Building Operation Controlling ... vs Sudershan Kohli And Another
2021 Latest Caselaw 1670 j&K

                                                                        Sr. No. 12

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

Case: OWP No. 1305 of 2011

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

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

                         v/s

Sudershan Kohli 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 has appeared for respondents despite appearance of Sh. Ajay

Vaid as counsel for the contesting respondents.

03. The petitioner -Building Operation Controlling Authority (BOCA) has

preferred this writ petition against the judgment and order dated 28th June 2011

passed by the Jammu and Kashmir Special Tribunal, Jammu, by which the

appeal of the contesting respondent against the order of demolition of building

has been allowed and the constructions have been directed to be compounded.

04. The submission of Sh. Nanda, learned counsel for the petitioner is that

the Gandhi Nagar where the land is situated is totally a residential area and no

commercial activity is permitted therein. The contesting respondent has utilized

his residential plot 20-B/C, Gandhi Nagar, Jammu for commercial purposes. A

Bank is being run in the said plot. Moreover, the contesting respondent has

covered 3558 sq. ft. at the ground floor which is about 1191 Sq. ft. in excess of

the permissible limit.

05. The Tribunal has not recorded any finding whether the aforesaid plot is

exclusively for residential use or is of the mixed use but only on the contention

of the contesting respondent that it is of mixed use and since in certain other

plots, the Banks are being run, directed for compounding of the excess area.

06. The grievance of the petitioner that the residential area cannot be used

for commercial purposes has not been addressed by the Tribunal.

07. It has also not recorded a clear finding whether the above plot of land is

exclusively for residential purpose or can be used for residential as well as

commercial purpose.

08. In view of the aforesaid facts and circumstances, it is difficult to sustain

the impugned judgment and order passed by the Tribunal.

09. Accordingly, same is quashed and the matter is remanded to the Tribunal

for decision afresh in accordance with law especially on the above aspect of the

matter. It is expected that the Tribunal shall pass a fresh order in accordance

with law most expeditiously preferably within a period of four months from the

date copy of this order is placed before it.

10. The petition is disposed of.

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