1. Notice dated 26.7.2006 issued by respondent No:3 directing the appellant to stop the construction of Hotel has been assailed in this appeal and sought to be set aside on the ground that the notice is invalid and without jurisdiction. 2. Whether the notice can be invalidated, it is necessary to take note of the facts of the present case. 3. As per record, two plots of JDA Jammu measuring 5.83 Kanals were purchased by the appellant on payment of Rs.2.65 crores in open auction in the year 1989. After execution of lease deed between the appellant and the Jammu Development Authority (JDA), the possession of the aforesaid plots was not handed over to the appellant which forced him to file a petition in the Hon'ble High Court. The writ petition was decided with a direction to JDA to either hand over the possession of the plots or refund the amount alongwith interest at the rate of 18% per annum. In the light of the direction of the Hon'ble High Court the possession of plots was handed over to the appellant. Thereafter he applied, for building permission for constructing a Hotel on the plots, to the authority under Building Operation Controlling Authority (BOCA) Jammu. After doing the formalities the building permission was granted by an order dated 10.8.2005. 4. Because the appellant was permitted to construct two basements for parking and other amenity, the appellant started digging the basement. 5. The then Vice-Chairman Shri K.B.Jandial of JDA suo moto vide his letter No:JDA/CTB/949-53 dated 26.12.05, addressed to the Executive Engineer JDA Division-I Jammu, asked him to monitor the construction and report any violation. The copy of this letter was sent to Superintendent Engineer, Director Land Management, Chief Khalifwarzi Officer and Khalifwarzi Officer of the JDA. Another copy was sent to appellant for information and for submitting a copy of structure design of his proposed complex for monitoring the construction by the JDA Engineers. The appellant was informed to stick the building plan and fill the area of two basements, if done more than required by laying down the concrete foundation failing which it was directed that work will be stopped, to ensure the safety of adjoining building. The appellant was also in informed that he had not provided side set back while digging the plot for basement. 6. The appellant was also in informed that he had not provided side set back while digging the plot for basement. 6. The Vice Chairman JDA verbally instructed Superintendent Engineer( SE), Chief Town Planner(CTP), Senior Architect and Executive Engineer, JDA to make a spot inspection. This team of officers alongwith Chief Khilafwarzi Officer (CKO) and concerned Khilafwarzi staff inspected the site on 27.12.2005 and observed that appellant was going ahead with the construction without leaving the prescribed set backs as per the approved building plan. It was also observed that construction was being done by the appellant in violation of norms/approved plan. 7. The Inspecting team made a request to Vice Chairman that the Khilafwarzi Wing be directed to get work stopped and allow construction only as per approved plan. 8. Certain directions were given for remedial measure in order to check damage to the adjoining structure on account of digging of two basements. In the light of the inspection report the Vice Chairman on 29.12.2005 directed Director Land Management and Chief Town Planner to get the work stopped as per views of the JDA Engineers. 9. The Chief Khilafwarzi Officer directed Parshotam Dass Khilafwarzi Officer to stop the construction immediately. Parshotam Dass however, addressed a letter dated 3.1.2006 to respondent No:3 expressing his inability to understand the directions issued by the Inspection team. According to him he was not able to understand as to how the work was to be stopped and remaining construction to be carried out as per approved plan. He also informed the respondent No:3 that show cause notice dated 27.12.2005 under Control of Building Operation Act (COBA) has been issued to the appellant and sought the opinion of the respondent No:3 as to whether the work was required to be stopped or not. 10. Without imparting guideline to Parshotam Dass, the respondent No:3 vide letter No:JDA/Teh-B/Notice/06-09 dated 7.1.2006 asked the appellant to submit a copy of the structure design of proposed complex and the basements within two days and adhere to the set back, informing him that his reply dated 27.12.2006 in response to notice under Section 7(1) of COBA has been received by JDA. The copy of the letter was also forwarded to Vice Chairman, Director Land Management and Chief Khilafwarzi Officer. The copy of the letter was also forwarded to Vice Chairman, Director Land Management and Chief Khilafwarzi Officer. The Chief Khilafwarzi Officer requested Parshotam Dass to contact the appellant and request him to submit a copy of the structure design to CTP so that action under BOCA can be initiated but Parshotm Dass refused to act as a mediator and informed his senior Chief Khilafwarzi Officer that as per respondent No:3 it was appellant who had to produce documents. 11. Besides writing the above letter the respondent No:3 on the same day vide letter No:JDA/Teh.