Dismisses BOCA petition against Spl Tribunal order
Mohinder Verma
JAMMU, Dec 13: In a significant judgment, High Court of Jammu & Kashmir and Ladakh has held that authorities cannot transgress boundaries of the show-cause notice as the same allows the party to whom it is issued to respond to the specific allegations and protects rights before any adverse action is taken.
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The Bench of Justice Wasim Sadiq Nargal was dealing with a petition filed by Building Operation Controlling Authority (BOCA) through Joint Commissioner, Municipal Corporation Jammu challenging the order passed by J&K Special Tribunal Jammu whereby the demolition notice issued to one Renu Gupta of Greater Kailash Jammu was set-aside.
Advocate Mayank Gupta appearing for the petitioner submitted that by passing the impugned order the Tribunal has virtually allowed the major violations to stand as such the order is illegal, which has occasioned miscarriage of justice, and is required to be set-aside.
However, Senior Advocate Sunil Sethi with Advocate Vaibhav Gupta appearing for the respondents submitted that Tribunal has rightly set aside the notice/order under Section 7(3) of the J&K Control of Building Operation Act, 1988, as the notice under Section 7(1) contained such particulars of alleged violation which were different and distinct than what has been stated in the final notice/order impugned.
After hearing both the sides, Justice Wasim Sadiq Nargal observed, “in exercise of the powers conferred under Section 7(1) of the J&K State Control of Building Operation Act, 1988, the petitioner was called upon to show cause within a period of 48 hours from the date of service of the notice as to why the violation should not be demolished. This notice was followed by final order of demolition passed under the provisions of Section 7(3) of the Act wherein certain more violations were expanded”.
Pointing towards Section 7(1) and 7(3) of the J&K Control of Building Operations Act, High Court said, “a notice of show cause giving details of the alleged violation has to be conveyed to the defaulter which will precede the final order of demolition”, adding “in the instant case, the respondent was taken by surprise by issuance of the final order of demolition whereby the violations have been amplified and were not known to the respondent”.
“Thus, it can safely be concluded that the respondent has been condemned unheard. Even otherwise, the statute makers in their wisdom have given power to the authorities to issue a notice of show cause giving details of the alleged violations of a particular building and only when the allegations are conveyed to the alleged violator, power under Section 7(3) has to be exercised for such violation”, High Court said.
“From a bare perusal of the record which has been examined by this court, it has come to fore that the notice under Section 7(1) of COBOA dated 28.12.2011 alleges that the respondent has started the construction of one room, kitchen and bathroom on second floor, but the order impugned notice issued under Section 7(3) refers to deviations on the ground and 1st floor as well. Therefore, the order impugned is vague and has rightly been quashed by the Tribunal”, Justice Nargal observed.
The High Court further observed, “the notice issued under Section 7(1) of the J&K Control of Building Operations Act, 1988 contains such particulars of alleged violation, which were different and distinct than what has been stated in the final notice/order impugned dated 21.01.2012 before the Tribunal”, adding “since the respondent was never put to any show cause notice with respect to alleged violation made by her while raising construction over ground floor and first floor, therefore the impugned order dated 21.01 .2012 has rightly been set aside by the Tribunal vide order impugned dated 10.12.2012”.
Pointing towards catena of judgments of the Supreme Court, the High Court said, “the grounds upon which the action is to be taken against the person, the same are required to be mentioned in the show cause notice and the authorities cannot transgress boundaries of the show cause notice”.
“Thus, from the conjoint reading of both the notices issued under Section 7(1) and 7(3) of the J&K Control of Building Operation Act, 1988, it can clearly be made out that the ambit of the Section 7(3) notice has been amplified since the violations alleged in Section 7(3) notice have not at all been mentioned in the Section 7(1) notice. Therefore, the action is violative of principles of natural justice as she didn’t have the opportunity to put forward her case and defend herself”, High Court said.
With these observations, High Court upheld the Tribunal’s order and dismissed the petition.
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