Building Operation Controlling vs Anil Khullar S/O Late Sh. Jagdish Kumar
2024 Latest Caselaw 465 j&K

Jammu & Kashmir High Court

Building Operation Controlling vs Anil Khullar S/O Late Sh. Jagdish Kumar on 14 March, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                              Sr. No. 43


   HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT JAMMU


Case:-   OWP No. 712/2004
         IA No. 793/2004
         CM nos. 2165/2023 & 2166/2023

1. Building Operation Controlling                           .....Petitioner(s)
   Authority, Municipal Area, Jammu
   through its Commissioner, Jammu
   Municipal Corporation, Jammu.

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

               Vs

1. Anil Khullar S/o Late Sh. Jagdish Kumar              ..... Respondent(s)
   Khullar R/o 301-A Apsara Road, Gandhi Nagar,
   Jammu.
2. Ashwani Khullar S/o Late Sh. Jagdish Kumar
   Khullar R/o 301-A Apsara Road, Gandhi Nagar,
   Jammu.


                     Through: Mr. Ashray Anand, Advocate.

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

                                ORDER

14.03.2024

(ORAL)

01. In the instant petition filed under Article 226 of the

Constitution of India, the Building Operation Controlling

Authority-petitioner herein (for short, „BOCA‟) seeks quashment

of order dated 16.04.2004 passed by the J&K Special Tribunal,

Jammu (for short, „Tribunal‟) in an appeal titled as "Sudesh

Kumari Khullar Vs. Jammu Municipality and ors".

02. The background facts having led to the filing of the

instant petition reveal that a demolition order No.

MJ/Estt/9/3/cko/2000 dated 19.04.2000 came to be issued

against the predecessor in interests of the respondent, namely

Sudesh Kumari Khullar (for short „deceased-respondent‟) by the

BOCA alleging therein that pillars for shops over the basement of

the construction have been erected without obtaining proper

permission under Section 4 of the Jammu and Kashmir Control

of Building Operation Act, 1988 (for short, „Act of 1988‟)

preceded by a Notice dated 08.04.2000 issued under and in terms

of Section 12(1) of the Act of 1988.

03. Aggrieved of the aforesaid demolition order dated

19.04.2000, the deceased-respondent preferred an appeal before

the Tribunal challenging the said demolition order on the premise

that the deceased respondent owned an old house at Gandhi

Nagar, Jammu with a dilapidated basement which required minor

repairs and which came to be effected as same did not require

seeking of any building permission and that the BOCA without

any justification issued the demolition order without issuing and

serving the mandatory show cause notice under the Act of 1988

on her.

04. During the pendency of the aforesaid appeal, the BOCA

issued another order dated 17.10.2001 for sealing of the premises

on account of raising of unauthorized construction of first floor by

the deceased-appellant, which too came to be challenged by the

deceased-respondent in a separate appeal being Appeal No.

STJ/322/2001.

05. The said demolition order dated 17.10.2001 also came to

be assailed on the similar grounds on which the earlier appeal

had been preferred by the deceased-respondent before the

Tribunal.

06. The Tribunal upon considering both the appeals, the

contentions raised in the said appeals as also response thereto

filed by the BOCA allowed the first appeal being Appeal No.

STJ109/2000 and set aside the order of demolition dated

19.04.2000 on the ground that the said demolition order had

been issued without serving mandatory show cause notice upon

the deceased-respondent before issuance of the aforesaid

demolition order whereas, in respect of the subsequent appeal

being Appeal No. STJ/322/2001, the Tribunal observed that the

decision on said appeal should await the outcome of the contempt

proceedings, which have had been instituted by the BOCA against

the deceased-respondent for having continued with the

unauthorized construction in breach of the stay order passed by

the Tribunal.

07. The petitioner-BOCA herein has challenged in the instant

petition the impugned order dated 16.04.2004, insofar as it

decided appeal No. STJ/109/2000 whereunder demolition order

dated 19.04.2000 came to be quashed.

Heard learned counsel for the parties and perused the record.

08. Perusal of the record tends to show that the Tribunal

while considering the appeal and the validity/legality of the

demolition order dated 19.04.2000 besides having considered the

pleadings of the parties has also fundamentally taken cognizance

of the original record produced by the BOCA before it and upon

examination of the said record found that the show cause notice

claimed to have been issued by the BOCA on 08.04.2000 under

Section 7(1) of the Act of 1988 against the deceased-respondent

bears an endorsement on its back by the process server to the

effect that 'at the time of service of the notice, the deceased-

respondent was reportedly out of station‟, thus, opining that

the show cause notice in question have had not been served upon

the deceased-respondent and in the process, deprived her of an

opportunity of hearing before issuance of the order of demolition

dated 19.04.2000.

In presence of the aforesaid factual undisputed position

of record, taken cognizance of by the Tribunal, the petitioner-

BOCA herein cannot call in question the impugned order in view

of the importance and significance of the fundamental principles

of Audi Alteram Partem /Natural Justice laid down by the Apex

Court in a series of judgments including in case titled as

"Dharampal Satyampal Limited Vs. Deputy Commissioner of

Central" reported in 2015 (8) SCC 519, wherein at paras 21, 24

and 28 following has been held:

"21. In common Law, the concept and doctrine of natural justice, particularly which is made applicable in the decision-making by judicial and quasi-judicial bodies, has assumed a different connotation. It is developed with this fundamental in mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must give (sic an opportunity) to each of the parties to adequately present the case made. It is perceived that the practice of aforesaid attributes in mind only would lead to doing justice. Since these attributes are treated as natural or fundamental, it is known as "natural justice". The principles of natural justice developed over a period of time and which is still in vogue and valid even today are: (i) rule against bias i.e. nemo debet esse judex in propria sua causa; and (ii) opportunity of being heard to the party concerned i.e. audi alteram partem. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is the duty to give reasons in support of decision, namely, passing of a "reasoned order".

"24. The principles have a sound jurisprudential basis. Since the function of the judicial and quasi-judicial authorities is to secure justice with fairness, these principles provide a great humanizing factor intended to invest law with fairness to secure justice and to prevent miscarriage of justice. The principles are extended even to those who have to take an administrative decision and who are not necessarily discharging judicial or quasi-judicial functions. They are a kind of code of fair administrative procedure. In this context, procedure is not a matter of

secondary importance as it is only by procedural fairness shown in the decision-making that a decision becomes acceptable. In its proper sense, thus, natural justice would mean the natural sense of what is right and wrong."

"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."

Under the aforesaid circumstances, it can safely be said

that the Tribunal did not commit any illegality or perversity while

passing the impugned order.

09. Viewed thus, the petition fails and is accordingly

dismissed along with connected applications.

(JAVED IQBAL WANI) JUDGE JAMMU 14.03.2024 NARESH/SECY

Whether the order is speaking : Yes

Whether the order is reportable: Yes