Jammu & Kashmir High Court - Srinagar Bench
Habibullah Kak And Another vs J&K Special Tribunal Srinagar & Ors on 30 July, 2021
Bench: Chief Justice, Sanjay Dhar
S.No.206
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CJ Court
OWP No.1052/2009
Habibullah Kak and another. ...Petitioner(s)/Appellants.
Through: Mr. Parvez Nazir, Advocate.
Vs.
J&K Special Tribunal Srinagar & Ors. ....Respondent(s)
Through: Mr. Moomin Khan, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
O R D E R
30.07.2021
01. The writ petition is directed against the judgment and order dated 26.10.2009 passed by the Jammu & Kashmir Special Tribunal in file No. STS/1789/06/Misc : Habibullah Kakk and Anr. v. Building Operations Controlling Authortiy & Others.
02. The facts as revealed from the pleadings are that petitioners were granted permission to construct a building on 25.05.2005 by the Building Operation Controlling Authority (hereinafter for short BOCA). The petitioners undertook the construction of the building but before its completion a notice dated 26.06.2006 under Section 7(3) of the J&K Control of Building Operation Act, 1988 (hereafter for short the BOCA Act), was issued for demolition of the same. The petitioners preferred an OWP No.1052/2009 1|Page appeal under Section 13 of the BOCA Act before the J&K Special Tribunal, Srinagar. Unfortunately, the appeal was dismissed in default on 29.02.2008. The petitioners moved application for recall of the above order and for restoration of the appeal vide application dated 28.04.2008 and also filed an application for condoning the delay in moving the recall/ restoration application.
03. The appeal was restored but the BOCA preferred writ petition being OWP No.19 of 2009 contending that it could not have been restored without considering the delay condonation application. Accordingly, the High Court vide order dated 07.09.2009 allowed the writ petition remanding the matter for consideration of delay condonation application first. In furtherance thereof J&K Special Tribunal has dismissed the same holding that there is no provision in COBA Act enabling condonation of delay and, therefore, the application is not maintainable. Conseuquently, the appeal stands dismissed in default.
04. Heard Mr. Parvez Nazir, learned counsel for the petitioners and Mr. Moomin Khan, learned counsel for the respondents.
05. The submission of Mr. Parvez Nazir, learned counsel for the petitioners, is that even assuming that the provisions of the Code of Civil Procedure and that of the Limitation Act are not applicable to the proceedings under the BOCA Act nonetheless the Courts and the Tribunal have inherent power and jurisdiction to restore the case if dismissed for want of prosecution and if necessary after condoning the delay in filing such an application. It is further submitted that the BOCA Act nowhere prescribes any limitation for filing an application for recall/ restoration of OWP No.1052/2009 2|Page the appeal. The application for condonation of delay was filed as a measure of abandon precaution.
06. Mr. Moomin Khan, learned counsel for the respondents, has defended the impugned order of the J&K Special Tribunal on the ground that as the provisions of the Code of Civil Procedure and Limitation Act are not applicable and that the BOCA Act do not contain any provision for condoning the delay, the Tribunal has rightly held that the delay condonation application was not maintainable so as to reject it.
07. There is no controversy to the fact that the provisions of the Civil Procedure Code as a whole and that of the Limitation Act may not be applicable to the proceedings under the BOCA Act before the J&K Special Tribunal under the Jammu & Kashmir Special Tribunal Act, 1988 read with Jammu & Kashmir Special Tribunal Rules, 1986. Therefore, without going into as to the applicability of the Civil Procedure Code and the Limitation Act, we proceed to decide the lis involved in this writ petition otherwise.
08. It may be noted that in exercise of powers conferred under Section 9 (wrongly mentioned as Section 10) of the Jammu & Kashmir Special Tribunal, Act, 1988, (for short the Act of 1988) the Government has framed Jammu & Kashmir Special Tribunal Rules, 1986 (for short the Rules of 1986).
09. The Rules of 1986 specifically lays down that the Tribunal on the date fixed for hearing or the adjourned date of hearing, if the appellant does not appear when the appeal is called out, may in its discretion dismiss the appeal in default and similarly has the power to proceed exparte where the respondent fails to appear. Thus, according to Rule 18 and 19 of the Rules OWP No.1052/2009 3|Page of 1986, the Tribunal is vested with the power to dismiss the appeal in default and to proceed exparte, if necessary.
10. The Rules of 1986 nowhere specifically provides for moving of an application for recall of any order or an order dismissing the appeal in default or even for setting aside the exparte order. In a way the Rules of 1986 are completely silent on the above aspect.
11. In Associated Cement Companies Ltd. v. P. N. Sharma and another : AIR 1965 SC 1595, the Supreme Court has categorically laid down that the Tribunals in India exercise the same judicial powers which inherently vest in courts of a sovereign State. Thus, like the courts, the tribunals also have the inherent jurisdiction even if they are of limited jurisdiction. If the Tribunal has the power to do something, it also has the inherent power to undo the same.
