Jammu & Kashmir High Court - Srinagar Bench
Building Operation Controlling ... vs Special Tribunal & Anr. on 28 September, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No. 347/2007
Date of Order: 28TH of September, 2018.
Building Operation Controlling Authority & Ors.
Vs.
Special Tribunal & Anr.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr Moomin Khan, Advocate.
For the Respondent(s): Mr Javed Iqbal, Advocate.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. The facts leading to the filing of the instant petition are that the respondent No.2 sought building permission from the competent authority, i.e. the Building Operation Controlling Authority (hereinafter referred to as the "BOCA"), for the construction of a double storeyed shopping complex at Gogji Bagh, Srinagar, on a plot of land covered under Survey Nos.1781/836/1782/836. The building permission was sanctioned by the BOCA in favour of the respondent No.2 vide order No.571 of 2002 dated 3rd of January, 2002, subject to certain setbacks. The petitioners have contended that the respondent No.2 started the construction in flagrant violation of the terms and conditions of the building permission by making OWP No. 347/2007 Page 1 of 19 gross deviations. After noticing the deviations, the petitioners initiated proceedings against the respondent No.2, under the provisions of the Control of Building Operations Act and after complying with the procedure prescribed therein, a demolition order was passed against the respondent No. 2 vide order No. SMC/Kh/433-38 dated 22nd of November, 2004. The respondent No.2 filed a statutory appeal against the aforesaid order of demolition before the Appellate Authority, i.e. the respondent No.1 herein. During the pendency of the statutory appeal of the respondent No.2 before the respondent No. 1, the respondent No.2 filed a civil suit for declaration and injunction against the petitioners in the Court of learned First Civil Subordinate Judge (Municipal Magistrate), Srinagar, on the allegations that after starting the construction, she submitted an application for the modification of the building permission alongwith with revised site plans before the petitioner No. 1 for the grant of permission for raising a five- storeyed shopping-cum-commercial complex instead of a two-storeyed shopping complex. It was further pleaded in the suit that the petitioners did not dispose of the said application of the respondent within the stipulated period of 90 days and, as such, under the deemed sanction provided under Regulation 7(iii) of the Jammu and Kashmir Control of Building Operation (Revised) Regulations 2001, the respondent was entitled to raise the construction in accordance with the revised site plan, but the petitioners started interfering with the said construction of the respondent No.2. Alongwith the said suit, the respondent No.2 filed an application for the grant of temporary injunction which, after hearing both the parties, was rightly dismissed by the learned trial Court in terms of order dated 3rd of March, 2005. Against the said order of the learned trial Court, the petitioners filed a civil miscellaneous appeal before the Court of learned 3rd OWP No. 347/2007 Page 2 of 19 Additional District Judge, Srinagar and the Appellate Court, vide an order dated 2nd of November, 2006, dismissed the said appeal of the petitioners. The petitioners challenged the order of the Appellate Court in a Civil Revision Petition No. 47/2007, before this Court which is pending disposal. In the meantime, the statutory appeal of the respondent No.2 was disposed of by the respondent No.1 by way of a common judgment dated 16th of November, 2005, whereby it was ordered that since the actions have been initiated by the petitioners qua the violations against the respondent No.2 on the basis of un-amended Control of Building Operation Regulations, therefore, a notice of demolition/action be initiated in terms of amended regulations. In other words, the petitioners were given liberty to proceed against the respondent No. 2 afresh, in view of the Jammu and Kashmir Control of Building Operation Act and the amended regulations made thereunder, i.e. the Jammu and Kashmir Control of Building Operation (Revised) Regulation, 2001. Accordingly, fresh proceedings were initiated against the respondent No.2 and finally, after complying with the procedure prescribed by law, a fresh demolition order was passed by the petitioners against the respondent No.2 vide order No. SMC/Kh/350-55 dated 7th of December, 2005. The petitioners filed detailed objections before the respondent No. 1 projecting therein the deviations made by the respondent No.2 and that the latest completion report of the construction in question, in the form of counter objections, were also filed by the petitioners before the respondent No. 1. Thereafter, the respondent No.1, vide judgment dated 7th of November, 2006, compounded the deviations made by the respondent No.2 against a composition fee at the rate of Rs. 25/- per sft. (for basement and 2nd floor) and Rs.30/- per sft. (for first floor) OWP No. 347/2007 Page 3 of 19 for the area shown in the said order and, consequently, the deviation order No. SMC/Kh/350-55 dated 7th of December, 2005, was set aside.
