Naseema Rashid Wani And Another vs Jammu Municipal Corporation And ...
2021 Latest Caselaw 281 j&K

                                                                     Sr. No. 237

              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU




                                                  WP(C) 45/2021
                                                  CM 243/2021

                                                  Reserved on 09.03.2021.
                                                  Pronounced on 10. 03.2021.

Naseema Rashid Wani and another                                 ..... Petitioner (s)

                               Through :- Mr. R.K.Gupta Sr. Advocate with
                                          Mr. Udhay Bhaskar, Advocate

                         V/s

Jammu Municipal Corporation and ors                            .....Respondent(s)

                               Through :- Mr. Rajnish Raina, Advocate.

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

1 In this petition filed under Article 226 of Constitution of India, the

petitioners have sought quashing of the following:

(i) Notice No. JMC/CEO/785 dated 06.01.2021 issued by respondent No.1 purportedly under Section 248 of the Municipal Corporation Act, 2000 (for short 'the Act') whereby the petitioners have been called upon to show cause within a period of 48 hours as to why the building permission granted to them on 05.08.2017 may not be cancelled; and

(ii) Order No. JMC/CEO/561-67 dated 08.01.2021 issued by respondent No.1 whereby the building permission granted to the petitioners has been cancelled and sealing of the premises has been ordered.

2 Impugned order dated 08.01.2021 (supra) is assailed by the

petitioners, inter alia, on the ground that the same is in violation of the

principles of natural justice, in that, the impugned show cause notice was never

served upon the petitioners, nor were they given any opportunity of being

heard.

3 Mr. R.K.Gupta, learned senior counsel representing the petitioners

submits that the impugned orders are predicated primarily on the premise that

as per the report of Additional Deputy Commissioner, Jammu dated

04.01.2021, the petitioners have raised construction on the land which includes

the State land admeasuring 3 marlas under khasra No. 94 situate at Sidhra,

Jammu. However, neither the Additional Deputy Commissioner, Jammu, who

purports to have conducted the demarcation ever associated the petitioners in

the said process, nor the report of demarcation was ever put to the petitioners

by respondent No.1 for objections. Learned senior counsel has also raised the

issue of jurisdiction of respondent No.1 under the provisions of the Act to issue

the show cause notice and cancel the permission granted four years back, more

so, when the same has already been acted upon and construction raised in

accordance therewith.

4 Mr. Raina, learned counsel, appearing for the respondents has

opposed the maintainability of the petition on the ground that the petitioners

were well aware about the show cause notice which in their absence was pasted

on the conspicuous part of the 'offending structure'. He argues that apart from

encroaching upon the State land admeasuring 3 marlas, the petitioners have

also committed various violations and, therefore, invited action under the

provisions of Control of Building Operations Act. They were, thus, put on

show cause notice to which the petitioners also submitted their reply. It is on

consideration of the objections of the petitioners, the impugned order for

cancellation of the permission and sealing of the premises was made.

5 Having heard learned counsel for the parties and perused the

record, it is seen that the impugned show cause notice was issued on

06.01.2021 and as per the report of the process server of the respondents, the

same was pasted on the subject premises on 06.01.2021 itself. The impugned

order of cancellation of the building permission and sealing of the premises

was made on 08.01.2021.

6 Even if we were to agree with the stand of the respondents that

the show cause notice was, indeed, pasted on 06.01.2021 itself, yet, it remains

to be seen as to whether one day's time to the petitioners to respond to the

show cause notice could, by any stretch of reasoning, be termed as reasonable

and fair opportunity to the petitioners to submit their explanation/reply. The

answer to this question has to be no and emphatic no.

7 We may not agree with the learned counsel for the petitioners that

the petitioners were not aware of pasting of the notice till 08.01.2021, yet we

are of the considered view that giving a day's time to the petitioners to respond

to the show cause notice was only an eye wash and does not comply with the

principles of natural justice. The petitioners have been deprived of reasonable

opportunity to respond to the show cause notice. That renders the impugned

order cancellation of building permission and sealing of the premises bad in the

eye of law.

8 In view of the aforesaid, the writ petition is allowed and the

impugned order dated 08.01.2021 (supra) issued by respondent No. 1 whereby

the building permission granted to the petitioners has been cancelled and the

premises have been ordered to be sealed, is quashed. The parties are, thus,

relegated to the position as it was obtaining on 06.01.2021 when the show

cause notice was issued by respondent No.1 to the petitioners. The petitioners

shall be at liberty to file objections to the show cause notice taking all the

available pleas including those taken in this petition within a period of one

week from today. Respondent No.1, on receipt of such objections, shall

consider and dispose of the same within a period of one week thereafter by

passing a speaking order, copy whereof shall be conveyed to the petitioners

forthwith. In case, an adverse order is passed against the petitioners, the same

shall not be given effect to for a period of one week so as to enable the

petitioners to avail appropriate remedy available to them in law. It is further

provided that till a decision as aforesaid is taken by respondent No.1, the

petitioners shall not raise any fresh construction on the spot.

Disposed of in the above terms.

The record is returned to Mr. Raina in the open Court.

                    (SANJAY DHAR)                    (SANJEEV KUMAR)
                        JUDGE                             JUDGE
Jammu
10.03.2021
Sanjeev