Jammu APRIL-17-2023- In a significant order J&K Special Tribunal, Jammu (Bench-II) Presided by Member Judicial Rajeev Gupta has allowed the appeal filed by Mamta Singh wife of Dr. Nirmal Kumar Singh Ex-Deputy C.M. J&K wherein she had assailed order No.JDA/BOCA/A/1271-76 dated November, 8, 2021 issued under Section 7(3) of J&K Control of Building Operations Act, 1988 (COBO Act) by virtue of which the appellant Mamta Singh had been directed to remove the alleged illegal construction of the house raised by her at Village Ban, Tehsil Nagrota District Jammu.
While setting aside the impugned demolition notice on technical grounds, the Presiding Officer Rajeev Gupta observed and directed that the Building Operation Controlling Authority of JDA (BOCA) shall be at liberty to proceed afresh against the appellant Mamta Singh for violation of the Building Bye-Laws by strictly adhering to the procedure prescribed under Section 7 of the J&K Control of Building Operations Act, 1988.
Senior Advocate R.K. Gupta with Advocate Rahul Sadotra appearing for the appellant Mamta Singh submitted that notice under Section 7(1) of J&K Control of Building Operations Act, 1988 was never served upon the appellant asking her to show cause as to why the construction may not be removed which is raised in violation of the Building Bye-Laws. It was further urged that the manner of the service of notice is prescribed in Section 7(2) of J&K Control of Building Operations Act, 1988. In this regard the appellant relied upon a Judgment of the Division Bench of J&K High Court titled BOCA V/s Koushalya Devi & Ors wherein it was held by the Division Bench that when it is disputed then it has to be proved that the notice was served in presence of independent witness. The Special Tribunal after going through the records of JDA observed that the notice under Section 7(1) was stated to have been served on October, 30, 2021 and the manner in which the notice was served, the particulars of the serving official and the person to whom it was served have not been mentioned in the endorsement and even it has not been recorded in the minutes of proceedings in the file.
The Bench-II further observed that the JDA has failed to establish the valid service of the show cause notice on the appellant which is a mandatory pre-condition for proceeding with statutory exercise against violation of the Building Bye-Laws.
Advocate Adarsh Sharma appearing for JDA however resisted the contentions of the appellant and submitted that the area in question was included in the jurisdiction of the JDA vide SRO 388 dated August, 10, 1984 and since then it is being administered by the JDA and it was incumbent upon the appellant to have obtained permission from the JDA before commencement of the residential house. It was further urged by Advocate Adarsh Sharma that since the construction was raised illegally without obtaining valid permission from BOCA as such notice under Section 7(1) was issued to the appellant to show cause as to why the construction may not be demolished. The said notice was duly served upon the appellant and she did not respond to the said notice as such the demolition order was issued.
Advocate Adarsh Sharma further submitted that the area in question is described in Jammu Master Plan 2032 as vegetation and as such falls under agricultural land use and no residential construction is permissible in the said area. He further relied upon a Judgment of the Division Bench of the J&K High Court titled Zulfqar Ali V/s V.C. JDA & Ors wherein the Division Bench did not agree to the building permission given by BDO/Panchayat in an area under the jurisdiction of JDA as its local area.
After considering the rival contentions, the Bench-II of J&K Special Tribunal allowed the appeal filed by Mamta Singh on technical grounds for want of defect in the service of show cause notice issued under Section 7(1) of J&K Control of Building Operation Act, 1988 and accordingly set aside the impugned demolition order. While allowing the appeal, the Special Tribunal, however, observed that the BOCA shall be at liberty to proceed afresh against the appellant for violation of the Building Bye-Laws by strictly adhering to the procedure prescribed under Section 7 of the COBO Act.
It is worthwhile to mention herein that a whistleblower Muzaffar Ali Shah Advocate through RTI had exposed the alleged controversial illegal construction of a palatial house of Ex-Deputy C.M. at Village Ban, Tehsil Nagrota District Jammu and the JDA had earlier despite the reporting of the construction through its Khilafwarzi Wing in the year 2018 had preferred to keep quite and when the whistleblower highlighted the matter thereafter the JDA proceeded against the appellant Mamta Singh and initiated proceedings under J&K Control of Building Operations Act, 1988 and had issued a demolition notice to the appellant against which the appeal was preferred by the appellant.
With these observations and directions the J&K Special Tribunal disposed of the appeal preferred by Mamta Singh.JNF