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| Justice Nargotra dismisses petition along CMPs in building permission case | | Expunges remarks, strictures passed by Tribunal against its predecessor’ | | Jammu June 12-Justice Y P Nargotra of Jammu and Kashmir High Court while dismissing a petition along with the CMPs in Indira Memorial High School v/s State of Jammu and Kashmir has observed that the appropriate remedy for the person whose civil rights would be violated in the event of construction being raised by a person, after obtaining the building permission from the competent authority, is to move the Civil Court and not appeal to the Jammu and Kashmir Special Tribunal in terms of Section 13 of the Jammu and Kashmir Control of Building Operations Act,1988.
Advocate Akshay Anand appeared for the petitioners while KK Jandial and B S Bali advocates appeared for the respondents in the case.
After hearing the arguments from both the sides on whether a third party has any right of appeal under section 13 of Jammu and Kashmir Control of Building Operations Act 1988 against an order of the Competent Authority by virtue of which building permission has been granted in favour of a person, Justice Nargotra maintained that there is provision in the Act which makes the Jammu and Kashmir Special Tribunal a Civil Court empowered to adjudicate upon the civil rights of any of the parties before it. It can hear the appeals against the order passed under section 5 or under section 7 of the Act.
Dismissing a petition along with the CMPs further, Justice Nargotra observed that the building permission granted under section 5 does not by it self create or confer any title upon the land on which the proposed construction has been raised.
In the present case the petitioner filed the appeal under section 13 of the Act before the Jammu and Kashmir Special Tribunal challenging the order of January 25, 2003 passed by the respondent No 3 Administrator Municipality, whereby building permission was granted to respondent No 4 inter alia on the ground that it was in violation of easementary rights of the appellant. However, the Tribunal had dismissed the appeal on May16 last as it being not maintainable.
While dismissing the appeal of the petitioner in the order impugned, Justice Nargotra observed that it was unfortunate that the Member who himself happens to be a ‘senior judicial officer’ became oblivious to the fact that he was sitting in an appeal only over the order of the competent authority, the legality of which was in question in appeal and was not sitting in judgment over the orders which had come to be passed by his predecessor during the pendendy of the appeal.
Justice Nargotra further observed that the learned member did not possess any jurisdiction vested in him by law to assume the role of appellate authority over the orders passed by his predecessor and the judicial propriety demanded restraint in the matter. The comments made and grave strictures passed against the erstwhile Member of the Tribunal in the order impugned deserve deprecation and are therefore expunged, the Court ordered.
In view of the observations made above, the writ petition is found to be devoid of any merit and, therefore,. is dismissed along with connected CMPs, Justice Nargotra ordered.
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