LPAOW/4/2016 of J.M.C.AND ANR. Vs RUPINDER SINGH on 28 December 2017

1. This appeal is directed against the order dated 14.10.2015 passed by a learned Single Judge of this Court in OWP No. 1520/2015.

2. The facts leading to the present appeal are that, building permission was granted to the respondent by the Jammu Municipal Corporation on the subject land with effect from 23.07.2012. The building was to be constructed as per the sanctioned plan within three years, that is, up to 23.07.2015. But, much before this period could elapse, the Jammu Municipal Corporation withdrew the building permission by an order dated 09.11.2013. That order was challenged by the respondent herein by way of a writ petition being OWP No. 601/2014. The said writ petition was disposed of by an order dated 21.05.2015 whereby the order dated 09.11.2013, withdrawing the building permission, was quashed. The operative portion of the order dated 21.05.2015 reads as under:- “The writ petition along with connected MP is accordingly allowed and impugned order dated 9[th] November, 2013 is quashed. This will not preclude the respondents from passing fresh orders after affording reasonable opportunity of being heard to the petitioner.”

3. Subsequently, as the three year period ended on 23.07.2015 and there was very little time after the order dated 21.05.2015 to construct the building as per the sanctioned plan, the respondent herein filed another writ petition, being OWP No. 1520/2015, essentially seeking exclusion of the period spent in litigation while challenging the withdrawal order dated 23.07.2012. The said period amounted to approximately 18 months from 09.11.2013 to 21.05.2015. The learned Single Judge, by virtue of the impugned order, disposed of the writ petition (OWP No. 1520/2015) by directing the appellants to allow the writ petitioner to raise the construction in terms of the building permission granted vide order No. 439/BS/12 dated 23.07.2012, by excluding the period with effect from 09.11.2013 till 21.05.2015, consumed in the litigation and treating the period of 18 months as extended.

4. The Jammu Municipal Corporation is in appeal against this order. We may also point out that the appeal was filed after a delay of 16 days, which delay has been condoned. It may also be pointed out that on 01.01.2016 a Division Bench of this Court passed an order of status quo which has been operating since then.

5. It, therefore, transpires from the aforesaid facts that the permission which was initially granted on 23.07.2012 stood restored by the order dated 21.05.2015 because by virtue of that order, the withdrawal of permission dated 09.11.2013 was quashed. Neither party challenged the order dated 21.05.2015. As such that order has become final. The learned Single Judge, by virtue of the impugned judgment has not interfered with that order but has only permitted the respondent to seek an exclusion of the 18 months period which transpired between the passing of the withdrawal order dated 09.11.2013 and it being set aside/ quashed by the Court in OWP No. 601/2014. The learned Single Judge has only acted on the basis of two well established principles. The first being that no party can take advantage of its own wrong and the second being that an act of the Court shall not be to the prejudice of any party. This is also in sync with the general principles that the time spent bonafide in litigation ought to be excluded while construing the period of limitation.

6. For the foregoing reasons, we do not see any reason to interfere with the impugned order dated 14.10.2015, except to clarify that the period of 18 months now stands reduced by a further 2 ½ months because of the time elapsed between 14.10.2015, the date of impugned order and 01.01.2016, the date on which the Division Bench passed the status quo order. In other words, the respondent would now have 15 ½ months available to him under the original permission dated 23.07.2012. At the same time, since the order dated 21.05.2015 was not challenged by either of the parties, the observation of the learned Single Judge in that order to the effect that, the same would not preclude the Municipal Corporation from passing fresh orders, after affording a reasonable opportunity of being heard to the petitioner therein ( respondent herein), would continue to hold good. We are also making it clear that we have not expressed any opinion on the validity of the initial permission that has been granted.

7. With these observations the appeal stands disposed of.

(Sanjeev Kumar) (Badar Durrez Ahmed)

Judge Chief Justice

Jammu 28.12.2017

Anil Raina, Secy