STATE TIMES NEWS
JAMMU: Member Special Tribunal Jammu Asif Hamid Khan quashed the demolition order No. PDA/BOCA/KH/09 dated May 24, 2024 issued by respondent Authority under Section 7(3) of the COBO Act of Aeroplane restaurant at Kud.
The said order has been passed in a petition filed by Vishal Bamotra in which Adv Veenu Gupta with Adv Mohit Vaid filed appeal before the Tribunal by the appellant on May 28, 2024 is preferred under Section 13 of the Control of Building Operations Act, 1988 (For short: ‘COBO Act) against demolition order No. PDA/BOCA/KH/09 dated May 24, 2024 issued by respondent Authority under Section 7(3) of the COBO Act.
Controversy in present appeal is unique, pertaining to a decommissioned aeroplane, once said to be flying from Delhi to London, which landed in pieces on agricultural land situated at Tamatar Morh, Village Kud, Tehsil Chenani Kud, Patnitop. Said aeroplane purchased as scrap by appellant and transported to the site in question, was assembled at the site for commercial use as a Appellant submitted application for building permission to Jammu the BOCA, Patnitop on October 22, 2022. Subsequently on November 9, 2022, the then Chief Executive Officer, Patnitop Development Authority forwarded the building permission case submitted by appellant to all the concerned departments for grant of NOC.
However, the Town Planner vide his letter dated December 8, 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 February 8, 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 aforesaid and in light of S.O. 439 dated December 24, 2021. Special Tribunal after hearing Adv Veenu Gupta in length, observed that 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 aforesaid provision is to provide an opportunity to concerned person to explain alleged violation.
The authority can pass an order under Sub-section 3 only on the basis of oundas stated in the show cause notice. 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. 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 Hon file Supreme Court in Commissioner of Central Excise Bhavneshwar v. M/s Champdany Industry Ltd reported in 2009 (8) Supreme-345, has settled the law on the aforesaid point in the following lines:-
“Apart from that, the point on Rule 3 which has been argued by the Learned counsel for the Revenue was not part of its case in the show cause notice. It is well settled that unless the foundation of the case is made out in the show cause notice, the Revenue cannot in court argue the case not made out in its show cause notice.”
“For the aforesaid reasons, 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. Therefore, appeal is allowed and the impugned order is set aside. The BOCA shall be at liberty to proceed afresh against the appellant for violation of the Building Bye-Laws, by strictly adhering to the procedure prescribed under section 7 of the COBO Act. The question regarding the land use has not been considered by this Tribunal for the reasons mentioned hereinabove, as such, no prejudice shall be caused to either side, if any, fresh proceedings are carried out by the BOCA against the appellant.
With regard to other grounds urged by the parties but not specifically dealt for returning finding, shall not be construed as expression of any opinion by this Tribunal. Appeal is accordingly, dispose(d) of, it may be consigned to records. The record received from the respondents may be returned alongwith a copy of this order. In view of above discussions, Special Tribunal ordered that appeal is allowed. Impugned demolition order being defective on grounds discussed hereinabove is accordingly set aside. Liberty is however granted to the respondent Authority to proceed in accordance with law, only after deciding the applications for change of land use and building permission pending disposal since long with the respondent Authority vis-a-vis the appellant. Till such time, respondent Authority is restrained from clipping the wings of the Aeroplane in question.
