KRISHEN CHAND Vs. STATE

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India read with section 103 of the Constitution of Jammu and Kashmir for issuance of writ in the nature of certiorari quashing the order impugned dated 29 -7 -2006 passed by the respondent -3, vide which the proposal of the petitioner for the construction of Ist floor and 2nd floor has been rejected; further directing the respondents not to interfere in the peaceful construction of Ist and 2nd floor raised by the petitioner.

(2.) THE case set up by the petitioner is that, the petitioner is a lessee of Vinayak Missar Dharamshala Trust with respect to a shop, which was originally leased to his father in 1932 and after the death of the father of the petitioner, the lesser has executed fresh lease deed of the said shop in favour of the petitioner in the year 1975. The petitioner wanted to raise the construction on the Ist and 2nd floor over the existing shop for his residence. The petitioner obtained the permission from his lesser and submitted layout plan prepared by the qualified engineer to the respondent2 by paying the requisite fee of Rs. 100/ -on 8 -9 -2004 as per the statutory provision. The further case of the petitioner is that the respondent -2 neither sanctioned the construction nor rejected the same within a period of 60 days and the petitioner has acquired a indefeasible right of deemed permission under Rule 7.3 of the Control of Building Operation Regulations , 1998. It is further stated that when the petitioner did not receive any reply from the respondent -2, he started raising construction of the Ist floor as per the lay out plan in the month of October, 2005 but the respondent -2 issued notice dated 6 -10 -2005 asking the petitioner to discontinue the construction and thereafter got the construction of the petitioner stopped. The petitioner filed objections to the notice and also submitted no objection certificates from all the concerned departments. It is thus stated that as the application of the petitioner has not been decided within the stipulated period of 60 days, therefore, the application submitted by the petitioner seeking permission to raise the construction would be deemed to have been sanctioned.

(3.) ON notice, the respondents 2 and 3 admitted that the petitioner sought permission to raise the construction of Ist and 2nd floor at Vinayak Bazar, Jammu. After receiving the application, copy of the lay out plan was forwarded to all the members of the authority for their inspection and opinion including the Chief Town Planner, A.C. Nazool, A.C. Revenue, Executive Engineer(PHE) , Executive Engineer(PDD) and Executive Engineer ( Sewerage and Drainage ). It is stated that the petitioner took the lay out plan himself for getting the opinion of these members, which is evident from para -2 of Annexure -D and averments made in Annexure -E attached with the petition. But when the case of the petitioner was placed in the meeting of the Building Operation Controlling Authority, AC Nazool pointed out that the case of Vinayak Misser Dharamsalla was under process before AC Nazool and the NOC of the Collector is to be obtained. Letter No. 658/BS/05 dated 29 -1005 was written to the Collector for that purpose but the NOC has not been received. It was further pleaded that the petitioner has himself taken the responsibility of getting the opinion of different departments and the opinions were not available with the authority for considering the grant or refusal of permission within 60 days . Therefore, the petitioner cannot take the benefit of deemed permission.