Excelsior Correspondent
JAMMU, May 31: Member Special Tribunal Jammu Asif Hamid Khan has quashed the demolition order issued under Section 7(3) of Control of Building Operations Act, 1988 to Aeroplane restaurant at Kud.
The order has been passed in a petition filed by Vishal Bamotra through Advocates Veenu Gupta and Mohit Vaid, who submitted that decommissioned Aeroplane once said to be flying from Delhi to London, which landed in pieces on agricultural land situated at Tamatar Morh in Kud, was purchased as scrap by appellant, who then assembled it at the site for commercial use.
The appellant submitted application for building permission but the Town Planner vide his letter dated 08.12.2022 declined to issue NOC as the site in question is located under approved “Agriculture” land use in the Master Plan in vogue where proposed construction is not permissible.
Record produced by respondent authority shows that on 08.02.2023, the then Chief Executive Officer, Patnitop Development Authority forwarded to the Deputy Commissioner, Udhampur (Chairperson BOCA, Patnitop) Application No. 10010301202320136504 submitted by appellant and the other co-sharer of land in question measuring 06 Kanals, for change of land use from agriculture to commercial purpose. The communication was issued in the backdrop of objection raised by the Town Planner, Udhampur and in light of S.O. 439 dated 24.12.2021.
After hearing counsels in length, the Special Tribunal observed, “Sub-section (1) of Section 7 of the Act makes a provision for issuing a show-cause notice by the authority in respect of erection and re-erection of any building without the permission or in contravention of any condition subject to which any permission has been granted. Sub-section (3) of Section 7 provides for issuance of demolition order in case concerned person fails to submit reply to show-cause notice or authority is satisfied that such construction is being raised without permission or in contravention of the permission”.
“Thus, the authority under Sub Section 1 of Section 7 has to indicate the nature of the violation in the show cause notice. The purpose behind the provision is to provide an opportunity to concerned person to explain alleged violation. The order of demolition, therefore, cannot be passed and never indicated in show-cause notice and for which no opportunity was given to concerned person”, Tribunal held, adding “it is settled principle of law that unless the foundation of the case is made out in the show cause notice, the party cannot be allowed to argue the point not raised therein”.
“The impugned order is found to be suffering from illegality and incurable defect, there being no proof to establish the valid service of the show cause notice on the appellant, rendering the subsequent statutory proceedings including the impugned order to be illegal”, the Tribunal said while setting aside the demolition order.
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