Jammu & Kashmir High Court
Building Operation Control Authority, vs . Sohan Singh And Anr. on 12 April, 2019
Equivalent citations: AIRONLINE 2019 J AND K 423
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
OWP No. 1144/2016
Date of order: 12.04.2019
Building Operation Control Authority, Vs. Sohan Singh and anr.
Municipal Area Jammu through
Joint Commissioner, Municipal Corporation
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For petitioner (s) : Mr. Sachin Gupta, Advocate.
For respondent(s) : Mr. J. S. Jasrotia, Advocate.
i) Whether approved for reporting in Yes/No Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
1. Through the instant petition filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of J&K, petitioner seeks the following reliefs:-
"Issue a writ of certiorari quashing the order dated 18.01.2016 passed in file No. STJ/277/2015 titled, Sohan Singh V/S Commissioner and ors;
Issue a writ of mandamus commanding the respondent No. 1 to demolish the unauthorized construction;"
2. The brief facts of the case are that respondent No.1 claims to be the owner in possession of land measuring 1 marlas falling under Kh. No.564. The land in question was allotted to the respondent in the year 1978 with respect to which lease deed was executed between Sainik Housing Building Society, Jammu and the same was registered before the learned Sub Registrar, Jammu on 26.06.1991.
OWP No.1144/2016 Page 1 of 17The respondent no.1 with intention to raise commercial construction had applied before the petitioner for grant of necessary sanction. The sanction/permission was duly granted in favour of respondent No.1 vide order dated 21.07.2014 bearing No.286/BS/2014 at plot no. 578/1 Sector-C Sainik Colony, Jammu. It is stated that the building permission which was granted to the respondent no.1 was granted for raising commercial construction, with total permissible built up area to the extent of 420 Sqft at ground and first floor. It is further stated that the concerned Khilafwarzi inspector reported the default of respondent no.1 to the authorities on 07.08.2015 and, accordingly a show cause notice under Section 7(1) and 12(1) of the Act bearing No.MJ/CEO/16/1/2015 dated 11.08.2015 was duly issued and served on respondent No.1, whereby respondent no.1 was called upon to show cause as to why an action should not be taken against him for violation of Act and Master Plan. The notice under Sections 7 (1) of the Act was duly served on respondent no.1 and the same was not replied by respondent No. 1, accordingly, a notice was issued to the petitioner under Section 7 (3) of the Act vide notice No. MJ/CEO/16/3/2015 dated 20.08.2015 to demolish unauthorized construction. The respondent No.1 challenged the aforesaid notice under Section 7(3) of the Act by filing statutory appeal before respondent No.2. Respondent no.2 without considering the legal limitation in the case passed an interim order staying the notice under Section7 (3) of the Act vide order dated 24.08.2015.
OWP No.1144/2016 Page 2 of 173. Learned counsel for the petitioner states that responding to the appeal filed before respondent No.2, the petitioner filed detailed objections showing the violation committed by respondent No.1, while raising illegal and unauthorized construction, and respondent No. 2 without taking into consideration the facts of the case and also not considering the aspect of seriousness of violation committed by respondent No.1, set aside the order dated 20.08.2015 passed by the petitioner vide order dated 18.01.2016.
4. The petitioner challenges the order dated 18.01.2016, passed by J&K Special Tribunal, Jammu on the following grounds:-
(i) That order impugned is against the fact and all canon's of law and is not sustainable and is required to be set aside
(b) That the order impugned suffers from serious infirmities and the core issue of the controversy has not dealt with.
c) That the built up are raised unauthorizedly has been worked the core issue of the controversy has not dealt without as under:-
S.No. Particulars Permissible Construction Violations As per Site Master Plan As per JMC Permission In SFT % age
1. Plot Area 529 sft
2. Coverage Basement Not 356 sqft 356 sqft permitted unauthoriz ed Ground 420 sft 531 sft 111 sft- 26.4% Floor OWP No.1144/2016 Page 3 of 17 First Floor 420 sft 712 sft 292 sft 69.5% Second Not 712 sft 712 sqft Floor permitted unauthoriz ed
3. Front 4'-6" Nil 4'-6" 100% Setback Rear Nil Nil Nil Nil Setback One Side Nil Nil Nil Nil Other Side Nil Nil Nil Nil
4. Land Use Commercial Commercial Height 26'-6" 36'-6" 10'-0" 37.7% FAR 158.8 436.8 278 175% The total violation is as under:-
Total plot area: 529 Sft.
Violation at basement 356 Sft. (unauthorized)
Violation at ground floor 111 Sft.
Violation at first floor 292 Sft.
Violation at second floor 712 Sft. (unauthorized)
Total violation 1471 Sft.
(i) That the respondent No.1 has committed the major violation by
covering more than the permissible limit of plot area, the respondent No.1 has also violated the setbacks and coverage area.
