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2012 DIGILAW 315 (JK)

Saleema Shah(Bano) v. Jammu Municipal Corporation

2012-06-04

Sanjay Gupta

body2012
1. This appeal has been directed against the order No. MJ/Estt/126/CEO/03/09 dated 29-3-2010, passed by respondent No. 2, by virtue of which appellant has been asked to demolish the unauthorized construction constructed at Haider pura janipura Jammu, within a period of five days from the date of the service of the notice. 2. Appellant has challenged the order impugned on the grounds that appellant constructed a house at Haiderpura, Janipura Jammu in the year 1990, the said house comprises of 5 rooms on the ground floor, 5 rooms on the first floor and 3 rooms on the second floor and it has further stated in the memo of the appeal that the construction in question has been raised by the appellant's father way back and at that time the said area was under the jurisdiction of the JMC. 3. That the appellant and her husband are both Government employee and posted in Kishtwar and Bhaderwah and at present their daughter is residing at the said house who is also a student of Dental College Seohra Kunjwani. So the question of receiving notice U/S 7(3) of J&K COBO Act, 1988 does not arise. In case the said notice would have been received, the appellant would have made clear that the said construction has been raised by the father of appellant way back in the year 1990. 4. Appellant has further stated that, on 14-04-2010, when there was holiday in the Dental College of the appellant's daughter, the impugned notice has only been thrown in the premises of appellant and no signatures on the receipt of the impugned notice has been obtained from the daughter of the appellant. And the appellant has been condemned unheard and no opportunity of being heard was afforded and the impugned notice is illegal, arbitrary and liable to set-aside. 5. That the appellant has submitted that when it was intimated to the appellant by her daughter telephonically, appellant rushed to the Jammu. That the appellant contacted her counsel at Jammu on 15-04-2010 and got drafted the present appeal without any delay. 6. That the appellant has further submitted in para-12 of the appeal that the, appellant is filling a separate application for condonation of delay as a matter of caution for filling the present appeal. 7. Notice of this appeal was served upon the respondent. 6. That the appellant has further submitted in para-12 of the appeal that the, appellant is filling a separate application for condonation of delay as a matter of caution for filling the present appeal. 7. Notice of this appeal was served upon the respondent. Respondents have appeared and filed the objections stating that the appellant has raised the construction, without seeking any permission from JMC at 15/2Haiderpura, Old Janipur, Jammu. The appellant was served notice u/s7 (1) and 12(1) of BOCA on 04-02-2010 on the report submitted by the enforcement inspector on 02-02-2010 to discontinue the operation of unauthorized construction. The final notice u/s 7(3) of COBA 1988 was issued on 29-03-2010 wherein the violator was directed to demolish the un-authorized construction within five days failing which the same would be demolished at his risk and cost. 8. The appellant has raised the new construction on existing ground floor to the extent 1811sft at first floor and 1633sft at second floor and also balcony projection, terrace and upstairs. The construction is carried of two rooms, store, kitchen. The appellant has not stopped the construction despite the notices from JMC and raised second floor also. The appellant has violated the provisions of J&K Control of Building Operation Act. 1988, J&K Control of Building Operation Act 1998, and prescribed Building regulations of Master plan. Thus the appeal may be dismissed and construction be demolished at his cost. 9. The detail of the statements showing built up area raised unauthorisedly has been worked out as under:- Total plot area: 2837sft Ground floor area (existing): 1971 sft First Floor: 1811 sft Second Floor: 1633 sft Total violation: 1811 sft + 1633sft = 3444 sft 10. Heard both counsel at length. Counsel for appellant has reiterated all the grounds taken in memo of appeal, whereas counsel for respondent has argued that appeal is time barred and violation are major and so cannot be compounded. 11. I have given my thoughtful consideration to the whole aspect of the matter and perused the record and memo of the appeal. 12. Jammu and Kashmir control of building operation act 1988 has been formulated by state legislature, for controlling building operation in state. It is a special act. It is complete code and certain regulations have also been made in term of section 19 of act, for carrying out the purpose of act. 12. Jammu and Kashmir control of building operation act 1988 has been formulated by state legislature, for controlling building operation in state. It is a special act. It is complete code and certain regulations have also been made in term of section 19 of act, for carrying out the purpose of act. Section 13 of act deals with appeal. It reads as under:- SECTION 13: APPEALS (1) An appeal against the order of an Authority made under [ section 5 or] Section 7 shall lie to such person as the Government may by notification in the Government Gazette, appoint in this behalf (herein after called ` the Appellate Officer') within seven days after the date of the afore said order of the Authority. The memorandum of appeal need not be accompanied by a copy of order appealed from. 13. A plain reading of this section, it is evident that an appeal against order of demolition passed in term of section 7(3) of COBO Act shall be filled within seven days of issuance of order. This act doesn't provide any extension of time in filling the statutory appeal. 