JAMMU, May 31: There are questions on Patnitiop Development Authority for causing harassment to hundred of innocents, who wanted to construct their buildings in jurisdiction of PDA for development of the area being top tourist place in Jammu region but not revising its Master Plan & using Bye Laws of Master Plan of 2000, which is in violation of development Act of 1970?
After publications of Cross Town News, then Secretary Sarmad Hafiz vide Govt order no. 134-JK(TSM) of 2022 dtd 03.11.2022 constituted a committee to submit a report on Revised Master Plan of PDA but till day despite lapse of 18 months the issue is hanging in fire, needed to be acted with iron hands on committee members for non compliance of govt Order.
However, PDA allowed new constructions, big renovations with out building permissions causing loss to Govt by way of Building Permission fee on the fault of such kind of officers & a big construction was never stopped by PDA being on road side, which was being taken up near PDA's office but after a viral video , PDA was constrained to issue various notice to save their skin as an eye wash including demolition notice.
However, Member Special Tribunal Jammu Asif Hamid Khan has quashed the demolition order issued under Section 7(3) of Control of Building Operations Act, 1988 to Aeroplane restaurant at Kud.
It was submitted that decommissioned Aeroplane once said to be flying from Delhi to London, which landed in pieces on agricultural land situated at Tamatar Morh in Kud, was purchased as scrap by appellant, who then assembled it at the site for commercial use.
The appellant submitted application for building permission but the Town Planner vide his letter dated 08.12.2022 declined to issue NOC as the site in question is located under approved “Agriculture” land use in the Master Plan in vogue where proposed construction is not permissible.
Record produced by respondent authority shows that on 08.02.2023, the then Chief Executive Officer, Patnitop Development Authority forwarded to the Deputy Commissioner, Udhampur (Chairperson BOCA, Patnitop) Application No. 10010301202320136504 submitted by appellant and the other co-sharer of land in question measuring 06 Kanals, for change of land use from agriculture to commercial purpose.
After hearing , the Special Tribunal observed, “Sub-section (1) of Section 7 of the Act makes a provision for issuing a show-cause notice by the authority in respect of erection and re-erection of any building without the permission or in contravention of any condition subject to which any permission has been granted. Sub-section (3) of Section 7 provides for issuance of demolition order in case concerned person fails to submit reply to show-cause notice or authority is satisfied that such construction is being raised without permission or in contravention of the permission.
Thus, the authority under Sub Section 1 of Section 7 has to indicate the nature of the violation in the show cause notice.
The purpose behind the provision is to provide an opportunity to concerned person to explain alleged violation.
Tribunal added that order of demolition, therefore, cannot be passed and never indicated in show-cause notice and for which no opportunity was given to concerned person.
It further added that it is settled principle of law that unless the foundation of the case is made out in the show cause notice, the party cannot be allowed to argue the point not raised therein.
The impugned order is found to be suffering from illegality and incurable defect, there being no proof to establish the valid service of the show cause notice on the appellant, rendering the subsequent statutory proceedings including the impugned order to be illegal & Tribunal set aside the demolition order.
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