The court emphasized the finality of orders passed by the Authority or the Appellate Officer, the deemed sanction under the Act of 1988, and the nature of disputed questions of facts.

ORDER :

OWP No. 798/2005

1. In the instant petition, filed under Article 226 of the Constitution, the Building Operation Controlling Authority (for short “BOCA”) being the petitioner herein in has challenged the order dated 29.08.2005 (for short “the impugned order”) passed by the J&K special Tribunal, Jammu (for short “the Tribunal”) in an appeal titled as “Gurmeet Singh Vs Building Operation Controlling Authority and another.”

2. The facts giving rise to the filing of the instant appeal reveal that the respondent 1 herein came to be granted a building permission by the BOCA for raising construction of 05 number of shops in the ground floor and a residential house at first floor vide permission No. 202/BS/04 dated 30.09.2004 and that the Khilafwarzi Officer of the area on 19.03.2005 reported that the respondent 1 herein has raised construction against the approved plan resulting into issuance of show cause notice under Section 7(1) of the Control of Building Operations Act, 1988 (for short “the Act of 1988”) dated 22.03.2005, followed by notice issued under Section 12(1) of the Act of 1988 to the respondent 1 herein dated 22.03.2005 calling upon him to discontinue the construction, whereafter upon an inspection conducted on site by the Khilafwarzi Inspector it came to be found that the respondent 1 has raised the construction of a Shopping Complex with a big hall on the basement unauthorizedly without any permission on a built up area of 4933 sqft, instead of sanctioned area of 1766 sqft., as a consequence whereof demolition notice under Section 7(3) of the Act of 1988 vide No. MJ/Estt/102/3/CKO/2005 dated 31.05.2005 came to be issued calling upon the respondent to demolish the said unauthorized construction, whereafter aggrieved of the demolition notice dated 31.05.2005, the respondent 1 preferred an appeal before the Tribunal, wherein an interim order came to be passed on 03.06.2005 staying the said demolition notice with a direction to the BOCA not to interfere in the construction work of the petitioner/respondent herein, whereupon an application for vacation of the said interim order came to be filed by the petitioner herein, which application was not considered and instead matter came to be adjourned by the Tribunal compelling the petitioner herein to file a writ petition being OWP No.400/2005 before this Court, which petition came to be disposed of on 07.07.2005 with a direction to the Tribunal to decide the appeal of the respondent 1 herein within a period of fifteen days while directing the parties to maintain status-quo regarding the construction in question, whereafter the Tribunal after the passing of the aforesaid order by this Court dated 07.07.2005 decided the appeal of the respondent 1 herein in terms of the impugned order dated 29.08.2005 and compounded the violations committed by the respondent 1 herein qua the construction in question.

3. The petitioner herein has challenged the impugned order in the instant petition, inter-alia, on the ground that the same has been passed against the facts and law, inasmuch as, having been passed without jurisdiction, and having resulted into failure of justice.

4. Counter affidavit to the petition has been filed by the respondent 1 herein, wherein the instant petition is being opposed and resisted on the premise that the petitioner herein is estopped from challenging the order of the Tribunal, in that, the answering respondent 1 herein deposited the compounding fee as directed by the Tribunal before the petitioner herein, which amount stands received by the petitioner herein and that the impugned order has been challenged after more than a period of three months’ and that the Tribunal passed a speaking and reasoned order well within its jurisdiction and powers admitting the fact that answering respondent 1 herein came to be granted initially a permission on 30.09.2004 whereafter, however, the answering respondent 1 herein submitted a revised plan on 17.12.2004 before the petiti