Building Operation vs Jyoti Singh and Another

Permod Kohli, J.—The petitioner, a statutory authority has called in question order dated 9-9-2005 passed by respondent No.2 in exercise

of its appellate jurisdiction under the provisions of Control of Building Operations Act, 1988.

Briefly stated the facts as emerge from the record reveal that respondent No. 1 applied to the petitioner for grant of sanction/permission for

construction of building at 1st Floor of the existing house for residential purposes. Petitioner granted sanction/permission for construction vide its

sanction No. 139/BS/2002 dated 24-7-2002 and approved the plan with certain conditions as appended to the sanction order. It is alleged that

respondent No.1 commenced construction in violation of the sanction plan. On the report of the Khilafwarzi Inspector a Show Cause Notice

dated 4-9-2003 was issued to respondent No. 1 to dis-continue the construction, followed by notice dated 20-10-2003 to demolish the un-

authorized construction. In the meanwhile respondent No. 1 applied for sanction/permission in respect to the alleged un-authorized construction

which request is said to have been rejected in the meeting held on 24-2-2004. A fresh demolition Notice No. MJ/Estt/38/3/CKO/03 dated 9-6-

2004 came to be served upon respondent No. 1. This demolition order was appealed against before respondent No. 2, the J & K Special

Tribunal, Jammu. During the pendency of the appeal a report was filed by the petitioner giving details of the nature and extent of violation vide its

report dated 2-9-2004. It was stated that the violation is serious in nature. Special Tribunal, the Appellate Authority decided the appeal vide the

impugned order dated 9-9-2005. The Tribunal on consideration of the report and the Master Plan allowed the appeal and ordered compounding

of the construction at the rate of Rs 15/- per Sq ft in respect to the area measuring 5158 Sq ft and at the rate of Rs 20/- per Sq ft in respect to the

Balcony projection. Challenge to this order is based upon the ground that the violation is major in nature and not compoundable under the Building

Operations Regulations 1998 which permit the compounding of only minor violations.

With a view to explain the violation of Regulations Mr. S.S. Nanda, learned Counsel appearing for the petitioner has referred to the report of

the Municipal Corporation and argued that huge construction has been raised at the first floor in gross violation of the sanction plan and the

construction on the second floor is totally without any permission, whereas Balcony has been constructed over hanging the road. According to Mr.

Nanda, the area is purely residential and respondent No. 1 has constructed a Nursing Home in violation to the Master Plan.

Petitioner reported the following violations to the Tribunal during the pendency of the appeal:

That the appellant has constructed the building against the sanctioned plan. She was permitted vide this office No. 139/BS/2002 dated 24-7-

2002 to construct residential house at first floor comprising two bed rooms, kitchen, drawing room, living room, two toilets and stair-hall covering

built up area of 1935 Sqft. As against this at site, the appellant has constructed 13 rooms, big central hall and toilets, covered passage, stair-hall

and ramp covering an built up area of 5138 Sft. This obviously is in deviation of the sanctioned plan that too infringement of the prescribed building

bye-laws and the control of building operations Act of 1988 which is a major violation.

That the appellant has also raised 2' 6"" wide balcony over hanging over the road thereby increasing further constructed area illegally and

unauthorisedly.

That the appellant further has constructed three rooms one big hall, covered passage, ramp and stair-hall unauthorisedly at second floor over the

recently raised first floor without any plan sanctioned. The appellant thus has again violated the prescribed building bye-laws and the control of the

Building Operations Act of 1988.

The construction raised on the second floor is without any plan sanctioned and in contravention to the provision of the Master Plan.

That the built up area involved under the construction raised un-authorisedly has been worked out as under:

a) Built up area at first floor: 5139 Sft

b) Built up area at second floor: 1955 Sft

c) Balcony/projection over hanging

On road: 167 Sft.

In so far as the extent of construction as reported by the petitioner to the Tribunal is concerned, is not in dispute. It is also admitted case of the

parties that respondent No. 1 had already raised construction on the ground floor which was existing and permission/sanction was sought for

raising the construction on the first floor.

The Special Tribunal vide the impugned order compounded the construction by holding that the construction does not fall within the ambit of

commercial activity as per the Master Plan of Jammu - 2021. For arriving at this conclusion reference is made to page 95 of the Master Plan.

