Administrator, Municipality, Jammu vs K.C. Hotels Private Limited and Others

Rizvi, J.—This Letters Patent Appeal is directed against the judgment and order of the learned single Judge dated 14-2-1991, dismissing the

writ petition filed by the Administrator and Executive Officer of the Municipality Jammu against the respondents and upholding the judgment and

order of the J and K. Special Tribunal, Jammu dated 15-10-1990 hereinafter referred as Tribunal, Jammu.

The facts and circumstances giving rise to the Letters Patent Appeal are briefly given, as under:

The respondent No. 1, a Company incorporated under the Companies Act, for the purposes of constructing a hotel at Residency Road, Jammu,

had submitted building plans to Jammu Municipal Authorities for according sanction to the proposed construction. After proper verification and

after obtaining No Objection Certificates from all concerned, the said plans were sanctioned by the Building permission Committee of Municipality

and issued under No. 633 dated 17-3-1987. Allegedly, the Architect engaged by the respondent-Company modified the sanctioned plans to some

extent and the same were submitted to Jammu Municipality for sanction. The concerned authorities of the Municipality asked the respondent to

submit the modified plans to the Jammu Development Authority (for short JDA). The modified plans were, allegedly, cleared by the Chief Town

Planner and who sent the same to the Municipal authorities vide his letter Number JDA/BCC/317 dated 6-11-1987. It is stated that the revised

plans remained pending with the Jammu Municipality for more than 120 days, and as such, it was presumed in terms of Sub-section (4) of Section

222 of the Municipal Act, that they have been sanctioned. The respondent, accordingly, proceeded with the construction as per the modified plan.

Allegedly, when the construction reached its final stage, and the respondent had already spent more than 1.5 crores, he received a notice from the

'Khilafwarzi' Officer of the Jammu Municipality, bearing No. 11/ KVO/84 dated 15-4-1989, calling upon him to show cause as to why the

building raised be not demolished. The said notice was replied to by the respondent. Consequently, the Executive Officer of the Jammu

Municipality passed an order on 11-11-1989, bearing No. MJ/175/KVO/89, calling upon the respondent to demolish the building.

An appeal came to be filed before the Tribunal Jammu by the respondent challenging the demolition order of the Executive Officer of Jammu

Municipality. During the pendency of appeal, the Tribunal appointed some Commissioners for ascertaining the actual position on the spot as to the

violations, if any, made. Last of all, the Tribunal after taking into account the totality of the circumstances returned the following findings:--

(i) The Executive Officer of the Municipality was competent to delegate his powers vested in him under the Act to the 'Khilafwarzi' Officer;

(ii) The Chief Town Planner, JDA's letter written to the Executive Officer of the Jammu Municipality was an act performed in the normal course of

official duties which carried a presumption in its favour including that of its receipt by the addressee concerned;

(iii) The Chief Town Planner was competent to receive Municipal plans- and that earlier plans had also been approved by the Municipality only

after they were cleared by the said Officer;

(iv) The submission of the plans by the Chief Town Planner to the Municipal Authorities would not constitute a notice under Subsection (4) of

Section 222 of the Municipal Act so as to give rise to the presumption that the plans so submitted stood sanctioned, if not otherwise turned down

by a specific order; and

(v) The violations alleged by the Municipal Authorities and the digressions from the sanctioned plans reported by the Commissioners did not

amount to a major violation within the meaning of the J and K Municipal (Unauthorised Construction) Rules 1977 and, therefore, could be validly

compounded.

In consequence of the above noticed findings the Tribunal compounded the violations after holding them as 'minor' in nature and regularised the

construction upon payment of a fine of Rs. 2,660.83.

Aggrieved by the aforesaid order of the Tribunal, the appellants filed a writ petition challenging the same, inter alia, on the ground that the

violations alleged against the respondent-Company were of a 'major' nature, and hence not compoundable in terms of the rules on the subject.

The learned single Judge vide impugned judgment, dismissed the writ petition holding that the violations were not major and therefore, rightly

compounded. The Letters Petent Appeal is directed against the said judgment, re-agitating the issue regarding compound ability of the alleged

violations.

