JAMMU, July 30: Division Bench of High Court comprising Justice Tashi Rabstan and Justice Wasim Sadiq Nargal has quashed the notice impugned dated 02.01.2018 issued by Jammu Municipal Corporation with the direction to de-seal the premises of the petitioners located at Gandhi Nagar with immediate effect.
While allowing the petition, the DB, after hearing Advocate Rohit Kohli for the petitioners, observed, “in a democratic polity governed by the rule of law, the State by no stretch of imagination can deprive a citizen of his/her property without the sanction of law, besides complying with the procedure envisaged in the statutory provision”, adding “the State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the statute”.
The petitioners were aggrieved of sealing of their property consisting of three halls, one each at ground floor, first floor and second floor, constructed over the plot of land bearing H. No. 84 B/B, Gandhi Nagar, Jammu; sealed vide notice bearing No. JMC/CEO/594-96 dated 02.01.2018 issued under Section 8 (1) of the Jammu and Kashmir Control of Building Operations Act, 1988.
“It is the specific case of the petitioners that no such notice was ever served upon them. The petitioners are the husband and wife, as such, are aggrieved of the notice impugned, having common cause of action and, therefore, they have preferred the present petition, jointly”, the DB observed.
“Perusal of the record reveals that while issuing notice under Section 8(1) of the Act with regard to the sealing of the premises of the petitioners, no opportunity of being heard was given to the petitioners and even no show cause notice was ever served upon them and consequently, depriving the petitioners from their property without adopting due course of law amounts to violation of their rights as enshrined in the Constitution of India and, thus, the act of sealing the premises by the respondents without hearing them by virtue of impugned notice amounts to violation of their constitutional as well as statutory rights”, the DB added.
The DB further said, “no reasons whatsoever have been specified with regard to commercial activity being carried by the petitioners nor the respondents have specified the reason that how the petitioners have put the building for commercial use”, adding “there is no whisper in the impugned notice with regard to any erection, re-erection or work of premises in which such erection, re-erection or work is being carried on as envisaged under Section 8 of the Act. Apparently, the notice impugned has been issued without application of mind and without assigning any reason as envisaged under Section 8 of the Act and, therefore, the powers resorted by the respondents in sealing the premises of the petitioners under Section 8(1) of the Act cannot sustain the test of law”.
The DB allowed the petition with the direction to the respondents/authorities to de-seal the premises of the petitioners with immediate effect. However, the quashment of the impugned notice shall not confer any right on the petitioners to make or continue with any unauthorized erection or re-erection to the building/premises of the petitioners.
The DB further said that the respondents/authorities are not precluded to take appropriate action under law (if the situation so warrants) strictly inconformity with Sections 7 & 8 of the J&K Control of Building Operations Act of 1988, after providing an opportunity of being heard to the petitioners.