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JAMMU AND KASHMIR HIGH COURT BENCH AT SRINAGAR
Wasim Sadiq Nargal, J.
Tanzeem Khursheed Zargar – Appellant
Versus
J&K Special Tribunal & Ors. – Respondents
WP(C) No. 1197 of 2022, CM No. 2955 of 2022
Decided On : 29-10-2022
ABUSE OF PROCESS OF COURT - Building Permission Dispute - J&K Municipal Corporation Act, 2000, Master Plan-2035, J&K Unified Building Bye-Laws - The court dismissed the writ petition as an abuse of process of the court, as the petitioner had already initiated parallel proceedings by filing an appeal against the order passed by the court of learned 3rd Additional District & Sessions Judge Srinagar, which is pending adjudication involving the same issue in question. The petitioner had no locus to call in question the order passed by the Tribunal, and had deliberately suppressed the material fact of filing appeal before the court of learned 3rd Additional District & Sessions Judge Srinagar against the dismissal/withdrawal of the suit filed by him with a view to mislead the Court and to get an interim order. The court imposed a cost of Rs.50,000 upon the petitioner to deprecate such practice of forum hunting and suppression of material facts, payable to the private respondents within a period of four weeks from the judgment date.
Fact of the Case:
The petitioner filed a writ petition under Article 226 of the Constitution of India, challenging the order of the J&K Special Tribunal Srinagar, which dismissed the petitioner's application seeking impleadment in the proceedings related to the regularization of minor deviations made by the private respondents under the enabling provision of Master Plan-2035 and the J&K Unified Building Bye-Laws. The petitioner and the private respondents were living in close vicinity and in possession of proprietary land. The petitioner alleged that the private respondents violated the building permission by making unauthorized changes to their structure, resulting in infringement of the petitioner's right to privacy. The Tribunal's order allowed the appeal by directing the Municipal authorities to consider the regularization of the minor deviations made by the private respondents.
Finding of the Court:
The court found that the writ petition was an abuse of process of the court, as the petitioner had already initiated parallel proceedings by filing an appeal against the order passed by the court of learned 3rd Additional District & Sessions Judge Srinagar, which is pending adjudication involving the same issue in question. The petitioner had no locus to call in question the order passed by the Tribunal, and had deliberately suppressed the material fact of filing appeal before the court of learned 3rd Additional District & Sessions Judge Srinagar against the dismissal/withdrawal of the suit filed by him with a view to mislead the Court and to get an interim order.
Issues: The main issue was whether the petitioner's writ petition challenging the Tribunal's order was maintainable, considering the parallel proceedings initiated by the petitioner by filing an appeal against the order passed by the court of learned 3rd Additional District & Sessions Judge Srinagar. Additionally, the court addressed the issue of suppression of material facts by the petitioner with the intention to mislead the Court and obtain an interim order.
Ratio Decidendi: The court held that the petitioner's writ petition was an abuse of process of the court, as the petitioner had already initiated parallel proceedings by filing an appeal against the order passed by the court of learned 3rd Additional District & Sessions Judge Srinagar, which is pending adjudication involving the same issue in question. The petitioner had no locus to call in question the order passed by the Tribunal, and had deliberately suppressed the material fact of filing appeal before the court of learned 3rd Additional District & Sessions Judge Srinagar against the dismissal/withdrawal of the suit filed by him with a view to mislead the Court and to get an interim order.
Final Decision: The court dismissed the writ petition and imposed a cost of Rs.50,000 upon the petitioner to deprecate the practice of forum hunting and suppression of material facts, payable to the private respondents within a period of four weeks from the judgment date.
JUDGMENT
1. Petitioner is aggrieved of the order dated 02.05.2022 passed by Respondent No.1-J&K Special Tribunal Srinagar, whereby the Tribunal has rejected the Application of the petitioner for not impleading him as a necessary party and has allowed the appeal by directing the Municipal authorities to consider the regularization of the minor deviations, if any, made by the private respondents 5 to 8 under the enabling provision of Master Plan-2035 and the J&K Unified Building Bye-Laws.
FACTS
2. Brief facts of the case, which led to filing of the present writ petition under Article 226 of the Constitution of India by the petitioner is that the petitioner and the private respondents are living in the close vicinity of each other and are in possession of the proprietary land. The case of the petitioner is that in the year 2021, the private respondents 5 to 8 started dumping of building material for renovation of their old structure and feeling aggrieved of the same, the petitioner approached the civil court by way of the suit and the learned court directed the parties to maintain status quo. However, the private respondents subsequently produced the permission/sanction granted by Municipal Corporation vide order No.235 of 2021 dated 17.07.2021, which reads as under:-
'.for restoration of existing double storey with attic residential house over existing parameters without any change in shape size height and without dismantling the structure on the plot of land compromising survey No. 894/2. And the total built up area 805.0 s.fts. & attic floor 402.0 s.fts.'
3. Further stand of the petitioner is that the private respondents under the garb of the permission started to dismantle the existing structure and started to construct the new structure without adhering to the terms and conditions of the building permission by dismantling first the existing structure and then by building the structure upto 1200 sq.fts built up area and by increasing the height of the structure there by violating the privacy of the petitioner resulting in infringement of the right to privacy.
4. Pursuant to the complaint of the petitioner, the official respondents took note of the violation of the building permission granted to the private respondents, and issued demolition notice under Section 235(1) of J&K Municipal Corporation Act, 2000 vide No. SMC/Enf/1890-95 dated 24.11.2021. Feeling aggrieved of the same, the private respondents herein assailed the demolition notice by way of appeal before the J&K Special Tribunal, Srinagar. As per the stand of the petitioner, the petitioner feeling aggrieved of the violation of the permission granted to the private respondents because of the change in shape, size and height of the existing structure and being affected party, filed an application in the aforementioned appeal seeking impleadment in the proceedings as being necessary party.
5. It is the specific case of the petitioner that the Tribunal without hearing the petitioner has passed the impugned order that too without deciding the application seeking his impleadment and allowing the appeal leaving no option to the petitioner but to challenge the order impugned dated 02.05.2022 by way of the present writ petition.
6. Learned counsel for the petitioner urged that the order impugned dated 02.05.2022 passed by the J&K Special Tribunal Srinagar be set aside on the ground that the same has been passed with nonapplication of mind and in violation of the rules governing the field. Learned counsel argued that the private respondents have violated the building permission granted to them and accordingly, the order impugned cannot sustain the test of law and deserves to be set aside. It has further been urged that the deviations are of such nature that if regularized same will be fatal to the rights of the petitioner.
7. The main plank of argument raised by learned counsel for the petitioner is that the order impugned dated 02.05.2022 deserves to be quashed and set aside on the gr
The main legal point established in the judgment is that a petitioner cannot initiate parallel proceedings on the same subject matter by filing a writ petition while already having initiated an appea....
Suppression of material facts and failure to join necessary parties render a writ petition untenable; fraud on the court mandates dismissal of the case.
Suppression of material facts disentitles a party to invoke equitable jurisdiction under Article 226 of the Constitution of India.
Point of law: Jurisdiction of this Court under Article 226 of the Constitution of India is discretionary. Unless this Court is convinced that a person has approached it with clean hands, it is under ....
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