Jammu & Kashmir High Court
Building Operation Controlling vs Sudesh Khajuria S/O Sh. Lok Nath on 12 December, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Serial No. 2
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OW104/32/2012
Building Operation Controlling .....Appellant(s)/Petitioner(s)
Authority.
Through: Mr. Harshwardan Gupta, Advocate
vs
1. Sudesh Khajuria S/o Sh. Lok Nath ..... Respondent(s)
Khajuria R/o New Plot, Jammu.
2. J&K Special Tribunal Jammu.
Through: Mr. Sunil Sethi, Sr. Advocate with Mr. Parimoksh Seth, Advocate Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE JUDGDMENT (ORAL) 12.12.2024
1. The instant petition has been filed by the Building Operation Controlling Authority, Jammu (for short BOCA), against order dated 24.08.2012 (for short the impugned order) passed by the J&K Special Tribunal, Jammu respondent 2 herein while invoking the provisions of Articles 226 and 227 of the Constitution of India (previously Sections 103 and 104 of the Constitution of J&K).
2. The facts emanating from the record would reveal that the respondent herein intended to raise construction of a residential-cum-commercial complex and for the said purpose had applied to BOCA for grant of permission somewhere in the year 2009, whereupon the BOCA in terms of order No. 1914/BS/2009 dated 21.11.2009 granted permission in favour of the respondent herein as follows:
OW104/32/2012 2
a) Building norms to be followed while construction:
i) .....
ii) ......
iii) ......
iv) ......
v) Construction of Basement floor
with height 8"-0" upto Slab -855 Sft.
vi) Construction of the plinth for
Residential Block -2180 Sft.
b) After construction of structure as per conditions at (a) the
applicant shall get the same inspected to check the violation if any, so as to consider the stage 2nd construction with construction of commercial hall over basement and superstructure of G.F for residential use.
c) Accordingly stage 3rd construction of 1st floor & 2nd floors shall be granted by the Jammu Municipal Corporation.
d) The applicant has submitted the affidavit No. L454837 dated 19.11.2009, stating that he will construct the building as per the approved building plans of BOCA/JMC and will not violate the use of building. In case of any violation Jammu Municipal Corporation shall have every right to demolish the violated portion of the construction.
3. After commencing construction pursuant to permission dated 21.11.2009, the respondent 1 herein came to be served with a notice bearing No. MJ/CEO/47/1/2012 dated 15.02.2012 by the „BOCA under Section 7(1) of J&K Building Operation Controlling Authority BOCA (for short "the Act") providing therein that as per the report of the Khalifwarzi Inspector dated 13.02.2012, unauthorized construction with the violation of erecting 14 Nos. of RCC pillars was in progress against approved plan, requiring the respondent 1 herein to show cause within period 48 hrs from the date of the service of the notice as to why violation be not demolished.
4. The aforesaid notice dated 15.02.2012 was also followed by a simultaneous notice issued by the BOCA against the respondent 1 herein dated 15.02.2012 under in terms of provisions Section 12 (1) of the Act of OW104/32/2012 3 1988 calling upon respondent 1 herein to discontinue with the construction in question.
5. The respondent 1 herein responded to the aforesaid notice by filing the written reply, stating therein that there has been no violation committed in raising the construction, as such, the notice/s be withdrawn in response whereof, the BOCA issued a demolition order No.MJ/CEO 47/3/2011 dated 16.03.2012 detailing out the violation alleged to have been committed by the respondent 1 in raising the construction in question and directed the respondent 1 herein to demolish the said construction within a period of 5 days from the date of service of the notice.
6. Aggrieved of the said demolish order dated 16.03.2012, the respondent 1 herein preferred a statutory appeal against the order of demolition dated 16.03.2012, before the respondent 2 herein on 26th of March 2012 in which appeal, the respondent 2 herein passed an order on 26.03.2012, after hearing the preliminary arguments of the appearing counsels for the parties being the petitioner herein and respondent herein 1 herein observing therein that since the construction is at initial stage of columns, the appellant respondent 1 herein has not committed any violation of sanctioned plan and allowed the appellant respondent herein 1 to raise structure strictly as per building permission granted to him and also directed the respondent therein being the petitioner herein to furnish the record of the case on the next date.
