Building Operation Control vs Naveen Chander Narang (Dead) And Others

Rajesh Sekhri, J

Challenge in this writ petition has been thrown to order dated 18.05.2012 passed by respondent no. 2-J&K Special Tribunal (for short “the Tribunal”), vide which, unauthorized structure of 78 sq ft. alleged to be raised by respondent no. 1, has been compounded @ Rs. 50 per sq. ft. in terms of Rule 11 of the J&K Control of Building Operations Act 1988, (for short “the Act”).

Some uncontroverted facts of the case are that respondent no. 1 claims to be owner in possession of Plot measuring 5118 Sq. ft. situate at Main Road, Gangyal, Kunjwani National Highway, Jammu. He initiated construction of six numbers of RCC Pillars at the ground floor without building permission of the petitioner authority. The construction work came to be halted by the petitioner by invoking provisions of the Act. As a result, respondent no. 1 submitted the building plan, which came to be approved vide Order No. 2764/BS-09 dated 26.03.2010, for raising commercial construction comprising of two halls measuring 1349 sq. ft. However, while raising construction, respondent no. 1 breached the sanctioned plan. He was served upon a show cause notice dated 19.09.2009 in terms of Section 7 (1) of the Act, followed by final notice dated 28.09.2011 envisaged under Section 7 (3) of the Act, calling upon him to demolish the unauthorised construction within 05 days from the service of notice. This notice came to be assailed by respondent no. 1 before the Tribunal on the conventional grounds that no show cause notice contemplated under Section 7(1) of the Act was served upon him and he was not granted reasonable opportunity of being heard before issuance of the impugned notice. The petitioner authority filed status report in the Tribunal reflecting violations committed by respondent no. 1. However, learned Tribunal vide impugned order dated 08.05.2012, allowed the appeal preferred by respondent no. 1 and compounded the unauthorised structure as mentioned at the outset.

The petitioner authority has assailed the impugned order on the predominant premise that learned Tribunal has fallen in error of law to compound major violations as violation of setback committed by respondent no. 1 is not compoundable as per Regulation 11 of the J&K Control of Building Operation

Heard the arguments and perused the file.

While Mr. Mayank Gupta, learned counsel for the petitioner has reiterated the grounds urged in the memo of appeal, Mr. Vishal Goel, learned counsel for respondent no. 1 has relied upon „Building Operation Controlling Authority vs Mangal Dass and Anr.‟; OWP No. 481/2012 dated 16.02.2023 and „Kewal Kishan Gupta vs. Jammu and Kashmir Special Tribunal and Ors‟; AIR 2005 SC 2578 to submit that in view of modified Master Plan of the Government, there is no violation committed by the respondents and a commercial structure otherwise cannot be demolished even if it be in contravention of the provisions of the Act or the zoning provisions of the previous Master Plan.

The petitioner authority has questioned the impugned order primarily on the ground that respondent no. 1 has not only covered more than permissible plot area by deviating from the sanctioned plan but he has also violated the setback and floor area ratio, which is a major violation and cannot be compounded in terms of Regulation 11 of COBO Regulations, which reads thus:-

“11.(1) The Appellate Authority may compound an offence of a minor nature specified in sub-clause (2) of these Regulations:

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

(2) For the purpose of these Regulations an offence of a minor nature shall include any erection or re-erection of the building which has taken place in violation of permission referred in Section 4 of the Act or deemed permission as referred in sub-clause (2) of Clause (7) of these Regulations provided that such erection or re-erection:

(i) does not violate the approved land use of area as notified in the Master Plan or Town Planning Scheme;

(ii) does not violate the permissible front, rear or side setbacks prescribed in the bye-laws;

(iii) does not violate by more than 10% of permissible grounds coverage as prescribed in the bye-laws; and

(iv) does not violate the permissible height of the building as prescribed in the bye-laws.”

Regulation 11 provides for composition of offences of minor nature specified in clause 2, provided the erection or re-erection which has taken place in violation of permission referred in Section 4 of the Act or deemed permission under sub-clause (2) of clause (7) of these regulations, does not violate the approved land use of area as notified in the Master Plan or Town Planning Scheme, the permissible front, rear or side setbacks, the permissible ground coverage exceeding 10% and the permissible height of the building as prescribed in the bye-laws. It is evident from a bare reading of the aforesaid regulation that violation of permissible front, rear or side setbacks and permissible ground coverage exceeding 10% do not fall in the category of minor offences and are non compoundable.

