1. This appeal has been filed against the order dated 20.10.2011 passed by the respondent, whereby the premises of appellant at ground floor in Plot No. 315-A Apsra Road, Gandhi Nagar Jammu has been sealed. The appellant has challenged the impugned order on the grounds that he has obtained ground floor of house No. 315-A Apsara Road, Gandhi Nagar Jammu on lease basis from S. Sandeep Singh. That he started running a boutique in the leased premises in Sept. 2010 and also obtained VAT No. and TIN No. from CST Department. That in the month of August, 2011 respondent started harassing the appellant and compelling him to close his shop on the ground that required permission has not been obtained. That aggrieved by the action of the respondent, the appellant filed a suit before the Municipal Magistrate Jammu, who did not grant ad interim injunction. That an appeal was filed before 1st Additional District Judge Jammu and on 18.08.2011 parties were directed to maintain status quo. That 1st Additional Session Judge Jammu directed the trial judge to pass appropriate order in application for temporary injunction. The learned Municipal Magistrate vide his order dated 28.08.2011, temporarily restrained the JMC from interfering into the business of the appellant. That thereafter this order was vacated as a notice u/s 7(1) of COBO Act was issued. That on 10.10.2011 a notice u/s 7(1) of COBO Act calling the appellant to show cause, as to why it he has started commercial activities in the residential premises without proper permission to the respondent, was issued. That appellant submitted reply in written. That before deciding his representation, his premises have been sealed by virtue of order passed under the purview of section 8 of COBO Act. 2. I have heard both the counsels at length and perused the record file. 3. Counsel for appellant has elaborated all grounds taken in memo revision petition. Whereas respondent counsel has supported order of sealing. He has also argued that appeal is not maintainable under act. 4. I have my given my thought full consideration to whole aspects of matter. 5. It appears that on 12.10.2011 a notice u/s 7(1) and 12(1) of COBO was served upon the appellant, calling upon him to stop un authorized construction work. In this notice no detail has been given with regard to unauthorized construction, as the space mentioned for detail, is blank. 5. It appears that on 12.10.2011 a notice u/s 7(1) and 12(1) of COBO was served upon the appellant, calling upon him to stop un authorized construction work. In this notice no detail has been given with regard to unauthorized construction, as the space mentioned for detail, is blank. It is further evident from record that appellant on 12.10.2011 has filed reply to the show cause notice. Record reveals that reply has been rejected with one line i.e. it is not based on facts, on 13.10.2011. 6. It further appears that on same date order for sealing was approved. On 19.10.2011, sealing order of premises was passed and sealing was done with help of police with regard to show room situated at 315-A, Gandhi Nagar, Jammu. 7. Certain provisions of control of Building Operations Act are necessary for deciding the present matter. This Act has been formulated to control building operation in state. 8. Section 4 of act reads as under:- Control of development and building operation No person shall undertake or carry out the development of any site in any Municipal area, Local area, Town area Notified area or Area notified under the Jammu And Kashmir State TOWN Planning Act, 1963, or erect or re-erect any building or make or extend any excavation or layout any means of access to a road in such area except with the previous permission of the authority concerned in writing. 9. A plain reading of this section, it is clear that for development of site, or for erection or re-erection any building, or make or extend any excavation or lay out any means of access to road, permission in writing is required from authority. 10. Section 5 prescribes as to how application is made and how it is processed. 11. Section 7 deals with demolition of building in certain cases. Section reads as under:- 7. Order of demolition of building in certain areas 1. 10. Section 5 prescribes as to how application is made and how it is processed. 11. Section 7 deals with demolition of building in certain cases. Section reads as under:- 7. Order of demolition of building in certain areas 1. Where the erection or-erection of any building has been commenced or is being carried on or has been completed without the permission referred to in section 4 or in contravention of any condition subject to which any permission has been granted, the Authority shall issue a notice in writing calling upon the person to show cause within a period of 48 hours, why the building should not be altered or demolished as may be deemed necessary to remove the contravention. 2. ------ 3. ------ 12. Bare perusal of this section it evident that, it is applicable only in cases of erection or re-erection and it is not applicable in other types of cases like for development of site, or making or extending any excavation or laying out any means of access to road, as mentioned in section 4 of act. 13. Section 8 reads as under:- "8. Power to seal unauthorized construction (1) It shall be lawful for the Authority concerned, at any time, before or after making an order of demolition under section 7 to make an order directing the sealing of such erection, re-erection or work or of premises in which such erection, re-erection or work is being carried on or has been completed for the purpose of carrying out the provisions of this Act, or for preventing any dispute as the nature and extent of such erection or work. (2) Where any erection, re-erection or work on any premises in which any erection, re-erection or work is being carried out, has or, have been sealed, the authority concerned may for the purpose of demolishing such erection or work in accordance with the provisions of this Act, order such seal to be removed. (3) No person shall remove such seal except,-- (a) under an order made by the Authority concerned under sub-section (2); or (b) under an order made in an appeal under this Act. 14. (3) No person shall remove such seal except,-- (a) under an order made by the Authority concerned under sub-section (2); or (b) under an order made in an appeal under this Act. 14. Bare perusal section 8 of act, it is apparent that authority under act is competent to pass an order of sealing before or after passing of order of demolition under section 7 of act with regard to erection or re-erection of building without permission. 