The Bench of Justice Wasim Sadiq Nargal while deciding a Petition under Article 226 of the Constitution of India filed by the Building Operations Controlling Authority, Jammu (hereinafter referred to as ‘BOCA’) challenging the order of J&K Special Tribunal by virtue of which the order of demolition passed by the Petitioner against the Private Respondent was set-aside, reiterated that a show-cause notice must set out the detailed allegations upon which the final order of demolition is based in order for it to be valid.
The case of the Petitioner before the Court was that the Petitioner had granted a building permission in favor of the Private Respondent for construction of ground floor and first floor, however the Private Respondent went on to construct a IIndfloor without obtaining permission from BOCA and accordingly a show-cause notice under Section 7(1) as well as a notice to stop construction under Section 12(1) of the Control of Building Operations Act, 1988 was issued by the Petitioner. However, the Respondent neither replied to the show-cause notice nor stopped the construction which led to the passing of order of demolition under Section 7(3) of the Act of 1988 by the Petitioner. This order of demolition was put to challenge by the Private Respondent before the J&K Special Tribunal, Jammu, and was set-aside by the Tribunal.
The Petitioner before the High Court argued that the Respondent in addition to construction of Second Floor without permission, also violated the front, rear, and side setbacks of the plot area which as per Section 11 of the Act of 1988 amount to ‘major violations’ and by passing the order impugned the Tribunal has allowed major violations to stand and hence, the order is illegal and has occasionedmiscarriage of justice.
To the contrary the Private Respondent primarily rested the case on the argument that the notice under Section 7(1) contained such particulars of alleged violation which were different and distinct than what has been stated in the final notice/order issued under Section 7(3) and thus, was rightly set-aside by the Tribunal. It was argued that the stand taken by the Petitioner in the final notice was not in conformity with the stand taken in the show-cause notice under Section 7(1) in as much as in the notice issued under Section 7(1) of the Act, it was alleged that respondent had started the construction work on the 2nd floor without the permission of Municipal Corporation and the said notice nowhere stated any violation on ground and first floor, whereas in the notice/order of demolition under section7(3) of the Act it was stated that the respondent has committed violation while raising the construction of ground floor, first floor and second floor.
The Court upon detailed consideration of the matter observed that upon a conjoint reading of Section 7(1) and Section 7(3) of the Control of Building Operations Act, 1988 it is apparently clear that a notice of show cause giving details of the alleged violation has to be conveyed to the defaulter which will precede the final order of demolition, however, in the instant case, the respondent no. 1 was taken by surprise by issuance of the final order of demolition whereby the violations have been amplified and were not known to the said respondent. Thus, holding that the Respondent was condemned unheard.
The Court observed, “the statute makers in their wisdom have given power to the authorities to issue a notice of show cause giving details of the alleged violations of a particular building and only when the said allegations are conveyed to the alleged violator, power under Section 7(3) has to be exercised for such violation.”
It was further held with respect to the instant case that the very purpose of the show cause notice has been defeated by resorting to demolition straightway without conveying the allegation to the Respondent No. 1, thus observing that “On this ground alone, the order passed by the Tribunal is legal, sustainable and is, accordingly, upheld.”
Thus, the Court upon reviewing both the notices concluded that the contested demolition order issued by the BOCA-Petitioner under Section 7(3) of the J&K Control of Building Operations, Act 1988, does not align with the proposal outlined in the show cause notice issued under Section 7(1) of the aforementioned Act, and accordingly concurred with the findings established by the J&K Special Tribunal, upheld the order impugned and dismissed the Petition as “lacking any merit”.