-B/const./2600-03 asked CTE Jammu to provide the original attested copies of the approved building plan including two basement and structure design to the concerned AEE so as to enable them to monitor the construction activities whether it is being done under the norms and Rules laid down. Chief Town Planner was also directed to depute technical staff on spot so that area & extent of violation could be ascertained and to keep liaison with AEE in this regard, with a further direction to allow the appellant to construct Hotel as per approved plan and the rest of the construction to be stopped. 12. It is pertinent to mention here that pursuant to the letter dated 28.12.2005 issued by the Executive Engineer with a copy to VC, JDA informed the SE that inspection of the site has been made by the inspection committee. The SE was further informed that un signed copy of the site plan was with XEN made available by Vice Chairman, with further request for supplying the relevant approved building plan including two basements and structure drawing so that construction activities can be effectively monitored. 13. In response to letter No:JDA/Teh.B/Const./2600-03, CKO to whom the copy of the letter had been forwarded asked KWO Parshotam Dass to visit the spot alongwith AEE and to submit report to Tehsildar about any violation. After visiting the spot KWO Parshtam Dass reported the matter to his senior that original attested copies of approved site plan have not been furnished to him and in absence of the same it was not possible to find out exact dimension and extent of violation if any. After visiting the spot KWO Parshtam Dass reported the matter to his senior that original attested copies of approved site plan have not been furnished to him and in absence of the same it was not possible to find out exact dimension and extent of violation if any. He also reported that appellant is constructing protection wall towards main road building and in absence of the building plan it cannot be ascertained as to whether protection wall raised is part of basement or shall be kept a protection wall in view of development of Hotel. This report was forwarded by CKO to respondent No:3(Tehsildar JDA) Zone-B. 14. It was on 23.2.2006 the CTP vide his letter No:CTP/JDA/BPC/77-79 asked the appellant to submit the revised building plan of the Hotel building by keeping in view the height of each basement floor to be kept 8'-3" and the use of the same for parking and service of the Hotel. The appellant was also asked to keep rear and side set backs at ground level proportionate to 1/3rd height of the building and not to exceed ground floor coverage beyond 40%. A copy of the letter was forwarded to Director Land Management with request to check the construction being carried out as per revised plan as and when the revised plan is received. 15. Upon the above letter the CTP on 27.12.2006 asked the Khilafwarzi Officer Subash Sharma for compliance of the direction of the Vice Chairman in letter and spirit upon which the KWO on 1.3.2006 submitted the report that matter is sub-judice before Tehsildar JDA under the Building Operation Act and as such the letter dated 23.2.2006 may be submitted to the Tehsildar for further guidelines and to request the Tehsildar to issue instructions as to whether the department has to remain silent spectator at site or to check the construction carried out as per revised plan as and when the same is received or to allow the appellant to continue with work. 16. On 2.3.2006 pursuant to the report submitted by Subash Sharma KWO, the other KWO Parshotam Dass made an endorsement on the letter dated 23.2.2006 that case be sent to Tehsildar JDA as Tehsildar has already initiated action under the Building Operation Act and for passing appropriate order. 16. On 2.3.2006 pursuant to the report submitted by Subash Sharma KWO, the other KWO Parshotam Dass made an endorsement on the letter dated 23.2.2006 that case be sent to Tehsildar JDA as Tehsildar has already initiated action under the Building Operation Act and for passing appropriate order. The letter was accordingly forwarded to Tehsildar who directed CKWO to depute KWO on spot and see that construction is being carried out according to building plan. 17. Khalifwarzi Officer Parshotm Dass on 20.3.2006 made an endorsement on the above letter that works stand stopped in the basement and the appellant has already constructed a protection wall. He also requested for the copy of the building plan. 18. On 23.3.2006 the KWO reported that construction work is not carried out by the appellant and expressed his inability to ascertain the magnitude of the violation for want of revised plan. A report was made by the concerned officer that revised plan has not been received. On 1st April CKO was directed to see that new construction does not take place. Then the correspondence between the staff of JDA continue when on 6,.5.2006 the Khilafwarzi Inspector filed a Khilafwarzi report No:115 mentioning therein that the appellant has restarted work by raising 25 numbers of iron bars for construction of RCC pillars in the basement without approved plan. The report was submitted to Tehsildar JDA by Parshotam Dass KWO on the same day in original. Later on, vide letter No:JDA/KWO/99-102 dated 9.5.2006 the said officer addressed a letter to Tehsildar respondent No:3 informing him that as per letter of CTP dated 23.2.2006 the work has been stopped and appellant has not so far provided approved/revised plan to enforcement wing. Tehsildar was also informed that after stopping the work for two months the appellant has started the construction work again. Instructions from Tehsildar were sought whether to get the work stopped or not since