During the course of hearing of this petition Mr. Nanda was asked to produce the Master Plan as also the Zonal Plan. Copy of the Master Plan

has been produced for the perusal of the Court. However, it is reported that no Zonal Plan has been prepared, in respect to the area where the

construction in question has been raised.

During the course of arguments Mr. Nanda has relied upon Clause 6.9.11 Special Area at page 81 of the Master Plan. Extract relevant for the

purpose of this case is quoted here-under:

6.9.11 Special Area:

Division A comprising of area on the east of BC Road from the Palace to Exhibition Ground and of the West upto Janipur Nallah is proposed to

be developed as a Special Area. A hierarchy of roads has been identified comprising of 30 mt, r/w 18 mt, r/w 12 mt, r/w linking important areas

within this. The existing bus stand is proposed to be developed in part as an intra city terminal together with provision for adequate parking and

commercial use. On roads which are proposed to be developed as 18 mt and 12 mt r/w commercial use shall be allowed to the extent of half the

depth of the plot and in accordance with the regulations stipulated for this area for which separate scheme shall be formulated by JDA in due

course. x x x

According to the learned Counsel for the petitioner, the area in question falls within 'Special Area' and though commercial activity is permitted

but at least 12 mt road width is required. I have carefully considered the afore-said provision of the Master Plan, which clearly permit the

commercial use on the roads which are proposed to be developed as 18 mt and 12 mt road width for which a scheme is to be formulated by the

Jammu Development Authority. On enquiry from Mr. Nanda it has been revealed that till date no scheme has been formulated by the Jammu

Development Authority. The area does fall on the Western side of B.C. Road on a link road from B.C. Road to Rehari Colony as per the plan

placed on record. Commercial activity has been authorized by the Master Plan but detailed scheme has not been prepared, though this Master

Plan also came to be notified vide SRO 263 dated 9-8-2004. It is further argued on behalf of the petitioner that half of the depth of the plot can be

utilized for commercial activity under the new Master Plan. Admittedly no Scheme has been formulated till date. The construction has been raised

at the first floor and second floor. The Tribunal has observed that a Clinic is being operated upon by respondent No. 1 and it does not fall within

the ambit of commercial activity. The demolition order do not suggest nor it contains a ground that respondent No. 1 has raised construction

beyond half of the depth of the plot. The depth of the plot from one side is 104'.6"" and on the other side 68' as per the sanction plan. Petitioner has

not said anything in the impugned demolition order as to what extent the commercial activity is being carried on. This is without prejudice to the

plea of respondent No. 1 that Medico's Clinic is not a Commercial activity.

Learned Counsel appearing for the respondents has also referred to Clause 8.2 of the Master Plan at pages 94-95 and reference is made to

the permitted user in the residential area. The relevant clause of the Master Plan reads:

Residential

(a) Uses Permitted:

Dwelling of all types, guest houses, boarding houses, dharamshala, night shelter, rooming houses, customary home occupation, schools offering

general educational courses, libraries, parks, playgrounds, golf courses, nurseries, green houses, and general purpose farms, churches, temples,

mosques and other religious buildings, clubs, cultural and philanthropic associations of non-commercial nature, swimming pools for community use,

professional establishments satisfying the requirements of some customary occupations and private nursing homes, convenience shopping, local

shopping.

A reading of the afore-said clause depict that 'private nursing home' is also considered to be a permitted user in the residential area. Not only

this even Convenience shopping and local shopping as also the professional establishments are allowed. Even if it is presumed that the area is

totally residential, establishment of Nursing Home is permitted in the residential area. Respondent No. 1 is using the premises as a Nursing

Home/clinic which also comes within the definition of professional establishment and for the benefit of the local population. What is prohibited

under 1998 Regulations is provided under these regulations which read:

Appeal (1) An appeal against the order of the authority made u/s 5 & 7 of the Act shall lie before the Chairman of the J & K Special Tribunal or

such other members of the said Tribunal as may be decided by the same Chairman.

The appellate authority may compound the offence of minor nature specified in Sub-clause 2 of the Regulation.

Provided that the compounding fee shall be worked out on the basis of rates to be notified by the Government.

(b) For the purpose of this regulation an offence of a minor nature shall include an erection or re-erection of the building, which has taken place in

violation of permission referred in Section 4 of the Act, deemed permission as specified Sub-clause 2 of Clause 7 of the Regulation provided.