7. Subsequent to the passing of the aforesaid order dated 26.03.2012 by the, respondent 2 herein, the appeal came to be finally decided in terms of OW104/32/2012 4 impugned order dated 24.08.2012 and while taking cognizance of the case set up by the appellant, respondent 1 herein as also the respondent, petitioner herein, inasmuch as the reports/records submitted by the respondent petitioner herein, allowed the said appeal, regularised the violations taken cognizance of and directed the appellant respondent 1 herein to pay a compounding fee for the violations committed in the raising the construction in question and deposit the same within three months before the respondent petitioner herein.
8. The petitioner herein has challenged the impugned order passed by respondent 2 herein in the instant petition preliminary on the grounds That the order impugned dated 24.08.2012 of the respondent no. 2 is against facts and all cannons of Law. It is not sustainable and is required to be set aside. That clause 10 and 11 of J&K Control of Building Operation Regulation 1998 provide guidelines of appeal and compounding of construction raised unauthorised. These clauses are quoted for ready reference:-
9. Reply to the petition has been filed by the respondent 1 herein wherein the petition is being opposed inter-alia on the premise that the Tribunal being the final arbiter in the matter of question of fact has decided the appeal upon conclusion of the enquiry conducted on such question of facts, rightly and validly regularised the violations committed by the answering respondent while raising the construction in question and that, in fact, when the construction in question was being raised in accordance with the sanction permission, the requisite setback came to be maintained OW104/32/2012 5 without causing any danger to the public safety or else to cause any hazard to the traffic, inasmuch as without violating the provision of Master Plan or Town Plan Scheme and, in fact, the construction in question on pillars got necessitated in view of the nature of the soil and in order to maintain the safety of the building.
Heard learned counsel for the parties and perused the record.
10. At the very outset, the appearing counsel for the petitioner states at bar that the instant writ petition be treated as petition under Article 227 of the Constitution alone and accordingly, the petition is being treated as a petition under the Article 227 alone and shall be dealt under Article 227 of the Constitution of India.
11. According to the counsel for the petitioner that the Tribunal, respondent 2 herein could not have regularized the violations committed by the respondent 1 herein while raising the construction in question in view of the Regulation 11 of the J&K Control of Building Operation Regulations, 1998 (for short the Regulation), which regulations specifically prohibit compounding of an offence of a minor nature specified in Sub-clause (2) of the Regulation 11, in case the same pertains to the violations of set-backs prescribed in the bye laws and since the respondent 1 herein admittedly while raising the construction in question, violated the set-backs provided in the permission, the respondent 2 herein had no power, competence and jurisdiction to compound the offence of violation of set-backs OW104/32/2012 6
12. Before proceeding further in the matter, it would be significant to refer hereunder the provisions of sections 4, 5, 7, 9, 12, 13 & 15 of the Act being relevant to the controversy:-
Section 4 Control of Development and building operation - No person shall undertake or carry out the development of any site in any Municipal Area, local Area, Town Area, Notified Area or Area Notified under the Jammu and Kashmir State Town Planning Act, 1963, or erect or re-erect any building or make or extend any excavation or lay out any means of access to a road in such area except with the previous permission fo the Authority concerned in writing. Section 5 Application for permission-(1) Every person desiring to obtain the permission, referred to in Section 4 shall make an application in writing to the authority or through any agency authorise, in such form and containing such information as may be prescribed by regulations made under this Act.
(2) The Authority shall, within a period of 7 days of the receipt of application under sub-section (1) decline to accept a plan as sufficient for purposes of granting sanction under this Act if it does not bear the signature and seal of a Registered Architect or a Draftsman registered with the Authority.
