IMPORTANT POINT : Commercial construction – Petitioner has no indefeasible right of deemed permission merely on plea of expiry of sixty days period.

Judgment :

Tashi Rabstan, J.

The petition in hand has been filed by the petitioner on the grounds that the petitioner is owner in possession of the land measuring 1144.25 square feet comprised in Khasra No. 330-Min situated at Maheshi Gate, Gurudwara Sunder Singh Road, Jammu which was purchased by him on 07.03.1989 from one Kesar Singh S/o Sh. Ram through a registered sale deed executed on 07.03.1989 and registered with the court of learned Sub-Registrar, Jammu on 08.03.1989. It is averred that as per the sale deed the land which was purchased by the petitioner from Kesar Singh measured about 5½ marlas and taking advantage that the petitioner normally resides outside J&K in connection with his job, an unnecessary dispute was raised by the neighbours which was ultimately settled in terms of a compromise deed and the petitioner was left with an open land measuring 882.75 sq.ft. only. Subsequently, some more land adjoining to the land, which was earlier part of 5½ marlas and given away in compromise deed, was purchased back by the petitioner vide sale deed dated 06.07.2010.

2. It is averred that with a view to raise the construction of his residential house, the petitioner had earlier applied for grant of building permission on the aforesaid 882.75 sq.ft. before the Jammu Municipal Corporation and after completion of all the requisite formalities the building permission case of the petitioner was placed before the Building Operations Control Authority for approval and sanction, who after considering the no objection certificate from all requisite quarters and after due verification of the title of the petitioner and in the light of no objection certificates issued by Revenue and Nazool authorities, granted permission to the petitioner vide order dated 24.04.2000 passed by the respondent No. 2. However, the petitioner could not raise the construction of his residential house in pursuance of the permission granted within the period of its validity, as such, once again he applied to the respondent No. 2 for revalidation and the request of the petitioner was acceded to and permission granted was revalidated for three years in pursuance of the order dated 18.09.2003, however, during this period also the petitioner could not raise construction because of the third party dispute raised by neighbor.

3. It is further averred that the petitioner once again approached the respondent No. 2 to seek further extension of three years and the request was again accepted and the building permission was further extended for a further period of three years w.e.f. 17.09.2008 vide order dated 17.12.2008, however, the respondents asked the petitioner to file an undertaking to the effect that if the learned civil court gave any adverse judgment against the petitioner, the same could be abided by him, which was submitted by the petitioner.

4. It is further averred that while the petitioner was making necessary preparation to commence the building construction and was out of station in connection with employment, he was informed that the respondent No. 2 had trespassed on his land and started leveling the same by using JCB and the fencing erected by the petitioner had been dismantled, even nallah which existed towards the northern side of the plot of the petitioner had been damaged. The petitioner rushed to the respondents and met the then Commissioner, however, after having failed to find any logical response from the then Commissioner and threatening posture, the petitioner was constrained to file a suit for permanent prohibitory injunction against the Jammu Municipal Corporation and others seeking a decree restraining them from interfering or causing any interference or damage to the property of the petitioner and had also sought injunction against the respondents for revoking, recalling or cancelling the building permission as the respondent No. 2 had threatened to do so during the course of meeting with the petitioner. In the suit, the learned trial court