J&K COBA 1988 | Authorities Cannot Exceed Grounds Specified In Show Cause Notice When Taking Action Against An Individual: High Court

“.. the grounds upon which the action is to be taken against the person, the same are required to be mentioned in the show cause notice and the authorities cannot transgress boundaries of the show cause notice”, Justice Wasim Sadiq Nargal observed.

These observations came in a dispute which arose when the Building Operation Controlling Authority (BOCA) of the Jammu Municipal Corporation (JMC) accused Renu Gupta, a resident of Greater Kailash, Jammu, of unauthorized construction. Gupta had been granted permission in 2011 to construct a ground floor and first floor, adhering to specific conditions regarding setbacks and height.

However, BOCA alleged that Gupta exceeded permissible construction limits by building an unauthorized second floor, encroaching upon setback areas, and violating the approved height restriction. The first notice issued on December 28, 2011, under Section 7(1) of the J&K Control of Building Operations Act, 1988 (COBOA), alleged unauthorized construction on the second floor. Subsequently, on January 21, 2012, BOCA issued a demolition order under Section 7(3), expanding the allegations to include violations on the ground and first floors.

Gupta challenged the demolition order before the J&K Special Tribunal, which quashed it, citing procedural defects and a violation of natural justice. BOCA then approached the High Court, contesting the Tribunal's decision.

BOCA contended that Gupta had committed substantial violations, including exceeding permissible ground coverage by 21% on the ground floor and 16.3% on the first floor, and constructing the second floor without authorization. The authority argued that these infractions were major and non-compoundable under COBOA regulations, warranting immediate demolition to protect planned urban development. BOCA asserted that the Tribunal erred by ignoring the seriousness of the violations.

Per contra, Gupta argued that the demolition order under Section 7(3) introduced new allegations not mentioned in the initial notice under Section 7(1). She asserted that this violated her right to a fair hearing, as she was not afforded an opportunity to respond to the expanded allegations. Gupta maintained that any alterations made to the approved plan were minor and necessitated by on-site practical challenges, with no impact on public interest or zoning regulations.

Court Observations:

After considering the rival contentions Justice Nargal began by emphasizing the necessity of adherence to procedural safeguards enshrined in COBOA, particularly the requirement that actions must strictly align with the grounds mentioned in the show cause notice. The Court highlighted that the grounds upon which the action is to be taken against the person, the same are required to be mentioned in the show cause notice, and the authorities cannot transgress boundaries of the show cause notice.

Upon reviewing the facts, the Court noted that the show cause notice under Section 7(1) alleged unauthorized construction on the second floor but did not reference any violations on the ground or first floors. However, the subsequent demolition order under Section 7(3) expanded the scope to include deviations on the ground and first floors, as well as setback violations. The Court found this procedural irregularity to be a clear violation of natural justice, as Gupta was not given an opportunity to address these additional allegations.

The Court observed that Section 7(1) requires authorities to issue a notice detailing alleged violations, giving the concerned party a chance to respond before any punitive action is taken under Section 7(3). By including new allegations in the final demolition order, BOCA violated this statutory mandate and undermined the respondent's right to a fair hearing.

The Court further highlighted that the Tribunal had correctly quashed the demolition order on these grounds, emphasizing that procedural safeguards are essential in administrative actions affecting property rights.

In order to fortify it view Justice Nargal cited the judgment of the Madras High Court in R. Ramadas v. Joint Commissioner of C. Ex. Puducherry (2021), which underscored that show cause notices must be specific and aligned with subsequent orders. The Court reproduced key observations from the judgment, including:

“It is a settled proposition of law that a show cause notice is the foundation on which the demand is passed and therefore, it should not only be specific and must give full details regarding the proposal of demand, but the demand itself must be in conformity with the proposals made in the show cause notice and should not traverse beyond such proposals.”, the court recorded.

The Court also referred to the Supreme Court's ruling in State of Punjab v. Davinder Pal Singh Bhullar & Ors. (2011), which held that illegality in initial actions invalidates all subsequent proceedings.

“It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact-situation , the legal maxim “sublatofundamentocaditopus” meaning thereby that foundation being removed, all structure / work falls, comes into play and applies on all scores in the present case.” the court reiterated.

Concluding that the demolition order issued by BOCA under Section 7(3) was procedurally defective, as it went beyond the allegations specified in the show cause notice under Section 7(1) Justice Nargal observed that such actions not only contravened statutory provisions but also violated principles of natural justice.

In view of these observations the court upheld the Tribunal's decision and thus dismissed the writ petition.

Case Title: Building Operation Controlling Authority Vs Renu Gupta

Citation :2024 LiveLaw (JKL) 337

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