Building Operation Controlling ... vs Koushalya Devi And Others
2021 Latest Caselaw 1464 j&K

                                                                         Sr. No. 18



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

Case: OWP no. 1863 of 2017

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

                                Through :- Sh. Harshwardhan Gupta, Advocate.
                         v/s

Koushalya Devi and others                                        .....Respondent(s)
                                Through :- Sh. Rahul Bharti, Senior Advocate with
                                           Ms. Mrinal Jain, Advocate.

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

                                   ORDER

1. Heard Sh. Harshwardhan Gupta, learned counsel for the petitioner and

Sh. Rahul Bharti, senior counsel assisted by Ms. Mrinal Jain, learned counsel

for the respondents.

2. The respondents were served with a show-cause notice dated 31.12.2012

by the Building Operation Controlling Authority under Section 7(1) of the

Jammu and Kashmir Control of Building Operation Act, 1988 (for short 'the

Act') to show-cause as to why the violations as detailed above should not be

demolished. The violations detailed above are to the effect that the respondents

have "laid the slab of one room over the existing walls during odd hours".

3. The said show-cause was followed by an order dated 07.01.2013 passed

by the Joint Commissioner (A), Municipal Corporation Jammu under Section

7(3) of the Act stating that as the respondents have laid slab of one room over

the existing walls without the permission of the Jammu Municipal Corporation,

therefore, the said construction/the slab of one room is directed to be

demolished within five days failing which it will be demolished by the Jammu

Municipal Corporation at the risk of the respondents.

4. The above order passed under Section 7(3) of the Act was assailed by

the respondents by filing appeal before the Jammu and Kashmir Special

Tribunal, Jammu. The Tribunal has allowed the appeal by the impugned

judgment and order dated 06.04.2016 and has compounded the construction @

Rs.50/- per sq.ft.

5. Aggrieved by the aforesaid judgment and order, the Building Operation

Controlling Authority, Jammu Municipal Corporation has preferred this

petition after more than one and a half years of the order contending that the

appeal of the respondents was not within time and that the Tribunal could not

have compounded the constructions as they were major in nature.

6. Notwithstanding the fact that the petition was preferred belatedly, as the

same was entertained and the response was called, we do not consider it

appropriate at this stage to dismiss it on the ground of delay or laches.

7. The order under Section 7(3) of the Act was passed on 07.01.2013 and it

is said to have been served by pasting it on the conspicuous place of the

building on 11.01.2013. The appeal was preferred on 31.01.2013. The time

limit for filing appeal as provided under the Act is within seven days from the

date of order. Thus, apparently the appeal was not preferred within seven days

of the order.

8. The question of preferring the appeal within seven days of the order

would not arise if the order is not brought to the notice of the concerned party,

therefore, in all fairness, the limitation for filing the appeal would

commence/run from the date of the service of the order or the knowledge of the

order.

9. The service of the order is alleged to be on 11.01.2013 on which date the

order was pasted on the wall. The endorsement of pasting of the notice on the

wall as per the report of the process server does not contain any independent

witness, in the absence of which the said pasting does not stand to be proved,

more particularly, when it is disputed.

10. On the other hand, senior counsel for the respondents alleges that the

copy of the said order was served upon him on 29.01.2013.

11. The appeal was filed on 31.01.2013 i.e. within two days of the

service/knowledge of the aforesaid order.

12. In view of the facts and circumstances, we are not inclined to accept the

argument that the appeal was not filed within time or that there was any willful

or deliberate delay on part of the respondents in filing the appeal.

13. Now coming to the second aspect of the matter that the constructions of

the respondents were major in nature and could not have been compounded, we

find that the show-cause notice, the order dated 07.01.2013 or even from the

report of the Khilafwarzi Officer does not reveal that the petitioners ever stated

that the constructions are of such a nature that they would fall within the

definition of the major constructions and as such would not be compounded.

14. It is also nowhere alleged that the respondents have raised constructions

without leaving the requisite set-backs or by violating the height of the building

as permitted under the bye-laws.

15. In the absence of such an averment and in the light of Regulation 11(2)

of the Jammu and Kashmir Control of Building Operation Regulations, 1998,

we are of the view that there is no basis to allege that the constructions are of a

major nature and are not liable to be compounded.

16. The writ petition is bereft of merits and is dismissed.

                            (MOHAN LAL)               (PANKAJ MITHAL)
                                 JUDGE                   CHIEF JUSTICE
JAMMU
15.11.2021
Raj Kumar