As per the violation chart submitted by the petitioner authority, in the present case, respondent no. 1 was permitted to raise commercial structure to the extent of 1349 sq. ft. each at the ground floor and first floor over a total plot area of 4377 sq. ft. Allegation against respondent no. 1 is that he covered an area of 1388 sq. ft. on each floor i.e. 2.8% in excess of the sanctioned plan and in addition to it, he also violated the setback and floor area ratio. Learned Tribunal, vide impugned order has concluded that it was competent to regularise the offence to the extent of 10% excess of the sanctioned area and since in the present case, there is violation of 2.8 % at ground floor as well as the first floor and since there was no violation of land use of the area, height of the building and there is no allegation of any encroachment made by the appellant, respondent no. 1 herein, therefore, the offence committed by respondent no. 1 is minor in nature, which could be safely regularised by way of compounding in terms of Rule 11 of the COBO Rules.

It is surprising that learned Tribunal despite having noticed the violation of setback committed by respondent no. 1 has compounded the violation by treating the same as minor in nature, whereas as per Regulation 11(2) (ii) of COBO Regulations, the violation of permissible front, rear or side setbacks prescribed in the bye-laws do not fall in the category of minor offences and are non compoundable. Learned Tribunal has returned the finding of composition of offence on the basis of violation of 2.8% at ground floor as well as the first floor committed by respondent no. 1, however, learned Tribunal has not assigned any reason in the impugned order regarding composition of violation of side setback. Learned Tribunal, by merely referring to the assertions made by the parties in their pleadings and arguments advanced at bar, has allowed the appeal preferred by respondent no. 1 and compounded the major violation in a cryptic manner without assigning sufficient reasons. What emanates from the perusal of the impugned order is that learned Tribunal has failed to judicially sift the contentions and inspect the plea made in the case.

The case law relied by Mr. Goel, learned counsel for the petitioner is distinguishable from the facts and circumstances of the present case.

It is trite that ratio of a particular observation made in a judgment cannot be applied mechanically without adverting to the background facts, under which said observation is made by a Court. Kewal Kishan Gupta (supra) is required to be considered in some detail, as same is heavily relied by learned counsel for respondent no. 1 as also in many cases for composition of major offences. In Kewal Kishan Gupta, B.C. Road area of Jammu was specifically earmarked as special area to be developed as a mixed used zone having residential, commercial, light industry, institutional and other uses in Master Plan for Jammu: 2021, and was given a statutory flavour, vide SRO 263 issued by the Commissioner/Secretary to the Government of Jammu and Kashmir. It was in this background that Hon’ble Supreme Court observed that it shall be unnecessary for permitting the demolition of the impugned structure, in view of rapid growth of industrial development, even if it was in contravention of the provisions of the Act or the zoning provisions of the previous Master Plan, which is not the present case. There is nothing in the record to indicate nor brought into the notice of this Court that the place where the offending structure in the present case has been raised is earmarked and statutorily backed as a special area to be developed as a mixed used zone for residential, commercial, light industry etc. in the Master Plan for Jammu. The observations made in Kewal Kishan Gupta, must be read and understood in the context in which they have been made. Courts cannot embark upon to place reliance on a particular observation made in a judgment without taking note of the factual background in which said observation has been made. Therefore, Kewal Kishan Gupta cannot be perfunctorily applied by the Courts or Tribunals for composition of major offences.

Similarly, in BOCA vs. Mangal Das (supra), respondent had raised the offending structure in breach of the approved site plan as he was supposed to maintain front setback to the extent of 24.6 sq. ft., but it was found to be 20 ft. on verification, which was less than the prescribed norms. Learned Tribunal treated the deviation as minor one and compounded the same. Learned Division Bench of this Court, in the said case, clearly ruled that offences relating to the violation of front, rear or side setbacks are not compoundable in terms of Regulation 11 (2) (ii) of COBO Rules. However, learned Division Bench taking note of the modified Master Plan issued by the Government, which allowed the provisions of front setback to the extent of 20 ft. and since respondent no. 1 had made up the front setback of 20 ft., restrained the authorities from taking coercive action against the respondent because the setback of 20 ft. maintained by respondent for the front setback was no more inconsistent with the modified Master Plan. However, in the present case, the respondent was supposed to maintain side setback of 10 ft. but he has not maintained the said setback at all. Therefore, the violation committed by the respondent in the present case, can neither be compounded under Regulation 11 of COBO regulations nor under the modified Master Plan of the Government, which provides the maintenance of front setback to the extent of 20 ft.

Viewed from any angle, the impugned order passed by learned Tribunal being unreasoned, cryptic and illegal does not sustain in the eyes of law. However, keeping in view the fact that the offending structure in the present case was raised somewhere in the year 2010 and the impugned order came to be passed in 2012 i.e. more than a decade back, therefore, no fruitful purpose shall be served by ordering the demolition of the structure at this length of time. Hence, taking a compassionate view of the matter and in peculiar facts of the case, the present petition is allowed in part and the impugned order is modified by providing that the unauthorized commercial structure of 78 sq. ft. raised by respondent no. 1 is compounded @ Rs. 200 per sq. ft and, in addition, respondent no. 1 is also directed to pay a fine of Rs. 20,000/- for violation of permissible front setback prescribed in the bye-laws.

Disposed of accordingly along with connected application(s).