MUNSHI ZULFIKAR Vs. STATE
HIGH COURT OF JAMMU AND KASHMIR
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(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.
(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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