(3) On receipt of such application the Authority, after making such enquiry as it considers necessary, keeping in view the area and the laws, rules and regulations applicable therein, shall by an order in writing, either grant the permission, subject to such conditions, if any, as may be specified in the order or refuse to grant such permission, under the State Town Planning Act, 1963 or any Master Plan.
(4) Where the permission is refused, the grounds of such refusal shall be communicated to the applicant in writing within a period of 30 days Section 7 Order of Demolation of Building in certain areas. -(1) Where the erection or re-erection of any building has been commenced or is being carried on or has been completed without the permission referred to in section 4 or in contravention of any condition subject to which any permission has been granted, the Authority shall issue a notice in writing calling upon the person to show cause within a period of 48 hours, why the building should not be altered or demolished as may be deemed necessary to remove the contravention.
(2) The Authority shall cause the notice to be affixed on the outer door of some conspicuous part of the building whereupon the notice shall be deemed to have been duly served upon the owner or the occupier of the building.
(3) If the person to whom the notice has been given refuses or fails to show cause within a period specified under sub-section (1) or if after hearing that person, the Authority is satisfied that the erection or re-
erection of the building is in contravention of the provisions of this section, the Authority shall by order direct the person to demolish, alter or pull down the building or part thereof so far as is necessary to remove OW104/32/2012 7 the contravention within a period not exceeding five days as may be specified in the order and if the person fails to comply with the direction, the Authority may itself cause the erection or reerection to be demolished after the expiry of the said period and may for that purpose use such Police Force as may be necessary which shall be made available to him by the Police Department on requisition.
(4) All expenses incurred for such demolition shall be recoverable from the owner and/or the occupier in the same manner as arrears of land revenue.
Section 9 Penalties.--(1) Any person who undertakes or carries out the development of any site or erects or re-erects any building or makes or extends any excavation or lays out any means of access to a road without the permission referred to in section 4 or in contravention of any condition subject to which such permission has been granted 1[or obstructs the Authority under section 8] shall be punishable with fine which may extend to ten thousand rupees and in case of continuing offence, with a further fine which may extend to five hundred rupees for every day during which such offence continues after conviction for the first commission of the offence.
(2) Any person who obstructs the entry of a person authorised under section 6 to enter into or upon any building or land or molests such person after such entry shall be punishable with fine which may extend to one thousand rupees (3) If the person committing an offence under this Act, is a company, every person who at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence (4) Notwithstanding anything contained in sub-section (3) where an offence under this Act, has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director or manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation:--For the purpose of this section
(a) "Company" means a body corporate and includes a firm or other association of individuals;
(b) "Director" in relation to a firm means a partner in the firm Section 12- Powers to stop building operation and removal of persons thereof.- (1)Where any building operation has been commenced or is being carried on in contravention of the provisions of this Act or any rule, or regulation laws made thereunder, or without the permission referred to in section 4 but such erection has not been completed, the OW104/32/2012 8 Authority may by a written notice require that such building operations be discontinued on and from the date of the service of the notice (2) Where such building operations are not discontinued, the Authority may direct all persons engaged in any capacity in the work of erecting or re-erecting building in question or part thereof to remove themselves and shall take such measures as will prevent such persons from again entering into or remaining will prevent such persons from again entering into or remaining upon such building or part thereof except with a proper permission which may be issued by the Authority.
(3) Where such building operations are not discontinued even after issuance of directions under sub-section (2) the Authority may require any Police Officer to remove the persons by whom the erection of the building has been commenced and all his assistants and workmen from the place of the building, within such time as may be specified in the requisition and, such Police Officer shall comply with requisition accordingly.
(4) No person shall be entitled to any compensation for any damage, which he may sustain in consequence of the discontinuance of the erection or re-erection of any building.
(5) All expenditure incurred in the enforcement of the provisions of this section shall be recoverable from the person concerned. Explanation- For the purpose of this section, the building operation shall include erection or re-erection of any building or any development or the engineering operation in any area.
