2014 Supreme(J&K) 364
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Hasnain Massodi,Dhiraj Singh Thakur, JJ.
Masjid Noor -Appellant
Versus
State of J&K & Ors. -Resopndent
LPA No. 33-2014 & IA No. 47-2014
Decided On : 29-10-2014
Z.A. Qureshi, Rehana, M.A. Qayoom, Manzoor A. Dar, F. A. Mir.
Headnote:
LPA - Construction Dispute - Control of Building Operation Act - [Control of Building Operation Act] - The court discussed the interpretation of the term 'judgment' under Clause 12 of Letters Patent and emphasized that it includes orders impacting the rights of the parties. The court held that the observations made by the writ court while disposing of the writ petition determined the rights of the parties and fell within the purview of 'judgment' under Clause 12 of Letters Patent. The court also emphasized that when parties enter into a compromise, the court should dispose of the matter in terms of the compromise and not embark on determining the merits of the case without allowing the parties to present their arguments.
Fact of the Case:
The respondent sought to raise construction in accordance with building permission, leading to a dispute with the appellant, who filed a writ petition. The parties later agreed to settle the matter, but the writ court made observations determining the rights of the parties, prompting the appellant to file a Letters Patent Appeal.
Finding of the Court:
The court found that the observations made by the writ court while disposing of the writ petition determined the rights of the parties and fell within the purview of 'judgment' under Clause 12 of Letters Patent. The court also held that the writ court should have disposed of the matter in terms of the compromise and not determined the merits of the case without allowing the parties to present their arguments.
Issues: The issues included the interpretation of the term 'judgment' under Clause 12 of Letters Patent, the permissible actions of the court when parties enter into a compromise, and the rights of the parties in a construction dispute.
Ratio Decidendi: The court emphasized that the term 'judgment' under Clause 12 of Letters Patent includes orders impacting the rights of the parties and that the court should dispose of the matter in terms of the compromise when parties reach an agreement.
Final Decision: The Letters Patent Appeal was allowed, and the writ court order was set aside to the extent it commented upon and determined the petitioner's locus standi to file the petition, the existence of cause of action to maintain the petition, and the motive behind filing the petition.
1. LPA on hand is directed against writ court judgment dated 30.12.2013, whereby writ court has disposed of the writ petition on agreement of learned counsel for the parties to the effect that respondent no. 5 would raise construction strictly in accordance with building permission granted in his favour by competent authority. The Letters Patent Appeal is filed against following factual backdrop.
2. Firdous Ahmad Lone son of Abdul Gaffar Lone, resident of Abi Guzer-respondent No. 5 herein, some time back acquired a house known as Tara House at Rajbagh, Srinagar from its owner-a migrant living outside Srinagar.
3. The respondent No.5 soon after purchase of the property in question decided to repair the building, lay a new roof and construct a fencing wall around its courtyard. He approached the Building Operation Controlling Authority (BOCA) with the plan of construction proposed to be undertaken by him, for grant of sanction/permission under Control of Building Operation Act. The Authority approved the building plan and granted permission to raise proposed construction.
4. Masjid Noor, is a mosque in the locality where construction is proposed to be undertaken, and appellant herein is President of Masjid Committee, responsible for day to day management of the Mosque. The appellant apprehended that respondent No.5 under guise of repairs intended to construct a hotel on the foundation Tara House. He aggrieved that construction was raised by respondent No.5 in violation of building permission and master plan and was likely to violate rights of the inhabitants of locality who visited the mosque to offer prayers and to cause interference in prayers at the mosque, filed a writ petition being OWP No. 759/2012. He sought a direction to the official respondents 1-4 to discharge their statutory obligations qua construction raised by respondent No. 5 on the spot, that according to him was in violation of permission and approved building plan.
5. Respondent No. 5 refuted the case set up by appellant. It was insisted that construction would in no way cause interference in prayers or other religious activities and events. It was pleaded that the premises of Masjid Noor and the site of proposed construction were separated by residential house of one Ghulam Hassan Kangoo and therefore the proposed construction would not violate rights of anyone, much less interfere in the right of locals to offer prayers or perform other religious obligations.
6. Be that as it may be, the parties after long drawn litigation decided to settle the matter. Learned counsel for the respondent No. 5 agreed to raise construction in strict accordance with the permission granted by BOCA in his favour and volunteered to execute a formal undertaking in this regard. In view of the stand taken by respondent No. 5 the appellant agreed not to prosecute the writ petition. The writ court accordingly vide judgment dated 30.12.2013 disposed of the writ petition in the manner stated above.
7. The matter ought to have ended then and there. However few observations made by writ court while disposing of the writ petition vide order dated 30.12.2013 have prompted appellant to file instant Letters Patent Appeal and throw challenge to the writ court order.
8. Appellant is aggrieved that writ court while disposing of the writ petition in terms of agreement between the parties, held appellant to have no locus standi to file writ petition, that none of his rights was being infringed and that a "concocted frivolous case" set up in the petition would not entitle appellant to approach the court in exercise of extra ordinary writ jurisdiction. The appellant is also aggrieved with the observation that if there was an assertion regarding breach of master plan and municipal laws it was not open to appellant to maintain the petition.
9. The appellant on the grounds urged in the memo of appeal seeks setting aside of the writ court judgment to the extent set out in the relevant clause of me