Jammu & Kashmir High Court
Amit Sachdeva vs Commissioner Jammu Municipal Corp. ... on 5 December, 2020
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(Through Video Conferencing)
Reserved On: 27.11.2020.
Pronounced On: 05.12.2020.
WP(C) 1838/2020
CM(6596/2020) CM(6595/2020) CM(6634/2020)
CM(6635/2020) CM(6939/2020) CM(6940/2020)
CAV 1627/2020 in OWP 787/2017
IA (2/2017) IA(3/2017) IA(5/2017) IA(4/2017)
OWP 1673/2017
Amit Sachdeva
.....Petitioner(s)
Through: -
Mr. Sunil Sethi, Sr. Advocate with
Mr. Ankesh Chandel, Advocate
Mr. Pranav Kohli, Advocate in WP(C) 1838/2020
Mr. K. S. Johal, Sr. Advocate with
Mr. Karman Singh Johal, Advocate in
OWP Nos. 787/2017 & 1673/2017
V/s
Commissioner Jammu Municipal Corp. Jammu and others
.....Respondent(s)
Through: -
Mr. S. S.Nanda, Sr. AAG
Mr. K. S. Johal, Sr. Advocate with
Mr. Karman Singh Johal, Advocate for Caveator.
CORAM:
Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
ORDER
CM No. 6595/2020 This order shall dispose of the instant application filed by the applicant /petitioner accompanying the writ petition, praying for ad-interim relief. Before dealing with the application in hand, it would be appropriate to delineate the facts those stem out from the petition.
1. Petitioner states to be aggrieved of an order No. JMC/Estt/3409-13 dated 02.11.2020 issued by respondent No. 1 (hereinafter for short Page 2 of 13 WP(C) 1838/2020, OWP No. 787/2017 & OWP No. 1673/2017 „the impugned order‟) whereby the premises of the petitioner has been ordered to be sealed under Section 8 (1) while invoking the J&K Control of Building Operations Act, 1988 (hereinafter for short „the COBA Act‟).
2. It is being stated that the petitioner is a private limited Company incorporated under Companies Act vide certificate of incorporation dated 24.04.2017. Company is stated to provide a comprehensive Diagnostic Centre having obtained the premises in question being at 25 A/C Gandhi Nagar, Jammu, on leasehold basis for a period of 5 years w.e.f. 01.05.2017 from its owners who are stated to have purchased the same by virtue of a sale deed dated 02.09.2004 and obtained building permission bearing No. 95/b5/16 dated 02.06.2016 for construction of ground, first and second floors.
3. It is being stated in the petition that consequently after taking into possession the premises on lease from its owners, permission to establish and open a Diagnostic Laboratory was sought from Jammu Municipal Corporation (hereinafter for short the JMC) which according to the petitioner is stated to have been granted under the name and style of M/S GENNEXT DIAGNOSTICS AND RESEARCH PVT. LTD vide NOC No. JMC/RB/202-04 dated 12.05.2017 on various terms and conditions and NOC is stated to have been granted with the approval of the Commissioner, Municipal Corporation, Jammu and is also stated to have been granted initially for a period of 11 months renewable after regular intervals. Page 3 of 13 WP(C) 1838/2020, OWP No. 787/2017 & OWP No. 1673/2017
4. It is being further stated in the petition that after expiry of 11 months the petitioner applied for renewal of NOC on 24.04.2018 followed by applications dated 28.09.2018 and 03.11.2020.
5. It is being next stated in the petition that while the NOC was still in vogue, a notice under and in terms of Section 7 (1) under COBA Act, came to be issued by JMC followed by an order of demolition dated 18.12.2017 under Section 7 (3) of the Act which is stated to have been questioned before the Appellate authority viz J&K Special Tribunal, Jammu (hereinafter for short „the Tribunal‟). The Appeal is stated to be finally decided by the Tribunal vide its order dated 31.08.2020 and order of demolition dated 18.12.2017 set aside directing the petitioner to approach the JMC for issuance of renewal of NOC.
6. It is being further stated that the order of the Tribunal has not been challenged by the respondents and has thus attained finality.
7. It is being next stated that petitioner Company made substantial investment in establishing and setting up of the Diagnostic Centre in question and that the impugned order of sealing dated 02.11.2020 has been issued without any show cause notice or affording an opportunity being heard.