Section 13 Appeals (1) An appeal against the order of an Authority made under [section 5 or] section 7 shall lie to such person as the Government may by notification in the Government Gazette, appoint in this behalf (hereinafter called „the Appellate Officer‟) within seven days after the date of the aforesaid order of the Authority. The memorandum of appeal need not be accompanied by copy of order appealed from. (2) Where any appeal is preferred from an order of an Authority, the appellate officer shall not stay the enforcement of that order unless the Authority concerned is given an opportunity of being heard Provided that where the erection or re-erection of any building was not completed on the day on which an order was made under section 7 for the demolition of such building the appellate officer shall not make any order for the stay of enforcement of such order unless such security, as may be sufficient in the opinion of the appellate officer, has been given by the appellant for not proceeding with such construction, erection or work pending the disposal of appeal.
(3) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible.
(4) The costs of any appeal under this section shall be in the discretion of the appellate officer Section 15 Finality of orders.--Save as otherwise provided in this Act every order made by an Authority or the appellate officer shall be final and shall not be called in question in any suit, application or execution proceeding."
OW104/32/2012 9
13. Regulations 10 and 11 of the Regulations of 1998 framed under Section 19 of the Act 1988 being also relevant to the controversy, are reproduced here under:
"10. Appeals:-(i) An appeal against the order of the authority made under section 5 and 7 of the Act shall lie before the Chairman of the J&K Special Tribunal or such other member of the said Tribunal, as may be decided by the Chairman.
"11. (1) The appellate Authority may compound a offence of a minor nature specified in sub-clause (2) of these Regulations. Provided that the compounding fee shall be worked out on the basis of rates to be notified by the Government (2) For the purpose of these Regulations an offence of a minor nature shall include any erection or re-erection of the building which has taken place in violation of permission referred in Section 4 of the Act or deemed permission as referred in sub-
clause (2) of clause (7) of these Regulations provided that such erection or re-erection:
(i) does not violate the approved land use of area as notified in the Master Plan or Town Planning scheme ;
(ii) does not violate the permissible front, rear or side set-backs prescribed in the bye-laws ;
(iii) does not violate by more than 10% the permissible grounds coverage as prescribed in the bye-laws ; and
(iv) does not violate the permissible height of the building as prescribed in the bye-laws."
14. Having regard to the aforesaid provisions of Act and the Regulation, it is manifest that an appeal is provided under Section 13, read with Regulation 10 supra, available to an aggrieved person/party against an order passed by the Authority under Sections 5 and 7 of the Act. It is also evident that under Regulation 11 supra the Appellate Authority under the Act is vested with the power to compound an offences of minor in nature referred in Sub-clause (2) of the said Regulation and provided under Section 9 supra of the Act, which not only defines the offence therein the said section but also provides for a punishment for commission of such an offence also OW104/32/2012 10 referred in under Sub-clause (2) of the Regulation 11 supra, which is permissible to be compounded by the Appellate Authority. 15 In so far as appeal filed against an order issued under Sections 5 and 7 of the Act is concerned, the Appellate Authority has been vested with an absolute power to decide such an appeal in tune with the provisions of Section 13 thereof as expeditiously as possible with a discretion to the Appellate Authority to impose costs thereof as well not connected with the power of compounding of an offence referred in Section 9 and Regulation 11 supra.
16. In view of the aforesaid position obtaining in the matter, the plea of the counsel for the petitioner that the Appellate Authority respondent-2 herein could not have compounded the construction in question raised by the respondent 1 herein being not of a minor nature in presence of sub-clause (2) of the Regulation 11 supra, is grossly misconceived and not attracted or applicable to the case initiated against respondent 1 herein under Section 7 of the Act, in that, the said Regulation as has been noticed in the preceding paras specifically provides for compounding of the offences, provided under Section 9 supra and order issued under Sections 5 and 7 of the Act.
