S. 8 of J&K Control of Building Operations Act, 1988 can only be invoked if construction is in progress and not in case of illegal use of building by its owner

Jammu & Kashmir High Court: The Court recently addressed a writ petition for quashment of a previous order that had been passed by the Joint Commissioner of the Municipal Corporation owing to which the premises of the petitioners had been cordoned off by way of the powers vested under Section 8(1) of the J&K Control of Building Operations Act, 1988.

The facts stated briefly are that the petitioners had raised construction of a building in accordance with the municipal corporation’s plan at a certain area in Jammu. The petitioners had got permission of a part of the premise to be used for commercial purposes. But subsequently, the demolition of the premises was ordered by a competent authority after a notice under Section 7(1) of the J&K Control of Building Operations Act was issued to the petitioners for the misuse of the premise for commercial purposes. Despite the petitioners having filed their reply to the notice, the Joint Commissioner after considering it, directed for the premise to be sealed under Section 8 of the J&K Control of Building Operations Act.

The counsel for the petitioner argued that resorting to Section 8 was in itself an action that was per se without jurisdiction as this provision can only be invoked when a work is in progress or has been completed and that it cannot be invoked against the user of the building. The petitioner’s counsel also contended that Section 8 shall be invoked only to prevent a dispute on the nature and extent of construction. The Counsel for the respondents submitted that the proceedings had been invoked under Section 7 of the Act and hence consequently, Section 8 could also be invoked.

The Court held that a reading of the provisions make it clear that Section 8 of the Act can only be resorted to if the construction is in progress and not when it’s a case of illegal use of the building by its owner. The Court also noted that the validity of the order passed in the proceeding under Section 7 of the Act was still pending wherein the Tribunal had passed an interim order demanding for status quo to be maintained and hence, the respondents invoking Section 8 per se was in itself a contravention and without jurisdiction. Thus, the Court quashed the petition. [S. Lt. Col. (retd) G.C. Raina v. Municipal Corporation, Jammu, 2017 SCC OnLine J&K 697 , order dated 16.11.2017]

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