BOCA Act | S.15 Confers Finality To Tribunal Orders, Invoking Extraordinary Jurisdiction Directly Conflicts With The Same: J&K High Court

A bench of Justice Javed Iqbal Wani observed that since finality had been attached to an order made by an Authority or an appellate officer appointed by the Government for hearing appeal(s) under section 13 of the Act of 1988, filing of a petition while invoking extraordinary writ jurisdiction by the petitioners runs in direct conflict with section 15 of the Act of 1988.

These observations came in a case revolving around a construction raised by the respondent at Ambedkar Chowk Jammu.

The Petitioner Jammu Municipal Corporation (JMC) alleged that the construction violated the building bylaws and issued a demolition order against the respondent. Aggrieved by this order, the respondent appealed to the Special Tribunal, a quasi-judicial body established under the BOCA Act to adjudicate matters related to building construction and violations.

After hearing the parties the tribunal concluded that there had been no violation committed by the respondent and since the construction had been raised and completed within the full knowledge of the petitioners, the Tribunal had consequently ordered compounding of the violations for 1897 square feet at the rate of Rs.100/-per sft.

Contesting the plea the respondents contended that the petitioners were well aware of the completed construction and challenged the legitimacy of the notice and demolition order issued under the Act of 1988.

Furthermore, the respondents highlighted a significant inconsistency in the petitioner's stance since on the one hand they had opted to contest the order of the Tribunal but on the other hand, they had also accepted the compounding fee directed by the Tribunal.

In addition, the respondent also stressed that the petitioners had submitted factually incorrect measurements of alleged violations during construction and this discrepancy had cast doubts on the accuracy of the petitioners' claims and the basis for initiating demolition proceedings.

Critically examining the timeline of events Justice Wani noted that the petitioners initiated proceedings after the respondent had nearly completed construction and highlighted the lack of specificity in the show-cause notice and demolition order.

The court further recorded that the petitioner JMC,  in its show-cause-notice as well as the demolition order had not anywhere indicated or spelt out which of the zoning regulations were contravened by the respondents which in turn had "seriously affected the planned development of the Jammu city."

“Instead vague and bald assertion in this regard had been incorporated in the said notice and demolition order and so much so the petitioners herein failed to substantiate the said allegations against the respondent 1 herein before the Tribunal as well while opposing the appeal filed by respondent 1 herein before the Tribunal”, the court remarked.

Highlighting Section 15 of the BOCA Act the bench observed that the said provision has been incorporated in the Act to confer finality on orders made by an Authority or an appellate officer. In essence, Section 15 served as a safeguard against the protraction of legal battles, emphasizing the conclusive nature of decisions made within the framework of the Act, the court reasoned.

In view of the said observations and the disputed questions of fact that existed in the matter Justice Wani observed,

“Thus the filing of the instant petition while invoking extraordinary writ jurisdiction by the petitioners runs in direct conflict with section 15 of the Act of 1988 supra that too in a matter involving disputed questions of fact inasmuch as to re-appreciation of the material and evidence available before the appellate authority which exercised powers under the Act of 1988 more so in absence of any perversity alleged by the petitioners herein against the impugned order”.

Accordingly, the petition was dismissed.

Case Title: Building Operation Controlling Authority Vs Vikas Gupta

Citation: 2023 LiveLaw (JKL) 302

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