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J&K High Court · body

2017 DIGILAW 869 (JK)

Virender Sudan v. State

2017-09-20

B.S.WALIA

body2017
JUDGMENT : 1. Short grievance of the petitioner is that although vide order Annexure B dated 20.01.2010, permission was granted by the Jammu Municipal Corporation to the petitioner for construction of toilet block on khasra No.98 min and 117 min, yet the same was demolished on 15.02.2010 as is evident from communication Annexure G dated 20.12.2012 from the Chief Enforcement Officer, Municipal Corporation Jammu as per information supplied under the RTI Act, whereas permission granted vide order Annexure B dated 20.01.2010 was cancelled later on, on 18.02.2010 and order to that effect was passed on 26.02.2010 as per the information supplied under the RTI Act vide Annexure G and order in terms of cancellation of permission by the Chairman, BOCA Jammu. It is further contended that all actions taken by the Jammu Municipal Corporation for cancellation of permission and demolition of the toilet block constructed as per the permission granted were without compliance with the principles of natural justice or for that matter giving any opportunity of hearing. 2. Learned counsel for the petitioner contends that the Jammu Municipal Corporation acted very arbitrarily and illegally in resorting to demolishing the toilet block constructed by the petitioner pursuant to grant of permission and in the circumstances, not only is the impugned action liable to be held illegal, but the petitioner is also liable to be compensated for the illegal demolition of the toilet block. 3. Per contra, learned Sr. AAG vehemently opposed the submission by relying upon the following in support of the plea that the permission was cancelled and demolition ordered since father of respondent No.8 had made a complaint that the land in question was in his adverse possession and the petitioner had no right in respect of the land in question, therefore, could not have constructed the toilet block on the same. As per the record position khasra No.98 and 125 of village Patoli Mangotrian are quite adjacent to Khasra No. 598 of village Tope Sherkhania. Thus the said khasra numbers are situated on the boundary line of two villages but on spot no boundary pillars is existing. Since Sh. As per the record position khasra No.98 and 125 of village Patoli Mangotrian are quite adjacent to Khasra No. 598 of village Tope Sherkhania. Thus the said khasra numbers are situated on the boundary line of two villages but on spot no boundary pillars is existing. Since Sh. Amrik Singh is a hereditary owner of khasra No. 598, his adverse possession over the vacant land comprising khasra No. 98 min and 125 min can be justified on the ground of being old one also to non existence of boundary pillars on the Hadbasts of the two villages. Moreover, the venation in the area of land to the tune of a kanal or so is quite negligible on the Hadbasts of two villages as per the settlement principles. Therefore, on the foregoing grounds Sh. Verinder Sudan who is already in unauthorized possession of 1 kanal 13 marlas of land of khasra No. 98 min has no locus standi to lay any claim over the land in possession of Sh. Amrik Singh. 4. As per the order dated 16.11.2010 of the J&K Special Tribunal Jammu (hereinafter referred to as the Tribunal), the petitioner had constructed toilet block on land belonging to him under khasra No.98 min and 117 min at village Patoli Mangotrian. However, the same was demolished by respondent Nos. 2 & 3 on 03.12.2009. Subsequently, the petitioner again applied for permission under the Control of Building Operations Act (for short COBO Act) for construction of the toilet block and the permission was duly granted by the authorities on 20.01.2010 whereupon the petitioner started constructing the toilet block. Thereupon, respondent Nos. 2 and 3 without compliance with the principles of natural justice demolished the toilet block constructed by the petitioner on 15.02.2010 without serving any notice or order of demolition upon the petitioner as per requirement of law. The Tribunal held that in the peculiar facts and circumstances of the case, especially of the demolition having been carried out, it did not have the jurisdiction to consider the claim made before it. 5. Learned Sr. AAG contends that , in fact, the construction of the toilet block had not been completed when it was demolished on 15.02.2010. The Tribunal held that in the peculiar facts and circumstances of the case, especially of the demolition having been carried out, it did not have the jurisdiction to consider the claim made before it. 5. Learned Sr. AAG contends that , in fact, the construction of the toilet block had not been completed when it was demolished on 15.02.2010. However, despite repeated queries, learned Sr.AAG has not been able to controvert the relevant dates i.e. demolition of construction by the Jammu Municipal Corporation on 03.12.2009, subsequent application for permission and grant of permission for construction of toilet block on 20.01.2010, demolition of the construction initiated by the petitioner by the Jammu Municipal Corporation on 15.02.2010, cancellation of permission granted by the Chairman Jammu