Building Operation Controlling ... vs Mohinder Singh And Another
2021 Latest Caselaw 1669 j&K

                                                                          Sr. No. 10

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
CJ Court

Case: OWP No. 1498 of 2010

Building Operation Controlling Authority                  .....Appellant/Petitioner(s)

                                   Through :- Sh. S. S. Nanda, Sr. AAG

                          v/s

Mohinder Singh and another                                         .....Respondent(s)
                                   Through :- None.


      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                      ORDER

01. Heard Sh. S.S.Nanda, Senior Additional Advocate General for the

petitioner.

02. No one appears for the respondents despite the name Sh. Surinder Singh

has been shown as their counsel.

03. The petitioner-BOCA has preferred this writ petition against the

judgment and order dated 18.01.2010 passed by the J&K Special Tribunal,

Jammu whereby in allowing the appeal, the order dated 17.06.2009, directing

for the demolition of the construction, has been set aside solely on the ground

that un-authorized constructions exist in the vicinity of the building and no

notices have been issued to the owners of the said building. The other ground

on which the demolition has been set aside is that the petitioner has failed to

show why it has not taken any steps to stop the construction at the initial stage,

i.e., at the time of the construction of the ground floor and allowed the first and

second storey to be constructed.

04. The existence of the other un-authorized constructions or inaction or late

action for stopping un-authorized construction are not material for setting aside

the order of demolition.

05. The demolition was ordered on the ground that the building was

constructed without permission. It is important to note that no building in the

Municipal area is legally permitted to be constructed without a proper

permission and, as such, unless a finding in this regard is recorded, the

Tribunal could not have set aside the order of demolition.

06. In view of the aforesaid facts and circumstances, the impugned order

dated 18.01.2010 is quashed.

07. The writ petition is allowed and the matter is remanded to the Tribunal

to reconsider the same and pass a fresh order in accordance with law most

expeditiously preferably within a period of four months from the date a copy of

this order is produced before it.

                       (JAVED IQBAL WANI)                (PANKAJ MITHAL)
                                  JUDGE                   CHIEF JUSTICE
JAMMU
13.12.2021
TILAK