The main legal point established in the judgment is the interpretation of the provisions of the Control of Building Operations Act, particularly regarding the authority to challenge judgments and the finality of orders.

JUDGMENT :

WASIM SADIQ NARGAL, J.

Brief Facts:

1. The instant petition has been preferred by the Joint Commissioner Municipal Corporation Jammu, wherein the petitioner has sought indulgence of this Court and seeking quashment/setting aside of the order dated 25.05.2023 passed by the Learned J&K Special Tribunal, Jammu, in file No. STJ/59/2022 by virtue of which, as per the petitioner, the mandatory provisions have been ignored and the Tribunal has exceeded its jurisdiction.

2. Till date, no notice has been issued in the instant case and on the other hand this court vide order dated 12.07.2023 has directed the Commissioner Jammu Municipal Corporation, to show the authority delegated by the Building Operation Controlling Authority, Municipal Area, Jammu, in his favour for the purpose of challenging the judgment of the Jammu & Kashmir Special Tribunal, Jammu. This Court vide order dated 12.07.2023 has been pleased to observe as under:

“5. Now, whether as a Chairman of the Building Operation Controlling Authority, Municipal Area, Jammu, the Commissioner, Jammu Municipal Corporation at his own discretion can choose to decide to assail an adjudication of an appeal under section 7 of the Control of Building Operations Act, 1988 without having the decision of the Building Operation Controlling Authority, Municipal Area, Jammu at the first instance whereby upon examination of the judgment of the Jammu & Kashmir Special Tribunal, Jammu decision to assail the said judgment is taken for enabling one of its members be that its Chairman or someone else to proceed and file a writ petition under Article 226 of the Constitution of India.

“6. In terms of section 16 of the Control of Building Operation Act, 1988, a given Building Operation Controlling Authority is vested with the power to delegate its power exercisable by it in favour of such officer or local authority as may get mentioned in the notification/ delegating the power.

7. In this case, there is no single line averment in the writ petition that how the Commissioner, Jammu Municipal Corporation has enabled himself to act on behalf of the Building Operation Controlling Authority, Municipal Area, Jammu for the purpose of assailing the judgment of the Jammu & Kashmir, Special Tribunal through the medium of the present writ petition and, as such this Court is directing the Commissioner, Jammu Municipal Corporation to show the source of his authority in the matter of coming up with the decision to assail the judgment of the Jammu & Kashmir Special Tribunal. Para-1 of the writ petition does not suffice the purpose as the Commissioner, Jammu Municipal Corporation by reference to this status as Chairman of Building Operation Controlling Authority, Municipal Area, Jammu, is coming forward to represent to act in the name of Building Operation Controlling Authority, Municipal Area, Jammu to file the writ petition.

8. This averment does not meet the requirement of law and as such, let the Commissioner, Jammu Municipal Corporation show the authority delegated by the Building Operation Controlling Authority, Municipal Area, Jammu in his favour for the purpose of challenging the judgment of the Jammu & Kashmir Special Tribunal, Jammu.”

3. In pursuance to the order passed by this court dated 12.07.2023, the instant petition has been taken with regard to the maintainability. Before adverting to the issue with respect to the maintainability, it would be apt to give a brief factual background of the case which would facilitate this court to decide the issue in question:

(i) Respondent No. 1 held a plot of land measuring 2601 sq ft situated at Nanak Nagar, Jammu wherein he had started the construction work of 2nd floor without seeking proper permission of Jammu Municipal Corporation.

(ii) Since the respondent No. 1 had started raising the unauthorized construction in contravention of the approved plan and against the Master Plan, a show cause notice under section 7(1) and final notice under the provisions of sectio