Municipal Corporation on 18.02.2010 in respect of the permission granted on 20.01.2010 and subsequent passing of order dated 26.02.2010 cancelling the permission granted to the petitioner for construction of toilet block. On the face of its the orders are palpable illegal. , therefore, the aforementioned actions after grant of permission for construction of toilet block having been taken out by the Jammu Municipal Corporation are without compliance with the principles of natural justice as also without following the provisions of the COBO Act. Learned Sr. AAG contends that in fact permission was obtained by the petitioner under misrepresentation and that if sanction was accorded under misrepresentation, the same could be cancelled by the Commissioner under Section 248 of the Municipal Corporation Act after giving reasonable opportunity of hearing to the petitioner as to why order of cancellation be not made. However, learned Sr. AAG very frankly conceded that as per record, no opportunity of hearing was granted to the petitioner in terms of Section 248 of the Municipal Corporation Act before cancelling the permission granted and carrying out the demolition. 6. In the circumstances, for the reasons as are recorded above, I am of the considered view that although the order was passed by the Chairman, Jammu Municipal Corporation on 18.02.2010 cancelling the permission granted for construction of toilet block and an order cancelling permission was passed by the Senior Town Planner Municipal Corporation Jammu thereafter on 26.02.2010 withdrawing the permission granted to the petitioner vide letter dated 20.01.2010, the action of the Jammu Municipal Corporation in demolishing the construction of the petitioner on 15.02.2010 is absolutely arbitrary and in derogation of the Rule of Law. The least that was expected of the Municipal Corporation was compliance with the fundamental principles of Rule of Law i.e. Audi Alteram Partem- i.e. let no man be condemned unheard, particularly in view of the fact that action was being taken despite earlier the toilet constructed by the petitioner at site having been demolished on 03.12.2009 where-after the petitioner again applied and sought permission for construction of toilet which was granted on 20.01.2010. The respondents acted unilaterally to cancel the permission and to demolish the construction on 15.02.2010 solely on the behest of the father of respondent No.8, who had made a complaint, though the permission was cancelled on 18.02.2010 and order cancelling permission was passed on 26.02.2010. Therefore, by no stretch of imagination can the action of the Jammu Municipal Corporation can be upheld in law. Accordingly, the same is held to be illegal and the cancellation of permission by the Chairman, BOCA Jammu in the meeting held on 18.02.2010 and the subsequent order by the Senior Town Planner cancelling the permission vide order No.1079-83/BS/09 dated 26.02.2010 as reflected in Annexure H is quashed. 7. However, respondents are granted liberty to pass fresh orders as may be warranted in the case to cancel or sustain the permission granted to the petitioner vide order Annexure B dated 20.01.2010 after complying with the mandate of Section 248 of the Municipal Corporation Act and after giving opportunity of hearing to the petitioner. However, for having demolished the toilet constructed by the petitioner without compliance with the principles of Natural Justice in derogation of the mandate of Section 248 and without having passed order of demolition, a sum of Rs. 10,000/- shall be paid by the respondents by way of compensation for having acted in derogation of the law with the amount in question being recoverable from the officer concerned, who without compliance with the principles of natural justice and the mandate of Section 248 ordered the demolition of construction made by the petitioner pursuant to the permission granted to him vide order dated 20.01.2010. 8. 8. If after conduct of proceedings under section 248 it is found that the cancellation of permission was illegal then in that eventuality the respondents shall after verifying the extent of construction carried out by the petitioner on the basis of record to be submitted by the petitioner compensate the petitioner to the extent of cost incurred by him for the construction. Needful be done within a period of three months from today. In case it is found that the cancellation of permission was illegal then payment of cost of construction demolished by the respondents be made to the petitioner along with interest @ 6% per annum w.e.f. the date of demolition till date of payment within three months. In case payment is found to be due but is not made within aforesaid stipulated period of time, then in that eventuality the amount shall become payable along with interest @ 9 % per annum w.e.f the date of demolition till the date the same is paid with amount on account of higher interest of 9 % i.e. 3 % over and above the 6 % ordered to be paid by the respondents to be recoverable by the respondents from the officer responsible for the delay in non-compliance with the orders of this Court to make payment within 3 months from today in case of entitlement to payment. 9. Writ petition allowed as above.