15. So two things are necessary before passing an order of sealing under section 8 of act. These are, firstly a order of demolition under section 7 of Act and secondly there should be erection or re-erection. 16. Erection or re-erection is defined as under:- Section 2(9) : Erection or Re-erection (A) Any material alteration or enlargement lf any building. (B) Mooring or installing of any boat or house-boat in the river or lake falling within the jurisdiction of any Authority. (C) The conversion by structural alteration into a place for human habitation of any building not originally constructed for human habitation. (D) The conversion into more than one place for human habitation of a building originally constructed as on such place. The conversion of two or more places of human habitation into greater number of such places. (F) Such alteration of a building as affects an alteration in its drainage or sanitary arrangements or affects its stability. (G) The addition of any room, building, out-house or other structure to any building. (H) The construction of a wall adjoining any street or land not belonging to the owner of the wall or a door opening on to such street, and (I) Reconstruction of a building or a portion thereof, by means of props, commonly known as PAND-PAND in Kashmir valley. 17. Bare perusal of this definition it is evident that change of occupancy or use of building does not come in erection or re erection definition. So violations of land use don't come under the COBO Act. This Tribunal in a case titled M/S Nav Durda Sweets & Fast Food v/s Building Operation Controlling Authority and ors decided on 17.1.2011 has held that violation of land use does not come under COBO Act. 18. Even no final notice of demolition has been given till today. Reply filled to show cause notice u/s 7 has not been properly addressed. 18. Even no final notice of demolition has been given till today. Reply filled to show cause notice u/s 7 has not been properly addressed. Appellant has been condemned unheard before passing of order of sealing of building. 19. So far argument of the counsel for the respondent that appeal is not maintainable, is concerned, it is not sustainable. Because section 8(3 -b) of COBO Act clearly states, that no seal shall be removed except an order passed in an appeal. So appeal is maintainable. 20. Further as per Master plan 2021, Gandhi Nagar area has been put to mixed zone use i.e. residential and commercial use. Certain clauses of master plan 2021 are relevant. 5.7.3. Gandhi Nagar & its Extensions (Division-C); The area lies on the left bank of River Tawi upto Bhalol Nallaha and was developed after 1950. The total area of this division is about 5,906 ha. Of which 1,213 ha, is residential use. The terrain is plain, Jammu Railway Station, University, Bahu Fort, Transport Nagar, Fruit & Vegetable Market and Jammu Airport are located in this area. National Highway (NH-1A) connecting Pathankote with Srinagar passes through this area. Gandhi Nagar colony is well planned with beautiful green belt along the maim road. The major functional land uses are residential, industrial, commercial, industrial and institutional. Substantial portion of this region is under defence use. The population of the Division in 1994 was 2,65,187. The residential density of the area is 219 persons per ha. 6.9.2 Commercial; 21. At present Jammu has 3700 commercial establishments which works out to 34 shops per 100 population. The major concentration of trade and commerce activity occurs in the old city area and Gandhi Nagar. The number of commercial establishments may increase by about 2.5% per annum and hotels and restaurants by 4.5% per annum which would not only provide additional employment for above 30000 workers but would also mean addition of 35000 additional shops. RESDENTIAL 8.2 (a) Use Permitted: Dwellings of all types, guest houses, boarding houses, dharamshala, night shelter, rooming houses, libraries, parks, playgrounds, golf courses, nurseries, green houses, and general purpose farms, churches, temples, mosques and other religious buildings, clubs, cultural and philanthropic associations of non-commercial nature, swimming pools for community use, professional establishments satisfying the requirements of some customary occupations and private nursing homes, convenience shopping, local shopping. 22. 22. So it be inferred from above master plan that Gandhi Nagar area can be considered as mixed zone i.e. commercial as well as residential. 23. The photographs of site reveal that there have been newly constructed counters, glass shelves and roofs in the premises. This construction would have taken a long time and it has been raised for commercial purpose. So disallowing the appeal at this stage will deprive the appellant and his family from livelihood and will also put the appellant to irreparable loss and injury as he has spent money on the construction of one shop to earn his bread and butter. Authority remained mum till the residential premises were converted into commercial purposes and so reached at final stage. Had authority been so honest and prompt, conversion of use of premises from residential to commercial would have been stopped at initial stage. Even it be seen that at this time whole Apsra road is full of commercial activity. 24. In view of what has discussed above, this appeal is allowed and order of sealing of premise of ground floor of plot no. 315-a Apsra road is set aside. Respondent to de-seal it. Respondent is at liberty to proceed with matter under relevant law and after giving proper hearing to petitioner. Record file be sent back along with this order. 25. File be consigned to records after due completion.