Masjid Noor vs State of JandK and Others

Hasnain Massodi, J.â€"LPA on hand is directed against writ court judgment dated 30.12.2013, whereby writ court has disposed of the writ

petition on agreement of learned counsel for the parties to the effect that respondent No. 5 would raise construction strictly in accordance with

building permission granted in his favour by competent authority. The Letters Patent Appeal is filed against following factual backdrop. Firdous

Ahmad Lone son of Abdul Gaffar Lone, resident of Abi Guzer-respondent No. 5 herein, some time back acquired a house known as Tara House

at Rajbagh, Srinagar from its owner-a migrant living outside Srinagar.

The respondent No. 5 soon after purchase of the property in question decided to repair the building, lay a new roof and construct a fencing wall

around its courtyard. He approached the Building Operation Controlling Authority (BOCA) with the plan of construction proposed to be

undertaken by him, for grant of sanction/permission under Control of Building Operation Act. The Authority approved the building plan and

granted permission to raise proposed construction.

Masjid Noor, is a mosque in the locality where construction is proposed to be undertaken, and appellant herein is President of Masjid

Committee, responsible for day to day management of the Mosque. The appellant apprehended that respondent No. 5 under guise of repairs

intended to construct a hotel on the foundation Tara House. He aggrieved that construction was raised by respondent No. 5 in violation of building

permission and master plan and was likely to violate rights of the inhabitants of locality who visited the mosque to offer prayers and to cause

interference in prayers at the mosque, filed a writ petition being OWP No. 759/2012. He sought a direction to the official respondents 1-4 to

discharge their statutory obligations qua construction raised by respondent No. 5 on the spot, that according to him was in violation of permission

and approved building plan.

Respondent No. 5 refuted the case set up by appellant. It was insisted that construction would in no way cause interference in prayers or other

religious activities and events. It was pleaded that the premises of Masjid Noor and the site of proposed construction were separated by residential

house of one Ghulam Hassan Kangoo and therefore the proposed construction would not violate rights of anyone, much less interfere in the right of

locals to offer prayers or perform other religious obligations.

Be that as it may be, the parties after long drawn litigation decided to settle the matter. Learned counsel for the respondent No. 5 agreed to

raise construction in strict accordance with the permission granted by BOCA in his favour and volunteered to execute a formal undertaking in this

regard. In view of the stand taken by respondent No. 5 the appellant agreed not to prosecute the writ petition. The writ court accordingly vide

judgment dated 30.12.2013 disposed of the writ petition in the manner stated above.

The matter ought to have ended then and there. However few observations made by writ court while disposing of the writ petition vide order

dated 30.12.2013 have prompted appellant to file instant Letters Patent Appeal and throw challenge to the writ court order.

Appellant is aggrieved that writ court while disposing of the writ petition in terms of agreement between the parties, held appellant to have no

locus standi to file writ petition, that none of his rights was being infringed and that a ""concocted frivolous case"" set up in the petition would not

entitle appellant to approach the court in exercise of extra ordinary writ jurisdiction. The appellant is also aggrieved with the observation that if

there was an assertion regarding breach of master plan and municipal laws it was not open to appellant to maintain the petition.

The appellant on the grounds urged in the memo of appeal seeks setting aside of the writ court judgment to the extent set out in the relevant

clause of memo of appeal. Letters Patent Appeal is opposed by the respondents on the ground of its maintainability. It is insisted that as the writ

petition is disposed of in terms of Compromise appeal would not be maintainable.

Heard and considered.

Clause 12 Letters patent Appeal (LPA) makes a provision for appeal from ""Judgment"" of One Judge of the High Court to a larger bench of

the same High Court. It reads as under:

And we do further ordain that an appeal shall lie to the said High Court of judicature from the judgment (not being a judgment passed in the

exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the

superintendence of the said High Court and not being and order made in the exercise of revisional jurisdiction, and not being a sentence or order

passed or made in the exercise of the power of superintendence) of one judge of the said High Court or one judge of any Division Court and that

no withstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of ""one Judge of the said High Court or

one judge of ""any Division Court, a consistently with the provisions of the civil procedure code, made in the exercise of appellate jurisdiction in

respect of a decree or order made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate

jurisdiction by a court subject to the superintendence of the said High Court where the judge who passed the judgment declares that the case is a

fit one for appeal; but that the right of appeal from other judgments of the judges of the said High Court or of such division court shall be to us, our

Heirs or Successors and be heard by our Board of Judicial Advisers for report to us.

A bare look at Clause 12 (Supra) would reveal that what can be appealed against is judgment rendered by ""one Judge"" not being a judgment

in respect of a decree or order made in exercise of the appellate jurisdiction or order made in exercise of revisional jurisdiction or order passed or

made in the exercise of power of superintendence.

