Service Of Notice Must Be Properly Established For Demolition Orders: Special Tribunal Grants Relief To Wife Of Jammu & Kashmir's Ex-Deputy CM

The Jammu and Kashmir Special Tribunal on Monday overturned a demolition notice issued by the Jammu Development Authority (JDA) to Mamta Singh, wife of former deputy chief minister Dr Nirmal Kumar Singh.

The notice had directed her to demolish their bungalow at Ban in Nagrota area of Jammu district, which the JDA described as an “illegal construction raised in violation of Section 7(3) of Jammu and Kashmir Control of Building Operations Act, 1988 (COBO Act).”

Mamta Singh challenged the JDA's November 8 order before the special tribunal, arguing that notice under Section 7(1) of the COBO Act was never served upon her. Buttressing her argument she further cited a judgment of the division bench of Jammu and Kashmir High Court titled BOCA versus Koushalya Devi and others, wherein it was held that when a constructed structure is disputed, it must be proved that the notice was served in the presence of an independent witness.

Contesting the plea the JDA argued that the area in question was included in the jurisdiction of the JDA via SRO 388 dated August 10, 1984, and that it was incumbent upon Mamta Singh to have obtained permission from the JDA before commencing construction.

Respondents further submitted that since the construction was raised illegally without obtaining valid permission from BOCA, the notice under Section 7(1) was issued to Mamta Singh to show cause as to why the construction may not be demolished. The said notice was duly served upon her, and she did not respond to it, so the demolition order was issued, it was argued.

Observing hat the notice under section 7(1) was said to have been served on October 30, 2021, but the particulars of the serving official and the person to whom it was served were not mentioned in the endorsement, nor was it recorded in the minutes of proceedings in the file the tribunal found that the JDA had failed to establish the valid service of the show cause notice on Mamta Singh, which is a mandatory pre-condition for proceeding with statutory exercise against violation of the building bye-laws.

Explaining the manner of serving show cause notice as prescribed under section 7(2) of the COBO Act, which is by affixing notice on the outer door of some conspicuous part of the building, whereupon the notice is deemed to have been duly served on the owner or the occupier of the building, the tribunal said that in the instant case, there is no proof available on the record to establish that the notice under section 7(1) of the COBO Act was served personally on the appellant or any other person available at that time when the notice was served or that it was served by affixing the notice on any conspicuous part of the building. in terms of the Section 7(2) to the COBO Act

Deliberating on the other contention raised by the respondent has been that the area is described in JMC, 2032, as vegetation, and, as such, falls under agricultural land use the tribunal said that this question would not arise for determination by this Tribunal at this stage for the reason that its foundation has neither been laid in the show cause notice under section 7(1) or in the impugned order under section 7(3) of the COBO Act.

Bare perusal of the show cause notice and the impugned order would reveal that this was never a ground of statutory action initiated against the appellant that the construction has been raised in the area described as agricultural land use, said the tribunal.

"That being so, the respondents cannot be allowed in law to proceed with statutory action on any ground which had not been indicated in the show cause notice or for that matter in the impugned order", the Tribunal observed.

Setting aside the demolition notice served to Mamta Singh, the Tribunal directed the BOCA to proceed afresh against her for violation of the building bye-laws by adhering strictly to the procedure prescribed under Section 7 of the COBO Act.

Case Title: Smt Mamta Singh Vs BOCA Jammu

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