IX. Does not violate the approved land use of the area as notified in the Master Plan or Town Planning Scheme.

X. Does not violate permissible front, rear or side set backs prescribed in the bye-laws.

XI. Does not violate by more than 10% of the permissible ground coverage as prescribed in the bye-laws; and

XII. Does not violate the permissible height of the building as prescribed in the bye-laws.

Under the afore-said Regulation a construction will be deemed to be a minor construction if it does not violate the approved land use,

permissible front, rear or side set backs. more than 10% of the permissible ground coverage and permissible height. In view of the new Master

Plan as notified vide SRO 263 dated 9-8-2004 a professional establishment/Nursing Home can be established in residential area under Clause

8.2(a) of the Master Plan. Though commercial activity is permissible in this area in terms of clause 6.9.11 of the afore-said Master Plan, as noticed

above, there is no violation of land use. The permission having been granted for construction at the first floor, the violation of front or rear set back

or 10% of the ground coverage is irrelevant. It is not the case of the respondents that there is any violation of permissible height.

B.C. Road has been declared to be a Commercial area under the New Master Plan and if the commercial activity is permissible, the

construction cannot be demolished merely because of contravention of permission. In a similar case of alleged violation in the B.C. Road area the

Apex Court in case of Kewal Kishan Gupta Vs. Jammu and Kashmir Special Tribunal and Others, observed as under:

Finally, apart from these reasons for which the impugned judgment is liable to be faulted, our attention was drawn by the learned Counsel for

the appellant to notification dated 9-8-2004, SRO 263 issued by the Commissioner and Secretary to the Government of Jammu and Kashmir by

which the Master Plan for Jammu: 2021 has been published. Paragraph 6.9.11 at page 81 of the said Master Plan specifically provides that B.C

Road area is earmarked as special area to be built as a mixed use zone having residential commercial, light industry, institutional and other uses.

The phase of rapid growth of industrial development also makes it unnecessary for permitting demolition of the structure even if it be in

contravention of the provisions of the Act or the zoning provisions in the previous Master Plan. Considered from all angles, it appears that the High

Court need not have taken an activist role in directing demolition of the offending structure which had been permitted to be compounded by the

competent authority, namely, the Tribunal.

In the above case the scope, purport and application of present Master Plan was considered The area involved in the present petition is also in

the vicinity of the construction which was subject matter in the afore-said judgment. An order of demolition of construction by the High Court was

set aside by the Hon'ble Supreme Court, making above observations. Case of respondent No. 1 is no different from that. The observations of the

Apex Court have relevance and are ttracted to the facts of the present case.

Mr. Nanda, learned Counsel appearing for the petitioner has vehemently argued that as against permission for two bed rooms, one kitchen,

one Drawing Room, One Living Room, two toilets and stair-case, respondent No. 1 has constructed 13 rooms, a big central hall and toilet, stair

hall and ramp at the first floor and construction on second floor, besides a Balcony hanging on the road. Perusal of the Regulation clearly indicate

that it is not the quantum of construction which tends to decide whether it falls within the ambit of minor or major violation. It is the violation of

permissible land use, front and rear set back, ground coverage area and height which decide the violation to be major or minor. The argument of

Mr. Nanda is mis-conceived. The extent and quantum of construction has no relevance to ascertain whether it is major or minor violation.

As observed above, there does not seem to be any violation of the Regulation in so far as the land use, height and ground coverage and front

and rear set back is concerned, the construction being at the first and second floor. Since the professional establishment and Nursing Home is

allowed in residential area, the Tribunal was right in compounding the violation not being the major one under law.

In so far as the projection of 2'.6"" hanging on the road side is concerned, the Tribunal has stated that it is a sun-shade, though the Municipal

authorities reported that the same was a Balcony. There is nothing on the record to show that this projection is only Sun Shade. This projection

being over the road, it is an encroachment and thus its compounding is not legal.

In view of the above, order impugned is upheld except the compounding of Balcony Projection over the road. Respondent No. 1 shall

demolish the balcony within one month, failing which petitioner shall be entitled to demolish the same and recover the expenses from respondent

No. 1. This petition is accordingly dismissed with above modification of the impugned order.