MUNSHI ZULFIKAR Vs. STATE
LAWS(J&K)-2006-11-27
HIGH COURT OF JAMMU AND KASHMIR
Decided on November 03,2006

Munshi Zulfikar Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) PETITIONERS case is that on 4.3.2003 Building Operation Control Authority (in short BOCA) vide its decision no. 104 dated 1st Feb. 2004 taken in his building permission case 702/W -14 granted permission for laying of RCC slab over existing two storied structure situated at Sheri -Bhat Hawal as per plan under its order no. 687 of 2003 dated 4.3.2003 with a stipulation that the structure should be completely blind on North and West for which he executed an undertaking. This permission was challenged by respondents herein an appeal captioned "Gulzar Ahmed wani vs. Chairman BOCA and ors" on 27th March 2003. Originally the appeal was not accompanied by an application for Condonation of Delay, objections whereto were filed by petitioner on 21.04.2003, but it some how remained pending till 7th Oct. 2003 when it was allowed by the Special Tribunal. In the meanwhile proceedings on the main appeal had been continuing with both sides in attendance, which was posted for arguments on 30th Nov. 2003.
(2.) AGGRIEVED by tribunals order to allow condonation of delay as aforesaid the petitioner has filed this writ petition to assail the same on the ground that the delay admittedly involved in presentation of the appeal could not be condoned by Tribunal for the reason that it was not permissible under law and as such by doing the same the tribunal has acted without jurisdiction. In addition to that, the second respondents locus standi to institute an appeal before the tribunal below also has also been challenged.
(3.) PERUSAL of the record of proceedings herein reveals that the petition has been admitted to hearing as for back as in Nov. 2003, and respondents asked to file their reply affidavit which has been done by respondents 3 to 5 only. Vide interim order dated 11th March 2005, four weeks further time has been given to second respondent for filing reply which he has failed to do till date despite repeated opportunities and extension of time, consequent whereupon the right to file the same is hereby closed and the matter taken up for disposal. In their reply affidavit, the respondents 3 to 5 i.e Chairman/Secretary of BOCA, and Administrator of Srinagar Municipal Corporation have surprisingly tried to support the condonation of delay impugned in this writ petition even while the appeal wherein delay was involved had been filed against the building permission granted by them, which ordinarily they should have defended. However, in their reply they state that the second respondent was an aggrieved person and had a right to maintain the appeal and the fact that same was delayed could not be used to throw him out of the court. They have also pleaded that petitioners appeal against the demolition order issued against him by officers of said respondents too is pending in the Tribunal below. As already said no reply has been filed by second respondent. During course of submissions appearing counsel have reiterated the contents of their pleadings, while nobody is present to be heard for respondent no.2.;


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