Jammu & Kashmir High Court
Building Operation Controlling ... vs Vijay Kumar And Another on 16 March, 2022
Author: Chief Justice
Bench: Chief Justice
Sr. No. 4
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
CJ Court
Case: OWP No. 959 of 2012
Building Operation Controlling Authority .....Appellant/Petitioner(s)
Through :- Sh. Harshwardhan Gupta, Advocate
v/s
Vijay Kumar and another .....Respondent(s)
Through :- Sh. Achal Sharma, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLEMRS. JUSTICE SINDHU SHARMA, JUDGE
ORDER
16.03.2022
01. Heard Sh. Harshwardhan Gupta, learned counsel for the petitioner and Sh. Achal Sharma, learned counsel for the respondents.
02. The petitioner-Building Operation Controlling Authority, Municipal Area, Jammu through the Municipal Commissioner has preferred this writ petition assailing the judgment and order dated 25.05.2012 passed by the J&K Special Tribunal, Jammu, allowing the appeal of the respondent-Vijay Kumar filed under Section 13 of the Jammu and Kashmir Building Operation Controlling Authority Act, 1988 (hereinafter referred to as 'the Act') whereby the demolition order/notice dated 05.11.2009 has been set aside and directions have been issued for compounding the alleged un-authorized constructions on payment of ₹30/- per square feet.
03. The dispute of un-authorized construction relates to house No. 3-A/B Gandhi Nagar, Jammu. Respondent No. 1 applied for the sanction of a building plan to Jammu Municipal Corporation (JMC), Jammu. The permission was granted on 08.08.2008. Respondent No. 1 was permitted to cover 2451 sq. ft. 2 OWP No. 959 of 2012 on the ground floor, 955 sq.ft. at the first floor and 794 sq. ft. at the second floor. In addition to the above, respondent No. 1 was required to leave the necessary side setbacks.
04. When respondent No. 1 started raising constructions, the Enforcement Officer submitted a report that he is raising un-authorized constructions. Accordingly, a notice under Section 7(1) of the Act dated 27.10.2009 was issued and served upon the respondent No. 1. The notice clearly stated that the respondent No. 1 has exceeded the covered area and that it has been reported that the property is likely to be put to commercial use instead of residential, as large size halls have been constructed without making rooms, bath rooms and other amenities like kitchen, store etc.
05. Respondent No. 1 replied to the notice and contended that he is raising the construction as per the sanctioned plan only.
06. Upon consideration of the response of respondent No.1, the petitioner passed the order of demolition/notice dated 05.11.2009 in exercise of powers under Section 7 (3) of the Act. The aforesaid order was challenged in appeal which has been allowed holding that respondent No. 1 has exceeded the covered area by raising construction of about 2358 sq. ft instead of 955 sq. ft. on the first floor and 1485 sq. ft. instead of 794 sq. ft. on the second floor. The Tribunal further held that as the aforesaid violation is not more than 10% of the permissible coverage area, the un-authorized constructions can be compounded. Accordingly, the demolition order was set aside with direction to compound the construction.
07. In challenging the above order, the basic submission of Sh. Harshwardhan Gupta, learned counsel for the petitioner is that only constructions of minor nature not exceeding 10% of the permissible coverage 3 OWP No. 959 of 2012 area are liable to be compounded but any construction which violates the permissible front, rear or side setbacks prescribed under the bye-laws are in the nature of major constructions and cannot be compounded. Respondent No. 1 has not left any side setbacks and, as such, the Tribunal has erred in directing for compounding of the entire constructions.
08. Regulation 11 framed under the COBO Act provides that the appellate authority may compound an offence of a minor nature as specified under Sub- clause (2) of the Regulations but not those that violate the permissible front, rear or side setbacks prescribed under the bye-laws.
09. Respondent No. 1 has admittedly, in addition to raising construction in excess of the covered area for which permission has been granted on all the three floors, has failed to leave 10 feet of space as a side setback. The Tribunal held that respondent No. 1 has not kept the side setback and that the owners of other adjoining buildings have also not left any side setbacks, therefore, no injury is caused to anyone.
