The main legal point established in the judgment is the importance of adhering to the stipulated time for decision-making and the creation of an indefeasible right of deemed permission under Regulation 7(3) of the Act.

Janak Raj Kotwal, J.

1. This is a writ petition under Article 226 of the Constitution of India read with section 103 of the Constitution of Jammu and Kashmir, whereby petitioner seeks writ of prohibition, prohibiting respondent/Municipal Corporation, Jammu from interfering in construction process to be undertaken by the petitioner as per site plan submitted by him to the respondents and a command to be issued to the respondents to stop interference in the said construction process.

2. Heard. I have perused the record.

3. Petitioner's case, briefly, is that he submitted the site plan of proposed construction on a vacant piece of his land situate at Prem Nagar, Vivekanand Chowk, Jammu alongwith application for building permission to respondent No. 2 and deposited the requisite fee of Rs. 100 on 18.04.2011. Respondent No. 2, however, neither issued any notice to the petitioner calling upon him to satisfy any requirement nor has sanctioned the building plan or refused the sanction. It is contended by the petitioner that respondent Nos. 2 and 3 were required to accord or refuse sanction within stipulated period of sixty days from the date of receipt of application and after expiry of sixty days, petitioner has acquired an indefeasible right of deemed sanction under Regulation 7(3) of the Control of Building Operations Regulations 1998 (for short the Regulations) framed under the Jammu and Kashmir, Control of Building Operations Act, 1988 (for short the Act). Petitioner's case further is that he waited for reply of respondent Nos. 2 and 3 up to 31.08.2011 and as nothing was heard from them, he started raising the construction of a wall as per the site plan but respondent Nos. 2 and 3 through their officials of Khilaf Warzi Section dismantled the wall. Petitioner has thus, contended that as respondent Nos. 2 and 3 were under statutory obligation to take a decision in his application within a stipulated period of sixty days and in case permission was refused, respondents were required to inform the grounds of such refusal to the petitioner in writing within 30 days of the refusal so indefeasible right of deemed permission has accrued to him.

4. Respondents in their reply have admitted the submission of application alongwith site plan by the petitioner. They have also admitted deposit of the fee of Rs. 100/- by the petitioner. It is not denied that neither the building permission has been accorded to the petitioner nor was he informed about the rejection. It is, however, contended by the respondents that the building site was got inspected by the respondents on 07.05.2011 and it was found that the petitioner had already commenced the construction against the provision of the site plan submitted by him and the Master Plan. The competent authority, therefore, decided that permission cannot be granted and took a decision to initiate action for unauthorized construction under section 7 of the Act. Show Cause notice under section 7(1) dated 04.03.2013 and notice under section 12(1) of the even date for discontinuing the construction were served upon the petitioner. The petitioner neither responded to the Show Cause notice nor stopped the construction so Demolition Notice dated 08.03.2013 under section 7(3) of the Act was served upon the petitioner. Petitioner has challenged the Demolition Notice in appeal before Jammu and Kashmir Special Tribunal, which is pending. Respondents have, thus, contended that petitioner has no right to raise construction without obtaining permission from the respondent, Municipal Corporation and that petitioner having violated the provisions of the Act and the Regulations and the matter being sub judice before the Special Tribunal, this petition is liable to be dismissed.

5. Mr. Ved Raj Wazir, learned Senior Advocate, appearing for the petitioner sought to demonstrate the falsity of respondents contention that the petitioner had started unauthorized construction immediately after submission of his applicati