02. In her objections, filed in opposition to the petition of the petitioners, the respondent No.2 has stated that the State of Jammu & Kashmir, under the housing policy, allotted/sold a plot of land measuring 1 kanal & 12 marlas in favour of the husband of the answering respondent against the payment cost of the plot in the year 1972 at Nursing Garh, Balgarden, Srinagar. The said plot, however, was, subsequently, exchanged by the Government in the year 1972, itself, with the present plot of land in view of the fact that the inhabitants of the plot holders at Nursing Garh were pressing hard for a plot of land to be specified for the construction of a park. The plot of land allotted to the husband of the answering respondent, in exchange, was provided at Gogji Bagh, Srinagar, alongwith an additional portion of land measuring 5 marlas, approximately, which was also sold to the husband of the answering respondent, and thereby the total land measured 1 kanals, 17 marlas and 219 sq.fts. At Gogjibagh, Srinagar, where the aforesaid plot of land was provided to the husband of the answering respondent, two more persons/Govt. employees, namely, Muhammad Hafiz and Muhammad Ramzan, were also allotted plots of land quite adjacent to the aforesaid plot of land. A three storeyed structure was constructed there on the aforesaid plot of land in the year 1974-75 by the husband of the answering respondent and it was leased out in favour of the Jammu & Kashmir Bank Ltd., for being used by it as an office /guest house. Somewhere in the year 1980, under and in terms of a family settlement, the aforesaid entire property was transferred by the husband of the answering respondent in the name of the answering respondent. In the year 1999, the OWP No. 347/2007 Page 4 of 19 answering respondent and one of her sons, namely, Sheikh Gowher, constituted a limited company under the name and style of M/s Golden Meadows Hotels (Pvt) Ltd. and, in furtherance thereof as also for raising commercial shopping complex after dismantling the existing structure, a loan facility upto the tune of rupees 80 lacs was availed from a bank which, in the due course, was enhanced to rupees 2.70 crores. For execution of the aforesaid plan viz. establishing the aforesaid company after dismantling and raising construction, the applicant, in the year 1999, itself, applied to the BOCA, initially, for the grant of sanction for raising double storeyed shopping complex which sanction was accorded after fulfilling all the necessary formalities required in this behalf. The said sanction, however, could not be acted upon by the answering respondent and the same out- lived its life for the requisite necessary building permission construction fee could not be deposited on account of personal reasons. Again, in the year 2001, the answering respondent applied to the BOCA for raising the double storeyed shopping complex. The case, after being processed afresh by the BOCA, was also referred to a Committee constituted by the Government known as the "Urban Transport Environment Improvement Committee" (UTEIC), under the Chairmanship of the Divisional Commissioner, Kashmir, seeking clearance qua the proposed construction from traffic environment point of view which clearance was accorded vide Government order No. 190-HUD of 2001 dated 14th of January, 2001, whereafter following due procedure required to be followed by the BOCA, a sanction for raising a double storeyed shopping complex was granted in favour of the answering respondent vide order No. 571 of 2002 dated 3rd of January, 2002. However, before the constructional activities under and in terms of aforesaid sanction could be undertaken by the answering OWP No. 347/2007 Page 5 of 19 respondent, in compliance to which the answering respondent had deposited necessary building construction fee of an amount of Rs. 1,35,480/-, the answering respondent intended to seek revised sanction on 9th of July, 2001, for raising five storeyed commercial complex instead of two storeyed shopping complex. The aforesaid application, after being processed and placed before it, BOCA asked for revised plans which though had already been submitted, were submitted afresh before the BOCA by the answering respondent. However, the BOCA neither accorded sanction for raising the construction of the five storeyed commercial complex nor did it refuse the same within the period stipulated under and in terms of the provisions of the J&K Control of Building Operations Act 1988, read with the Regulations made thereunder. In view of the aforesaid failure of the BOCA to communicate/convey any decision in regard to above, to the answering respondent, the answering respondent bonafidely and legitimately started undertaking