In this Letters Patent Appeal, notices of show cause were issued to the respondents. The respondent No. 1 appeared but the other respondents

despite service did not appear and were set ex parte on 1-12-1992. On that date, the learned counsel for the parties were partly heard and the

learned counsel for the appellants were directed to produce the relevant record pertaining to sanction of the plans in favour of the respondent No.

He failed to produce the said record till the hearing was concluded by the order of the Court. It is pertinent to mention here that when the

Letters Patent appeal came up for hearing on 39-9-1993, the learned counsel for the parties agreed for finally disposing of the same at its

admission stage itself. On that day, the learned counsel for the appellant was given three weeks time to submit the written arguments with an

advance copy to the other side and they were given two weeks' time thereafter to file the reply. The learned counsel for the appellants did not

submit his written arguments within the stipulated period and instead filed a CMP No. 643/93 seeking time to file his arguments. The said CMP

was disposed of on 29-12-1993 directing the learned counsel for the appellant to submit his written arguments on or before 11-1-1994, with an

advance copy to the other side, and he was given one week's time to file the reply. The learned counsel for the appellants again failed to file the

written arguments and he again filed CMP No. 19 of 1994 praying therein that the memo of the Letters Patent appeal may be treated as his written

arguments. The said CMP came to be disposed of with the agreement of the learned counsel for the parties on 29-1-1994. By that order, the

memo of Letters Patent Appeal was treated to be the written arguments of the learned counsel for the appellant. However, the learned counsel for

the respondent was given one week's time to file his reply with an advance copy to the learned counsel of the appellants, who was given one

week's time to file his rebuttal, if he so desired. The learned counsel for the respondent has submitted his written arguments and given a copy to the

learned counsel for the appellants, who has not filed any rebuttal.

We have thoroughly gone through the memo of appeal as also the written arguments filed by the learned counsel for the respondents, and have

given our anxious consideration to all the facts and circumstances of the case. We have examined the file also, thoroughly. Needless to repeat that

the learned counsel for the appellants did not comply with the order of the Court dated 1-12-1992 and failed to produce the record pertaining to

the sanction in question till the hearing was concluded.

The main question raised in the Letters Patent Appeal is that the alleged violation committed by the respondent No. 1, is 'major' one, and

therefore, not compoundable by the Tribunal. Allegedly, the Tribunal Jammu had no jurisdiction to compound the violation in question and

regularise the same, and the learned single Judge vide impugned judgment has erred in upholding the same.

While appreciating the controversy involved in the matter and before compounding of alleged violations, the learned Tribunal has taken note of

the plea of the respondent No. 1 that he had filed a revised plan to Jammu Municipality for sanction through Jammu Development Authority and its

Chief Town Planner. It may be pertinent to refer to the finding of the Tribunal in this regard, which is reproduced, as under:--

I have considered the respective contentions made by the learned counsel for the parties. Copy of the letter written by the Chief Town Planner,

JDA, to the Executive Officer, Jammu Municipality, Jammu, is on record. The Chief Town Planner, JDA, is a senior Officer of the State of Jammu

and Kashmir and has sent the letter aforesaid in the normal course of his official duties. There is always a presumption in favour of official acts done

by the officers in discharging of their duties. Therefore the possibility cannot be entirely ruled out that the revised plans were submitted by the

appellant and were, in turn transmitted by the Chief Town Planner, JDA to the Municipal Authorities, Jammu. The argument of Mr. Nanda, that the

Chief Town Planner figures nowhere in the Municipal Act and had no authority to receive municipal plans is not tenable; in as much as, even the

previous building plans submitted by the appellant were sanctioned only after the approval by the Chief Town Planner. However, there is some

force in the other submissions of Mr. Nanda, that the receipt of the site plans by the Municipal authorities from the Chief Town Planner, JDA

would not constitute a valid notice. Sub-section (4) of Section 222, of the Act contemplates a valid notice of the persons concerned expressing his

intention to erect or re-erect a building. Strictly speaking, the submission of site plans could not amount to a valid notice in terms of Sub-section (4)

of Section 222 and the mere transmission of the plans through the Chief Town Planner to the Municipal authorities would not by itself authorise the

appellant to proceed with the construction. This is, however, a hyper-technical plea on the part of the respondent-Municipality and, therefore, the

petitioner's case deserves a lenient view.