the matter was already pending under Control of Building Operation Act. 19. The respondent No:3 vide letter No:JDA/The.B/CK/Notice/254 dated 19.5.2006 issued second show cause notice under Section 7(1) of the Control of Building Operation Act to the appellant asking him to show cause as to why building should not be altered or demolished as he was raising RCC pillars without approved plan. 19. The respondent No:3 vide letter No:JDA/The.B/CK/Notice/254 dated 19.5.2006 issued second show cause notice under Section 7(1) of the Control of Building Operation Act to the appellant asking him to show cause as to why building should not be altered or demolished as he was raising RCC pillars without approved plan. This show cause notice was replied by the appellant denying the construction of basement being carried out in contravention of building plan. 20. Without adopting the course as provided under Section 7(3) of the above Act, respondent No:3 vide his letter No:JDA/The.B/Org./838 dated 26.7.2006 informed the appellant that despite many letters he has not submitted the revised plan and as such he shall stop the work immediately, failing which action under law will be initiated. 21. It is this notice which has been impugned in the appeal. 22. By making reference to the ground of appeal and above stated facts Mr. Tak has submitted that attitude of JDA remained cruel towards appellant from the very beginning with sole purpose of harassing him, when after purchase of plots in open auction, possession was not being handed over and the said attitude became very harsh, when Mr. Jandial joined as Vice-Chairman of JDA , who illegally and un-necessarily addressed a controversial letter dated 26.,12.2005 to Ex-Xen JDA asking him to do the needful as per contents of the same and monitor the construction as if appellant was building hotel for JDA. He also submitted that without understanding the text of letter, not only Khilafwarzi Officer but respondent No:3 stopped the construction of basement resulting in huge financial loss to appellant and mental harassment for so many years. 23. Finally Mr. Tak submitted that after having granted building permission, the JDA had no business to intermeddle in the matter but in order to harass and humilate the appellant, he was asked to submit revised plan for which there is no provision, in Control of Building Operation Act or Rules and Regulation made there under. As per Mr. 23. Finally Mr. Tak submitted that after having granted building permission, the JDA had no business to intermeddle in the matter but in order to harass and humilate the appellant, he was asked to submit revised plan for which there is no provision, in Control of Building Operation Act or Rules and Regulation made there under. As per Mr. Tak by infringement of Section 14 of the COBA, Respondent No:3 issued a impugned notice, asking the appellant to stop the construction in the basement, which he was duly permitted to construct, which is required to be set aside & JDA to be restrained not to interfere in the construction of hotel in accordance to the BP, except, to adopt the course under BOCA in case of violation of BP. 24. After giving thoughtful consideration to the submission made by Mr. Tak and taking into consideration the facts of the case I find myself in complete agreement with Mr. Tak for the reasons which follow. 25. Let me start with the controversial letter of Vice-Chairman JDA, which in fact has set in the vicious circle tightening the appellant from all sides and falling on the ground headlong. 26. As per Section 3 of J&K Development Act 1970 (the Act) Development Authority (hereinafter Authority) can be constituted for any local area by the Government. As per Section 4 of said Act, the Authority shall consist of 9 members including a Chairman. In view of these two sections State Government constituted Jammu Development Authority (JDA) for Jammu proper and appointed a Vice-Chairman to act as Chairman of the Authority. Under the Act the object of Authority is to promote and secure the development of local area and perform other acts as mentioned in Sec. 6 of the Act. 27. According to Sec. 13 of the Act, no person is authorized to construct any building in any zone, except with the permission of the Authority. The procedure for grant of permission and other ancillary matter governing the permission is laid down in Sec. 14. By Sec.25 the Authority is authorized to demolish a building raised without permission or in contravention of building plan. Power is given to Authority by Sec.26 to stop construction in contravention of Zonal plan or without permission. 28. The procedure for grant of permission and other ancillary matter governing the permission is laid down in Sec. 14. By Sec.25 the Authority is authorized to demolish a building raised without permission or in contravention of building plan. Power is given to Authority by Sec.26 to stop construction in contravention of Zonal plan or without permission. 28. However, subsequently J&K Control of Building Operation Act, 1988 (hereinafter COBOA) was enacted, providing procedure for grant of permission for constructing buildings, and violation thereof or constructing house without permission. By Sec.20 of the COBOA, provision of corresponding law, to the provision of COBOA, came to be repealed. By Sec.3 of COBOA, different Authorities were constituted to implement provisions of COBO Act. The Authority in respect of local area (JDA) consisted of 6 members with Vice-Chairman as Chairman. Sec. 4 of COBO Act, created a bar for construction of any building without permission of Authority constituted under COBOA. The Authority was empowered by Sec.7 to demolish building raised without permission or contravention of condition subject to which permission is granted. Sec. 12 authorized the Authority to stop building operation under certain conditions. 