Jammu & Kashmir High Court - Srinagar Bench
Deputy Director Enforcement And ... vs Mohammad Rafiq Sheikh And Others on 3 August, 2023
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
OWP no. 203/2017
Reserved on: 25.05.2023
Pronounced on: 03 .08.2023
Deputy Director Enforcement and another
.....Petitioner(s)/Appellant(s)
Through: Mr. Mr. Syed Musaib, Dy. AG
V/s
Mohammad Rafiq Sheikh and others
..... Respondent(s)
Through: Mr. Shuja Ul Haq Tantray, Advocate
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. This petition has been filed against the order dated 23.01.2017, passed by the Chairman J&K Special Tribunal, Srinagar, ( for short "Tribunal") in an appeal titled Mohamamd Rafiq Sheikh and others versus Chairman, Building Operation Controlling Authority and another. In the said appeal, the appellants therein - respondent herein had challenged the show cause notice, issued by Deputy Director, Enforcement, Srinagar Development Authority, Srinagar.
The Tribunal allowed the appeal and quashed the notice and also ordered regularization of the additional construction of 10741 sft per floor making total construction as 42964 sft by compounding the same. The appellants were asked to pay Rs.50/- per sft as 1 OWP no. 203/2017 compounding fee for the additional construction of 42964 sft for all floors.
2. The order of the Tribunal is being challenged in this petition precisely on the ground that the Tribunal has no jurisdiction to entertain the appeal, as such, the compounding of deviation does not arise. In terms the J&K Control of Building Operations Act, 1988, (for short "Act of 1988") an appeal could only be preferred against an order passed under Section 5 or Section 7 of the Act and not against any other order. Further saying, the petitioner would contend that the Tribunal has passed the impugned order by applying the J&K Control of Building Operations Regulations, 1998 ("the 1998 Regulations"). Tribunal has relied upon Regulation of 7(3) of the 1998 Regulations and opined that the respondents herein are deemed to have been granted permission.
To this effect, petitioners state that the 1998 Regulations have since been superseded and replaced by the J&K Control of Building Operations (Revised) Regulations, 2001 (for short "the 2001 Regulations"). The 2001 Regulations are applicable to the case in hand and not the 1988 Regulations. The Tribunal has not bothered to see as to what law was applicable and has misconstrued the provisions of law while passing the order impugned which is against the settled principles of law.
Respondent no.4, being keen interested in the proceedings, personally visited the site and compounded 150% in deviation in violation of the 2001 Regulations, which contains stringent provisions and does not provide for compounding of such 2 OWP no. 203/2017 deviations. The Tribunal granted reliefs which were not even prayed by respondents 1 to 3. They had never asked for compounding of the deviations, but Tribunal granted the relief of compounding the deviations. The construction raised by the respondents is against the sanctioned plan and is brazen violations of the laws. The construction raised by them is in violation of Srinagar Master Plan and Zoning Regulations. Respondent no.4 passed the order in slipshod manner without proper application of mind. The construction over the setbacks/gaps between the three structures and huge construction have been raised during unrest in the Valley which is against the Plan Development of the city and against the Srinagar Master Plan. Respondent no.4 by passing the order impugned has transgressed his jurisdiction.
Respondents 1 to 3 were granted permission for raising construction which was valid for two years, thus, raising of construction beyond that date is illegal and unauthorized.
3. Heard learned counsel for petitioners as well as counsel for the respondents.
4. Briefly stating, the facts are that for raising construction of three separate hotels/guest houses, respondents had in their individual capacity and separately applied before Srinagar Development Authority (for short "SDA"). Three independent permissions were given for three separate buildings (Hotels/Guest Houses), specifications of which are mentioned in the said building permissions which are Annexures A1, A2 and A3 with the petition.
All the three respondents had thus been permitted to raise three 3 OWP no. 203/2017 separate buildings as Hotels. As per the permissions so granted they had to leave setbacks/gaps of 30 ft between the said structures.
5. According to petitioners, respondents with onset of unrest in the Valley in July, 2016, started raising illegal construction over the gaps between the structures to combine three buildings in gross violation of permission. The petitioners brought violation committed by the respondents to the notice of the police and an application for registration of an FIR was made to the SHO Police Station Nowgam vide Annexure "C" to the petition. The respondents continued with the illegal construction by taking undue advantage of unrest in the Valley and despite the repeated directions by the petitioners and their staff, respondents did not stop but threatened them.