construction activities for raising five storeyed shopping complex under the provisions of "Deemed Sanction", as provided under and in terms of the aforesaid Regulations. The aforesaid constructional activities undertaken by the answering respondent were not interfered with by the BOCA, perhaps, being conscious of the fact that the construction in question is being raised validly and legally. However, when the aforesaid construction was on the verge of its completion, the authorities of the BOCA started causing interference into the aforesaid constructional activities inasmuch they threatened that the construction raised by the answering respondent on spot will be demolished without following the procedure established under law, which threats compelled the answering respondent to institute a suit for declaration and injunction before the learned Municipal Magistrate (Sub-Judge) Srinagar alongwith OWP No. 347/2007 Page 6 of 19 the application for interim relief. The BOCA authorities, in response to the aforesaid suit, after being summoned, contested the application for interim relief which was finally decided on 3rd of March, 2005, against the answering respondent against which a Miscellaneous appeal was taken by the answering respondent which was disposed of in terms of order dated 2nd of November, 2006, while accepting the appeal. The BOCA, aggrieved of the aforesaid order, filed a civil revision bearing No. 47/2007 before this Hon'ble Court which revision petition was disposed of on 24th of September, 2008, protecting the construction raised by the answering respondent and directing the trial Court to frame preliminary issues as provided therein in the judgment, hear the parties and decide the same within the period of three months before proceeding the same for trial. Before the institution of the aforesaid suit, a notice dated 18 th of November, 2004, under sub-section (1) of Section 7 of J&K Control of Building Operations Act, 1988, came to be issued and served upon the answering respondent on 19th of November, 2005, alleging contravention of the initial building permission dated 3rd of January, 2002, which was responded to and replied by the answering respondent and bringing into the notice of the BOCA all the facts and circumstances including the fact that an application has been submitted by the answering respondent for seeking revised sanction of five storeyes instead of two storeyes. However, the BOCA, without following the procedure envisaged under the Act and the Regulations made thereunder, started causing interference into the constructional activities which compelled the answering respondent to file an appeal before the J&K Special Tribunal which appeal was, however, subsequently, withdrawn by the answering respondent, when the answering respondent came to know that notice under sub-section (3) of OWP No. 347/2007 Page 7 of 19 Section 7 of the Act has been issued, but, not served upon the answering respondent. The answering respondent came to know about the aforesaid fact, i.e. the issuance of notice under section 7 (3) of the Act only when the BOCA-petitioners herein filed their reply to the aforesaid suit pending before the learned Municipal Magistrate and, accordingly, was able to lay her hands upon the copy of the same in the Court of learned Municipal Magistrate, Srinagar, on 7th of February, 2005. The said order, under Section 7 (3) of the Act, though bore the date of 22nd of November, 2004, had not been served upon the answering respondent. However, as has been stated hereinabove, the answering respondent received a copy on 7th of February, 2005, whereafter a statutory appeal was filed against the same before the respondent No. 1. The respondent No. 1, on entertaining the appeal, condoned the delay on consideration of the facts and circumstances stated therein and passed an interim direction in favour of the answering respondent. The aforesaid appeal, however, alongwith all other pending appeals were disposed of by the J&K Special Tribunal by way of a common judgment dated 16th of November, 2005, for the notices/orders issued against the appellants in all those appeals, including the answering respondent, had been issued under the un-amended Regulations. The BOCA, after disposal of the aforesaid appeals, started issuing fresh notices/orders under Section 7 of the Act against the answering respondent which, again, came to be assailed in the statutory appeal before the J&K Special Tribunal on 24th of January, 2006. This appeal was accepted and disposed of/decided by the respondent No. 1 vide order dated 7th of November, 2006 and is under challenge before this Court in the writ petition under reply.
OWP No. 347/2007 Page 8 of 1903. Heard and considered.