From the judgment of the Tribunal, it is manifest that the revised plan was received by the Municipality from the Chief Town Planner, and in

this regard, the letter of the latter is stated to be on record. If it is so, the Municipality was expected either to allow the same, and in case of its

rejection, convey the decision to the concerned. The Municipality has neither sanctioned the revised plan nor rejected the same till the expiry of

120 days with the result that the respondent No. 1 bona fidely proceeded with the construction in question as per the revised plan in terms of Sub-

section (iv) of Section 222 of the Municipal Act.

Sub-section (iv) (supra) envisages a presumption in favour of sanction, if it is not considered and disposed of by the concerned authority within

a period of 120 days. The said Sub-section for the sake of facility is reproduced, as under:

222(4) Notwithstanding anything contained in Sub-section (1) of or Sub-section (2) but subject to the provisions of bye-laws made in this behalf

under this Act, if the Executive Officer neglects or omits, within sixty days of the receipt from any person of a valid notice of such intention to erect

or re-erect a building or within one hundred twenty days, if the notice relates to a building on the same or part of the same side, on which sanction

for the erection of a building has been refused within the previous 12 months, to pass orders, sanctioning or refusing to sanction such erection or

re-erection, such erection or re-erection shall, unless the land on which it is proposed to erect or re-erect such buildings belongs to or vests in the

Counsel, be deemed to have been sanctioned, except in so far as it may contravene any bye-law, or any general or special order of the

Government prohibiting the construction of buildings in any particular area;

Provided that, should a resolution conveying or refusing such sanction be suspended u/s 253, the period prescribed by Sub-section (4) shall

commence to run afresh from the date of communication of final orders by the Minister, Local Self-Government or the Government;

Provided further that if not less than one-fifth of the members present vote against a resolution conveying sanction, the sanction shall be deemed not

to have been conveyed only after the lapse of fourteen days from the passing of the resolution.

The Tribunal no doubt has held that the receipt of the revised plan by the Municipality could not itself be treated as notice in terms of Sub-

section (4) (supra), but all the same the non-consideration of the revised plan by the concerned authority within the stipulated period has influenced

its mind in taking a lenient view in favour of the respondent-company. The question is non-consideration of the revised plan even though, it was

cleared by the Chief Town Planner of the Jammu Development Authority. Had it been rejected in time, the respondent could not have proceeded

with the construction. Not only that, the concerned authorities of the Municipality did not take any notice and nor objected for about 11/2 years to

the raising of the construction as per the revised plan. The revised plan was sent to the Municipality by the Jammu Development Authority on 6-

11-1987 which allegedly, remained pending consideration for years together. It is on 15-4-1989 that the 'Khilafwarzi' Officer awoke from his

deep slumber and issued a notice to the respondent, calling upon him to show cause as to why the construction be not demolished. Allegedly, till

then, the respondent-Company had almost completed the construction as per the revised plan. If it is correct, then the Court would be justified to

presume that it was with the acquiescence of the Municipality that the construction was raised as per the revised plan. It was too late in the day for

the Municipality to issue a notice for demolition of such construction. The one side of the picture is that if the construction was raised as per the

revised plan which was duly submitted to the Municipality for consideration, and no decision was taken within the stipulated period, the

respondent-Company was justified to presume that it has been allowed. It is stated that the construction has been raised as per the revised plan

and not contrary to the same. If it is so, where is the question of violation.