6. On 22.07.2016, petitioners visited the site and found respondents 1 to 3, continuing with the illegal construction activities and engaged about 80 persons for raising such illegal construction. Petitioners were threatened by the respondents on the spot. Notices for stopping the illegal construction were issued, but they were adamant in raising the construction and on 22.07.2016, a team was sent by the SHO concerned to the spot for stopping the illegal construction, but on the next day when petitioners visited there, the construction was continuing. A final show cause notice was issued to respondents, which was published in Daily Greater Kashmir on 08.08.2016. The respondents 1 to 3 failed to respond the said notice and did not demolish the illegal construction. As per the permission granted, respondents had to keep a gap of 30 ft between the two structures, but they have almost completed the gaps between the three buildings by raising the illegal construction. Petitioners with a view to seal/demolish the illegal construction requested Deputy Commissioner, Srinagar; SSP, Srinagar; and Commissioner, Srinagar Municipal Corporation, to provide them security and machinery for ensuring the demolition of the illegal 4 OWP no. 203/2017 construction of the respondents and the date for demolition/sealing was fixed on 12.09.2016. Before illegal constructions could be demolished, respondents filed an appeal and obtained an order, whereby the petitioners were restrained from interfering with the structures of the respondents.
7. Three building permissions were granted in favour of the respondents to raise construction of three separate buildings/ Hotels with the specifications are mentioned therein. As per the condition no. 4 of the said building permission, respondent Habibullah Sheikh, was to maintain the following setbacks in the said construction;
a. Front 15 ft
b. Side I 15 ft
c. Side II 15 ft
d. Rear 56 ft.
Bashir Ahmad Sheikh, was to maintain the following setbacks a. Front 61 ft b. Side I 15 ft c. Side II 15 ft d. Rear 15 ft.
And Rafiq Ahmad Sheikh was to maintain the following setbacks a. Front 15 ft b. Side I 15 ft c. Side II 15 ft d. Rear 15 ft.
8. It is clear from the building permissions so granted that setbacks as mentioned in the building permissions were to be maintained by all the three respondents
9. As the respondents violated the building permissions and connected three buildings by raising construction without seeking permission and having violated the conditions with regard to maintaining the setbacks, notices were issued to the respondents to stop, but as they did not stop, notices were issued on 08.08.2016, which were got published in Daily Greater Kashmir and 12.09.2016 was fixed as a date for demolition/sealing. But before 5 OWP no. 203/2017 petitioners could seal or demolish such illegal construction raised in violation of building permission, respondents herein approached the Tribunal and got the notices stayed with a direction restraining the petitioners from interfering in the said construction.
10.The Tribunal, while dealing with appeal observed that the notices which were issued were final notices, therefore, rejected the plea raised by the petitioners that appeal was not maintainable. The Tribunal referred to the provisions of Regulations of 1988 and held that appeal was maintainable before it. Though, the provisions of which the Tribunal has taken recourse, i.e., the 1988 Regulations were not applicable, but it was the 2001 Regulations, which was applicable in the present case. The Tribunal further observed that there were no details of the violations given in the notices, which were issued and published and as such, Tribunal proposed to visit the site and on visiting the site observed that despite permission for construction of three separate buildings, construction has been taken as a single unit which might have been done as all the respondents belong to same family and have entered into a partnership for raising such complex on 03.11.2016. It appears that the Tribunal has made its own opinion on assumptions and presumptions by saying that construction has been taken as a single unit which might have been done because they are members of the same family. Such an approach of the Tribunal is depreciable. If, it was so, that the parties intended to raise single construction then there was no reason or occasion for them to have applied separately and independently for raising such separate and independent constructions. The respondents had applied for separate constructions. They were allowed to raise separate/ individual constructions as per the permission and were required to maintain setbacks between the buildings. There can be no assumption and presumption when the permissions granted were specific and when permissions were granted for three separate buildings. Respondents were required to maintain setbacks. Partnership, may be if any, will not alter, change or amend 6 OWP no. 203/2017 automatically and on its own the building permissions granted at the whims of respondents. The three building permissions granted by SDA have the following details:
S. No. Name GF FF SF TF Total
(Sft) (Sft) (Sft) (Sft) (Sft)
1. Habibullah Sheikh 2289 2289 2289 2289 9156
2. Bashir Ahmad Sheikh 2904 2904 2904 2904 11616
3. Rafiq Ahmad Sheikh 3966 3966 3966 3966 15864
11.The permissions granted would show the plinth area as well as the total built up area. As per the observation of the Tribunal itself, there had been violation in raising construction and admittedly the gaps between the buildings have been filled by raising constructions and the setbacks, which were required to be maintained, have not been left but constructions have been raised therein. There is thus violation of setbacks as well. The Tribunal has not only disrespected the permissions granted, but has also disregarded the Regulations.