The violation committed by the respondent No. I is major violation and is not compoundable at all under any law. The compounding of illegal construction of respondent No, 2 s illegal and contrary to law and therefore, deserves to be quashed out rightly. As per Regulation of J&K Control of Building Operation Regulation 1998 more than 10% of the permissible ground coverage is a major violation and is not compoundable. The respondent No. 1 has committed a major offence which is not compoundable. As such order Is liable to be set aside.
(ii) That the respondent No.1 has violated the height and floor area ratio of the plot. All the violations committed by respondent no. 1 OWP No.1144/2016 Page 4 of 17 are major violations and were not in the domain of respondent No. 2 to compound the same. The respondent No, 2 has traveled beyond the scope of Section13 read with Regulation 11. Hence, the order impugned does not sustain in the eyes of law.
(iii) That the respondent no. 1 has also raised the illegal construction on the basement which is not permitted as per the master plan. The respondent no.1 deviated from the sanctioned plan by covering more than the permissible plot area in contravention to the provision of J&K control of building operation act.
(iv) That the respondent no 2 has to act within the parameter of Section 13 read with regulation 11 and the findings and powers which the respondent no. 2 has exercised while dealing with the subject matter of appeal are totally perverse. The respondent No. 2 only has to see whether the violation so projected are within the domain or respondent no. 2 to deal with the same or not. If the respondent No. 2 can bring the case within the purview of regulation 11 then compounding order may be passed or otherwise appeal is liable to be rejected. In the present case the respondent no.2 has exceeded in its jurisdiction.
(v) That all these grounds have been taken inter-alia withoutprejudice to each other and other grounds shall be urged atthe time of hearing and arguments.
5. Objections have been filed by respondent No.1. The stand taken by respondent No.1 in the objections is that the order dated 18.01.2016 passed by J&K Special Tribunal, Jammu is absolutely in conformity with the established procedure of law and does not suffer from any legal infirmity. In the objections it is stated that the Respondent No.1 being ex-serviceman was allotted plot measuring 529 square feet falling under Khasra No.564 min by the Sainik Housing Building Society in the year 1978, with respect to which lease deed was executed between Sainik Housing Building Society Jammu and Respondent No.1 and was registered in the year 1978 before the learned Sub-Registrar, Jammu on 26.06.1991. The Respondent No.l applied before Jammu Municipal Corporation for OWP No.1144/2016 Page 5 of 17 permission to construct a commercial building over the said plot. The Jammu Municipal Corporation vide order no. 286/BS/2014 Dated 21.07.2014 granted permission in favour of respondent No.1. The Respondent No.l completed construction in the year 2014 itself and has not violated any provision of law. The Respondent No.1 has not erected any new structure over the said building. The further stand taken is that the present structure of the building is constructed in the year 2014 after taking permission from the Municipal Corporation Jammu and there is no new construction raised thereupon since 2014. Further that the petitioner vide order no. MJ/CEO/163/2015 dated 20-08-2015 passed under Section 7(3) of Control of Building Operation Act directed respondent No.1 to demolish the building. Being aggrieved by the order No. MJCEO/16/3/2015 dated 20-08-2015 respondent no.1 filed one appeal before the J&K Spl. Tribunal at Jammu. The learned Tribunal vide order dated 18.01.2016 in file no STJ/277/15 passed in case titled Sohan Singh Vs Commissioner JMC & ors., has held that construction is raised in the Sanik Colony area by an ex-service man, the demolition of the same shall not be equitable to be effected under the circumstances. The learned Tribunal has further held that the Construction, therefore, is not substantial violation of zonal master plan which cannot be allowed to be compounded by the Court, thus the same has been ordered to be compounded at the rate of Rs. 80 per sq. feet and an amount of Rs.117680/- has been ordered to be deposited.
6. The learned counsel for the respondent No.1 has relied upon the decision of the Hon'ble Supreme Court in case reported in 2005 OWP No.1144/2016 Page 6 of 17 AIR (SC) 2578, Kewal Kishan Gupta vs. J&K Special Tribunal. Reliance is also placed on the judgment of this High Court reported in 2007 (2) JKJ 548, Mohammad Latief Beigh vs. State of J&K and ors.
7. I have considered rival contentions of the parties.
8. The operative part of the order dated 18.01.2016, passed by the J&K Special Tribunal, Jammu reads as under:-
"I have perused the memorandum of the appeal, the objections, the written reply/arguments filed by the standing Counsel for the respondent and have also heard the counsel for the parties at length.
Where the appellant On the one hand, has submitted that he has raised the construction as per the permission with slight violations which are compoundable, the standing Counsel for the respondent has vehemently argued that the appellant has exceeded the permission and has committed violations defeating the provisions of control of building operations act and control of building operation regulation and has prayed a dismissal of the appeal The per usual of the record on the file shows that the appellant has been served with a notice under section 7(3) of control of building and operations Act on the ground that the appellant has constructed the basement and the uppermost floor of the house without permission and has also exceeded the area of ground and first floor.