8. Petitioner challenges the aforesaid impugned order inter-alia amongst others on the ground that the same is arbitrary, illegal, non-est and is a result of sheer non-application of mind, in that, condition 13 of the NOC dated 12.05.2017 specifically provides that the NOC indicates the allowable land use of the site and in no way be construed as Page 4 of 13 WP(C) 1838/2020, OWP No. 787/2017 & OWP No. 1673/2017 regularizing construction if any made in violation of Municipal Bye laws.
9. It is being further urged in the grounds that the competent court of jurisdiction has settled the issue and reopening of the same is illegal and impermissible.
10. It is being also urged in the grounds that notwithstanding the fact that JMC permitted allowable land use in terms of NOC dated 12.05.2017 yet the Master Plan Jammu-2032 permits facilities like medical clinics, dispensary, nursing homes, health centres and health clinics like diagnostic centres as permissible activities for the area under clause 13.6.1 and that the NOC dated 12.05.2017 had been granted subject to obtaining of requisite NOCs from the concerned Government departments. Thus there had been no violation which could be attributable to the petitioner for establishing and running of Diagnostic Centre.
11. It is being further urged in the grounds that there has been no violation of the sanction for construction which had been accorded in favour of the owners for raising construction.
12. It is being next urged in the grounds that no opportunity of being heard was provided to the petitioner before issuance of the impugned order supra and as such the same amounts to violation of fundamental rights of the petitioner as also of the principle of natural justice. Reliance in this regard is being placed on judgement of Tribunal passed in "Ajay Kumar Chanda Vs. Joint Commissioner (A), Municipal Corporation Jammu" reported in 2012 (1) JKJ page 1. Page 5 of 13 WP(C) 1838/2020, OWP No. 787/2017 & OWP No. 1673/2017
13. It is being further urged in the grounds that the actions of respondents amounts to violation of Article 14 as there are many similar nature of activities being carried out in the vicinity of the premises of the petitioner particularly in A/C Block Gandhi Nagar, Jammu, wherein various Diagnostic centers have been established and are operating.
14. It is being next urged in the grounds that a petition bearing OWP No. 787/2017 has been filed against the petitioner before this court by the neighbors residing in and around the premises of the petitioner wherein this court vide order dated 32.10.2017, JMC was given opportunity to take action under law against the petitioner provided any violation is found, where after the JMC initiated demolition proceedings supra against the petitioner under the provisions of Section 7 of the COBA Act which proceedings came to be set-aside by the Tribunal.
15. It is being further urged in the grounds that there is no statutory remedy available against the impugned order supra, as such, extra ordinary writ jurisdiction is being invoked by the petitioner.
16. It is being further urged in the grounds that upon a representation filed against the impugned order by the petitioner for de-sealing of the premises, the respondents JMC de-sealed the same allowing the petitioner to make alternate arrangements within 20 days pending NOC. The aforesaid order of de-sealing has been placed on record by the petitioner through CM No. 6634/2020. According to the petitioner the temporary de-sealing has been ordered with preconceived and premeditated mind.
Page 6 of 13WP(C) 1838/2020, OWP No. 787/2017 & OWP No. 1673/2017
17. The petitioner on the strength of the aforesaid contentions raised and grounds urged in the petition implores for the following reliefs in the main petition and application in hand respectively: -
I. "Writ of certiorari seeking qushment of Order under section 8(1) of J&K control of building operation act, 1988 issued by the respondent No. 1 bearing No. JMC/Estt./3409-13 dated 02.11.2020 being illegal, non- est and without jurisdiction besides dehors the provision of COBA Act, 1988.
II. Writ of Mandamus commanding upon the respondents to de-seal the premises of the petitioners which has been sealed pursuant to the impugned order dated 02.11.2020 on 04.11.2020.
III. Writ of Mandamus commanding upon the respondents to renew the No Objection bearing No. JMC/RB/202-04 dated 12.05.2017 issued by Jammu Municipal Corporation, Jammu for Diagnostic Lab under the name and style of M/S Gennext Diagnostics and Research Pvt. Ltd., in terms of the principles of promissory estoppels and legitimate expectation.
IV. Such other relief which this Hon‟ble court deems fit and proper may kindly e granted in favour of the petitioner as also against the respondents."
Interim reliefs: -
"It is, therefore, most respectfully prayed that till final disposal of main appeal, the Hon‟ble Court may be pleased to stay the operation of the notice/ order impugned bearing No. JMC/Estt/3409-13, dated 02.11.2020 passed by the respondent No. 2.Page 7 of 13
WP(C) 1838/2020, OWP No. 787/2017 & OWP No. 1673/2017 Direct the respondents to de-seal the premises of the petitioners.