12. In Mst. Dhani Devi v. Sant Bihari Sharma and others : AIR 1970 SC 759, it was held that in the absence of any Statute or Statutory Rule, the Regional Transport Authority may devise any reasonable procedure for dealing with the situation and it has complete discretion in the matter of allowing or refusing substitution even if there is no provision for substitution under the procedural law applicable to the tribunal and, as such, it has the power to substitute the person succeeding the ownership or the possession of the vehicle. It further laid down that all powers which are not specifically denied by the Statute or the Statutory Rules should be deemed to be conferred upon the Tribunal so that they may effectively exercise their judicial function.
OWP No.1052/2009 4|Page
13. The Supreme Court in the case New India Assurance Co. Ltd., v. R. Srinivasan : AIR 2000 SC 941, clearly laid down that every court or judicial body or authority which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default and it would have the inherent power and jurisdiction to restore the complaint on good grounds if shown for non-appearance.
14. In view of the aforesaid facts and circumstances, it is crystal clear that if the Jammu & Kashmir Special Tribunal has the power under the Rules of 1986 to dismiss an appeal for default, it has inherent power to restore it, if good cause for absence is established.
15. The Act of 1988 and the Rules of 1986 nowhere provides for any limitation for filing of the recall/ restoration application and the limitation of seven days, as referred to, is only for the purposes of filing the appeal. The said limitation would not apply for moving the recall/ restoration application.
16. The Supreme Court in Re: Ramlila Maidan Incident : AIR 2012 SC (Supp) 266, observed that it is a settled rule of law that wherever provision of a statute does not provide for a specific time for doing a thing, the same has to be done within a reasonable time and this reasonable time depends upon the facts and circumstances of each case. A similar view has been expressed by the Supreme Court in Londhe Prakash Bhagwan v. Dattatraya Eknath Mane and others : (2013) 10 SCC 627, and a host of other decisions wherein it has been reiterated that if no time limit has been prescribed in a statute to apply before the appropriate forum, in that case the person aggrieved has to approach the court within a reasonable time.
OWP No.1052/2009 5|Page
17. In the case at hand, no time limit has been prescribed for moving the recall/ restoration application and therefore, it was open for the petitioners to approach the Tribunal within a reasonable time. The limitation of seven days provided for filing the appeal was not applicable for moving such an application. The appeal was dismissed on 29.02.2008 and the restoration application was filed on 28.04.2008 i.e., within two months. The aforesaid period of two months by no stretch of imagination cannot be an unreasonable long time as normally such applications are supposed to be filed within thirty days from the date of knowledge of the order. At least, it is not a case of inordinate delay.
18. In holding that in the absence of any provision under the Act and the Rules providing for condoning the delay, it was not liable to be condoned, the Tribunal has placed reliance upon the decision of the Jammu & Kashmir High Court in the case of Munshi Zulfikar v. State and others : 2007 (2) JKJ 20[HC] and Pushpa Devi v. Nanak Singh : 1982 KLJ 278. Both the said cases were in respect to filing of an appeal before the Jammu & Kashmir Special Tribunal for which admittedly a period of seven days is allowed for filing. It is in respect of filing of an appeal that the court held that since the provisions of the Civil Procedure Code and Limitation Act are not applicable, the delay is not liable to be condoned. The said authorities have no application to the facts and circumstances of the present case where no limitation is prescribed for filing a recall/ restoration application and, therefore, such an application can always be filed within a reasonable time and it is up to the court or the Tribunal at his discretion to consider it on merits even if there is some delay.
OWP No.1052/2009 6|Page
19. It is trite to mention that rules of limitation are not meant to destroy the rights of the parties rather the idea is that every legal remedy must be kept alive only for a fixed period of time. It is also settled in law that the power of condonation of delay is a discretionary jurisdiction and has to be liberally construed and exercised. In case where substantial justice and technical considerations are pitted against each other, the cause of substantial justice always deserves to be preferred.
20. Keeping in view the aforesaid facts and circumstances, we are of the considered opinion that the Tribunal manifestly erred in law in rejecting the delay condonation application of the petitioners on the ground that it is not maintainable instead of considering it and the recall/ restoration application on their own merit.
21. Accordingly, the impugned judgment and order dated 26.10.2009 passed by the J&K Special Tribunal is quashed with liberty to it to consider the delay condonation and the recall/ restoration application in accordance with law keeping in mind the observations made hereinabove most expeditiously preferably within a period of three months.
(SANJAY DHAR) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Srinagar
30.07.2021
Abdul Qayoom, PS
Whether the order is speaking? Yes.
Whether the order is reportable? Yes.
OWP No.1052/2009 7|Page