The other side of the picture is that even if there is any violation to the original sanctioned plan, it is not of any serious nature which could

prevent the Tribunal to regularise against payment of fine. The Tribunal has found the violation to be of minor nature, after considering the report of

the Commissioner, and keeping the relevant law and the rules and regulations made thereunder, in view. It has dubbed the objection of the

Municipality to raising of such construction as only hyper-technical, and the said finding of the Tribunal has been up-held by the learned single

Judge. It was for the Tribunal to go into this question as to whether the violation in question was major one, and therefore, non-compound able; or

minor one and therefore, compound able. It has taken all the necessary steps and the required precautions to find out the nature of the violation,

and consequently, come to the conclusion that it was minor in nature. In this regard, it would be advantageous to refer to the findings of the

Tribunal, which are reproduced below:

Mr. A. V. Gupta, has lastly argued that this Tribunal has the powers to direct that instead of alterations/demolition of the building, the violation

be compounded on payment of compensation. In reply to this submission of Mr. Gupta, Mr. Nanda, the learned counsel for the respondent,

argued that the violation committed by the appellant is not a violation of a minor nature and, as such, it cannot be compounded by awarding

compensation instead of demolition/alteration of the building. Mr. Nanda has in support of this plea referred to J. & K. Municipal (Unauthorised

Constructions) Rufes, 1977.

I have perused the order impugned and the Rules aforesaid. According to the order impugned, the violation in question is that the approved

building plan envisaged front and back opening from 1st floor to top of the building with specified gap, which has not been done. Further, that

although building line is at the prescribed from the centre of the road, the set backs as permitted for the building have not been left at site. In the

order impugned, it is further alleged that there is a violation to the extent of 9506.75 sft. of floor area. The rules aforesaid specify a number of

violations which can be described as violations of minor nature. The violations alleged against the appellant are covered by clauses (a) and (c) of

the said Rules, which provides :--

(a) having increased the ground average height of the building prescribed for that area under any Zoning regulation or bye-law save as otherwise

specified hereinafter.

(c) having violated the front and rear set backs prescribed under any Zoning regulation/Bye-laws in such cases........

There is no merit in the contention of Mr. Nanda that the violation by the petitioner being the Zoning regulation of the bye-laws is not a minor

offence which could be compounded. The violations are quite clearly of a minor nature which can be compounded by awarding compensation.

15-16. Moreover, in this connection, it would be fruitful to refer to Section 229 of the Jammu and Kashmir Municipal Act which contains source

of power to order compounding of violations of the Municipal bye-laws in the matters of construction:

229(4). Any person aggrieved by the order of Executive Officer directing the persons to demolish, alter or pull down the building or part thereof

under Sub-section (3) may prefer an appeal before the Minister Incharge, Local Self Government or the authorities appointed by him in this behalf

within seven days after the date of aforesaid order of the Executive Officer. The memorandum of appeal need not be accompanied by a copy of

order appealed from;

Provided that Minister Incharge, Local Self Government or the authority appointed by him in this behalf shall decide the appeal within ten day from

the date the appeal is filed;

Provided furher that Minister Incharge Local Self-Government or the Authority appointed by him in this behalf may, either before or after the filing

of the appeal, compound as offence and accept by way of compensation such sum as he or it may deem reasonable subject to such rules and

regulations and or as may be prescribed, where an offence has been compounded, no further action shall be taken against the aggrieved person in

respect of the offence so compounded.

The powers exercisable by the Minister in terms of Section 229 (supra) are new exercisable u/s 3 of the J. & K. Special Tribunal, 1988, by the J.

& K. Special Tribunal.

Consequently, the Tribunal was competent to have compounded any violations alleged against a citizen provided the same was otherwise

permissible in terms of the rules referred to earlier.

It is at this stage necessary to refer to the relevant rules which envisage compounding of violations committed by a citizen in the matter of

raising construction within the Municipal Limits of Jammu. Rule 3 of the J. & K. Municipal (Unauthorised Construction) Rules, 1977 reads thus :--

On receipt of an appeal from any person aggrieved by the order of the Executive Officer directing him to demolish, or alter or pull down the

building or part there under Sub-section (3) of Section 229 of the Municipal Act, the Minister or the Authority appointed by him in this behalf may

compound the offence committed by the applicant and accept by way of compensation such amount as he or the authority may, subject to these

rules deem reasonable;

Provided the Minister or the Authority, as the case may be, is satisfied that the offence is of a minor nature and does not amount to serious

violation affecting the planned development of the area or the zoning Regulations or bye-laws applicable to that area.