Any other relief, which this Hon‟ble Court may deem fit and proper in the given facts and circumstances may kindly be passed in favour of the plaintiff as against the defendant."
18. When the matter came up for consideration on 17.11.2020, Mr. S. S. Nanda, Sr. AAG, entered appearance and accepted notice on behalf of the respondents, while as Mr. K. S. Johal Sr. advocate appeared as well and stated that a caveat petition has been filed in the matter on behalf of residents of the area and that the said caveators have a serious interest in the subject matter of the petition.
19. Mr. S. S. Nanda, Sr. AAG has filed objections on behalf of the respondents whereas Mr. Johal has filed an application being CM No. 6939/2020 seeking impleadment as party respondent in the writ petition.
20. Respondents in their objections filed in opposition to the writ petition resist and controvert the contentions raised and grounds urged in the writ petition and seek dismissal of the writ petition inasmuch as oppose the grant of any interim relief in favour of the petitioner on the premise that the subject matter of the writ petition is situated in residential Gandhi Nagar, Housing Colony Jammu, and that allotment of the plot has been made for residential purpose and sanction of building permission granted for raising construction thereupon the Page 8 of 13 WP(C) 1838/2020, OWP No. 787/2017 & OWP No. 1673/2017 said plot had been for residential purposes which cannot be used for commercial purposes.
21. It is being stated in the objections that the NOC dated 12.05.2017 granted in favour of the petitioner for establishment of a Diagnostic centre is invalid in view of law laid down by the Apex court in case titled as "M. C. Mehta Vs. Union of India" and "R. K. Mittal Vs. State of U.P"
22. It is being stated in the objections that the NOC in question could not have been granted to the petitioner as the same amounts to the change of the land use of the building which being impermissible.
23. According to the respondents the pocket of layout plan of Gandhi Nagar Housing colony is for residential purposes and same cannot be converted into the commercial Diagnostic centre and the change of the land use amounts to change of Master Plan which can only be done by following procedure under the J&K Development Act.
24. It is being further stated in the objections that no NOC was issued in favour of nursing homes operating in the area and that cases for grant of NOCs from JMC are subjudice before the Hon‟ble court.
25. It is being next stated in the objections that petitioner has committed a major violation of conversion of land use from residential to commercial which is not being permissible under the provisions of the COBA Act.
26. Heard learned counsel for the parties.
Page 9 of 13
WP(C) 1838/2020, OWP No. 787/2017 & OWP No. 1673/2017
27. Learned appearing counsels while advancing their arguments in support of their respective cases reiterated the contentions raised and grounds urged in their respective pleadings.
28. Since the respondents have invoked the provisions of Section 8 of the COBA Act against the petitioner while issuing impugned order dated 02.11.2020, as such, before proceeding further it would be advantageous to extract and refer here under to the same as also to the definition of expressions "erect or re-erect" contained therein Section 8 as defined under Section 2 (9) of the Act being relevant and germane thereto: -
Section 8. Power to seal unauthorised construction.--
(1) It shall be lawful for the Authority concerned, at any time, before or after making an order of demolition under section 7 to make an order directing the sealing of such erection, re-erection or work or of premises in which such erection, re-erection or work is being carried on or has been completed for the purpose of carrying out the provisions of this Act, or for preventing any dispute as to the nature and extent of such erection or work. (2) Where any erection, re-erection or work or any premises in which any erection, re-erection or work is being carried out, has or, have been sealed, the Authority concerned may for the purpose of demolishing such erection or work in accordance with the provisions of this Act, order such seal to be removed.
(3) No person shall remove such seal except,--
(a) under an order made by the Authority concerned under sub-section (2) ; or
(b) under an order made in an appeal under this Act.Page 10 of 13
WP(C) 1838/2020, OWP No. 787/2017 & OWP No. 1673/2017 Section 2 (9) "erect or re-erect" any building includes--
(a) any material alteration or enlargement of any building;
(b) mooring or installing of any boat or house-boat in the river or lake falling within the jurisdiction of any Authority;
(c) the conversion by structural alteration into a place for human habitation of any building not originally constructed for human habitation;
(d) the conversion into more than one place for human habitation of a building originally constructed as one such place;
(e) the conversion of two or more places of human habitation into a greater number of such places;
(f) such alteration of a building as affects an alteration in its drainage or sanitary arrangements or affects its stability;
(g) the addition of any room, building, out-house or other structure to any building;
(h) the construction of a wall adjoining any street or land not belonging to the owner of the wall, of a door opening on to such street; and
(i) reconstruction of a building or a portion thereof, by means of props, commonly known as "PAND-
PAND" in Kashmir Valley;
29. A combined reading of the aforesaid provisions of the Act would reveal that an order of sealing can be issued under Section 8 by the authority before or after making an order of demolition under Section 7 of the Act qua a premises where an erection or re-erection or work is being carried on or has been completed either for the purposes of Page 11 of 13 WP(C) 1838/2020, OWP No. 787/2017 & OWP No. 1673/2017 carrying out the provisions of the Act or for preventing any dispute as to the nature and extent of such erection or work.
