The completion of construction with third-party interest and the raising of construction under the guise of deemed permission were crucial factors in the court's decision.

ORDER :

M.K. Hanjura, J.

1. The facts leading to the filing of the instant petition are that the respondent No. 2 sought building permission from the competent authority, i.e. the Building Operation Controlling Authority (hereinafter referred to as the "BOCA"), for the construction of a double storeyed shopping complex at Gogji Bagh, Srinagar, on a plot of land covered under Survey Nos. 1781/836/1782/836. The building permission was sanctioned by the BOCA in favour of the respondent No. 2 vide order No. 571 of 2002 dated 3rd of January, 2002, subject to certain setbacks. The petitioners have contended that the respondent No. 2 started the construction in flagrant violation of the terms and conditions of the building permission by making gross deviations. After noticing the deviations, the petitioners initiated proceedings against the respondent No. 2, under the provisions of the Control of Building Operations Act and after complying with the procedure prescribed therein, a demolition order was passed against the respondent No. 2 vide order No. SMC/Kh/433-38 dated 22nd of November, 2004. The respondent No. 2 filed a statutory appeal against the aforesaid order of demolition before the Appellate Authority, i.e. the respondent No. 1 herein. During the pendency of the statutory appeal of the respondent No. 2 before the respondent No. 1, the respondent No. 2 filed a civil suit for declaration and injunction against the petitioners in the Court of learned First Civil Subordinate Judge (Municipal Magistrate), Srinagar, on the allegations that after starting the construction, she submitted an application for the modification of the building permission alongwith with revised site plans before the petitioner No. 1 for the grant of permission for raising a five-storeyed shopping-cum-commercial complex instead of a two-storeyed shopping complex. It was further pleaded in the suit that the petitioners did not dispose of the said application of the respondent within the stipulated period of 90 days and, as such, under the deemed sanction provided under Regulation 7(iii) of the Jammu and Kashmir Control of Building Operation (Revised) Regulations 2001, the respondent was entitled to raise the construction in accordance with the revised site plan, but the petitioners started interfering with the said construction of the respondent No. 2. Alongwith the said suit, the respondent No. 2 filed an application for the grant of temporary injunction which, after hearing both the parties, was rightly dismissed by the learned trial Court in terms of order dated 3rd of March, 2005. Against the said order of the learned trial Court, the petitioners filed a civil miscellaneous appeal before the Court of learned 3rd Additional District Judge, Srinagar and the Appellate Court, vide an order dated 2nd of November, 2006, dismissed the said appeal of the petitioners. The petitioners challenged the order of the Appellate Court in a Civil Revision Petition No. 47/2007, before this Court which is pending disposal. In the meantime, the statutory appeal of the respondent No. 2 was disposed of by the respondent No. 1 by way of a common judgment dated 16th of November, 2005, whereby it was ordered that since the actions have been initiated by the petitioners qua the violations against the respondent No. 2 on the basis of un-amended Control of Building Operation Regulations, therefore, a notice of demolition/action be initiated in terms of amended regulations. In other words, the petitioners were given liberty to proceed against the respondent No. 2 afresh, in view of the Jammu and Kashmir Control of Building Operation Act and the amended regulations made thereunder, i.e. the Jammu and Kashmir Control of Building Operation (Revised) Regulation, 2001. Accordingly, fresh proceedings were initiated against the respondent No. 2 and finally, after complying with the proce