17. Having held above that the provisions of Sub-clause (2) of the Regulation 11 supra is not attracted and applicable to the case in hand, the next question which arises for consideration of this Court would be as to whether the, respondent 2 herein committed any error, perversity, illegality or irregularity while passing the impugned order and as to OW104/32/2012 11 whether the same is amendable to supervisory jurisdiction of this Court and enshrined under Article 227 of the Constitution of India.
18. It is an admitted fact as has been noticed in the preceding paras that after the issuance of notice under Section 7(1) and demolition order under Section 7(3) of the Act by the petitioner herein against the respondent 1 herein, the respondent 1 herein preferred the statutory appeal before the respondent 2 herein and upon consideration of the said appeal as also the violations detailed out therein in the said demolition order as also after hearing the counsels for the parties being the petitioner and respondent 1 herein, the respondent 2 herein opined in order dated 26.03.2012 that the appellant-respondent 1 herein has not committed any violation at that stage of the construction having taken into consideration, in particular, the violations alleged by the respondent petitioner herein qua the raising of column structures by the appellant, respondent 1 herein and consequently allowed the appellant respondent 1 herein to raise the construction strictly as per the building permission granted.
It is also an admitted fact that the said order dated 26.03.2012 and aforesaid findings recorded therein respondent 2 herein have never been called in question by the petitioner herein, so much so even after the respondent 1 herein raised construction pursuant to the said order dated 26.03.2012 passed by the respondent 2 herein, the petitioner herein never reported to the respondent 2 herein any violation committed in raising such construction by the respondent 1 herein and ironically also did not proceed against the respondent 1 herein for any such violation or else even OW104/32/2012 12 for stopped the construction, if it had found raising of said construction in breach of the permission. The petitioner herein instead seemingly has remained quite contended with the order passed by the 26.03.2012 by respondent 2 herein and allowed the respondent 1 herein to raise the construction least caring as to whether the construction is raised in accordance with the sanctioned plan or in breach thereof and waited till the final disposal of the appeal by the respondent 2 herein and thereafter assailed the final order of respondent 2 herein before this Court in the instant petition.
19. In view of the aforesaid position obtaining in the matter, the petitioner herein cannot be said to have any justification to either complain about the construction raised by the respondent 1 herein or to the impugned order passed by respondent No. 2 herein, more so having regard to the provisions of Section 15 (supra) of the Act, which provides for finality of the orders of Appellate Authority as it will not be appropriate otherwise for this Court to reopen and re-appreciate of determination of facts undertaken and concluded by the respondent 2 herein in exercise of supervisory jurisdiction of this Court, the exercise whereof is guided and regulated by the parameters set out by the Apex Court in series of judgments including in case tilted, as Shalini Shyam Shetty and another v Rajender Shankar Patil reported in (2010) 8 SCC 329, wherein it has been inter alia held as under:
"On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
OW104/32/2012 13
(a) ......
(b).......
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) .....
(e) .........
(f) .......
(g) ........
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) ..........
(j) .........
(k) ........
(l) .........
(m) .......
(n) .........
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."