The emphasis is to be on the expression ""judgment"". In other words, what is proposed to be called in question must be judgment. Letters

Patent does not define judgment. Section 2(8) CPC defines judgment as ""statement given by the Judge as the ground of decree or order"". It

implies that ""judgment"" involves determination of rights, as grounds are to be set out in support of the conclusion arrived at, touching merits of the

case.

The Judgment, in the context of Clause 12 of Letters Patent would include the order in determining the rights and obligations of the parties. The

expression is to be construed liberally, having regard to the attending facts and circumstances. Therefore the order deciding important issues

between the parties, affecting the merits of the case or even deciding issue of jurisdiction would fall within the purview of ""Judgment"" and open to

challenge under Letter Patent. The order passed at an ad-interim stage but affecting the rights of the parties or deciding important issues bearing on

the merits of the case would fall within purview of ""Judgment"" would attract Clause 12 of Letter Patent. The emphasis therefore is whether rights of

the parties are impacted by the order rather than stage at which order sought to be challenged is passed.

In the present case, the parties entered into a compromise, whereby respondent No. 5, was allowed to raise construction in question in strict

accordance with the permission granted and building plan approved by respondent No. 3. Learned writ court had an option and possibly the only

one permissible in the facts and circumstance to dispose of petition in terms of the compromise. The writ court, however, while disposing of the

writ petition in terms of the compromise, made some observations that determine the rights of the parties.

Learned single judge held the petition to have been motivated by ""personal aggrandizement and attainment of ulterior motives.....a practice

deplorable in strongest terms"". The Court proceeds to observe that the cause of action was ""founded on totally unacceptable proposition"". The

writ court also put a question mark on petitioner's locus standi to file the petition and held that none of his rights i.e. fundamental rights are allegedly

to have been violated and ""bringing in concocted and frivolous cause would extend the petitioner to approach ................ Court in exercise of its

extraordinary jurisdiction"". It held that ""it is a petition filed on protection or enforcement of personal rights and there is no such right of petitioner

involved"".

The observations highlighted above made by the writ court while disposing of the writ petition did not make the Judgment merely one disposing

of the writ petitions in terms of the compromise arrived at by the parties. The writ court has travelled much beyond that in determining rights of the

petitioner to maintain the writ petition as also the cause of action to file the writ petition and motive behind invoking writ jurisdiction of the Court

The observations made by the writ court while disposing of the writ petition, make ""Judgment"" dated 30.12.2012 are within the ambit of Clause 12

Letters Patent. The threshold objections filed to the maintainability of the Letters Patent Appeal, therefore, are without any merit.

Let us now proceed to deal with the appeal on its merits. The dispute in the writ petition related to a construction being raised by respondent

No. 6 in the vicinity of a Mosque at Rajbagh. The writ petition - OWP No. 759/2012 was filed by the Mosque through its Mutwali or President

Shri Ali Mohammad Lone. The case set up was that the construction was being raised in violation of the permission granted by the Building

Operation Controlling Authority and that it violated rights of the residents of the locality visiting the Mosque to offer prayers. During the pendency

of the petition, good sense prevailed upon the parties and they decide to amicably settle the matter. They entered into a settlement whereunder

respondent No. 6, undertook to raise construction strictly in accordance with the permission granted and building plan approved by the Competent

Authority. Petitioner did not have any objection to such a recourse. The writ court was informed of the settlement arrived at by the parties. The

option available to the Writ Court as already pointed out was to dispose of the writ petition in terms of the compromise entered into by the parties.

The writ court instead discussed merits of the case and returned findings on Petitioner's ""locus standi"" to invoke jurisdiction of the court and

cause of action for the writ petition filed by him. The course followed by the writ court in our opinion was not permissible for the reason that the

parties were taken unawares and conclusion drawn on merits of the petition, without allowing the parties to put forth their stand. Once the parties

to writ petition or for that matter a suit or other proceeding enter into a compromise they expect the petition or such proceedings to be disposed of

in terms of compromise and the Court is not to embark on an exercise to deal with the matter on the merits or determine rights on the parties. The

Court in the event it proposes to touch merits for the reasons given notwithstanding the compromise is duty bound to inform the parties that it was

not inclined to dispose of the matter in terms of compromise and would like learned counsel for the parties to address arguments. In such an

eventuality, Court would be free to deal with the matter on its merits. The parties therefore would not be left with the grievance that conclusion

were arrived at without allowing them an opportunity of being heard.

Viewed thus, Letters Patent Appeal on hand is allowed and writ court order set aside to the extent it comments upon and determines

petitioner's locus standi to file petition on behalf of Masjid Noor, existence of cause of action to maintain the petition, and the motive behind filing

of the petition, highlighted in the memo of appeal. Allowed.