04. The order impugned is a detailed one. It does not call for any interference. It is lucid and luminous. In order to understand the relating tenor of the order the relevant excerpts thereof are reproduced herein verbatim and elaterium.
"During the prosecutions of the aforesaid suit, the BOCA authorities in their reply submitted that procedure established under the Act and the Regulations had been followed and the demolition order had been issued after issuance of a show cause notice in terms of section 7(1) of the Act, which notice had been duly replied by the appellant well within time. At that point of time on learning about the issuance of demolition order by the BOCA, the appellant was able to lay upon her hands upon the demolition order bearing No. SMC/KH/133-38 dated 22.11.2004 and assailed the same before the appellate authority (J&K Special Tribunal). The aforesaid appeal was entertained and an interim order was also passed and finally the aforesaid appeal came to be disposed of by a common judgment of this tribunal dated 16.11.2005, whereby it was ordered that since the actions have been initiated qua the violations against the appellants on the basis of unamended Regulations, therefore, notice/action be initiated in terms of the amended Regulations. It is pertinent to mention here that an OWP(PIL) No. 325/2005 came to be instituted by a so called peoples welfare societies before the Hon'ble High Court against the aforesaid construction of appellant and the aforesaid OWP was dismissed on 04.08.2005. Against the said dismissal order an SLP was also taken by the said society before the Hon'ble Supreme Court which too was dismissed vide order dated 07.11.2005.
The grounds urged against the aforesaid demolition order impugned in this appeal have been that the aforesaid notice issued under section 7(1) of the Act or demolition dated 07.12.2005 has never ever been served upon the appellant as required under and in terms of the Act and the Regulations made thereto within the stipulated period, therefore, the same OWP No. 347/2007 Page 9 of 19 are not legally sustainable, as such, on this ground alone, notice u/s 7(1) and demolition order u/s 7(3) of the Act are liable to be set aside. That the notice in terms of section 7(1) of the Act as stated hereinabove was never served upon the appellant by the respondents and since then demolition order dated 07.12.2005 issued under section 7(3) owes its origin from notice u/s 7(1) which had not been ever served upon the appellant, therefore, the appellant has been in this view of the matter condemned unheard and has not been provided any opportunity of being heard, therefore, on this score also, the impugned demolition order is liable to be set aside. That the impugned notice and demolition order has been issued by the respondents without following the procedure prescribed under the Act and the Regulations made thereunder inasmuch without any competence and jurisdiction and, as such, are liable to be set aside. That the impugned notice and demolition order has been issued arbitrarily, in colourable exercise and abuse of power inasmuch as on unfounded, baseless and flimsy grounds, therefore the impugned notice and the demolition order are liable to be set aside. That the deviations shown in the impugned notice and demolition order are incorrect, baseless and palpably wrong. As has been stated hereinabove, the appellant has raised construction and almost completed the same on the ground deemed sanction for all requisite formalities as required under and in terms of the Act and the Regulations made thereunder have been completed when the appellant sought revised sanction as far back as in the year 2003 and it was the failure of the respondents that they did not communicate any decision in respect of the case of the appellant applied for raising construction under revised plan. The aforesaid fact is evidenced by a copy of communication addressed by Chairman BOCA (Commissioner SMC) to Senior Town Planner SDA on 22.11.2004. She further stated in her appeal that the deviations indicated in the notice under section 7(1)reveal that the appellant has deviated the sanctioned plan and the details of deviations have been shown over leaf whereas the demolition order provides surprisingly in para 4 that the reply to show cause notice referred to above has been considered (when infact no reply has been furnished by the OWP No. 347/2007 Page 10 of 19 appellant) and that the erection of the building is in contravention of the Act and against the norms of the Master Plan 2001. The aforesaid facts are suffice to show that not only the notice under section 7(1) but also the demolition order has been issued mechanically without application of mind inasmuch as in colourable exercise and abuse of power. It is pertinent to mention here that when the original sanction in the year 2002 was issued in favour of the appellant, the same was issued on consideration of all material facts and that at that point of time, the respondents accorded sanction in relaxation of so called violation of norms of Master Plan. The reort of the Inspecting Officer of the BOCA are self- explanatory and suffice to indicate that what were the reasons and circumstances that construction of commercial complex was permitted, therefore, the impugned notice inasmuch as the demolition order is liable to be set aside. That Peoples Welfare Society also