Merely Affixing Notice On Outer Building Not Substantial Compliance With Service Unless Credible Evidence Shown: J&K High Court

In allowing the plea, a single bench of Justice Javed Iqbal Wani held:

"No doubt Section 7(2) provides the mode of service of notice upon the violator by affixing the same on the outer door of some conspicuous part of the unauthorizedly raised building providing that such affixing of notice would be deemed to have been duly served upon the violator, yet mere affixing of notice on the outer conspicuous part of the building cannot said to be substantial compliance of the actual service of notice and thus the theory of communication of such a notice cannot, in law, be invoked unless it is by credible evidence shown that the notice was actually affixed at site."

The Court made these observations while hearing a plea challenging an order passed by the J&K Special Tribunal, Jammu, dismissing the appeal of the petitioners against a demolition notice issued by the Jammu Municipal Corporation.

In the present case, the petitioners claimed to have constructed a building known as "Satyam Resorts" in the year 2000-01 for organising social functions. The construction was carried out after obtaining the necessary permission from the Block Development Officer, Parmandal.

The dispute arose when after a considerable period of operation, the Jammu Municipal Corporation issued a demolition notice under Section 7(3) of the J&K Control of Building Operations Act, 1988.

Aggrieved by the same the petitioners challenged the notice before the J&K Special Tribunal, which dismissed their plea.

In challenging the dismissal order, the petitioners argued that they had not received a show cause notice in terms of Sec 7(1) of the Act before service of the demolition notice and that the alleged construction was merely renovation and repairs.

On the other hand, Mr. S. S. Nanda, Sr. AAG representing the respondents contended that the construction violated the building's Master Plan and that the violations were major and non-compoundable.

After scrutinizing the Tribunal's impugned order, the bench observed that it had based its conclusion on service of the notice solely on the report of the process server, who had stated his inability to serve the notice due to which he resorted to affixing it on the premises in the absence of any witnesses. 

The court rejected the conclusion reached by the Tribunal stating that such a conclusion was prima facie factually misconceived.

It held that first, there was no submission or pleading by the Corporation before the Tribunal indicating that the gates of the premises were closed while construction work was ongoing inside, and secondly that no corresponding report had been provided by the process server who claimed to have affixed the aforementioned notices.

Highlighting a manifest breach in the procedure for service of notice under Section 7(1) of the Act, Justice Wani emphasized that affixing a notice on the outer door of a building does not constitute substantial compliance unless credible evidence shows it was affixed at the site.

Referencing Building Operation Controlling Authority Vs Koushalya Devi and others (2017) the bench reiterated that an endorsement of pasting of the notice on the wall as per the report of the process server without the endorsement of an independent witness cannot be said to be proved, especially when the service is disputed.

Underscoring the importance of natural justice, Justice Wani cited the principles of Audi Alteram Partem and held that the petitioners were deprived of their right to present their defence due to the inadequate service of notice.

Accordingly, the court set aside the impugned order and the demolition notice. However, the Municipal Corporation was given the liberty to proceed against the petitioners afresh in accordance with law.

Case Title: Subash Choudhary Vs J&K Special Tribunal Jammu

Citation: 2023 LiveLaw (JKL) 306

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