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Submission of Documents in Support of Claim Necessary for Consideration: High Court of Jammu & Kashmir and Ladakh

The necessity of service of shortfall or stop work notice, under Section 452 of the Code of Criminal Procedure, 1973, was considered in an Order by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH, before a bench consisting of Hon’ble Justice Mr. Cheekati Manavendranath Roy, in the WRIT PETITION No.643 OF 2022, on 21.01.22.

The Order in the present case was made following a writ petition for a Mandamus filed to declare the action of respondents 2 and 3 in making an attempt to stop the construction work being carried on by the petitioner as per the building permit dated 05.11.2021, as illegal, arbitrary and violative of principles of natural justice and consequently sought direction to the respondents not to interfere with the construction of the building.

The petitioner claimed to be the absolute owner of the house bearing Door No.21-47-4/2 to an extent of 106 Sq. yards in Sy.No.43/2A1 of Dallivanipalem, Zone-6, Pedagantyada Mandal in Visakhapatnam District. It was asserted that she had applied for building permission to construct a house and accordingly building permission dated 05.11.2021 was accorded to her and that she had been proceeding with the construction of the building as per the said building permission. The stated grievance was that while the said construction work was going on, the respondents had been abruptly making efforts to stop the construction work without issuing any notice to her and without following due process of law. Therefore, she is before this Court by way of filing this writ petition seeking the aforesaid relief. It was also submitted that no shortfall notice or stop work order was served on the petitioner personally; and further that a notice under Section 452 of the Code of Criminal Procedure, 1973, is required to be given if at all there is any violation of building permission and without resorting to the said due process of law, the respondents are not justified in stopping the construction work of the petitioner.

The respondents 2 and 3 submitted that only on-line building permission was granted and during the post verification, that it came to light that the petitioner has been encroaching on to the open space of the layout without any title to the said property and as such, shortfall notice was issued on 04.01.2022 along with stop work order which was served on licenced technical person of the petitioner, who applied for building permission. Therefore, it was duly submitted that the petitioner was not entitled to the relief claimed in the writ petition. It was additionally averred that according to the Municipal Corporation, during the post verification, it was found that the petitioner has been encroaching on to the open site of the approved plan without any title to the said property.

The High Court of Jammu & Kashmir and Ladakh, held that in the said facts and circumstances of the case, the Writ Petition is disposed of with a direction to the petitioner to submit her explanation to the shortfall notice issued to her within two weeks from the date of this order along with documents in support of her claim. The respondent-authorities were mandated to consider the said explanation and thereafter pass appropriate orders according to law within two weeks from the date of receiving the explanation from the petitioner. Till such time, the respondent-authorities were prohibited from interfering with the construction.

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Order reviewed by Bhargavi

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