raised almost the similar grounds of challenge in the writ petition as well as in the SLP as stated above before the Hon'ble High Court and Hon'ble Supreme Court of India qua the construction in question, however, the said grounds/pleas have been turned down by the Hon'ble High Court inasmuch as by the Apex Court while dismissing the said writ petition and the SLP, therefore, in this view of the matter there is no scope available to the respondents herein to initiate or launch any action against the appellant for the said alleged violations. That in view of the aforesaid facts and circumstances that there are deviations as alleged in the notice u/s 7(1) dated 03.12.2005 and demolition order dated 07.12.2005, yet the deviations alleged are of minor in nature and same is no way effect the planned development of the Srinagar City or contravene any zoning regulations of the Srinagar Master Plan, therefore, on this score also, the impugned notice and the demolition order are liable to be set aside. She (appellant) further stated in her appeal that the construction of the shopping complex has already been completed and even third party interest created, therefore, ends of justice demand this Hon'ble Court to consider this aspect of the matter as well inasmuch as the fact that the appellant has constructed the aforesaid construction only after raising a huge long from J&K Bank. Additional OWP No. 347/2007 Page 11 of 19 grounds were also urged and pleaded by the appellants after the respondents filed their objections/written arguments wherein certain more grounds were urged and pleaded by the appellant supplemental to the original grounds.
The respondents in their two sets of objections/written arguments (mainly resisted the appeal of the appellant on the grounds that the appellant has deviated from the sanctioned plan and inasmuch as the permission granted in favour of the appellant violates the zoning regulations of the Master Plan in vogue.
The counsel for the appellant and the respondents addressed their arguments in support of their pleadings and material placed with the pleadings. I have given my thoughtful consideration to the pleadings, material and the arguments addressed by counsel for the parties. The contention of the appellant that she has raised construction further three more storeyes on the ground of deemed sanction when the respondents failed to intimate to her either acceptance or rejection of revised sanctioned plan cannot be gone into by this tribunal for the said contention is subject matter in dispute before the Civil Court which is seized of the matter where a declaration has been sought by the appellant.
Coming to the impugned order of demolition issued by the respondents being the subject matter of the present appeal prima facie reveals that the respondents have slept over the matter and not taken any action for reasons best known to them till the construction had been almost completed by the appellant as is also contended by her in the memo of appeal. The respondents allowed the construction to commence and to be completed by the appellant despite the fact they had full knowledge and information about the raising of such a huge construction. The respondents initially having issued the order of demolition under the old regulations which had been questioned by the appellant in their earlier appeal and which had been disposed of by this tribunal in the above referred judgment would suggest that the respondents while issuing the present impugned order have issued it on the same lines mechanically and without application of mind in cyclostyle fashion without even making any reference of the violation of Master Plan. Only what the OWP No. 347/2007 Page 12 of 19 respondents in the impugned order have alleged against the appellant is that the appellant has not maintained the set backs and has deviated the sanctioned plan. It would be profitable to take notice of the observations made by the Hon'ble High Court in the aforesaid OWP (PIL) No. 325 of 2005 in the case titled Peoples Welfare Society and ors. v/s State and Ors. In the above referred case qua the construction in question wherein the Hon'ble High Court has made relevant observations which is reproduced as under: -
" As regards the construction already made, the petitioner did not approach this court within reasonable period and allowed construction to continue and we do not think it will be appropriate exercise of discretion to order demolition at this stage".
The said observation made by the Hon'ble High Court is borrowed here as well viz-a-viz official respondents as it had been stated hereinabove respondents had not been promoted in their dealings in the matter and allowed the appellant to raise the construction and to complete and conclude the same and then issued the order of demolition at a stage when the appellant has invested huge amount of money on the construction contended by her to have been raised as a loan from the financial institution. As such in this view of the matter the scales of balance in law would come to the rescue of the appellant for sole reason that the appellant had initially as prudent citizen obtained a valid sanction for raising two storeyed commercial building and subsequently asked for a revised sanction for raising five storeyed commercial building in spite of two storeyes which revised plan had not been accepted nor denied to the appellant.
