ZAINAB ABDULLAH Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) Through the medium of this writ petition, building permission accorded vide order No. 24 of 1997 dated 17-5-1997 issued by respondent No. 2 is impugned on the ground that the provisions of J and K Municipal Act have ceased to operate in view of the mandate of S. 54 of J and K Development Act 1970. The permission is also challenged because proposed construction is going to deprive the petitioner of his easementary rights.

(2.) In order to appreciate the controversy, a narrative of rival contentions is called for. The petitioners are aggrieved of building permission issued under Order No. 24 of 1997 dt. 17-7-1997 on two-fold grounds, one that the permission accorded contravenes the provision of Development Act, another that the construction being erected on the strength of impugned order has the effect of interrupting the easementary rights of the petitioners. The respondent No. 6 has chosen to adopt the averments made by her in CMP No. 146/1998 as her objections in terms of order of the Court dated 11-5-1998 which is accompanied by a copy of writ petition bearing No. 1045/97 which has been filed by one Mohammad Abdullah Sofi s/o Mohamad Shaban Sofi R/o Maharaj Bazar, Sarai Bal, Srinagar, respondent No. 7 (herein), a copy of an order passed on 30-7-1997 in the said writ petition, two copies of plaints filed by Shri Abdul Majid Sofi S/o respondent No. 7 (herein) and a photo copy of one more document. In the objections it is submitted by the respondent No. 6 that the petitioners (herein) are the daughters of respondent No. 7 (herein) and sisters of respondents 8 and 9 (herein). It is further contended that respondent No. 7 had filed a writ petition bearing No. 1045/97 challenging the permission impugned agitating the same rights which have been taken in this petition. The said writ petition stands disposed of by virtue of order dated. 1-9-1998. This fact is not disputed by L.C. for the petitioner and as a matter of fact, he has relied on the judgment and has produced a photocopy of the same. It being so, there is no dispute that the writ petition No. 1045/97 which has been filed by father of the petitioners (herein) stands adjudicated upon. It is also contended by respondent No. 6 in his reply that similar reliefs have been prayed for in respect of the property which was the subject matter of the earlier writ petition as well and prior to that, a suit was filed before the District Judge, Srinagar, which came to be transferred to the Ist. Additional Munsif, Srinagar and is subjudice, in which an interim relief was granted by the trial Court but was subsequently vacated and the order vacating interim relief was on appeal maintained by the Additional District Judge Srinagar, yet another suit came to be filed, praying same relief in respect of the same property. It is submitted that since interim direction was vacated in the suit, therefore, respondent No. 7 chose to file a writ petition bearing No. 1045/97 but the Court having declined interim relief by order dated 30-7-1997, the petitioners chose to file this writ petition and by share suppression they are said to have got an interim order. The petitioners have filed objections to the application of respondent No. 6 and have disputed the knowledge of institution of the suits as also of the writ petition No. 1045/97, however, they have not disputed the fact that the permission impugned through this writ petition was impugned through the writ petition No. 1045/97 besides suits. The respondent No. 7 has specifically contended in the writ petition No. 1045/97 that he is the proprietor of the house, in respect of which, rights of easement are claimed and this averment of respondent No. 7 has been specifically mentioned by respondent No. 6 in his application (treated as objections to the writ petition), but the petitioners herein have not disputed this fact.

(3.) What emerges from the pleadings of the parties is that the permission granted is challenged through suits and was also subject matter of a writ petition, which was filed by respondent No. 7 bearing writ petition No. 1045/97 and the said writ petition stands disposed of but the suits are pending in respect of the same matter.