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". 2 OWP No. 712/2004
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.
3 OWP No. 712/2004
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 4 OWP No. 712/2004 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.
5 OWP No. 712/2004
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 6 OWP No. 712/2004 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