30. Indisputably the sealing of the premises of the petitioner under Section 8 of the COBA Act has been undertaken by the respondents after taking recourse to the demolition proceedings initiated under Section 7 of the COBA Act, which proceedings admittedly stand set- aside in the appeal filed by the petitioner before the Tribunal vide its order dated 31.08.2020. The aforesaid process stands exhausted by the respondents and the said order is stated to have not been challenged as on date.
31. That while taking into account the issues involved in the petition and the provisions of the COBA Act supra a basic issue that may crop up for consideration would be as to whether conversion of land use from residential to commercial would fall within the ambit and scope of the provisions of the provisions of COBA Act in general and of the provisions of Section 8 in particular. The consideration, determination and adjudication of the said issue would essentially constitute merit of the matter and in view of settled legal position cannot be determined and adjudicated upon while considering the instant application for grant of interim reliefs.
32. Be that as it is, admittedly the sealing of the premises in question has been resorted to by the respondents after initiation and culmination of demolition proceedings undertaken by the respondents in terms of Section 7 of the Act and the respondents thereafter have taken recourse to sealing of the premises without issuing a show cause Page 12 of 13 WP(C) 1838/2020, OWP No. 787/2017 & OWP No. 1673/2017 notice and affording an opportunity of being heard to the petitioner, in that, after earning a judgement against the respondents from the Tribunal qua the premises in question, the petitioner ought to have been issued a show cause notice before divesting him from enjoying the legal possession of the premises in question by the respondents while undertaking sealing of the premises on the principle that where a statute is silent about the observance of principle of natural justice, such statutory silence is taken to imply compliance with the principle of natural justice where substantial rights of the parties are considerably affected and that the principles of natural justice are applicable to judicial, quasi-judicial and administrative authorities even if, not provided for in the statute, where the decision of the authority concerned would result in civil or evil consequences.
33. Having regard to the aforesaid discussion and analysis, there appears to be a substance in the case of the petitioner/applicant at this stage, therefore, in view of the peculiar facts and circumstance of the case, particularly the de-sealing of the premises in terms of order of the respondents dated 11.11.2020, till final disposal of the main case, status quo with regard to the possession of the premises shall be maintained which, however, shall not be construed to be any kind of authorization to the petitioner/ applicant to run and operate the Diagnostic centre in question in the said premises.
34. It is also made clear that nothing herein above shall be construed to be an expression of any opinion about the merits of the case. Disposed of.
Page 13 of 13
WP(C) 1838/2020, OWP No. 787/2017 & OWP No. 1673/2017 WP (C) No. 1838/2020 Mr. Pranav Kohli, Advocate for the petitioner.
Mr. S. S. Nanda, Sr. AAG for respondents 1 to 4.
Admit.
Issue notice.
Mr. Nanda, Sr. AAG, appears and waives notice for and on behalf of respondents 1 to 4. Counter by or before the next date. Rejoinder, if any, thereafter within a period of two weeks.
CM No. 6939/2020 Mr. K. S. Johal, Sr. Advocate with Mr. Karman Singh Johal, Advocate for the applicants. Mr. S. S. Nanda, Sr. AAG for respondents 1 to 4.
Having regard to the contents of the application coupled with the submissions made by learned counsel for the applicants it transpires that the applicants herein have earlier filed two petitions being OWP Nos. 787/2017 and 1673/2017 which are pending disposal before this court qua the premises in question being subject matter in the present petition being WP (C) No. 1838/2020 and clubbed herewith, as such, seemingly there is no need to implead the applicants herein as party respondents to the writ petition, however, the applicants are permitted to appear as intervener in the matter.
Disposed of.
List the main matter on 15.02.2021.
Javed Iqbal Wani) Judge Jammu December, 27th 2020 "Ishaq"
Whether the Order is speaking? Yes/No.
Whether the Order is reportable? Yes/ No.