Anil Chouhan And Another vs Building Operation Controlling ...
2023 Latest Caselaw 2218 j&K

                                                                  Sr. No. 129


      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU


Case:-   WP(C) No. 2284/2023
         CM No. 5295/2023

Anil Chouhan and another                                        .....Petitioner(s)

                      Through: Mr. Sachin Gupta, Advocate

                 Vs

Building Operation Controlling Authority and                  ..... Respondent(s)
others

                      Through: Mr. S. S. Nanda, Sr. AAG

Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                    ORDER

(09.10.2023)

01. The petitioners herein have questioned order No. JMC/Estt/7014-17

dated 24.08.2023 (for short, „the impugned order‟) issued by the respondent 2

herein whereby the property of the petitioners situated at 84 B/B Gandhi Nagar,

Jammu (for short the property) has been sealed.

02. The facts emerging from the record would reveal that a violation case

came to be registered against the petitioners herein by the respondents herein in

respect of the property for having changed its land use from residential to

commercial being violation of the provisions of Jammu Master-plan-2032, and

consequently sealed the property under the provisions of Section 8 of the

Control of Building Operations Act, 1988 (for short, „the Act of 1988‟) in terms

of impugned order dated 02.01.2018.

03. The petitioners state to have applied to the respondents for de-sealing

of the property along with an affidavit, stating therein that in the event the

property is de-sealed, they shall not claim any compensation from the

department for the period the property remained sealed and that they shall use

the property under the prevailing rules and laws and only after seeking approval

from the competent authority.

04. It is being next stated that the petitioner simultaneously also

approached this Court through WP(C) No.158/2022, which came to be disposed

of on 29.07.2022 while setting aside an earlier order of sealing dated 02.01.2018

issued by the respondents, the respondents came to be directed to de-seal the

premises/building of the petitioners with immediate effect, observing further that

the quashment of the sealing order shall not confer any right on the petitioners to

make or continue with any unauthorized erection or re-erection to the

premises/building.

05. It is being further stated that the premises/building of the petitioners

came to be de-sealed by the respondents vide Order dated 29.09.2022,

whereafter a report came to be made by the Enforcement Inspector on

22.07.2023 that the premises/building is again being used by the petitioners for

commercial activities and that the petitioners have violated the order passed by

this Court in WP(C) No. 158/2022 supra.

06. According to the learned counsel for the petitioners, the petitioners

neither violate the provisions of the Act of 1988 nor the order of this Court

passed in WP(C) No. 158/2022, in that, no erection or re-erection was made by

the petitioners in the premises/building in question and that the respondents

before again sealing of the premises/building of the petitioners in terms of the

impugned order did not issue a show cause notice to the petitioners and thus

condemned the petitioners unheard.

07. Objections to the petition have filed by the respondents, wherein it is

being stated that the petitioners after the de-sealing of the premises/building

again proceeded to conduct commercial activities therein, being prohibited

under the provisions of the Jammu Master-plan-2032 which per-se amounts to

erection and re-erection as defined under the provisions of the Act of 1988, as

such, warranted sealing of the building again in terms of the impugned order.

Heard learned counsel for the parties and perused the record.

08. Indisputably, the respondents before issuing the impugned order of

sealing have not issued any show cause notice to the petitioners in order to fulfill

the minimal requirements of principles of natural justice, even if it is assumed

that the requirement of issuance of such a show cause notice is not provided

under and in terms of Section 8 of the Act of 1988, yet having regard to the

nature and the character of the proceedings provided under Section 8 of the Act

of 1988 for sealing of an unauthorized construction, the necessity and

requirement of issuance of a prior show cause notice would be deemed to be

embedded there in the said provision, more so, in view of the fact that such

order of sealing would adversely affect the rights and interests of a person,

against whom the said order of sealing is issued. A reference in this regard to the

judgment of the Apex Court passed in case titled as "Dharampal Satyampal

Limited Vs. Deputy Commissioner of Central" reported in 2015(8) SCC 519

would be relevant wherein at para 28 following has been observed:-

"28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not."

09. Having regard to the facts and circumstances of the case coupled with

the aforesaid position of law, a case for grant of indulgence is made out at this

stage. Thus, as an interim measure, the respondents herein are directed to de-seal

the premises/building of the petitioners, subject to the furnishing of an

undertaking by the petitioner before the respondent 2 that the premises/building

in question will not be used and utilized in breach and violation of the provisions

of the Act of 1988, Regulations framed thereunder inasmuch as the Jammu

Master-plan-2032.

10. Modification/vacation/alteration on motion.

11. List on 06.11.2023 on which date, the counsel for the respondents

shall keep the relevant record available.

(JAVED IQBAL WANI) JUDGE JAMMU 09.10.2023 Shivalee