Jammu & Kashmir High Court
Kewal Krishan Gupta vs J And K Special Tribunal And Ors. on 12 November, 2003
Equivalent citations: 2004(2)JKJ443
JUDGMENT
V.K. Jhanji, A.C.J.
1. Appellant applied to Jammu Municipality for making a residential house with 2274 sq. ft. on the ground floor and 1390 sq. ft on the first floor. The total sanctioned area was 3664 sq. ft. The sanction was accorded by presuming that the appellant had the title on the land for which he applied for raising residential building. Instead of constructing a residential house, the appellant constructed a huge commercial complex on the spot in total violation of the sanctioned plan. In addition to the ground floor and first floor, appellant also constructed a mezzanine floor, and the huge commercial complex was raised on a very important crossing on the National Highway of Jammu. When the Municipal Authorities took action to demolish the unauthorized construction, appellant took the matter to the appellate authority i.e. J&K Special Tribunal, Jammu.
2. Before the Tribunal it was submitted by the appellant that the Jammu Municipality in its report has mentioned that the excess floor coverage is 7806 sq. ft, whereas in reality 2000 sq. ft. was of an old construction which was purchased by the appellant a few years back. On the other hand, the Jammu Municipality pointed out that the entire old construction, whatever was existing on the spot, was demolished and in its place a huge commercial complex has been constructed by the appellant, and in reality the excess covered area is 11470 sq. ft. Since the Jammu Municipality has sanctioned 3664 sq. ft. only for residential purposes and not for commercial purposes, the Tribunal recorded a firm finding of fact that the appellant had constructed a commercial complex and the violation was to the extent of 11470 sq. ft. The Tribunal accordingly dismissed the appeal. However, looking at the past conduct of the Jammu Municipality in not demolishing the unauthorized constructions, though orders in this regard may have been upheld by the Court, the Tribunal observed that in case the Municipality is unable to demolish the structure by 27.3.1998, then it would be presumed that the Jammu Municipality has neither the will nor inclination to take action against law breaker. The Tribunal further observed that in such a situation the Jammu Municipality should compound the offence after admitting its inability to demolish the structure. It also fixed a fee at the rate of Rs. 80/- per sq. ft. for the compound of offence.
3. Being aggrieved of the order of Tribunal, appellant filed OWP No. 458/98. The learned Single Judge vide impugned order dated 30.5.2000 has dismissed the writ petition. The finding of the Tribunal, whereby it had permitted the Jammu Municipality to compound the unauthorized construction, has been set aside. The view taken by the learned Single Judge is that the Municipality is an institution meant for public purpose and if the institution is not working according to law, it is the duty of Court to gear up the institution and to seek observance of law.
4. We are in full agreement with the observations made by the learned Single Judge. The appellant, who sought permission to raise residential building for covering area of 3664 sq. ft, instead of doing so, raised a huge commercial complex on the important crossing of National Highway of Jammu without having regard to the laws on the subject. The Tribunal directed the appellant to place on record the title deed of the land, on which he had raised the construction, but the appellant did not produce the same. The conduct of the appellant, firstly in not producing the title deed and secondly raising construction in excess to the extent of 11470 sq. ft. and converting the land use from residential to commercial, clearly shows that the land on which the complex has been raised, does not belong to him but is a State land. He has no regard for the law as well. This being the case, we do not find that it is a case where any interference is called for in this appeal.
5. Further, having regard to the observation of the Tribunal that Municipality has no will or inclination to take action against law breakers, we direct the Jammu Municipality (now Corporation) to take immediate action for demolishing the unauthorized construction, and report in this regard shall be placed before the Registrar (Judicial) within three months from today, failing which this Court would be constrained to take action against the concerned official, who may be found to be lacking in will in carrying out the direction given herein. Registrar (Judicial) shall list the matter only for this limited purpose on the expiry of three months.
In view of the above, this appeal being without merit is, accordingly, dismissed.