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1989 Supreme(J&K) 10
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
M.L. Bhat, J.
Prabjeet Singh - Appellant
Versus
Administrator NAC Tangmarg/Gulmarg & Ors. - Respondent
Writ Petition No. 657/1987
Decided On : 16 February, 1989
Advocate For Appellant: Z.A. Shah
Advocate For Respondent: B.A. Khan
The principles of natural justice require that a person should be given an opportunity to be heard before an adverse order is passed against them.
Headnote:
Writ petition filed by the petitioner seeking a writ of certiorari for quashing impugned communications and a writ of prohibition against the respondents to refrain from interfering in the construction of the hotel. The petitioner claims that the impugned communications are illegal, without jurisdiction, and authority. The respondents contend that the leasehold rights in respect of the land were subject to controversy and litigation for many years and that the petitioner and respondent No. 3 had no interest in the land in 1975. The court held that the Minister's order to suspend the orders on which the respondent relied flagrantly violates the principle of natural justice as it was passed at the back of the petitioner and respondent No. 3. The court also held that the respondent No. 1's impugned letters addressed to the petitioner were without jurisdiction and are rendered illegal. The court allowed the writ petition, quashed the impugned communications, and issued a writ of prohibition against the respondents.
Fact of the Case:
The petitioner and respondent No. 3 are brothers who were granted a lease for land at Gulmarg for the purpose of constructing a hotel and guest house. They applied for permission to raise the construction, which was approved by the Building Permission Committee and the Chief Executive Officer. However, the permission was challenged by another party, leading to litigation. During the pendency of the litigation, the Minister for Housing and Urban Development ordered an enquiry into the matter, including the question of the petitioner's and respondent No. 3's title to the leasehold rights. The Minister also suspended the permission granted to the petitioner and respondent No. 3. The petitioner filed a writ petition challenging the Minister's order and the impugned communications issued by respondent No. 1.
Finding of the Court:
The court held that the Minister's order to suspend the orders on which the respondent relied flagrantly violates the principle of natural justice as it was passed at the back of the petitioner and respondent No. 3. The court also held that the respondent No. 1's impugned letters addressed to the petitioner were without jurisdiction and are rendered illegal.
Issues: 1. Whether the Minister's order to suspend the orders on which the respondent relied was valid. 2. Whether the respondent No. 1's impugned letters addressed to the petitioner were valid.
Ratio Decidendi: 1. The court held that the Minister's order to suspend the orders on which the respondent relied flagrantly violates the principle of natural justice as it was passed at the back of the petitioner and respondent No. 3. The court relied on the principles of natural justice, which require that a person should be given an opportunity to be heard before an adverse order is passed against them. 2. The court held that the respondent No. 1's impugned letters addressed to the petitioner were without jurisdiction and are rendered illegal. The court held that respondent No. 1 had no authority to issue the impugned communications, and that he had exceeded his jurisdiction by doing so.
Final Decision: The court allowed the writ petition, quashed the impugned communications, and issued a writ of prohibition against the respondents.
a) That the State Govt. vide SRO 79 dated 17.2.1977 accorded sanction to the constitution of an authority for purposes of grant of permission for raising construction in Notified areas of Tangmarg/Gulmarg. The committee in the absence of Zonal plan/Master plan under which it had to grant permission was, to refer the matter to the Govt. with its recommendation and the original SRO was amended by a subsequent SRO 448 dt. 4.8.1978. A committee consisting of various functionaries was constituted which could grant of refuse building permission. The said committee sanctioned *he petitioners plan for construction. Respondent No. 1 is one of the members of the said committee. He could not prevent the petitioner from raising the construction. The impugned communication of respondent No. 1 is therefore said to be illegal, without jurisdiction and authority.
b) The revised plans are said to have been passed by the Building permission committee on 7-2-1987. Formal orders sanctioning the plan was passed by the Chief Executive Officer on 30-3-1985. The State Govt. had vide Order No. 948-UD of 1979 dated 10-12-1979 authorised the Chief Executive Officer of the project organisation Gulmarg to have control of all engineering works within the notified area. Respondent No. 1 has no authority and he is totally unconnected with the construction activities at Gulmarg. It is the Building Permission Committee which is competent to decide about the legality or otherwise of a building permission. Once the building permission is granted, respondent No. 1 is not competent to interfere with the construction work. Respondent No. 1 has no power to demolish any building having regard to the provisions of Municipal Act and chapter 21 of the J and K Town Planning Act and the Development Act... The respondent No. 1’s action is without any authorities.
c) The appointment of respondent No. 2 as Administrator vide SRO 275 is also challenged. It is said to be malafide and an abuse of authority because the appointment of respondent No. 2 is made under section 284 of the Municipal Act for the notified area of Tangmarg/Gulmarg. Respondent No. 2 is appointed for purposes of sub-section 2 & 3 of section 284 only which relate to collection of tax within the municipal area and its expenditure. The tax is to be imposed by the Govt. Section 284 of the Municipal Act does not deal with any question relating to the construction of buildings in the notified areas of Tangmarg/Gulmarg. The appointment of respondent No. 2 is restricted to the functions which are to be discharged by him under sub-sections 2 & 3 of section 284 of the Municipal Act. The respondent No. 2 has therefore no authority to interfere with the petitioners building or prevent him from raising the construction.
d) Respondent No. 2’s action is said to be an abuse of authority for extraneous and collateral reasons. Respondent No. 2 is said to manage and run a hotel at Gulmarg in the name and style of High Land Park. The said respondent is closely related to the Chief Minister of the State as also to the works Minister. His personal interest is in conflict with the duties which are imposed on him. Respondent No. 2 is said to be disqualified from being even a member of the Building permission committee. He cannot have also the final authority in the said committee. The respondent No. 2 is said to have malice with the petitioner. Therefore, he is exerting pressure and instilling fear on the petitioner so as to prevent him from constructing the hotel.
The impugned communications which are challenged in this writ petit