14. In 2006 (2) SLJ PAGE 443 : 2007 (2) JKJ HC-20 in case title Munshi Zulfikar v. State and others our honorable High court has held as under:- J&k control of building operation act, section 5, 7 and 13 J&K Limitation act section 5:-Appeal under section 13 against order passed u/s 4 and 7 has to be filled within the limitation period of seven days prescribed under section 13 -- there is no provision in control of building operation act for condonation of delay -- provision of j&k limitation act providing for condonation of delay also not applicable in such appeals -- Delay in filling appeal u/s 13 condoned by special tribunal -- order held without jurisdiction. Para -5 15. I have heard learned Counsel and considered the matter. The moot question that emerges for consideration in the writ petition is whether it is within powers of the Special Tribunal below to condone delay in cases of appeals preferred U/S 13 of BOCA Act against permission and demolition orders granted U/S 7 or 10 thereof. Para -5 15. I have heard learned Counsel and considered the matter. The moot question that emerges for consideration in the writ petition is whether it is within powers of the Special Tribunal below to condone delay in cases of appeals preferred U/S 13 of BOCA Act against permission and demolition orders granted U/S 7 or 10 thereof. Consideration of question may be started by quoting section 13 of the Act which provides for appeal in following terms;- S.13 (1) An appeal against the order of an authority made under {Section 5 or } section 7 shall lie to such persons as the Government may by notification in the Government Gazette, appoint in this behalf) herein after called " the Appellate Officer") within seven days after the date of the aforesaid order of the Authority. The memorandum of appeal need to be accompanied by the copy of order appealed from" 16. Thus under the appeal provision of aforesaid, the period of limitation provided for filing an appeal there under is 7 days and there is no provision providing for condonation of delay involved in institution of appeal nor has any of the provision of the Limitation Act providing for the same, been made applicable to the appeals u/s 13 above said either expressly or by implication. The point, therefore, is as to when a special Act provides for institution of appeal within a period of time as different from the one provided for such proceedings under the limitation Act without containing an enabling provision to authorize condonation of delay, would it be proper for the appellate forum to condone the delay involved in institution of appeal. Incidentally the question is no more resintegra and stands already settled by a lucid judgment of this Court passed in case captioned Pushpa Devi v. Nanank Singh reported as 1982 KLJ 278, wherein applicably of the provisions of Limitation Act regarding extension of time/condonation of delay in filing appeals under the said act. Incidentally the question is no more resintegra and stands already settled by a lucid judgment of this Court passed in case captioned Pushpa Devi v. Nanank Singh reported as 1982 KLJ 278, wherein applicably of the provisions of Limitation Act regarding extension of time/condonation of delay in filing appeals under the said act. "(4) on the plain language of sub section (23) once it is shown that the special or local law under which the suit application or appeal is brought provides for it a period of limitation different from the one provided therefore by the first schedule, all provisions of limitation Act, except those contains in section 3,4,9 to 18 and 22 shall have no application to such suit application or appeal proprio vigore. Even the provisions contained in section 4 and 9 to 18 and 22 shall have no application in so far and to the extent to which they are expressly excluded by the special or local law under which the suit, application, or appeal is brought. With due respect to the Ld. Acting Chief Justice there is warrant for proposition that section 5 is independent section 29 and has nothing to do with reckoning of the period of limitation. Period of limitation is prescribed by the first schedule. How that period is to be reckoned in different cases under different circumstances has been provided by various section of Limitation Act, including section 5, which too has the effect of extending the same in certain given cases on proof that this section has no bearing on the computation of period of limitation prescribed under the first schedule. Unless, therefore, section 5 is specifically made applicable to any suit, appeal or application by the special or local law prescribing limitation for the same it cannot apply to it by its own force.. The law thus seems to be well settled that the expression "under the code of Civil Procedure" occurring in Art 156 merely connotes that an appeal shall lie to the High Court the procedure or be followed wherein is governed by the code of Civil procedure. It does not cannote that right to file the appeal itself must be conferred by the Court of Civil procedure. The procedure to be followed in appeal under the Act, there can be no manner of doubt, is one prescribed by the Court of Civil procedure. It does not cannote that right to file the appeal itself must be conferred by the Court of Civil procedure. The procedure to be followed in appeal under the Act, there can be no manner of doubt, is one prescribed by the Court of Civil procedure. Section 23 of Act specifically makes the Court applicable to all proceedings under the Act. The conclusion that article 156 would have applied through appeal u/s 34 of Act had this section not prescribed the period of 90 days for filing appeal under it is, therefore inescapable. The first contention raised by Rashpal Singh is therefore over rules". 17. In view of the opinion expressed in aforesaid judgment thus with which I am in respectful agreement, the Tribunal appears to have exceeded it s jurisdiction by condonation of delay involved in appeal rendering the order of condonation of delay impugned in liable to be over sort. At the same time,. However as revealed by memo of objection filed by respondent 3 to 5 the resent appeal against demolition order purporting to have been issued by them against him presumptly because of certain violation in approved plan which is pending before Tribunal and respondent no. 2 does not so far appeared to have sought his impleadment therein as being a party effected to building permission question by him in appeal which under law would perhaps be available to him. 18. Provisions of special act always override the provisions of general act. Control of building operation act is a special act, whereas provisions of limitation act are general in nature. 19. In present case, notice for demolition under section 7(3) of COBO act, has been issued on 29.3.2010 and appeal has been filled on 16.4.2010, after more than seven days. Hence it is time barred. Although certain facts have been mentioned in memo of appeal and condonation of delay application with regard to delay in filling appeal, but same cannot be considered, in view of settled law. 20. In view of above, this appeal is dismissed as time barred. The file of this court be consigned to record after due completion and record of the JMC be sent back along with a copy of this order.