EXPLANATION

For the purpose of this rule, an offence of minor nature shall include (i) effecting the internal or external channes in the existing building, or raising of

a new structure without;

(a) having increased the ground coverage, height of the building prescribed for that area under Zoning Regulations or bye-laws, save as otherwise

specified hereinafter;

(b) having affected the requirement of right of way on roads/lanes by providing buildings, sunshades, balconies and/or any other projections (cave

projection and terrace floor projection within 2' width excepted) prescribed for that area under Zoning Regulations or bye-laws;

(c) having violated the front and rear setbacks prescribed under any Zoning regulations/bye-laws in such cases where there be any building of

adjacent plot holder having its front or rear facade towards the new structure without clear distance equal to the height of the new structure.

A perusal of the explanation to Rule 3 (supra) would show that a violation shall be deemed to be minor unless while raising the construction in

dispute the ground coverage or the height of the building has been raised beyond what is prescribed for that area under Zoning regulations or bye-

laws. Sub-rule (c) of the explanation further shows that the violation in respect of front or rear set-backs will also amount to a minor violation

unless any such violation is contrary to any zoning regulation/ bye-laws.

It is, therefore, apparent that the very fact that the ground coverage or the height of the building has gone beyond the sanctioned plans or that

there is a violation of the front or rear set-back does not by itself make the violation major or non-compound able. What is important is that

besides the said violations, it must be shown that the same are contrary to the Zoning Regulations or bye-laws prescribed for the area. The

appellants have in support of their contention failed to produce any Zoning Regulations or bye-laws applicable to the area where the building in

question has been raised to show that the ground coverage or height of the building is violative of any such zoning regulation or bye-laws or that

there has been any other violation in respect of the said zoning Regulations or bye-laws, either in respect of the set back, projections, balconies

etc. The appellants cannot obviously succeed in the appeal unless they can show that the ground coverage or height of the building violates any

zoning regulation or the bye-laws. This the appellants have failed to show. Consequently, even assuming that there has been any excess ground

coverage or that the height of the building has been raised beyond what was originally sanctioned, yet the same would not make the violations

major in character so as to render the same non-compoundable.

In this appeal, we are not expected to go into a question of fact as to what sort of violation has been committed in raising of construction, and if

any, whether it was as pre-sanctioned plan or revised plan, and whether it was minor or major in nature. All these things have been well considered

by the Tribunal, which was required to go into such questions. The Tribunal has after a thorough inquiry come to the conclusions on a question of

fact and recorded a finding about the nature of the violation, and regularised it under law by compounding the same. The Tribunal, in our opinion, is

fully competent to compound the violation, keeping in view its nature, and if it is so, the learned single Judge has not erred in upholding the findings

of the Tribunal. The learned single Judge also appears to have considered the matter in its entirety in coming to the conclusion that the violations

were of minor nature. As a matter of fact, strictly speaking, the writ jurisdiction of the High Court could not be invoked in such matters, as the

dispute was in substance relating to a question of fact. The Tribunal is the final arbiter in such matters. It appears to us a unique case where the

Municipality itself has filed a writ petition against the order of Tribunal, perhaps to cover up its lapses and omissions/commissions. The writ

jurisdiction is invoked mainly where fundamental rights are infringed. However, for violating of legal rights too, such jurisdiction may be invoked

provided alternate remedy is not available. In the present case, the alternate remedy has already been availed of and even then on a disputed

question of fact writ jurisdiction is sought to be invoked. Not only that, now Letters Patent appeal too has been filed and at the expense of badly

needed funds of the Municipality. It appears to us to be a litigation of attrition only for the purpose known to the Municipality only.

In these circumstances of the case, in our opinion, there is no merit in this appeal, which is hereby dismissed without any order as to costs.