raise residential construction vide sanction order No.62/BS/2016 dated May 3, 2016. The counsel submitted that while raising the construction, Nageen Ara committed major violation of permissible coverage area, height and setbacks. He further submitted that the impugned order suffers from serious infirmities and the core issue of the controversy has not been dealt with by the Tribunal. All the violations are major violations in terms of Master Plan.
Senior Advocate R K Jain, counsel for the respondent Nageen Ara argued that the High Court is only to correct the persons or the court exercising judicial or quasi judicial functions, when they assume jurisdiction which they otherwise do not possess or when they refuse to exercise jurisdiction, when it is vested in them by law or when in the exercise of their jurisdiction, they violate the principles of natural justice as such, writ petition against the order passed by the learned Appellate Tribunal is not maintainable.
Senior Advocate R K Jain further submitted that the order passed by the learned Appellate Tribunal neither suffers from any jurisdictional error nor outcome of patent illegality causing any grave miscarriage of justice to the petitioner. More so, when the appellate authority has passed detailed order in accordance with law on the basis of material facts brought on record before the Appellate Forum. It is also submitted that the appellant has invoked the extra ordinary jurisdiction of this Court to challenge the order passed by the Appellate Tribunal, after more than one year which is an afterthought attempt on the part of the petitioner to drag the respondent in frivolous litigation. Thus the writ petition filed by the petitioner on the face of it, is hit by delay and lashes and liable to be dismissed.
The court observed that the J&K Special Tribunal has taken note of all the aspects of the matter and directed compounding of the violations. The court has also perused all the notices issued by the petitioner under section 7(1) and 7(3) of the J&K Control of Building Operation Act, 1988.
The record reveals that the respondent is owner of the plot of land measuring 5400 sft and she had applied for permission of construction of residential construction which was granted by the authorities on May 13,2016 to cover 1768 sft at ground floor and 1485 sft at first floor but she has exceeded in the covering area. It is not disputed that there is no change of land use as the permission was granted for residential construction. It is not disputed that constructions has been made after proper permission but the respondent has exceeded in the covering area. It appears that notices were issued only after two floor building was completed. The petitioner should have issued the notices at the time any violation on part of the respondent was found. It appears that the petitioner has not mentioned the violations alleged to have been made by the respondent, in the notices issued by the petitioner, the court observed.
It appears that though there is violation of permission granted by the petitioner herein with respect to the covering area, but the same cannot be termed as gross violation which cannot be compounded, the court further observed, adding the present writ petition raises disputed questions of fact which cannot be gone into while exercising the writ jurisdiction under Article 226 of the Constitution.
The High Court, when exercising jurisdiction to issue a writ of certiorari does not act either as a Court of Appeal or that of Revision and it has no power to correct either findings of fact or even errors of law except where the error of law is patent on the face of the record. The sole function of the Court is to correct the persons or Tribunals or Tribunals exercising judicial or quasi-judicial functions when they assume jurisdiction which they do not possess, or when they refuse to exercise jurisdiction which is vested in them by law, or when in the exercise of their jurisdiction they violate principles of natural justice.
The court ordered, “In light of the legal position and the peculiar facts and circumstances of the present case, no case of interference by this court has been made out in this case. Therefore, “I do not find any legal infirmity in the impugned order dated Nov 10,2017 passed by J&K Special Tribunal, Jammu, which is well reasoned and has been called in question in the instant petition. The challenge thrown by the petitioner to the same under Article 226 of Constitution of India, is devoid of any merit and hence rejected for the reasons stated hereinabove. Resultantly, the order dated November 10, 2017 passed by J&K Special Tribunal Jammu is upheld.” The writ petition is dismissed along with all connected applications, the High Court ordered.
