BUILDING OPERATION CONTROLLING AUTHORITY Vs. TARVINDER KOUR

JUDGEMENT

(1.) Petitioner issued Notice to owner of building under Section 7(1) of the J&K Control of Building Operation Act, 1988 (for short Act of 1988) dated 26.02.2013 wherein he was informed that he has allegedly converted the residential building into commercial one by opening the "SPA" (Beauty Parlour) on first floor without the permission of Jammu Municipal Corporation, and has changed the land use from residential to commercial one. It was also alleged in the Notice that the alleged illegal construction has seriously affected the planned development of the Jammu City and it contravened the zoning regulation. Notice, however, was received by the tenant (respondent No.1 in the writ petition). The Commissioner, Municipal Corporation Jammu, in exercise of power under Section 8(1) of J&K Control of Building Operation Act, 1988 read with Jammu Municipal Area Building Operations Controlling Authority No.4th dated 27.11.1999, ordered for sealing of the premises. Respondent No.1 challenged the said order of sealing in appeal before the J&K Special Tribunal at Jammu. The Special Tribunal vide order dated 07.03.2013, set aside the order of sealing. The petitioner was directed to de-seal the premises forthwith. It is this order, which is called in question in the present petition on the principle ground that there being no provision for filing of an appeal against order under Section 8(1) of the Act of 1988, the J&K Special Tribunal could not entertain the appeal and pass the order, which is impugned in the present petition.

(2.) Mr. Jalali, learned Senior Advocate appearing for tenant, vehemently argued that the provisions of Sections 7 & 8 of the Act of 1988 are to be read together. Learned counsel submitted that in fact, Section 8 of the Act of 1988 has to be read as proviso to Section 7 of the Act and any order of sealing passed would be appealable under Section 13 of the Act of 1988. Learned counsel further submitted that in case two provisions are not read in the manner as suggested by him then a person whose premises is sealed in terms of Section 8 of the Act of 1988, would be rendered remedy-less. Learned counsel prayed for dismissal of the present writ petition.

(3.) In order to appreciate the issues raised, Sections 7, 8 & 13 of the Act of 1988 are taken note of:-