Safiya Malik

The High Court of Jammu and Kashmir and Ladakh Single Bench of Justice Moksha Khajuria Kazmi dismissed a writ petition challenging a review order passed by the Jammu and Kashmir Special Tribunal. The Court held that the petition was not maintainable since it was based on a mere apprehension of potential adverse action, and no formal action had yet been taken against the petitioners. Additionally, the Court upheld the Tribunal's authority to review its own decisions under the applicable statutory framework and found no procedural illegality in the review process. The petition was accordingly dismissed, along with the associated contempt petition.

The dispute arose from a construction raised by respondent No.5 at Karan Nagar, Jammu, on a plot measuring 08 marlas and 24 sq. ft. covered by khasra No. 95, Khata No. 442 min, and Khewat No. 119 min. The Jammu Municipal Corporation granted permission for a residential-cum-commercial building on 26.11.2010. The sanctioned construction included 1150 sq. ft. for residential use on the ground floor, 649 sq. ft. residential and 501 sq. ft. commercial on the first floor, and 1150 sq. ft. residential on the second floor. A front setback of 40 ft. and a rear setback of 20 ft. were mandated.

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Petitioners, residents of Karan Nagar for over 40 years, alleged that the construction violated the approved plan and provisions of the J&K Control of Building Operation Act, 1988. According to them, respondent No.5 constructed large RCC column halls for commercial use, exceeded the permissible area on the ground floor to 1856 sq. ft., and did likewise on the first floor while also constructing an unauthorized 410 sq. ft. projection slab.

The Municipal Authorities served notices dated 12.11.2011 and 31.07.2012 under Sections 7(1), 7(3), and 12(1) of the Act of 1988, calling for demolition of the unauthorized structure within five days. The Tribunal, upon appeal, dismissed the respondent No.5’s challenge on 11.02.2013, citing major and non-condonable violations under Regulation 11 of the Control of Building Operation Regulations, 1998.

Subsequently, respondent No.5 applied for rehearing. On 14.03.2013, the Tribunal, with consent of both parties' counsels, modified its earlier order and directed reassessment of violations based on applicable norms and the existing building line, setting aside the demolition notice. The petitioners, though not party to the Tribunal proceedings, filed OWP No. 522/2013, alleging procedural impropriety and misuse of power by the Tribunal.

While the High Court initially ordered maintenance of status quo, petitioner No.1 filed a contempt petition, CPOWP No. 185/2013, citing violation of the status quo order. During pendency, respondent No.5 filed OWP No. 1067/2014 against the original petitioners, alleging their own violations of municipal laws.

The respondent's counsel raised a preliminary objection to maintainability, stating the petitioners had no locus standi, were not aggrieved parties to the Tribunal order, and had not demonstrated any imminent threat or invasion of rights. Reference was made to the Supreme Court judgement in State of West Bengal vs Kamal Sengupta (Civil Appeal No.1694/2006) to support the Tribunal's power to review its orders.

The Court noted that "while modifying its earlier order dated 11.02.2013, the Tribunal vide its order dated 14.03.2013, directed the Municipal Authorities to reassess the alleged violations in accordance with the applicable norms and the prevailing building line." It further recorded that "no action has been initiated against the petitioners in OWP No. 522/2013 pursuant to order dated 14.03.2013" and therefore, the writ petition was premature.

On locus standi, the Court stated, "the writ petition is not maintainable, as it has been filed merely on the basis of apprehension... unless there is material on record to indicate that the adverse action is imminent or there is real threat of invasion of rights of the petitioners."

Regarding the Tribunal’s power to review its order, the Court relied on Kapra Mazdoor Ekta Union v. Management of Birla Cotton Spinning and Weaving Mills Ltd. (2005) 13 SCC 777, observing, "where a Court or quasi-judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi-judicial authority is vested with power of review by express provision or by necessary implication."

The Court also referred to Grindlays Bank Ltd. vs. Central Government Industrial Tribunal AIR 1981 SC 606, stating, "The expression 'review' is used in the two distinct senses... (1) A procedural review... (2) A review on merits..."

With respect to statutory power, it cited Section 22(3)(f) of the Administrative Tribunals Act, stating, "A Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908... including reviewing its decisions."

It further recorded, "the Tribunal’s power to review its order/decision is akin to that of a Civil Court... The grounds for seeking a review are enumerated in Order 47 Rule 1 CPC..." and "the Tribunal has passed the impugned order reviewing its earlier decision on the basis of newly discovered evidence, specifically, the production of photographs by Respondent No. 5."

The High Court concluded, "I find that the Tribunal has the authority to review its order on the grounds stated above. However, since the petitioners have no locus standi and lack any cause of action to file this petition, I am of the opinion that it is liable to be dismissed as not maintainable. Consequently, the instant writ petition is dismissed."

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With regard to the contempt petition, the Court ordered, "In view of dismissal of the main writ petition itself, no further adjudication is required in this contempt petition. Accordingly, the proceedings in this contempt petition are closed."

In respect to the parallel writ petition filed by respondent No.5, the Court directed, "In view of the observations made in OWP No. 522/2013, the instant writ petition is disposed of with a direction to the Municipal Authorities to reassess the violations afresh in light of the applicable norms... before initiating any adverse action, the affected parties shall be afforded an opportunity of being heard."

Advocates Representing the Parties:

For the Petitioners: Mr. S.K. Anand, Advocate

For the Respondents: Mr. Sunil Sethi, Senior Advocate with Mr. Nayeem Sheikh, Advocate; Mr. S.S. Nanda, Senior Additional Advocate General

Case Title: Ravinder Singh and ors vs. Om Parkash and others

Case Number: OWP No. 522/2013 C/W CPOWP No. 185/2013, OWP No. 1067/2014

Bench: Justice Moksha Khajuria Kazmi

[Read/Download order]