The respondents in the order of demolition have indicated the set backs which were required to be maintained as and those alleged to have been violated follows:-OWP No. 347/2007 Page 13 of 19
Set backs to Set backs Violation
be
maintained
maintained
according to
the
sanctioned
plan
Front 40' 26'-6" 13'-4"
Rear 15' 12'-9" 2'-1"
One side 50' 47'-9" 2'-1"
Other side 15' 3' 12'
Admissible Deviation 4461
plinth area
3011 sqfts.
Constructed
7471.58 sqfts.
The aforesaid position manifestly reveals that
contention of the respondents is vague and ambiguous viz-a- viz violations, therefore this tribunal can opine that the violations are of not grave nature but of minor nature. For another important reasons which has to be of paramount considerations in a matter like the present case i.e it is nowhere contended either in the impugned order or in the objections/written arguments by the official respondents or by any other person or body or institution that the construction in question is affecting or has effected any of their rights and interests or even a public interest/right.
Another objection raised by the respondents in their objections and written arguments is that the area wherein construction has been raised is not earmarked for commercial activity but earmarked for social, cultural and religious activity though the said violation is not alleged in the impugned order yet it would be in the fitness of things to address this objection as well. The counsel for the appellant in the supplementary grounds/pleadings has referred to the said aspect while referring to the relevant provision in the Master Plan wherein the land use has been provided as recreational OWP No. 347/2007 Page 14 of 19 and not as social, cultural or religious. In this view of the matter also the objections of the respondent is misplaced and is an attempt to cover up their lacunas and to justify their failure which they have committed in the matter. Even otherwise also it goes without saying that if such was the situation about the land use the respondents could not have at the initial stage issued any sanction for raising commercial construction in favour of the appellant. The respondents having issued sanction in favour of the appellant for commercial complex cannot now taken up such an objection and would be stopped from taking up such an objection at this stage. Furthermore legally enforceable right vested in the appellant when the sanction was issued in her favour for raising double storeyed shopping complex which right cannot now be taken away by the respondent on any grounds much less one those urged in their objections/written arguments, more so in view of the fact that the area has developed tremendous commercial activity as indicated by the appellant in her supplementary ground wherein a details of commercial establishments has been given which has not been denied by the respondents in their objections/written arguments.
Coming to the contention of the construction of the car parking by the appellant is an underground parking/basement (measuring 8342 sqfts. as shown by the standing counsel for respondents in his objections/written statement) has not been alleged to be a violation by the respondents in the impugned order but has been alleged by the respondents in their objections/written arguments. This goes without saying that the sanction issued in favour of the appellant for raising double storeyed commercial building envisages itself a car parking to be ensured by the appellant and the appellant instead of having a car parking in the compound have it in the basement which by no sense of imagination can be held to be a violation of serious nature or else activity either prejudicial to the public interest or to the interests of any individual. As such, in this view of the matter also the objections taken by the respondents in their objections viz-a-viz car parking maintained by the appellant in the basement is misplaced.OWP No. 347/2007 Page 15 of 19
The result of the foregoing discussion is that the deviations caused by the appellant while raising structure are the ones which have been caused not only due to the fault of the appellant but also because of the inaction on the part of the official respondents the impugned order does not stand the test of judicial scrutiny and deserves to be set aside. The deviations/violations alleged therein are not of such a grave serious nature but are in the facts and circumstances of the case can safely be termed as of minor nature and as such, liable to be compounded. I therefore, order accordingly. The deviations are hereby compounded on the payment of composition fee @ Rs. 25/- per sq. ft (for basement and 2nd floor) and Rs. 30/- for the 1st floor for the areas as shown herein above by the respondents which shall be deposited by the appellant in the Additional Treasury Tankipora under Major Head 8448-Deposit of Local Fund dealing with the Municipal Chest by way of treasury challan within a period of one month After the composition fee is deposited, the appeal shall stand disposed of as having been compounded and consequently the impugned order No. SMC/Kh/350-55 dated 07.12.2005 is hereby set aside. However, in the event of non-
payment of the composition fee the respondents shall be at liberty to effect the demolition of the deviated potion of the buildings. Let record alongwith the copy of the judgment be sent to Chairman BOCA. File of this Tribunal be consigned to records after due completion".
05. Risking repetition it is stated that the order impugned is pellucid in details and lucid in content. However, it may be added that the issues raised in the writ petition by the BOCA, involve adjudication of complicated and disputed question of facts, in relation to the dimensions of the setbacks, as also the position of the construction and as such, the petition is liable to be dismissed on that alone. The order under challenge dated 7.11.2016 whereby the Tribunal ordered compounding of deviations and treating the same as minor, directed the respondent No.2 herein to deposit the compounding fee in the Major Head, deposit of Local Fund dealing with OWP No. 347/2007 Page 16 of 19 the Municipal Corporation, in consequence whereof the respondent No.2 deposited the same which came to be acknowledged and accepted by the BOCA without raising any kind of objection or else reserving any kind of right thereto. Acceptance of compounding fee, therefore, operates as bar against the BOCA to challenge the validity of the order of the Tribunal in the petition. The case of the respondent No.2 is not a case of "No Permission" but admittedly a case where a permission had been granted and construction raised thereof by the respondent No.2 though with certain modifications and alterations upon expert advice. The construction so raised owes its origin to a permission granted by the BOCA qua three storeyed shopping complexes, which permission was sought to be revised prior to the raising of construction by the respondent No.2 formally for raising of 5 storeyed shopping complexes instead of two storeyed shopping complex. The said revision had been sought validly and legally upon completion all requisite formalities supported with revised plan, which revision of permission was not refused within the period stipulated in the Control of Building Operation Act and Regulations made thereunder by BOCA thereby in essence allowing the respondent No.2 to raise the construction pursuant to the revised permission sought under the guise of "deemed permission", provided in the Act and Regulations. Regulation 7 of Building Operation Controlling Authority needs to be detailed below in order to understand in the correct aspect: -
Regulation 7.
Grant of Permission:-
1. "The Chairman of the authority shall place the application and Building Plan along with the Inspector's report before the Authority for its consideration.OWP No. 347/2007 Page 17 of 19
2. The authority shall either grant the permission subject to such conditions as may be specified or refuse to grant permission on such grounds as may also be specified and recorded.
3. The authority shall decide the matter within a maximum period of 90 days from the date of submission of the application and in case no decision can be taken within this stipulated period, the permission shall be deemed to have been accorded.
4. In case the authority refuses the grant permission, the grounds of such refusal shall be communicated to the applicant in writing within seven days from the date of decision.
5. The permission shall be issued only after the applicant deposits the building permission fees as approved by the competent authority.
6. Before granting permission no objection certificate from assistant Commissioner (Nazool) for all Government lands and Assistant Commissioner (Revenue) for all non-Government lands shall be obtained. In addition to this no objection certificate from Chief Town Planner shall also be obtained with reference to the Master Plan/Town Planning Scheme."
06. The respondent No.2 raised the construction of two storeyes keeping in view the valid sanction dated 3.01.2002 and rest of the construction under the guise of the deemed permission in respect whereof a civil suit for declaration and injunction is pending disposal before a civil court. The construction so raised has been completed long back and third party interest has been created thereof. The area where the construction has been raised is a built up area with prestigious commercial activity in place, and therefore, questioning the order of Tribunal by BOCA and allowing their petition at this stage would neither be proper nor appropriate. The answering respondent in support of her case relies upon AIR 2005 SC 2578. In view of the above the order under OWP No. 347/2007 Page 18 of 19 challenge does not call for any interference and petition as such merits dismissal and is accordingly dismissed. However, whatever has been said herein before shall not mean any expression of opinion or finding in respect of the issues involved in the suit pending before the civil court between the parties which shall be decided on its merits.
(M. K. Hanjura) Judge SRINAGAR 28TH, September, 2018 "Showkat"
OWP No. 347/2007 Page 19 of 19