The plot area is 529 square feet and the appellant has constructed 356, sq.ft basement, 531 square feet, first floor and 712 of each of the subsequent two floors but it is nowhere shown that the appellant has exceeded the plot area except minor deviation of 2 sqft. With violation ranging from 20.4% to 29.4% as regards the two floors and hundred percent as regards the setbacks.
The construction has been made in the Sainik Colony area and the total plot area is 529 ft.2 that is about two Marlas of land.
The appellant is an ex-serviceman who has purchased 2marlas of land for commercial purpose. And as per the permission issued and the construction effected the appellant is OWP No.1144/2016 Page 7 of 17 said to have raised the construction or commercial purposes only to feed his family.
The violations ranging from two or 6.4 to 6, 9.5% withregard to the construction in the location where such other constructions are also existing cannot be said to be a rare case of violating master plan, though one wrong cannot justify another wrong and in case the respondents wanted to take any step with regard to demolition of the building, they could not do pick and choose and the action taken by the should be justifiable.
The isolated case of the appellant cannot be made to be a test case for demolishing the construction.
Under these circumstances when the construction is complete raised in the Sainik Colony area by an ex-serviceman the demolition of the same shall not be equitable to be effected under the circumstances (AIR 2005 SC2578 relied upon).
The construction therefore is not in substantial violation of zonal are master plan, which cannot be allowed to be compounded by this court.
Thus, the same are ordered to be compounded at the rate of rupees 80 per square foot or 1471 square feet and as such the amount of rupees 80x1471- =Rs.117680 is therefore ordered to be deposited in the relevant account had of the respondent within two months from the date of this order.
The appeal is accordingly disposed of.
The file be consigned to records after due completion. File be consigned to records after due completion."
9. The Jammu and Kashmir Control of Building Operations Act, 1988 (for short, the Act) has been enacted to amend and consolidate the law relating to control of building operations in the State. Section 4 of the Act prohibits inter alia development of any site or to erect or re-erect any building in any area except with the previous permission of the Authority concerned. Section 3 authorizes the State Government to appoint an Authority for the purpose of the Act for an area to which the Act applies. Section 7 provides for demolition, alteration or pulling down of a building so far as it is OWP No.1144/2016 Page 8 of 17 necessary to remove the violation and section 8 empowers the Authority concerned to issue an order directing sealing of such building/site.
10. In present case, it has not been denied by petitioner that respondent no.1 was not having any permission to raise construction of commercial building in nature. However, as per permission dated 21.07.2014, he was allowed to raise construction on plot measuring 529 sq.ft. with certain conditions; these are total height 26.5 ft. from the front road level, no basement was permitted, ground floor 420 sq ft and first floor also 420 sq.ft.; the set back was 4.5 ft from front.
The violations committed by the petitioner have been given in statements are 356 sq.ft basement, which was not permitted; ground floor 531 Sq ft against sanction of 420 sqft, which is 26.4% violation; first floor 712 sq.ft against sanction of 420 sqft i.e. 69.5% violation; and 2nd floor 712 sq.ft for which no permission was granted, it would amount to 100% violation.
11. Rules 10 and 11 of Control of Building Operation Regulations read as under:-
"10. Appeals- (1) An appeal against the order of the Authority made under Sections 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 same Chairman.
11. (1) The Appellate Authority may compound an 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:
OWP No.1144/2016 Page 9 of 17(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."
12. From bare perusal of above violations, as indicated above, it is evident that respondent No.1 has committed grave violation, which is more than 10% as prescribed in Rule 11(2)(iii). The finding of Special Tribunal that "the construction has been made in the Sainik Colony area and the total plot area is 529 ft.2 that is about two marlas of land; that the appellant is an ex-serviceman who has purchased 2 marlas of land for commercial purpose and as per the permission issued and the construction effected the appellants said to have raised the construction for commercial purposes only to feed his family; that the violations ranging from two or 6.4 to 6, 9.5% with regard to the construction in the location where such other constructions are also existing cannot be said to be a rare case of violating master plan, though one wrong cannot justify another wrong and in case the respondents wanted to take any step with regard to demolition of the building, they could not do pick and choose and the action taken by them should be justifiable" are not legally tenable. Because for compounding of huge violation, legal reasons should have been given.