29. Thus after the enforcement of COBO Act, the JDA has no business to interfere in the construction of buildings by exercising powers under J&K Development Act, 1970. Of Course such course can be adopted only by Authority, under COBO Act, referred here-in-above. But it is seen that Vice Chairman JDA, in his capacity as such, issued the controversial letter dated 26.12.2005. He was not competent to issue such letter in such a capacity . Of course he could have adopted the procedure laid down in COBO Act as Chairman after consulting the other five members of the Authority and that too on any information or report of Khilafwarzi officer. He was also not competent to supervise the construction of hotel by asking his sub-ordinate staff to keep watch on the construction of same. It is disclosed from the contents of the letter in question that permission to construct the Hotel had been granted by the Authority under BOCA. 30. He was also not competent to supervise the construction of hotel by asking his sub-ordinate staff to keep watch on the construction of same. It is disclosed from the contents of the letter in question that permission to construct the Hotel had been granted by the Authority under BOCA. 30. Once building permission had been granted to appellant, Vice-Chairman JDA, had no business to inter meddle with the construction work of Hotel, and keep the subordinate staff posted in the premises of Hotel as of appellant had been allotted the contract of construction of Hotel by JDA, which was being constructed by appellant after purchasing land from JDA. 31. The Vice-Chairman not assumed above powers only unto himself but without any report of Khilafwarzi officer informed the appellant that he has not provided set back while digging the plots for basement. It appears that he was not right in forming such opinion. The appellant was to keep back, rear or side sets if any as per building plan, only after putting the RCC slab on the basements and not around the basement 28'-29 feet down in the earth. How the Vice-Chairman wanted the appellant to adopt such course is not understandable. The mis-understanding of Vice-Chairman was further made complicated by his sub-ordinate staff including respondent No:3 and 4, as is evident from the narration of events carried out in the beginning of this judgment. 32. The appellant was not allowed to carry out the construction of basements, which he was permitted to do even as per admission made by Vice-Chairman in his letter supra. The inspection team further complicated the matter by coming to form an opinion that appellant is not permitted to construct basements. The inspection team, however, expressed an apprehension about the further violation of set backs after construction of basements and refused to trust the representative of appellant to keep the set backs after completion of basements. 33. Thus apprehensions of Vice-Chairman JDA and inspection team based on surmises have vitiated the letter dated 25.12.2005 and the report of inspection team, which has un-necessarily put the appellant to suffer colossal loss of money, time and material. The authorities at the helm of affairs have not acted deligently and their motive to harass appellant as claimed by him cannot be ruled out. The authorities at the helm of affairs have not acted deligently and their motive to harass appellant as claimed by him cannot be ruled out. The letter in question and all the follow up action carried out by the concerned officers is without jurisdiction and set aside except that of respondent No:3 which is going to be dealt separately here-in-after. 34. As is evident from the record, the act of the Tehsildar JDA, is also not fair and is also not above board. The said officer acted like more loyal than the king. First of all he asked CTP to produce the building permission and site plan, without any explanation for absence of same in the JDA office. He started writing letters to appellant to produce the site plan etc., the photo copies of which were submitted by appellant. why Tehsildar failed to enquire about the whereabouts of the BP and site plan from the concerned is not made out from the record submitted by JDA. Even the copies of the same submitted by appellant are not available with the record. In this background a legal inference is required to be drawn that Tehsildar JDA was aware about the permission given to appellant to construct the basement and hotel building upon the same. 35. Despite the above knowledge the Tehsildar JDA issued a notice to appellant under Section 7(1) of BOCA on 27.12.2005 in a hasty manner, when he was at the same time asking CTP to produce the site plan and BP before the Engineer of JDA. Not only once but he again issued such a notice on 19.5.2006, asking appellant to show cause as to why the RCC pillars in the basement be not demolished having been raised without permission. On one hand appellant was permitted to construct basements and on other hand he was asked not to raise pillars necessary for constructing basements. How the Tehsildar wanted the appellant to construct basement without raising pillars is not understandable to common sense, Was he authorized to issue such notice is also not made out from record or show cause notice. 