Statutory remedy can’t be bypassed before writ jurisdiction: HC

The High Court of J&K and Ladakh Wednesday held that courts should ordinarily refrain from bypassing statutory forums when a complete appellate and revisional mechanism is available under law.

A bench of Justice Wasim Sadiq Nargal made the observation, while dismissing a plea challenging a revised building permission granted by the Srinagar Municipal Corporation (SMC).

In his plea before the High Court one M A War had sought to quash Revised Building Permission Order issued by the SMC in favour of private respondent, A A Mufti, after certain deviations in construction were compounded. The petitioner’s contention was that the construction was raised over land situated at Naseembagh Srinagar allegedly in substantial deviation from the sanctioned plan and the municipal authorities illegally regularised major and non-compoundable violations despite earlier issuing a demolition notice.

In response to the plea, the court held that Section 403 of the J&K Municipal Corporation Act provides a complete statutory mechanism for redressal of grievances against such orders and that the petitioner had failed to avail the revisional remedy before the Special Tribunal. Once the statute provides a complete adjudicatory mechanism including appellate and revisional remedies, ordinarily the writ Court ought not to bypass such statutory forum and undertake factual adjudication in exercise of extraordinary jurisdiction under Article 226 of the Constitution, the bench noted.

The court held that those questions relating to the nature and extent of building deviations, permissibility of compounding, applicability of building bye-laws and legality of regularisation involve technical and disputed factual issues requiring examination of plans, measurements and other evidence, which cannot ordinarily be adjudicated in proceedings under Article 226 of the Constitution.

With regard to the argument that principles of natural justice had been violated, the court observed that the petitioner had participated in earlier proceedings before the Special Tribunal and had submitted representations before the municipal authorities pursuant to directions issued by the Tribunal.

Furthermore, the court further noted that allegations of mala fide, collusion and corruption levelled against municipal authorities and the private respondent were unsupported by any cogent material and could not form the basis for invoking extraordinary writ jurisdiction. 

The court also dismissed the connected contempt petition, saying there was no material to show deliberate or wilful disobedience of any judicial order by the authorities. The Special Tribunal had directed reconsideration of the matter and that the revised building permission was subsequently issued by the competent authority after re-examination, it said. 

However, the Court said that the petitioner would remain free to avail any statutory remedy under law before the competent forum.