13. A master plan is a dynamic long-term planning document that provides a conceptual layout to guide future growth and development. Master planning is about making the connection between buildings, social settings, and their surrounding OWP No.1144/2016 Page 10 of 17 environments. A master plan includes analysis, recommendations, and proposals for a site's population, economy, housing, transportation, community facilities, and land use. It is based on public input, surveys, planning initiatives, existing development, physical characteristics, and social and economic conditions. All the aspects are considered that affects the quality of life of people and all the interrelationships between various aspects; three judges bench of Apex court in Dipak Kumar Mukherjee vs Kolkata Mun. Corp. & Ors. reported in 2013 (5) SCC 336 on 8 October, 2012 in CIVIL APPEAL NO.7356 of 2012 (Arising out of SLP(C) No. 23780/2011) has held as under;-
"2. In last four decades, the menace of illegal and unauthorised constructions of buildings and other structures in different parts of the country has acquired monstrous proportion. This Court has repeatedly emphasized the importance of planned development of the cities and either approved the orders passed by the High Court or itself gave directions for demolition of illegal constructions - (1) K. Ramadas Shenoy v. Chief Officers, Town Municipal Council (1974) 2 SCC 506; (2) Virender Gaur v. State of Haryana (1995) 2 SCC 577; (3) Pleasant Stay Hotel v. Palani Hills Conservation Council(1995) 6 SCC 127; (4) Cantonment Board, Jabalpur v. S.N. Awasthi 1995 Supp.(4) SCC 595; (5) Pratibha Coop. Housing Society Ltd. v. State of Maharashtra (1991) 3 SCC 341; (6) G.N. Khajuria (Dr) v. Delhi Development Authority (1995) 5 SCC 762; (7) Manju Bhatia v.
New Delhi Municipal Council (1997) 6 SCC 370; (8) M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464; (9) Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733; (10) Shanti Sports Club v. Union of India (2009) 15 SCC 705 and (11) Priyanka Estates International Pvt. Ltd. v. State of Assam (2010) 2 SCC 27.
3. In K. Ramadas Shenoy v. Chief Officers, Town Municipal Council (supra) (1974) 2 SCC 506;, the resolution passed by the Municipal Committee authorising construction of a cinema theatre was challenged on the ground that the site was earmarked for the construction of Kalyan Mantap-cum-Lecture Hall and the same could not have been used for any other purpose. The High Court held that the cinema theatre could not OWP No.1144/2016 Page 11 of 17 be constructed at the disputed site but declined to quash the resolution of the Municipal Committee on the ground that the theatre owner had spent huge amount. While setting aside the High Court's order, this Court observed:
"An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The Scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the Scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.
The Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The Scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction."
4. In Pratibha Coop. Housing Society Ltd. v. State of Maharashtra (supra) (1991) 3 SCC 341, this Court approved the order passed by the Bombay Municipal Corporation for demolition of the illegally constructed floors of the building and observed:
"Before parting with the case we would like to observe that this case should be a pointer to all the builders that making of unauthorised constructions never pays and is against the interest of the society at large. The rules, regulations and bye- laws are made by the Corporations or development authorities taking in view the larger public interest of the society and it is the bounden duty of the citizens to obey and follow such rules which are made for their own benefits."
5. In Friends Colony Development Committee v. State of Orissa (supra) (2004) 8 SCC 733;, this Court noted that large OWP No.1144/2016 Page 12 of 17 number of illegal and unauthorised constructions were being raised in the city of Cuttack and made the following significant observations:
".........Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffers unbearable burden and is often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the designs of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorised constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders.............
In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest OWP No.1144/2016 Page 13 of 17 stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified.
The municipal laws regulating the building construction activity may provide for regulations as to floor area, the number of floors, the extent of height rise and the nature of use to which a built-up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimised from the point of view of the control of community development, the prevention of overcrowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services.
Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building." (emphasis supplied)
6. In Shanti Sports Club v. Union of India (supra), (2009) 15 SCC 705 this Court approved the order of the Delhi High Court which had declared the construction of sports complex by OWP No.1144/2016 Page 14 of 17 the appellant on the land acquired for planned development of Delhi to be illegal and observed:
"In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorised constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realise that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air- conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorised constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasised that no compromise should be made with the town planning OWP No.1144/2016 Page 15 of 17 scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularisation of illegal and unauthorised constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions."
7. In Priyanka Estates International Pvt. Ltd. v. State of Assam (supra), (2010) 2 SCC 27 this Court refused to order regularisation of the illegal construction raised by the appellant and observed:
"It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi- storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder."OWP No.1144/2016 Page 16 of 17
14. In view of above, I am of the considered opinion that the order of Tribunal is not according to law and, therefore, this petition is allowed. Order impugned is set aside and matter is remanded back to Special Tribunal to re-hear it and pass a fresh order on the basis of law on the subject and by giving legal reasons.
(Sanjay Kumar Gupta) Judge Jammu:
12.04.2019 Bir* NARINDER KUMAR SHARMA 2019.04.12 14:28 I attest to the accuracy and integrity of this document OWP No.1144/2016 Page 17 of 17