BUILDING OPERATION CONTROLLING ... Vs. SUMAN BHAGAT AND ANOTHER

JUDGEMENT

(1.) Challenge is thrown to Order dated 10.12.2012, passed by J&K Special Tribunal, Jammu (for short Tribunal) allowing Appeal preferred by respondent no.1, and setting aside Demolition Notice no.MJ/CEO/24/3/ 2012 dated 03.01.2012, issued under Section 7(3) of Control of Building Operation Act, 1988 (briefly hereinafter Act of 1988).

(2.) Succinctly put by petitioner, i.e. Building Operation Controlling Authority Municipal Area, Jammu (for brevity BOCA'), approval, vide Order dated 08.12.2009, was granted in favour of respondent no.1, to construct residential building. The construction is said to have been carried in violation of approval/sanction, therefore, BOCA issued Notice no.24/CEO/1/2011 dated 02.11.2011 under Section 7(1) of the Act of 1988, to respondent No.1, to show cause as to why khilafwarzi/violation should not be demolished. Another Notice No.MJ/CEO/24/ 3/2012 dated 03.01.2012 was issued by Joint Commissioner, Municipal Corporation, Jammu, under Section 7(3) of the Act of 1988, asking respondent No.1, to demolish the construction/violation detailed therein. Respondent no.1 preferred Appeal against Notice No.MJ/CEO/24/3/2012 dated 03.01.2012, before learned Tribunal - respondent No.2 herein, primarily on the ground that with commencement of Municipal Corporation Act, 2000 (for short MC Act), the Act of 1988 stands repealed and, therefore, notice under aforesaid repealed Act could not have been issued. It was further urged that even otherwise Joint Commissioner, Municipal Corporation, Jammu, was not authorized to issue Notice under Section 7(3) under repealed Act, inasmuch as the Notification issued under Section 16 by the authority, whereby powers were delegated, did not authorize Joint Commissioner to issue Notice under Section 7(3) of the Act of 1988. Further averment was that the notice of demolition dated 03.01.2012 was factually incorrect and was a result of sheer non-application of mind, for, Notice of demolition dated 03.01.2012 indicated that Show Cause Notice under Section 7(1), vide no.MJ/CEO/24/3/2012 dated 21.11.2011, was issued, asking respondent no.1 to show cause as to why deviation/violation should not be demolished, whereas no such notice was ever issued to respondent no.1 on 21.11.2011, whereby and whereunder respondent no.1 was asked to show cause.

(3.) Petitioner filed its response/objections before the Tribunal in opposition to the Appeal preferred by respondent no.1. Learned Tribunal is stated to have, without touching the issue of implied repeal of Control of Building Operation Act, 1988, as also the issue of competence of Joint Commissioner to issue notice, decided the appeal vide impugned order dated 10.12.2012 only on the ground that wrong mention of show cause notice dated 21.11.2011 in the demolition notice was a serious lapse, as no such notice was ever issued by petitioner BOCA to respondent No.1 and that it was further observed that petitioner BOCA failed to satisfy learned Tribunal that when show-cause notice stood issued on 02.11.2011, indicating therein that the work had already commenced in violation of the sanction, then why final notice was issued after a period of two months and accordingly, notice of demolition dated 03.01.2012 was set aside. It is this order of which petitioner BOCA is aggrieved and knocks at portals of this Court with writ petition on hand.