10. In view of the above findings, it is clear that respondent No. 1 has not kept any side setback of 10 feet as prescribed in raising the above construction and that the Tribunal has brushed aside the aforesaid objection on the ground that since the other persons have also not left any side setback, it will not cause any injury and, as such, would not be material.
11. The question is not of any violation committed by the other persons or the neighbourers but regarding the violation by the respondent No. 1 in raising the building without leaving the mandatory side setbacks.
12. It is not disputed that under the bye-laws it is mandatory to leave 10 feet wide side setback in raising any construction as per the sanctioned plan. 4 OWP No. 959 of 2012
13. The Apex Court in 'Dipak Kumar Mukherjee v. Kolkota Municipal Corporation and Others, AIR 2013 SC 927', while dealing with a similar issue regarding raising of construction in violation of the sanctioned building plan held that such un-authorized constructions of building not only distroys the concept of a building plan but also places unbearable burden on basic civil amenities provided by the public authorities and constructions of such a nature are hazardous for public. It is, therefore, imperative to demolish such construction and to impose adequate penalty on the wrongdoer.
14. In 'Priyanka Estates International (P) Limited and Others v. State of Assam, (2010) 2 SCC 27,' the Hon'ble Supreme Court has very clearly laid down that un-lawful constructions are against public interest and hazardous to safety of occupiers and residents and, if constructions are in absolute violation of sanctioned or approved plan, the demolition is the necessary consequence and the courts should not approve of such illegal activities.
15. In'M/s. Royal Paradise Hotel (P) Limited v. State of Haryana and Others, (2006) 7 SCC 597,' the Apex Court observed that defiance of law should not be rewarded. In the said case, the predecessor-in-interest of the petitioner had raised construction in defiance of statutory provisions. The subsequent purchaser sought compounding and condoning of the violations. The Court held that such permission has to be rejected as compounding of un- authorized constructions raised in violation of the provisions of the Act and the sanctioned plan, distroys the concept of town planning.
16. In regard to regularization of un-authorized constructions on the ground of equity, the Supreme Court in 'Esha Ekta Apartments Cooperative Societies Limited and Another v. Municipal Corporation Mumbai, (2013) 5 SCC 357,' 5 OWP No. 959 of 2012 held that claim of regularization on the ground of equity is not permissible when the constructions are in violation of the statutory provisions.
17. In view of all what has been said above, any construction raised by respondent No. 1 without leaving side setbacks is a major violation and is beyond permissible limits laid down for compounding.
18. At this stage, learned counsel for respondent No.1 pointed out that he has moved an application dated 08.03.2022 alleging that the ground floor portion of the building was in existence much before the Jammu Municipal Corporation came into existence for which no action was ever taken even on the establishment of the Corporation. The petitioner had only taken permission for the construction of first and second floors. Therefore, any violation which may have been committed earlier would not attract any order of demolition. The ground floor is in existence for more than 60 years and that the sanction order dated 08.08.2009 itself mentions that the ground floor is in existence, meaning thereby that there is no violation of the sanctioned building plan or of the bye-laws after the establishment of the JMC in relation to side setbacks.
19. The aforesaid averment has come on record by means of an application dated 08.03.2022. The petitioner had no opportunity to controvert the said allegations. Moreover, the said allegation is purely factual in nature and cannot be ascertained in exercise of discretionary jurisdiction. Its adjudication whether the ground floor portion was in existence prior to the establishment of JMC or that the constructions made without leaving the side setbacks were subsequent depends upon the evidence of the parties.
20. In view of the aforesaid facts and circumstances, we are satisfied that as raising of construction without leaving the side setbacks are major in nature and beyond compounding, the impugned judgment and order of the Tribunal 6 OWP No. 959 of 2012 dated 25.05.2012 is unsustainable and is quashed. However, as the matter with regard to the existence of the ground floor portion, without leaving side setbacks from the date prior to the establishment of the JMC is required to be adjudicated upon on the basis of the evidence of the parties, we remand the matter to the Tribunal to decide the said issue only, if necessary, after allowing the parties to adduce evidence on it, most expeditiously preferably, within a period of four months from the date a copy of this order is produced before it.
21. The writ petition is disposed of as such.
(SINDHU SHARMA) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
JAMMU
16.03.2022
Tilak
Whether the order is speaking ? : Yes/No.
Whether the order is reportable? : Yes/No.