12.The order impugned would show that Tribunal has not dealt with this matter in accordance with provisions of laws, rules and regulations. The order impugned itself would show that the violations have been committed and constructions have been raised in violation of the permission granted.
13.The appeal filed by the respondents before the Tribunal would show that they had sought the following relief in the appeal:
"...In the premises, it is therefore, prayed that the impugned demolition Notice published in the Daily News paper "Greater Kashmir" in its issue dated 08.08.2016 issued by the respondent no. 2 may be set aside and the respondents be restrained from demolishing the aforesaid construction of the appellants situated at Nowgam Bye-Pass Srinagar in part or in whole. The same would be inconsonance with law and justice."
14.The Tribunal while dealing with the appeal has passed the order thereby, ordering compounding of the violations, i.e., the construction raised in violation of the permission. As per the building permissions granted, 30 ft. gap was to be maintained 7 OWP no. 203/2017 between the two buildings, but the respondents in violation of the same have connected the gaps and have raised construction in the said gaps, thereby connected three building and made it one building. There is thus, violation of the setbacks. The Tribunal itself has shown that the deviation for all floors is 42964 sfts., and there is violation of 16800 sfts. by utilizing the gaps and 14164 sfts by deviation. The Tribunal has thus come to the conclusion that there is violation by raising additional construction of 42964 sfts for all floors. This observation regarding the deviation as observed by the Tribunal makes it clear that there had been major violations which the Tribunal has directed to be compounded, though no relief is sought by the respondents in their appeal to this extent. Thus, the relief granted by the Tribunal without having been sought, ought not to have been granted. Reliance is placed on AIR 1953 SC 235, AIR 1984 SC 186, AIR 1991 SC 409 and AIR 2010 SC 475.
15.The Tribunal has also made observation and held that there had been deemed permission while relying upon the 1988 Regulations, which were not applicable in view of the 2001 Regulations, which does not provide for the same. Therefore, this finding of the Tribunal is not in tune with the 2001 Regulations. There is no dispute with regard to the kind of violation; even the violations committed have been given out in the judgment passed by the Tribunal.
16. Firstly, the Tribunal ought not to have ordered for the compounding of the violations as there was no such relief sought for, even otherwise, if such relief was sought, same could have not been granted in view of the judgment of this Court passed in Building Operation Controlling Authority vs. Vijay Kumar and anr. passed in OWP no. 959 of 2012 decided on 16.03.2022. The said judgment deals with this aspect of the case as to whether violations committed with regard to the setbacks can be compounded or not. Para 12 to 20 of the said judgment is relevant to be reproduced hereunder:
8 OWP no. 203/2017"...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.
13. The Apex Court in 'Dipak Kumar Mukherjee v. Kolkota Municipal Corporation & Ors., 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 destroys 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 & Ors. 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 & Ors., (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, destroys the concept of town planning.
16. In regard to regularized of un-authorized constructions on the ground of equity, the Supreme Court in "Esha Ekta Apartments Cooperative Societies Limited & anr. v. Municipal Corporation Mumbai, ( 2013) 5 SCC 375,' 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 in a major violation and is beyond permission 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 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 by-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 9 OWP no. 203/2017 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 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."
17.Therefore, for the reasons stated above, I find merit in this petition and I hold that the order dated 23.01.2017, passed by the Tribunal is in gross violation of the provisions of law. The Tribunal by passing the order directing the compounding, has exceeded its jurisdiction inasmuch as violations committed by respondents and compounded by the Tribunal are not compoundable, as such, this petition is allowed. Order impugned in this petition is set aside. Petitioners are directed to proceed in the matter in accordance with law insofar as the violations committed by the respondents in raising such constructions are concerned.
18.Disposed of as above.
(Vinod Chatterji Koul) Judge SRINAGAR 03.08.2023 "Imtiyaz"
Whether approved for reporting? Yes/No 10 OWP no. 203/2017