The court emphasized that it cannot go into disputed questions of fact while exercising writ jurisdiction under Article 226 of the Constitution and highlighted the finality of orders and the bar on jurisdiction for courts to entertain suits or proceedings in respect of demolition of any building under the J&K Control of Building Operations Act, 1988.

JUDGMENT :

WASIM SADIQ NARGAL, J.

Prayer on behalf of the Petitioner:

1. The present writ petition has been filed by the Building Operation Controlling Authority through its Joint Commissioner, Municipal Corporation, Jammu. The petitioner has filed the present petition under Article 226 of the Constitution of India for issuance of an appropriate writ, order or direction seeking quashment/setting aside of the order dated 10.11.2017 passed by the Learned J&K Special Tribunal, Jammu in File No. STJ/105/2017 titled Nageen Ara vs. Joint Commissioner. Besides, the petitioner by writ of mandamus, is seeking a direction to the respondents to demolish the unauthorized construction.

Arguments on behalf of the petitioner

2. Learned counsel for the petitioner submits that respondent claims to be owner in possession of plot measuring 5400 sq ft situated at village Sidhra, Jammu and the respondent with intention to raise residential construction applied before the petitioner for grant of necessary sanction and accordingly, sanction was duly granted in favour of the respondent to raise residential construction vide sanction order No. 62/BS/2016 dated 03.05.2016. Learned counsel submits that while raising the construction, the respondent committed violation of permissible coverage area, height and setbacks.

3. Further case of the petitioner is that the respondent started the construction against Master Plan and committed major violation. Accordingly, notice was issued vide No. MJ/CEO/46/01/2016 dated 14.03.2017 under section 7(1) of the Control of Building Operation Act, 1988, whereby the respondent was asked to show cause within 48 hours as to why the violations as mentioned in the said notice should not be demolished. Besides, a notice under section 12(1) of the Act was also issued, whereby, the respondent was directed to discontinue the operation of unauthorized construction. The learned counsel for the petitioner submits that respondent never replied the notices issued under section 7(1) of the Act, and accordingly, notice Vide No. MJ/CEO/46/03/2017 dated 24.04.2017 under section 7(3) of the Act was also issued for demolition of the unauthorized construction. The respondent has challenged the said notice under section 7(3) of the Act by filing statutory appeal on 01.05.2017 before the learned J&K Special Tribunal, Jammu and the Learned Tribunal vide order dated 02.05.2017 directed the parties to maintain status quo.

4. The respondent (petitioner herein) responded to the appeal filed before the Learned J&K Special Tribunal, Jammu, and filed detailed status report alongwith the rough sketch showing the violations committed. The petitioner further submits that the learned J&K Special Tribunal Jammu, without taking into consideration the fact that the Petitioner (respondent herein) has raised the construction without adhering the Master Plan, vide order dated 10.11.2017 has set aside the notice dated 24.04.2017 issued under section 7(3) of the Act, and compounded the construction.

5. The petitioner further submits that the impugned order suffers from serious infirmities and the core issue of the controversy has not been dealt with by the Tribunal. It is further submitted that the respondent herein has raised construction in utter violation of the sanctioned plan and has committed the violation of permissible coverage area and setbacks. It is further submitted that all the violations are major violations in terms of Master Plan. As per Regulation 11 of the J&K Control of Building Operation Regulations 1998, more than 10% of the permissible ground coverage, which as per the petitioner, is major violation and is not compoundable. It is submitted that the built up construction raised unauthorizedly has been worked out as under: