Jammu & Kashmir High Court
Kuldeep Raj Gupta vs J.M.C And Others on 22 November, 2021
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
1
S. No. 7
HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT JAMMU
OWP No. 1947/2014
IA No. 2532/2014
Kuldeep Raj Gupta ...Petitioner(s)
Through: Mr. Jagpaal Singh, Advocate.
V/s
J.M.C and Others. ..... Respondent(s)
Through: Mr. S.S. Nanda, Sr. AAG.
CORAM:
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE.
ORDER
22.11.2021
1. In the instant petition, the petitioner on the foundation of the case set up implores for the following reliefs: -
i) Certiorari for the quashment of the order No. 01/BS/2014, dated 24.04.2014 issued by the respondent No. 3 as the same has been issued by the respondent No. 3 in an illegal, arbitrary and malafide manner.
ii) Declaring that the building permission in respect of the building namely Gopal Bhawan situated at KachiChhowni, Jammu is deemed to be accorded to the petitioner by the respondents.
iii) Prohibiting the respondents including their employees and agents from interfering in the peaceful execution of development, renovation, strengthening and construction work of the property namely Gopal Bhawan situated at KachiChhowni, Jammu as per the proposed plan.
2. The background facts as stated in the petition, under the cover of which the petitioner claims the aforesaid reliefs are that the petitioner claims to have purchased commercial property namely "Gopal Bhavan," situated at KachiChhowni, Jammu in an auction on 12.02.2009 for an amount of Rs. 1,51,00,000/- (Rupees One Crore Fifty One lacs only) after its auction had been ordered by the High Court.
3. It is being stated that the petitioner after taking over the possession of the property in question upon its purchase, the petitioner applied to the respondent No. 2 for grant of building permission in terms of Section 2 4 of the J&K Control of Building Operations Act, 1988 (for short the Act).
4. It is being stated that the respondent No. 2 did not consider and accord permission to the petitioner within the stipulated period of time in accordance with the regulation 7 of the J&K Control of Building Operations Regulations Act, 2001 (for short the Regulations).
5. It is being stated that the petitioner while completing all requisite formalities in this regard, also deposited requisite fee for building permission of Rs. 1,49,065/- (Rupees One Lakh Forty Nine Thousand and Sixty Five Only) on 12.03.2011 with the respondents besides an amount of Rs. 6,000/- (Rupees Six Thousands Only) on 12.03.2011 itself for malba security against proper receipts.
6. It is being stated that feeling aggrieved of non-consideration and disposal of the permission case of the petitioner by the respondents, the petitioner intended to undertake constructional activities in view of Regulation 7(iii) on the ground that the permission is deemed to have been granted and that the respondents, however, did not allow the petitioner to start the construction work.
7. It is being stated that on account of non-consideration and non-
disposal of the building permission case of the petitioner and the inaction of not allowing the petitioner to undertake constructional activities, the petitioner filed OWP No. 474/2013 before this Court which came to be disposed of on 25.10.2013 in presence of the counsel for the respondents directing the respondent authority to take a decision on the petitioners proposal in accordance with law, rules, regulations and Master Plan reserving a right for the petitioner to seek appropriate remedy in the event cause arises.
8. It is being stated that despite passing of the orderdated 25.10.2013by this Court, the respondents did not carry out the directions contained therein compelling the petitioner to file contempt petition No. 08/2014 in response to which the respondents filed statement of facts along with copy of order dated 24.04.2014 impugned in the instant petition.
9. The impugned order dated 24.04.2014 is being challenged in the instant petition inter alia on the following grounds: -
a. That the order impugned has been issued by the respondent No. 3 in an illegal, arbitrary and malafide 3 manner. On this ground alone the order impugned requires to be quashed by this Hon'ble Court. b. That as mentioned above petitioner deposited the requisite building permission fees to the tune of Rs. 1,49,065/- (Rupees One Lakh Forty Nine Thousand and Sixty Five Only) and Rs. 6,000/- (Rupees Six Thousands Only) on 12.03.2011 only after fulfilling all the requisite conditions as prescribed under the rules and only after the proposed plan is passed the requisite fees is deposited. In the order impugned respondent No. 3 has stated that the building has been dismantled by you as per the report of our field staff on 12.03.2011. It clearly reflects arbitrariness and malafide on the part of the respondent No. 3. If report was received by the respondent No. 3 on 12.3.2011 then how the fees was accepted by the respondents on the same day i.e., 12.03.2011. The respondents have falsely stated in the order impugned that as per the report of their field staff on 12.03.2011 the building has been dismantled by the petitioner. On this ground also the order impugned requires to be quashed by this Hon'ble Court.
c. That no doubt petitioner applied for the renovation and strengthening of the aforementioned building but the renovation and strengthening of building is to be done in accordance with the proposed plan only in that case respondents can take action against the petitioner. Herein the present case respondent No. 3 has issued the order impugned which he is not empowered to issue or in other words the respondent No. 3 has issued an order which is not permissible under law. On this ground also the order impugned requires to be quashed by this Hon'ble court. d. That respondent No. 3 while issuing the order impugned lost sight of all the relevant rules and regulations. The rule 7 of the Control of Building Operations Regulations lays down the procedure to be followed while dealing with the application for the grant of permission. The sub rule (4) of the rule 7 of the Control of Building Operations Regulations make it amply clear that in case authority refuses the grant of permission the grounds of such refusal shall be communicated to the applicant in writing within seven days from the date of decision. The respondent No. 3 while passing the order impugned has relied upon the report of field staff dated 12.03.2011 but no decision was taken for more than three years.
Moreover sub rule (3) of rule 7 of the Control of Building Operations Regulations provides that the authority shall decide the matter within a maximum period of sixty days from the date of submission of the application and in case no decision can be taken within the stipulated period, the permission shall be deemed to be accorded. Here in the present case no decision was taken by the respondents for more than three years. It clearly reflects arbitrariness and 4 malafide on the part of the respondents. On this ground also the order impugned requires to be quashed by this Hon'ble Court.
e. That petitioner applied for the renovation and strengthening of aforementioned building in accordance with the proposed plan and renovation and strengthening including roof replacement also and the bare perusal of the proposed plan makes it amply clear that it includes roof replacement also and moreover renovation and strengthening of building includes roof replacement also. It clearly reflects that respondent No. 3 has issued the order impugned in a mechanical and casual manner. On this ground also the order impugned requires to be quashed by this Hon'ble Court.
10. Per contra respondents have filed objections to the writ petition resisting and controverting the contentions raised and grounds urged in the petition.
11. It is being admitted in the objections that the case of the petitioner for grant of building permission was put before the respondent-authority by the Senior Town Planner,JMC, with the remark for approval of the building permission subject to the condition that renovation by way of strengthening with provisions of columns/beams without changing the coverage height and FAR and further condition that land use may not be changed at any stage.
12. It is being further admitted in the objections that the petitioner had deposited fee of Rs. 155,165/- with the respondents and that the Chairman of the authority did not accord approval to the building permission case of the petitioner.
13. It is being further admitted that the petitioner filed OWP No. 474/2013 before this Court and same came to be disposed of on 25.10.2013.
14. It is being stated, that upon considering the building permission case of the petitioner in the light of the remarks of the Senior Town Planner, JMC, an inspection of the site revealed that the petitioner had demolished first, second and part of the ground floor of the building and as such the permission for renovation and strengthening could be granted resulting into issuance of order under challenge dated 24.04.2014.
515. It is being further stated that since petitioners case came to be decided in terms of order under challenge and in view of the demolition of the building by the petitioner, the petitioner, however, it was provided that the petitioner can apply afresh for reconstruction of the building. Heard learned counsel for the parties and peruse the record including the original record pertaining to the building permission case of the petitioner produced by Mr. S.S. Nanda, Sr AAG, counsel for the respondents.
16. Before adverting to the controversy involved in the petition it would be advantageous and appropriate to refer to the relevant provisions of the Act and the Regulations being germane herein.
Section 4 of the Act reads as under: -
4. Control of development and building operation.-No person shall undertake or carry out the development of any site in any Municipal Area, Local Area, Town Area, Notified Area or Area Notified under the Jammu and Kashmir State Town Planning Act, 1963, or erect or re-erect any building or make or extend any excavation or lay out any means of access to a road in such area except with the previous permission of the Authority concerned in writing.
Section 5 of the Act reads as under: -
5. Application for permission.-(1) Every person desiring to obtain the permissions, referred to in Section 4 shall make an application in writing to the authority or through any agency authorized, in such form and containing such information as may be prescribed by regulations made under this Act.
(2) The Authority shall, within a period of 7 days of the receipt of application under sub-section (1) decline to accept a plan as sufficient for purposes of granting sanction under this Act if it does not bear the signature and seal of a Registered Architect or a Draftsman registered with the Authority.
(3) On receipt of such application the Authority, after making such enquiry as it considers necessary, keeping in view the area and the laws, rules and regulations applicable therein, shall by an order in writing, either grant the permission, subject to such conditions, if any, as may be specified in the order or refuse to grant such permission, under the State Town Planning Act, 1963 or any Master Plan. (4) Where the permission is refused, the grounds of such refusal shall be communicated to the applicant in writing within a period of 30 days.
Regulation 7 of the Regulations reads as under: -
7. Grant of Permission.-(i) The Chairman of the Authority shall place the application and the building plan together with requisite Annexures along with the opinion and inspection report envisaged in 6 Clause (%) of these regulations before the Authority for its consideration.
(ii) The Authority shall either grant the permission subject to such terms and conditions as may be specified in the order or refuse to grant the permission on such grounds as may be specified and recorded.
(iii) In case the applicant has fulfilled all the requisite formalities and the Authority has not decided the notice of intent of the applicant within a maximum period of 90 days from the date of application, the permission shall be deemed to have been accorded, provided the proposed construction does not-
a) violated the planned development of Srinagar City as envisaged by various departments and departmental agencies such as PDD, PHE, SDA, UEED, LWDA, SMC etc;
b) violate zoning regulations under Srinagar Master Plan;
c) violate the land use of the area;
d) violate the floor space index and set backsetc;
e) come in alignment of green belt;
f) come in the widening of road by R&B Department;
g) prevention of Ribbon Development Act;
h) effect the easement rights of the adjacent plot holder and the title of the land is not subject-matter of dispute before any forum;
i) violate the prescribed building line and right of way;
j) violate Rules 77, 79 and 80 of the J&K Electricity Rules, 1978 made under J&K Electricity Act, 1997 (1940 AD).
(iv) The permission shall be issued only after the applicant deposits building permission fee as per the following rates ....
17. A bare perusal of above Sections 4 & 5 of the Act would suggest that a person contemplating to undertake erection or re-erection of a building has to have previous permission of the authority concerned in writing after making an application in writing to the authority, which upon receipt of application and after making such enquiry as it considers necessary either grant the permission subject to conditions or refuse to grant the same and that where the permission is refused the grounds of such refusal shall be communicated to the applicant in writing within a period of 30 days.
18. A perusal of above Regulation 7 (iii) of the Regulations suggest that in case the applicant has fulfilled all the requisite formalities and the authority has not decided the notice of intent of the applicant within a maximum period of 90 days from the date of application, the permission shall be deemed to have been accorded subject to the conditions as appended to Regulation 7 (iii) in clauses (a)-(j) and that 7 the permission has to be issued only after the applicant deposits the building permission fee.
19. Perusal of the original record of the building permission case of the petitioner produced by Mr. S.S. Nanda, Sr. AAG, reveals that petitioner initially had applied for issuance of the building permission to the respondents for renovation and strengthening of building. Record also tends to show that the same had been approved by the respondent-authority subject to the condition that the land use may not be changed at any stage. The authority according approval seemingly has been consisting of Executive Engineer, PHE, Jammu, Executive Engineer, S&D Division, Jammu, Executive Engineer, PDD, Jammu, Assistant Commissioner Nazool, Jammu, Joint Commissioner(W) JMC,and Chief Town Planning Organization, Jammu having affixed their signatures thereof on the approval except that of the Chairman Building Operation Control Authority (BOCA), Jammu.
20. Record further reveals that the respondents thereafter received an amount of Rs. 6,000/- and Rs. 1,49,065/- on 12.03.2011 from the petitioner against proper receipt on account of malba security and building permission fee respectively.
21. Record also reveals that the respondents without any reason delayed the disposal of the building permission case of the petitioner after aforesaid approval dated 07.02.2011. The petitioner seemingly at this stage appears to have in anticipation of grant of permission undertaken constructional activities by dismantling the structure.
22. Record further demonstrates that the petitioner during the pendency of his earlier building permission case had applied to the respondents for grant of building permission for erection of the building having been duly received by the respondents on 18.02.2013 vide Receipt No. 9123.
23. Record further demonstratesthat the respondents even after the issuance of the impugned order dated 24.04.2014 have undertaken an exercise for considering the case of the petitioner for grant of permission in his favor for erection of building in the year 2018 and that the same had been forwarded for opinions/remarks of the law section by the Senior Town Planner on 10.12.2018 and that the law 8 section had returned the same on 18.12.2018 with the following remarks: -
"may please clarify, what is the obstruction to allow the building permission and under what circumstances, matter is pending since long for permission, when writ petition stands disposed of on 25.10.2013.
18.12.2018."
24. What emerges from above is that the respondents have followed and adopted casual, callous and lackadaisical approach while dealing with the building permission case of the petitioner not only initially when the petitioner applied for permission in the year 2011 for renovation and strengthening of the building,compelling the petitioner to file OWP No. 474/2013 before this Court wherein a direction came to be passed against the respondents for taking a decision on the petitioner proposal and that it took the respondents more than 3 years for taking the said decision as contained in impugned order dated 24.04.2014 but also subsequently during the pendency of the petition when the petitioner had applied to the respondents afresh for grant of permission for erection of building having been received by the respondents on 18.02.2013 against proper Receipt No. 9123.
25. Admittedly the building permission case of the petitioner has remained pending without any lawful justification with the respondents irrespective of the fact that the respondent-authority (except the signature of the then Chairman) had approved the case of the petitioner despite having received necessary building permission and other fee in the year 2011 itself.
26. Indisputably respondents even have failed to accord consideration to the building permission case of the petitioner after disposal of the OWP No. 474/2013 on 25.10.2013 and also despite the petitioner having applied afresh for grant of permission for erection of the building in question on 18.02.2013 itself. The delay in consideration and disposal of the building permission case of the petitioner by the respondents is writ large solely and exclusively attributable to the respondents. The aforesaid failure and inaction on the part of the respondents in this regard has continued even after applying of the petitioner afresh for the building permission despite having received 9 above referred comments from the law section of the authority in the year 2018.
27. The aforesaid deliberate and intentional delay on the part of respondent-authority in considering and disposing of the building permission case of the petitioner has been unfair, unreasonable besides patently being violative of the rights and interests of the petitioner entitling the petitioner to the "deemed permission" as contemplated under Regulation 7 (iii) of the Regulations, subject of course, to the conditions and stipulations provided in clauses (a) to (j) appended thereto.
A reference hereto, to the judgment of this Court passed in "Krishan Chand V. State and Ors" reported in (2007) 3 JKJ (HC) 263 would be relevant and germane herein wherein at paragraphs 10, 11, 12 & 19 following has been noted: -
10. In the instant case, as it has been noticed above, the petitioner submitted application for according permission on 8.9.2004. The respondent-authority has neither informed the petitioner that there is any defect in the application nor it has been communicated to the petitioner that the application has been considered within the stipulated period and the same has been rejected. When the authority has not considered the application within the stipulated period, then as per Sub-Rule 3 of Rule 7 of the Regulations, permission would be deemed to have been accorded.
11. The High Court of Delhi in the case of Friends Housing Society and Ors. v. The Delhi Administration and Ors. reported as AIR 1973 Delhi 275 , while interpreting Sub-section 3 of Section 323 which is perimeteria to Sub-Rule 3 of Rule 7 of the Control and Building Operation Regulations, 1998, has held as under:
"On a construction of this provision of law, a Division Bench of this Court in Municipal Corporation of Delhi v. Smt. KamlaBhandri, Letters Patent Appeals Nos. 138-D of 1964 and 143D of 1965 decided on 1-12-1969 (Delhi) by S.N. Andley, J. (as he then was) and Hardayal Hardy, J. observed that in spite of the fact that in Section 337 of the Corporation Act there was a provision for the sanction to be deemed to have been granted on the expiry of the statutory period, the result under Section 313 would be the same and the action of the standing committee would be inter vires if it was performed within the prescribed time and it would be ultra vires if performed after its expiry.The Court therefore, finally held: "In our view, the reasonable construction is that if the Standing Committee does not act within the time prescribed, the restriction upon the utilization of the land 10 stands removed." This authority, so far as this Court is concerned, lays down the law authoritatively. The result is if the Standing Committee has allowed sixty days to expire without rejecting the plan or asking for further information, it would be deemed to have been sanctioned."
12. Similar view has been taken by the Punjab & Haryana High Court in the case reported as Improvement Trust Bhatinda v. Satinder Kaur 1991 PLJ 627, wherein it was observed that when plan is submitted to the Municipality for sanctioning and the Municipal Committee neither sanctions it nor rejects it within the stipulated time, the applicant can proceed with the construction and the plan will be deemed to have been sanctioned.
19. The Municipal Authority is adopting double standard. On the one hand, the people who are law abiding citizens submit the applications alongwith the lay out plans for raising construction over their property and the Municipal Authority is not taking any decision on their applications within the statutory period and on the other hand, the people who raise the construction unauthorisedly, no action is being taken against them when they are raising such illegal constructions and once the construction is completed, then show cause notices are issued, which are being challenged before the J&K Special Tribunal in appeal. When the appeals are accepted by the Tribunal, the respondent authorities do not challenge the said orders and these orders passed the Tribunal attain finality. This shows that illegal constructions are being raised with the connivance of municipal authorities. If the Municipal authorities are really interested in stopping illegal constructions then the staff of the Municipality should take immediate action against the persons concerned and direct the parties who are raising illegal constructions to demolish the same. The respondent-Municipal Corporation admittedly has set up a wing and the staff employed in this wing is to check illegal constructions within the municipal limits but the said staff is not performing its duty and is not taking any action against the persons concerned who raised illegal constructions. The Administrator Municipal Committee is also not taking any action against those employees who allow such illegal constructions and are not reporting the matter to the authority in time.Therefore, it has become necessary to issue directions that whenever illegal constructions are raised and the staff concerned is not reporting the matter in time, then the Administrator Municipality shall take a disciplinary action against all such erring officials.
28. The challenge thrown to the impugned order dated 24.04.2014 by the petitioner in view of aforesaid decision and having regard to the facts and circumstances of the case has paled into insignificance and has been rendered thus inconsequential.
29. Having regard to what has been observed, considered and analyzed hereinabove, the writ petition deserves to be allowed and is accordingly allowed. The respondents are commanded to accord 11 consideration for grant of building permission in favour of the petitioner for erection of the building having been applied for on 18.02.2013 under receipt No. 9123 on the premise of "deemed permission" contemplated under Regulation 7(iii) of the Regulations, 2001, subject to the conditions contained in clause (a) to (j) appended thereto, within a period of two months from the date copy of the judgment is served upon the respondents, uninfluenced of the impugned order dated 24.04.2014.
Registry to return original record back to Mr. S.S. Nanda, Sr. AAG.
(Javed Iqbal Wani) Judge Jammu 22.11.2021 "Junaid"
Whether Order is reportable? Yes / No. Whether Order is speaking? Yes/No.