Administrative Tribunal Can Review Its Decision Only If One Of The Grounds In Order 47 Rule 1 CPC Is Satisfied: Jammu & Kashmir & Ladakh High Court

The petitioners approached the High Court seeking a direction to the Municipal Authorities to demolish the unauthorised construction raised by the fifth respondent in violation of the approved plan and the rules of the J&K Control of Building Operation Act, 1988. It was further prayed that an inquiry be initiated against respondent 4 for gross abuse and misuse of powers for extraneous considerations.

The Single Bench of Justice Moksha Khajuria Kazmi held, “Since the Tribunal’s power to review its order/decision is akin to that of a Civil Court, the statutorily enumerated and judicially recognized limitations applicable to a Civil Court’s review powers would also apply to the Tribunal under Section 22(3)(f) of the Act. In other words, a Tribunal can review its order/decision only if one of the grounds enumerated in Order 47 Rule 1 CPC is satisfied.”

Further referring to Section 22 of the Administrative Tribunals Act, the Bench explained, “A reading of the above Section makes it clear that even though a Tribunal is not bound by the CPC, it can exercise the powers of a Civil Court in relation to the matters listed in clauses (a) to (i), including the power to review its decisions. The power of a Civil Court to review its judgment or decision is traceable to Section 114 of the CPC.

Advocate S.K. Anand represented the Petitioners while Sr. AAG S.S.Nanda represented the Respondents.

Factual Background

The petitioners are residents of Karan Nagar, Jammu, and have been residing there from the last more than 40 years. The fifth respondent is stated to be the owner in possession of land who had applied to the Jammu Municipal Corporation for permission to raise construction on the aforesaid land. The Corporation accorded permission to construct a ground, first, and second floor. Although the Municipal Authorities permitted a mixed residential-commercial construction as per the approved plan, the respondent raised construction in violation of the sanctioned plan.

He constructed the building using RCC columns in the shape of large halls, evidently for commercial use. It was alleged that this serious violation could not have occurred without the negligence or collusion of the concerned Authorities, who are duty-bound to monitor such activities. Consequently, in exercise of powers under Section 7(3) of the Act of 1988, the respondent was directed to demolish the unauthorized construction within five days, failing which the Municipal Authorities would proceed with demolition at his risk and cost.

The J&K Special Tribunal, Jammu, (Tribunal) dismissed the respondent’s appeal, holding that the violations were major and non-condonable under applicable regulations. Subsequently, the respondent filed an application for rehearing the appeal, and the Tribunal passed an order directing the Authorities to reassess the violation vis-à-vis norms and not as per what had been recorded in the permission. The Petitioners challenged the said order on the ground that it was violative of the principles of natural justice and there was no provision in law for rehearing a dismissed appeal.

Reasoning

The Bench was of the view that the writ petition was not maintainable, as it had been filed merely on the basis of apprehension. No action had been initiated against the petitioners in the order which was passed by the Tribunal. In that order, the Tribunal directed the Municipal Authorities to reassess the violations and permitted them to take fresh action against any construction not covered under the applicable norms, including constructions in the vicinity of the fifth respondent.

The Bench noted, “The present writ petition challenges the action which the petitioners apprehend may be taken on the basis of impugned order passed by the Tribunal. I am of the opinion that mere permitting the Municipal Authorities to take action against any construction not covered under the applicable rules does not give them any cause of action to approach this Court. I find the present writ petition is premature at this stage as no formal action adversely affecting the rights of the petitioners is either initiated or taken. The writ, on mere apprehension, is not maintainable unless there is material on record to indicate that the adverse action is imminent or there is a real threat of invasion of rights of the petitioners. In the instant case, nothing of this sort has been placed on record.”

Coming to the issue of whether the Tribunal has the power to review its order, the Bench said, “It is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only. The party seeking recall of order need not demonstrate that the order suffers from an error apparent on the face of the record. It suffices to show that the procedure followed was so flawed that it vitiated the entire proceedings. In such cases, the matter has to be reheard in accordance with law, without delving into the merits of the previous order. The order was recalled not because it was erroneous, but because it was passed in a vitiated proceedings, without looking into the relevant documents.”

Considering the fact that the Tribunal passed the impugned order reviewing its earlier decision on the basis of newly discovered evidence, specifically, the production of photographs by the fifth respondent, the Bench stated that the Tribunal was justified in reviewing its earlier order. Thus, dismissing the Writ Petition, the Bench held that the Tribunal had has the authority to review its order.

The Bench concluded the matter with a direction to the Municipal Authorities to reassess the violations afresh in light of the applicable norms. “The authorities shall be at liberty to take action against any violations in raising construction, including the construction raised by the petitioner herein (Respondent No. 5 in OWP No. 522/2013) and in his vicinity, in accordance with Act and rules applicable. Needless to mention that, before initiating any adverse action, the affected parties shall be afforded an opportunity of being heard”, it ordered.

Cause Title: Ravinder Singh and ors Om Parkash & Ors. (Case No.: OWP No.522/2013 C/W)

Appearance:

Petitioners: Advocate S.K.Anand

Respondents: Sr. AAG S.S.Nanda, Senior Advocate Sunil Sethi, Advocate Nayeem Sheikh

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