JUDGMENT :

WASIM SADIQ NARGAL, J.

1. Through the medium of the instant petition filed under Article 226 of the Constitution of India, the petitioner has called in question the order dated 11.12.2013, whereby the respondent No. 2-J&K Special Tribunal (hereinafter referred to as "learned Tribunal") has set aside notice of demolition issued vide No. MJ/CEO/38/3/2012 dated 22.10.2012.

2. The brief facts of the case are that the Khilafwarzi Inspector of the area reported on 28.09.2012 that one Sh. Kewal Krishan Gupta S/o Jamit Raj Gupta has started the construction of compound wall towards the road side by encroaching upon the public land without seeking any building permission. Thereafter the said Khilafwarzi Inspector issued show cause notice as well as notice dated 29.09.2012 under section 7(1) of J&K Control of Building Operation Act 1988 to discontinue the construction which were served upon to the said Kewal Krishan Gupta. The respondent No. 1 replied to the said show cause notice on 17.10.2012, wherein he has submitted that the boundary wall over the strip is being raised by him and not by Kewal Krishan Gupta. Thereafter the show cause notice dated 11.10.2012 as well as the notice to discontinue the construction were served upon respondent No. 1, whose reply to the show cause notice was not convincing, thereafter notice dated 22.10.2012 directing for demolition of the unauthorized construction was served upon said respondent No. 1.

3. It is pertinent to mention here that respondent No. 1 had filed a civil suit before the learned 1^st Civil Subordinate Judge, Jammu, the learned Court vide order dated 24.09.2012, temporarily restrained the petitioner from causing any interference over the suit land without adopting due course of law. Thereafter, respondent No. 1 filed an appeal against the order of demolition dated 22.10.2012 before the learned Tribunal-respondent No. 2 and the petitioner had also filed their objection. The learned Tribunal without taking into consideration the objection and the record of the petitioner, set aside the demolition order vide order dated 11.12.2013, which is impugned in the present petition.

4. Record reveals that the instant matter is pending before this Court since 2014 and the respondents have already been set ex-parte vide order dated 11.11.2024 and even today, none has appeared on behalf of the respondents.

5. Through the medium of the instant petition, the petitioner has called in question the order dated 11.12.2013 and the only ground which has been canvassed by learned counsel for the petitioner is that the learned Tribunal while deciding the appeal has not redressed the issue of construction of the boundary wall which was being raised without permission.

6. It has been vehemently argued by learned counsel for the petitioner that while not deciding the aforesaid question, the learned Tribunal has practically regularized the construction of the boundary wall raised without permission. Thus, the order impugned to that extent is illegal and has caused failure of justice and is liable to be set aside.

7. It has also been urged by learned counsel for the petitioner that respondent No. 1 had constructed the boundary wall without obtaining any permission from the concerned authority and this was the precise reason that the action was taken by the petitioner against the illegal erection. Thus, according to learned counsel for the petitioner, it was incumbent on part of the learned Tribunal to have recorded the finding on the issue raised in the appeal but the learned Tribunal has decided the appeal without taking into consideration the aforesaid aspect of the matter and has passed the order in a hush-hush manner, which is not sustainable in the eyes of law and is liable to be set aside.

8. In addition, it has also been urged by the learned counsel that the strip of land in question of the Government/Jammu Development Authority land was not in possession of respondent No. 1 but respondent No. 1 deliberately