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2016 DIGILAW 403 (JK)

Mohd. Hanief Sofi v. State of J&K

2016-07-26

R.SUDHAKAR

body2016
JUDGMENT R. Sudhakar, J. 1. Writ petition is of the year 2007. It has not been admitted so far. However, after perusal of the writ petition, the same is admitted. According to the petitioner, in a case of Habibullah Khan v. Chairman BOCA, the J & K Special Tribunal, Srinagar passed a common order dated 16th November, 2005 and the directions issued in the said order are reproduced hereunder: "It is now ordered that all the appeal cases annexed herewith this order shall stand disposed of with the following directions: 1. BOCA authority in SMC shall initiate action U/s. 7(1) [Where the erection or re-erection of any building has survey or 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.] and 7(3) [If the person to whom the notice has been given refuses or fails to show cause within a period specified under sub-section (1) or if after hearing that person, the Authority is satisfied that the erection or re-erection of the building is in contravention of the provisions of this section, the Authority shall by order direct the person to demolish, alter or pull down the building or part thereof so far as is necessary to remove the contravention within a period not exceeding five days as may be specified in the order and if the person fails to comply with the direction, the Authority may itself cause the erection or re-erection to be demolished after the expiry of the said period and may for that purpose use such Police Force as may be necessary which shall be made available to him by the Police Department on requisition.] of the Act through legally valid statutory notices against these violations within three weeks of passing of this order. 2. That in the meanwhile all the parties shall maintain status quo on ground during these three weeks., 3. Chairman BOCA authority shall be responsible for occurrence of any constructions in violation of this order and all responsibility shall solely rest on him. 2. That in the meanwhile all the parties shall maintain status quo on ground during these three weeks., 3. Chairman BOCA authority shall be responsible for occurrence of any constructions in violation of this order and all responsibility shall solely rest on him. He will also ensure that action is initiated in all these cases through legally valid statutory notices within the span of three weeks." 2. In the common order dated 16th November, 2005, the present writ petitioner is at serial No. 53. 3. The petitioner got wind of the action that is to be initiated by the official respondents consequent to the Special Tribunal, Srinagar order dated 16th November, 2005 and realizing that the authorities are going to take action against all these building owners, the petitioner went to the office of the Srinagar Municipal Corporation on 30th June, 2006, where the Municipal officials gave him a copy of the notice No. SMC/KH/196-201, dated 19th June, 2006 which is notice for demolition under Section 7(3) of the Control of Building Operation Act, 1988. Since the original notice was not served upon the petitioner, he filed an appeal to the Special Tribunal saying that the proceedings dated 19th June, 2006 has not been served and the action is mala fide. 4. In the memorandum of appeal, which is Annexure F to this writ petition, in several paragraphs, it is clearly stated that the demolition notice dated 19th June, 2006 has not been served on the petitioner. The petitioner approached the department out of necessity to avoid any complication. Thereafter, petitioner came to know that said notice was alleged to have been served on him. He, therefore, filed an appeal on 30th June, 2006 which came to be dismissed by the Special Tribunal, Srinagar on the grounds that in terms of Section 13 of the Jammu and Kashmir Control of Building Operation Act, 1988, appeal should be preferred within seven days and Section 5 of the Limitation Act is not applicable to the provisions of this Act. 5. 5. The primary plea taken in the writ petition, as was before the Special Tribunal Srinagar, is that the petitioner has not been served the demolition notice dated 19th June, 2006 in terms of Section 7(3) of the Control of Building Operation Act, 1988, therefore, there is a failure of principles of natural justice and the action initiated against the petitioner is arbitrary and illegal. Since the Special Tribunal, Srinagar, before which the petitioner approached, had dismissed the case on the ground of limitation; the petitioner having left with no alternative has filed the present writ petition. 6. The writ petitioner, inter alia, contends that neither the show cause notice referred to in the demolition notice dated 19th June, 2006 has been served nor the impugned demolition notice has been served on the petitioner in the manner known to law. Therefore, the writ petitioner sought for setting aside the said notice as violative of principles of natural justice, besides being arbitrary and illegal. 7. Notice was issued on 8th August, 2007 and Mr. B.A. Khan, Advocate took notice on behalf of respondents and sought four weeks' time to file objections. The case was adjourned from time to time, no objections have been filed. Again on 2nd April, 2010, Mr. B.A. Khan, Advocate sought time for filing objections which again was not filed. On 22nd August, 2012, the court directed the Registry to verify whether the objections have been filed, as stated by Mr. Khan, but the report of the Registry revealed that no such objections have been filed. On 25th April, 2014, right to file reply has been closed. 8. After considering the facts and circumstances of the case and the narrow scope of the relief sought for, this Court finds no justification to keep the writ petition pending on a small issue of this nature. Therefore, the court is inclined to set aside the notice impugned dated 19th June, 2006 as violative and ineffective on account of being not properly served on the petitioner. However, liberty is given to the department concerned to properly serve a fresh notice on the petitioner, if cause still survives and the petitioner may be at liberty to prosecute the same in accordance with the law. However, liberty is given to the department concerned to properly serve a fresh notice on the petitioner, if cause still survives and the petitioner may be at liberty to prosecute the same in accordance with the law. Since the impugned notice dated 19th June, 2006 has been set aside, the cause on which appeal has been filed by the appellant is before the Special Tribunal, the order under challenge passed by Special Tribunal will have no effect and the same is also set aside insofar as it relates to the present petitioner. 9. Learned counsel for the respondents stated that the status as on today should be maintained by the petitioner till the department undertakes the exercise afresh, if so advised. The said plea is tenable, however, such a request can be considered, if the department wants to proceed in the matter. At best, they would have four weeks' time from the date of receipt of this order to proceed afresh. If no proceeding is initiated within four weeks from the date of receipt of this order, then, it will be presumed that the department has no cause to proceed further. Writ petition stands disposed of alongwith connected MPs in the above terms.