High Court Cannot Conduct Enquiry Into Whether Building Deviations Are Minor Or Major; Remedy Lies Before Special Tribunal: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh has dismissed a writ petition challenging a revised building permission order issued by the Srinagar Municipal Corporation regularizing alleged deviations in construction, holding that the High Court does not have any mechanism or yardstick to conduct a roving enquiry into the question whether a deviation is minor or major in nature.The Court further held that the petitioner had an efficacious statutory remedy of revision before the Special Tribunal under Section 403 of the J&K Municipal Corporation Act, 2000, which he bypassed.The Court was hearing a writ petition filed by one Mohammad Ameen War seeking quashment of revised Building Permission issued by the Srinagar Municipal Corporation in favour of private respondent, whereby alleged deviations in construction raised by the said respondent were regularized/compounded. The petitioner also sought initiation of contempt proceedings against the respondents.A Bench of Justice Wasim Sadiq Nargal, while observing that “the High Court does not have any mechanism or yardstick to go into the question of fact by conducting a roving enquiry with respect to the fact whether there is any minor or major violation,” held that the Tribunal constituted under the Act is fully competent to compound violations keeping in view their nature, and the writ court cannot upset findings of the Tribunal based on appreciation of evidence.In the instant case the private respondent was initially granted Building Permission for raising construction over land situated at Chinar Avenue, Naseembagh, Srinagar. According to the petitioner, the respondent thereafter raised construction in substantial deviation from the sanctioned plan, compelling the petitioner and other residents to repeatedly approach the Municipal authorities seeking action.Upon receipt of complaints, the Srinagar Municipal Corporation issued a demolition notice through the Chief Enforcement Officer alleging deviations from the sanctioned plan. Aggrieved, the private respondent approached the J&K Special Tribunal, Srinagar by way of statutory appeal. The petitioner filed a caveat and an application seeking impleadment before the Tribunal. The Tribunal disposed of the matter by directing the parties to approach the Srinagar Municipal Corporation by way of representation, and further directed the Corporation to re-examine the matter strictly in accordance with law.Pursuant to the directions, the petitioner submitted a representation before the Municipal authorities alleging that the deviations were major and non-compoundable. The Srinagar Municipal Corporation, after considering the matter, issued a revised Building Permission in favour of the private respondent by invoking Clause 5.8.2(ii)(c) of the Srinagar Building Bye-laws, 2011, holding the deviations to be compoundable.The petitioner challenged the revised permission primarily on the grounds that the authorities lacked jurisdiction to regularize deviations after issuance of a demolition notice, that the deviations were substantial and non-compoundable, and that no proper hearing was granted.Court's Observations:The Court first addressed the objection regarding maintainability. Relying on Section 403 of the J&K Municipal Corporation Act, 2000 which empowers the Government to revise orders passed by municipal authorities, and Section 3 of the J&K Special Tribunal Act, 1988 which provides that such revision lies to the Special Tribunal, the Court held that the petitioner had an efficacious statutory remedy available.The Court observed that the petitioner had participated in proceedings before the Special Tribunal in the first round of litigation by filing a caveat and impleadment application, and thereafter submitted a representation pursuant to the Tribunal's directions. Instead of availing the revision remedy against the revised permission, the petitioner directly approached the High Court, the bench underscored. “Permitting such course would amount to bypassing the statutory mechanism specifically created under the Act for adjudication of such disputes,” the Court held.On the maintainability of writ petitions involving disputed factual and technical questions, the Court relied upon its earlier judgment in Building Operation Controlling Authority (BOCA) v. Nageen Ara, OWP wherein it was held that the Tribunal is the final arbiter on questions of fact regarding whether a violation is minor or major, and that the writ court cannot upset the Tribunal's findings based on appreciation of evidence.The Court quoted from the said judgment and recorded, “... The issue whether this court while exercising the power as a writ court can go into the questions of fact is no more res integra and can't assume the role of an appellate authority by re-appreciating the evidence to ponder as to what sort of violation has been committed in raising of construction, whether it was minor or major in nature, whether it was pre-sanctioned plan or...

High Court Cannot Conduct Enquiry Into Whether Building Deviations Are Minor Or Major; Remedy Lies Before Special Tribunal: J&K&L High Court

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High Court Cannot Conduct Enquiry Into Whether Building Deviations Are Minor Or Major; Remedy Lies Before Special Tribunal: J&K&L High Court

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