36. Under COBO Act, it is only the Authority constituted under Section 3 which is competent to issue notice under Section 7 of said Act and none else. 36. Under COBO Act, it is only the Authority constituted under Section 3 which is competent to issue notice under Section 7 of said Act and none else. However, under Regulation No:9 of J&K Control of Building Operation Regulation 1998, Authority can delegate powers under Section 7, 8 and 12 to Chairman of the Authority or such offices as are entrusted with the responsibility of demolition removal of un-authorized construction, who are commonly know as Khilafwarzi officers. If such is the legal position then Tehsildar can neither be delegated any powers referred here-in-above nor he can issue notice under Section 7(1) of COBO Act. In this back ground notice dated 19.5.2006 issued by Tehsildar JDA Executive Magistrate Ist class is without jurisdiction and bad in the eyes of law. 37. The Tehsildar, even presuming he had delegated powers to issue notice, failed to adopt the procedure laid down in Sec. 7 of COBO Act. As per this Section after issuing show cause notice, if the defaulter refuses or fails to show cause within 48 hours or after considering his reply and hearing him, the Building Operation Controlling Authority is satisfied that construction of building is in contravention of said Act, a notice under Sub-Section 3 has to be served asking the defaulter to demolish the un-authorized construction or to demolish the same at the expanses of the defaulter. 38. But in the present case Tehsildar left the exercise half way after issue of show cause notice & by making mockery of the provision of COBO Act, directly issued impugned notice on 26.7.2006, asking the appellant to stop the construction. Probably the Tehsildar without going through the COBO Act issued firstly notice under Section 7 and then notice stopping the construction work. He also appears not to have acted by applying mind to the facts of case or going through the provisions of relevant law. This fact is born out from the impugned notice itself. In copy to Director Land Management JDA, Tehsildar has categorically admitted that he issued the impugned notice as per the instructions of the said Director. If it is so then the conduct of Tehsildar is highly deplorable 39. This fact is born out from the impugned notice itself. In copy to Director Land Management JDA, Tehsildar has categorically admitted that he issued the impugned notice as per the instructions of the said Director. If it is so then the conduct of Tehsildar is highly deplorable 39. How be it, it is also evident from the impugned notice that same is in derogation to the condition laid down in Sec. 12 of the COBO Act, which is the section in this Act authorizing BOCA to stop the construction of buildings. As per this section building operation can be stopped by the Authority constituted under COBO Act in case it has been commenced in contravention of the said Act, Rules or Regulations made there under or without permission referred in Sec. 4. 40. After going through the contents of impugned notice, it is manifestly made out that it does not refer to contraventions prescribed by Sec. 12 rather it is mentioned therein as the appellant has failed to submit approved plan as well as revised plan within 4 days, so he shall stop the wok immediately. Thus the impugned notice is not sustainable in the eyes of law and is void ab initio. It appears that Tehsildar JDA issued the impugned notice for disobedience and contempt of his authority as Tehsildar. 41. The notice also appears to have been issued without any jurisdiction, because the same has been issued by Tehsildar of Jammu Development Authority. The notice was to be issued by Building Operation Authority constituted under Section 3 of COBO Act or by Khilafwarzi officers after delegation of powers by the said Authority. 42. The procedure adopted by Tehsildar JDA is unknown to the cannons of law. He has misused his authority not vested in him and in violation of Sec. 12 of COBO Act, rather on the advice and instruction of his senior issued the impugned notice without thinking about adverse effect going to be suffered by the appellant, who has suffered already lot for last 20 years not on account of his fault but the illegal orders passed from time to time by different officers of the JDA. It is further noticed that there is no provision of law that after granting building permission, any authority including BOCA has any power to demand revised plan, but still appellant has been asked to submit the same, by the JDA, which is totally uncalled and unwarranted more, not sustainable in the eyes of law. 43. With these observation appeal is allowed and the impugned notice is declared null and void ab-initio as well as the letter dated 25.12.2006 issued by the then Vice Chairman JDA. 44. It is pertinent to mention that despite the observations made by this Tribunal, the BOCA constituted under COBO Act is at liberty to take action against appellant if he has violated any conditions upon which building permission was granted to him after tracing out the original BP and site plan from the record and that too if any Khilafwarzi is reported by Khilafwarzi officer. 45. File be consigned to record after sending back the record submitted by JDA.