Mohinder Pal vs State of Jammu & Kashmir and Others

Bansi Lal Bhat, J.—Petitioner is aggrieved of the order No. MJ/Estt/5242-46 dated 27.09.2012 issued by respondent no. 2 in terms

whereof building permission granted by respondent no. 3 in favour of petitioner has been withdrawn. The impugned order is assailed on the ground

that the same has been passed arbitrarily with mala fide intention without giving petitioner an opportunity of being heard and without observing

principles of natural justice. The admitted facts are that the petitioner claiming to be a lessee in possession of a plot bearing No. 89-A in Sector

No. 9 Trikuta Nagar Jammu, approached the respondents for grant of necessary sanction to raise construction for residential purposes. Same was

granted and petitioner was allowed to raise a residential house in accordance with the sanction plan. Respondents 2 and 3 have pleaded that the

petitioner had raised construction in the set back area which was not permissible. Consequently, building permission was withdrawn in terms of the

impugned order dated 27.09.2012.

Respondents have defended the impugned order passed under Control of Building Operations Act, 1988 on various grounds including the plea

that the violation of sanction plan came to light after grant of permission. It is submitted that respondent no. 2 being empowered under Municipal

Corporation Act, 2000 has the power to cancel the permission accorded under misrepresentation. It is further submitted that the statutory authority

granting permission is empowered to revoke the permission if same has been violated. Thus, respondents seek to defend the impugned order dated

27.09.2012 on the plea that the sanction for raising construction has been withdrawn lawfully for raising construction in the set back area of the

plot where no construction was permissible and that the respondents were empowered to withdraw the same.

From perusal of the impugned order, it emerges that the sanction to raise construction of residential building on ground, 1st and 2nd floor at Plot

No. 89-A Sector No. 9, Trikuta Nagar, Jammu granted vide No. 111/BS/12 dated 11.05.2012 has been withdrawn by respondent no. 2

allegedly for raising such construction on RCC Columns, not observing the set backs as reflected in the approved building plan and not demolishing

the existing construction on the rear set back which according to petitioner has been raised by the encroacher in connivance with the respondents.

However, it cannot be gathered from the impugned order that the same was passed after affording him an opportunity of being heard and

observing the principles of natural justice. While it cannot be denied that the respondent no. 2 is vested with powers to order demolition of a

building being raised in contravention of any condition subject to which any permission has been granted for erection of the building, he is required

to comply with the mandate of Section- 7 of the Control of Building Operations Act, 1988 by issuing a notice in writing to show cause against the

action proposed to be taken in regard to removal of the contravention of the sanction plan.

Admittedly, the impugned order has been passed without hearing the petitioner which is a violation of the principles of natural justice. This Court

in OWP No. 1143/2011 titled Sanjay Gupta vs. Jammu Municipal Corporation and others has held that such order passed without hearing the

affected party is not sustainable.

Since the impugned order issued by respondent no. 2 does not comply with the statutory requirement of issuing show cause notice to petitioner

before revoking of the sanction for building permission and non-compliance of principles of natural justice is writ large on the face of the impugned

order, the impugned order cannot be sustained.

The writ petition is, accordingly, allowed and the impugned order dated 27.09.2012 is quashed. However, the Respondents shall not be

precluded from initiating process and passing fresh orders after affording the petitioner an opportunity of being heard. Disposed of along with

connected CMA(s).