20. Even otherwise also, it is stated that the construction in question is almost completed and on such pulling down of the construction now at this stage may not be appropriate, more so, having regard to the facts and circumstances of the case as also in view of the judgment of the Apex Court passed in case tilted as Kewal Krishan Gupta vs. J&K Special Tribunal and others reported in AIR 2005 SC 2578, wherein it has been inter alia held that the pace of rapid growth of industrial development also OW104/32/2012 14 makes it necessary not to permit demolition of a structure even if, it will be in contravention with the Act or the Zoning provisions. A further reference to the Division Bench Judgment of this Court passed in case titled as Administrator Municipality Jammu vs M/s K. C. Hotels Pvt. Ltd. and others reported in AIR 1995 JKJ 85 would also be relevant and germane herein, wherein at para 20 following has been laid down:-
" in this appeal, we are not expected to go into a question of fact as to what sort of violation has been committed in raising of construction, and if any, whether it was as pre-sanctioned plan or revised plan, and whether it was minor or major in nature. All these things have been well considered by the Tribunal, which was required to go into such questions. The Tribunal has after a thorough inquiry come to the conclusions on a question of fact and recorded a finding about the nature of the violation, and regularized it under law by compounding the same. The Tribunal, in our opinion, is fully competent to compound the violation, Keeping in view its nature, and if it is so, the learned single Judge has not erred in upholding the findings of the Tribunal. The learned single Judge also appears to have considered the matter in its entirety in coming to the conclusion that the violations were of minor nature. As a matter of fact, strictly speaking, the writ jurisdiction of the High Court could not be invoked in such mattes, as the dispute was in substance relating to a question of fact. The Tribunal is the final arbiter in such matters. It appears to us a unique case where the Municipality itself has filed a writ petition against the order of Tribunal, perhaps to cover up its lapses and omissions/commissions. The writ jurisdiction is invoked mainly where fundamental rights are infringed. However, for violating of legal rights too, such jurisdiction may be invoked provided alternate remedy is not available. In the present case, the alternate remedy has already been availed of and even then on a disputed question of fact writ jurisdiction is sought to be invoked. Not only, that, now Letters Patent appeal too has been filed and at the expenses of badly needed funds of the Municipality. It appears to us to be a litigation of attrition only for the purpose known to the Municipality only."
OW104/32/2012 15
21. It is pertinent to mention here that the judgment relied upon by the counsel for the petitioner herein passed in case tilted as Building Operating Controlling Authority vs. Mangal Dass and anr, passed in OWP No. 481/2012 and decided 16.02.2023 does not lend any support to the case to the petitioner, insofar as the applicability of Regulation 11(2) to the case in hand is concerned. Insofar as the judgments tilted as Municipal Corporation of Greater Mumbai and others vs M/s Sunbeam High Tech Developers Pvt. Ltd. reported in AIR 2019 SC 5435, in case titled as Royal Paradises Hotel Pvt. Ltd. v State of Haryana reported in 2006 7 SCC 597, in case tilted as Deepak Kumar Mukherji vs. Kolkata Municipal Corporation and others reported in (2013) 5 SCC 336 and in case titled as Priyanka State International Pvt. Ltd. and anr. v/s State of Assam and others, (2010) 2 SCC 27 are concerned, the same are also quite distinguishable from the issues involved in the case in hand, in that, the said judgments pertain to the provisions of the Bombay Municipal Corporation Act, Goa Municipal Act, Kolkata Municipal Corporation Act and Punjab Scheduled Road and Controlled Areas (Restriction of Unregulated Development) Act, 1963 and per se do not lend any support to the case set up by the petitioner herein in the instant petition.
22. It is also significant to mention here that before the signing of the instant judgment, the counsel for the petitioner yet again as a last attempt furnished a copy of the judgment passed by the Apex Court in case titled as Rajendra Kumar Barjatya and Anr. vs. UP Avas Evam Vikas Parishad and others, decided on 17.12.2024 in support of the case of the petitioner herein, OW104/32/2012 16 however, a bare perusal of the said judgment of the Apex Court would manifestly tend to show that the same as well is not lending any support to the case of the petitioner herein, in that, the case in the said judgment of the Apex Court has been a case of unauthorised construction i.e. without any permission and on the contrary, in the case in hand, the respondent 1 has obtained a valid permission for raising construction, however, in the process deviated therefrom, thus not being a case of no permission.
23. Viewed thus, what has been observed, considered and analysed hereinabove, the instant petition fails and is dismissed with a costs of Rs. 20,000/- to be deposited by the petitioner herein before Registrar Judicial of this Court within two weeks‟ time.
24. The record produced by the counsel for the petitioner herein is returned back in the open court.
(JAVED IQBAL WANI) JUDGE Jammu 12.12.2024 Javid Iqbal Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No KARAM CHAND 2024.12.24 11:08 I attest to the accuracy and integrity of this document