Deprivation of property without due process violates constitutional rights. Sealing without prior notice and opportunity to be heard is a violation of natural justice.

JUDGMENT :

Wasim Sadiq Nargal, J.

1. The petitioners are aggrieved of sealing of their property consisting of three halls, one each at ground floor, first floor and second floor, constructed over the plot of land bearing H. No. 84 B/B, Gandhi Nagar, Jammu; sealed vide notice bearing No. JMC/CEO/594-96, dated 02.01.2018 issued under section 8(1) of the Jammu and Kashmir Control of Building Operations Act, 1988. It is the specific case of the petitioners that no such notice was ever served upon petitioners. The petitioners are the husband and wife, as such, are aggrieved of the notice impugned, having common cause of action and, therefore, they have preferred the present petition, jointly.

2. The Petitioner No. 1 is the owner in possession of plot of land measuring 20 ft. x 80 ft. along with triple storey building consisting of one hall measuring 20 ft. x 60 ft at each floor constructed on the said plot of land bearing No. 84 B/B, Gandhi Nagar, Jammu. It is the specific case of the petitioners that the aforementioned triple storey building consisting of one hall measuring 20 ft x 60 ft at each floor and land appurtenant thereto was purchased by petitioner No. 1 from its erstwhile owner namely Sh. Raman Aggarwal and Smt. Neena Aggarwal vide sale deed dated 24.03.2015 duly registered by the Sub-Registrar (Sub-Judge), Jammu on 25.03.2015. It has been pleaded that on the backside of the land purchased by petitioner No. 1, there is a piece of land measuring10 ft x 30 ft which was purchased by petitioner No. 2 from its erstwhile owners namely Sh. Raman Aggarwal and Smt. Neena Aggarwal vide Sale Deed dated 24.03.2015 duly registered by the Sub-Registrar (Sub-Judge), Jammu on 25.03.2015.

3. The specific case of the petitioners is that since no notice was ever served upon them before sealing of the building, as such, immediately, after the property owned and possessed by the petitioners got sealed, they approached Respondent No. 3 & 4 for issuance of the copies of the said notice/order so as to enable them to initiate appropriate legal proceedings. Further, it is the specific case of the petitioners that, constrained by dilatory tactics of Respondent No. 3 & 4, Petitioner No. 1 filed an application before the Commissioner, Municipal Corporation, Jammu and the Joint Commissioner, Municipal Corporation, Jammu for issuance of certified copies of the said notice/order and consequently, Petitioner No. 1 was provided the xerox copies of the said notice/order. The specific stand of the Petitioners is that the building was sealed by Respondent No. 3 by virtue of impugned notice No. JMC/CEO/594-96, dated 02.01.2018 having been issued under section 8(1) of the Jammu and Kashmir Control of Building Operations Act, 1988. Though the said notice alleged to have been issued in the name of Petitioner No. 2 but, in fact, the same was never served upon Petitioner No. 2. Besides that, the impugned notice dated 02.01.2018 contained a recital that action under section 7(1) of the Act was initiated but as per the stand of the petitioners that even the said notice was never served upon them.

4. The specific stand of the Petitioners is that after getting Xerox copies of the notice from the concerned authorities, the Petitioners have preferred an appeal under section 13 of the Jammu and Kashmir Control of Building Operations Act, 1988 before the Jammu & Kashmir Special Tribunal, Jammu, which was dismissed by virtue of order dated 23.01.2019 holding that the appeal against the order passed under section 8(1) of the Jammu& Kashmir Control of Building Operations Act, 1988 was not maintainable. For facility of reference, the operative portion of the judgment dated 23.01.2019 is reproduced as under:-

“The Tribunal cannot extend the legislative intent of the provisions of the Act. Once the appeal provision is not provided in the Act the same cannot be entertained irrespective of the fact that the order passed by the authority is unjustified and illegal. The merits of the