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2008 DIGILAW 143 (JK)

Building Operations v. Shameema (Mst. )

2008-04-24

J.P.SINGH

body2008
1. Building Operations Controlling Authority has filed this writ petition seeking quashing of Jammu and Kashmir Special Tribunal Srinagars order of April 1, 2002 whereby while entertaining respondent no. 1s appeal against petitioners demolition order of March 16, 2002, the Tribunal had, as an interim measure, permitted respondent no. 1 to raise the construction, which had been found by the petitioner to be un-authorized, subject to her filing an undertaking that she would alter the structure in question at her own expense in case her appeal before the Tribunal would not succeed. 2. Learned counsel for the petitioners Mr. B. A. Khan assails the Tribunals order as without jurisdiction urging that the Appellate Officer appointed under Section 13 of the Jammu and Kashmir Control of Building Operations Act, 1988 does not possess any such jurisdiction which may vest any authority in him to permit continuance of the construction which had been found by the petitioner-authority to be unauthorized and which was the subject matter of the appeal before him. 3. Learned counsel for respondent no.1, Mr. M. A. Makhdoomi, on the other hand, says that Section 13 of the Jammu and Kashmir Control of Building Operations Act, 1988 does not in any way curtail the jurisdiction of the Appellate Officer to issue such injunctive directions, as may be warranted in the facts and circumstances of the case, during the pendency of the appeal. 4. I have considered the submissions of learned counsel for the parties and perused the provisions of Section 13 of the Jammu and Kashmir Control of Building Operations Act, 1988 (hereinafter referred to as " the Act"). 5. Before dealing with the issue which falls for consideration in this writ petition regard needs to be had to the provisions of Section 13 of the Act, which reads thus: - 13. Appeals: 1) An appeal against the order of an Authority made under Section 7 shall lie to such person as the Government may by notification in the Government Gazette, appoint in this behalf (hereinafter called `the Appellate Officer) within seven days after the date of the aforesaid order of the Authority. The memorandum of appeal need not be accompanied by copy of order of appealed from. The memorandum of appeal need not be accompanied by copy of order of appealed from. 2) Where any appeal is preferred from any order of an Authority, the appellate officer shall not stay the enforcement of that order unless the Authority concerned is given an opportunity of being heard; Provided that where the erection or re-erection of any building was not completed on the day on which an order was made under section 7 for the demolition of such building the appellate officer shall not make any order for the stay of enforcement of such order unless such security, as may be sufficient in the opinion of the appellate officer, has been given by the appellant for not proceeding with such construction, erection or work pending the disposal of appeal. 3) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible. 4) The costs of any appeal under this Section shall be in the discretion of the appellate officer." 6. The plain language of Section 13 indicates that the Legislature had vested Limited and that too restrictive jurisdiction in the Appellate Officer to stay only the operation of order under appeal and nothing beyond that. In other words Section 13 does not vest unlimited jurisdiction in the Appellate Officer to issue injunctive directions during the currency of the appeal. 7. I therefore do not find any merit in respondent no.1s counsels submission that the Tribunal possesses wide powers to issue injunctive directions and the Tribunals order of permitting respondent no.1 to go ahead with the construction, which had been found by the petitioner to be un-authorized, was justified. 8. Order assailed by the petitioner in this writ petition, permitting respondent no.1 to go ahead with raising of construction which had been held by the petitioner to be unauthorized is, therefore, without jurisdiction and as such bad in law. 9. This writ petition therefore succeeds and order passed by Jammu and Kashmir Special Tribunal Srinagar on April 1, 2002 is set aside. The Tribunal is directed to hear Respondent no.1s appeal on its merit. 10. Parties through their learned counsel are directed to appear before the Jammu and Kashmir Special Tribunal, Srinagar on 12.05.2008.