*Declines to entertain challenge to building permission
Excelsior Correspondent
JAMMU, June 3: In a judgment reiterating the limits of writ jurisdiction in matters involving building permissions and alleged construction violations, the High Court of Jammu & Kashmir and Ladakh has dismissed a petition challenging a revised building permission granted by the Srinagar Municipal Corporation (SMC), holding that the petitioner had an efficacious statutory remedy before the J&K Special Tribunal and could not bypass the mechanism specifically provided under law.
The judgment was delivered by Justice Wasim Sadiq Nargal in a petition filed by Mohammad Ameen War against the revised building permission Order No. 27 of 2019 dated May 20, 2019, through which the SMC had regularized and compounded certain deviations in a construction raised by a neighbouring property owner.
The High Court held that the controversy projected in the petition involved seriously disputed factual and technical issues concerning the nature and extent of deviations, permissibility of compounding under the Building Bye-laws, and legality of the revised building permission.
Such issues, the High Court observed, necessarily require examination of sanctioned plans, measurements, technical reports and other factual material and are therefore not amenable to adjudication in writ jurisdiction under Article 226 of the Constitution.
The petitioner had argued that the construction was raised in substantial deviation from the sanctioned plan and that once a demolition notice had been issued by the Municipal Corporation, the authorities lacked jurisdiction to subsequently regularize the alleged violations. It was further contended that the deviations were major and non-compoundable in nature, that no meaningful opportunity of hearing had been granted and that the action of the authorities was arbitrary and contrary to municipal laws and building regulations.
The High Court, however, noted that the dispute had already been taken before the J&K Special Tribunal, where the petitioner had participated by filing a caveat and an impleadment application. The Tribunal, instead of affirming the demolition notice, had directed the parties to approach the Municipal Corporation through representations and asked the authorities to re-examine the matter strictly in accordance with law.
Pursuant to those directions, the competent authority reconsidered the issue and subsequently issued the revised building permission which became the subject matter of challenge before the High Court.
Referring to Section 403 of the J&K Municipal Corporation Act, 2000, the High Court observed that the statute provides a complete mechanism for revision of orders passed by municipal authorities. The petitioner, despite having such a remedy available before the Special Tribunal, chose to directly invoke the extraordinary writ jurisdiction of the High Court.
“Permitting such course would amount to bypassing the statutory mechanism specifically created under the Act for adjudication of such disputes”, the High Court observed while relying upon settled principles laid down by the Supreme Court regarding maintainability of writ petitions where effective alternate remedies exist.
The High Court further held that determination of whether the deviations were major or minor, compoundable or non-compoundable, cannot be undertaken by a writ court. Such matters fall within the jurisdiction of the specialized statutory forum constituted under the Municipal Corporation Act.
Justice Nargal also rejected the petitioner’s contention that there had been a violation of principles of natural justice. The High Court recorded that the petitioner had actively participated in proceedings before the Special Tribunal and had also submitted a representation before the municipal authorities pursuant to the Tribunal’s directions.
Holding the plea to be contrary to record, the High Court observed that no gross or patent violation of natural justice had been demonstrated so as to justify bypassing the statutory remedy available under law.
The High Court was equally critical of allegations of mala fides, collusion and corruption leveled against municipal officials and the private respondent. It observed that such allegations must be supported by specific particulars and cogent material and cannot rest on mere suspicion or sweeping assertions.
“The accusations were bald and omnibus in nature and unsupported by any substantive material capable of establishing mala fides”, the High Court said and held that the dispute essentially arose out of objections raised by the petitioner against construction undertaken by a neighbouring property owner and could not be elevated to the status of a public interest matter merely by invoking planning laws, municipal regulations or public rights.
“Merely referring to planning laws, municipal regulations or public rights does not convert an individual dispute into a matter of public interest,” the High Court observed, adding that the controversy was required to be examined strictly within the framework of the J&K Municipal Corporation Act and the remedies available thereunder.
Concluding that no exceptional circumstance had been established to warrant interference under Article 226, the High Court dismissed the writ petition along with all connected applications. However, it clarified that dismissal of the petition would not prevent the petitioner from availing any statutory remedy available under law before the competent forum.
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