Building Operation Controlling Authority And Others vs Naseema Rashid Wani And Others

Rajesh Bindal, J

CM No. 4228/2020

Learned counsel for the applicant submitted that due to lockdown in the City because of Corona-Virus, he had not been able to get the Court fees to be annexed with this petition. He seeks some time to do the needful after the Court re-opens.

The application is allowed. The applicant is permitted to submit the Court fees in the Registry in terms of Circular No. 16/GS dated 29.03.2020 issued by the High Court.

The application is disposed of accordingly.

WP(C) No. 1345/2020, CM No.4227/2020

The petitioners have approached this court challenging the order dated 09.07.2020 passed by the J&K Special Tribunal Jammu (for short „the Tribunal‟). Order was passed in an appeal filed by the respondents No.1 and 2, challenging order dated 21.01.2020 passed by the Building Operations and Control Authority (for short „BOCA‟) under Section 7(3) of the Building Operations Act 1988. The respondent Nos. 1 and 2 are on caveat. Copy of the petition was supplied to the counsel appearing for them.

Notice to the respondent Nos 1 & 2. Mr. Uday Bhaskar, Advocate, accepts notice.

Adjourned to 10.02.2021 for arguments.

Arguments of learned counsels for the parties were heard on the interim application filed by the petitioners.

Assailing the order passed by the Tribunal, learned counsel for the petitioners submitted that the order is nothing else but absolute misuse of power by the Tribunal, whereby it has gone beyond its jurisdiction to examine the issues raised therein and record a finding thereon. It is a case of blatant violation of law. The respondent Nos.1 and 2 were permitted to raise construction to the extent of 31,844 sq. ft., with basement, ground plus three floors. However, the construction has been raised up to six floors with total area running into 1,41,165 sq.ft. The construction raised without permission was to the extent of 1,09,321 sq.ft. Out of the aforesaid area without there being any jurisdiction or authority vested in the Tribunal, it had considered the area to the extent of 64,238 sq.ft. as validly constructed. Violation was found only to the extent 45,083 sq.ft., for which the respondents were directed to pay penalty @ Rs.100 per sq. ft. As the respondents were happy with the substantial, extra-ordinary and illegal relief granted to them, they immediately deposited the same. He further submitted that the Tribunal has specifically noticed the fact that the measurements, which have been made by the petitioners are acceptable, whereas those made by the respondent Nos. 1 and 2 have to be rejected. There was huge variation therein. Exceeding its jurisdiction, the Tribunal had gone to the extent of examining the master plan of the city to justify the illegal construction by the respondent Nos. 1 and 2. That jurisdiction is not vested in the Tribunal. It was for the competent authority to examine those issues while granting permission. By doing that exercise, the Tribunal had tried to put the cart before the horse.

It was further submitted that while raising additional construction on the plot in question, the respondents have failed to observe the set back areas besides compromising on parking. It was further pointed out that FAR permitted to the respondents No.1 and 2, was 73.49. Of their own they had raised construction to the extent of 436.18. Hence, there was violation to the extent of 362.69. He further submitted that the Tribunal had not exceeded its jurisdiction only in the case in hand but in routine it is passing orders, which are totally contrary to law. No distinction is known to the presiding officer about illegalities and irregularities. Minor violations can be considered to the extent of some small variations where little additional construction has been raised beyond the sanctioned plan. A case where additional construction raised is to the extent of about 5 times the sanctioned area, the same cannot be treated as minor violations, which could be compounded. He further submitted that the role of the officers of the Corporation or the authority also need to be examined as they may also be hand in glove, otherwise such a huge construction in violation of the sanctioned plan cannot possibly be raised. The matter is required to be investigated, may be referring the same to a premier investigating agency. In fact the entire city is now struggling with illegal constructions being raised and that is because of the aforesaid reason everybody is taking law into their own hands.

He further argued that it is a fit case in which by way of interim order at least at this stage, entire area, which has been constructed by the respondents in excess to the permission granted, be sealed. He further submitted that the Tribunal is even violating the law laid down by the Supreme Court, while entertaining the prayer for de-sealing the premises, whereas it has been held by the Supreme Court in Kewal Krishan Gupta v. J&K Special Tribunal, AIR 2005 SC 2578 that the Tribunal is not vested with the power to direct de-sealing of any premises, as no appeal is maintainable against the same.

On the other hand, Mr. R. K. Gupta, learned Senior Counsel appearing for the respondent Nos. 1 and 2 submitted that no doubt some additional construction has been raised by the respondents in excess of the permission granted. However, major part thereof falls within the stipulations provided for in the Jammu Master Plan 2032. Hence, those cannot be said to be the violations. The Tribunal had wrongly calculated the excess area as 45,083 sq.ft., whereas actually it is about 5,700 sq. ft., which even according to the arguments raised by the learned counsel for the petitioners would fall within minor violations and can be compounded. Still without entering into any dispute and complying with the directions issued by the Tribunal, the respondents had deposited the amount of penalty as imposed by the Tribunal immediately and the petitioner has even utilized that amount. Hence, they cannot be permitted to challenge the order at this stage. He further submitted that it is case of a woman entrepreneur. They have already invested huge amount in the total project raising loans from the J&K Bank and even deposited Rs. 45 lakhs thereafter as penalty. Any adverse action against them at this stage would put them at great loss. He further argued that the respondents will place on record the material to show that in fact the violations are not to the extent of 45,083 sq.ft., as have been calculated by the Tribunal and these are much less. The matter can be heard and finally decided.

He further submitted that the proactive approach of the petitioner is evident from the fact that earlier even against the interim order passed by the Tribunal on 28.01.2020, WP(C) No.538/2020 was filed by the petitioner apprehending that the respondents may violate the interim order of status quo. The bonafide of the respondents is evident from the fact that immediately on the very first date of hearing, statement was made before this court that they will not violate the interim order and the status of the entire building can be photographed/video-graphed in the presence of both the parties. Though this court had fixed the date for the purpose but still the officers of the Corporation stormed the building immediately.

He further submitted that sealing of any part of the building at this stage will put the entire structure not worthy of use as every part is interlinked with each other. He undertakes to abide by any condition put by this court subject to final order. He undertakes not to raise additional construction of even a single inch, beyond what has already been measured by the petitioner and placed before the Tribunal. They should be allowed to continue with the internal fittings. The height of the building has not exceeded the maximum provided in the master plan. The order passed by the Tribunal is well reasoned. Each and every aspect, factual or legal as raised by both the parties has been considered in minute details.

As far as the interim relief is concerned, as the petitioner has strenuously pressed the same, that needs to be examined.

To appreciate the contentions being raised by both the parties, it is apt to note certain basic facts, as are available on record. The plot area in question is 27,200 sq. ft. The respondents sought permission from the appellant to raise construction thereon vide application dated 06.09.2016. The matter was placed before BOCA in its meeting held on 04.03.2017. Permission was granted to raise construction vide order dated 05.08.2017 to the following extent, as a commercial building:

AREA CHART

Total Plot Area

27200 Sq.ft.

Covered Area

Basement

11854 sqft

Ground floor

6000 sqft

First floor

6000 sqft

2nd floor

6000 sqft

3rd floor

1900 sqft

The important conditions mentioned in the aforesaid order are that the construction had to be raised as per the sanctioned plan. It had to be supervised through structural engineer. The applicant had to strictly adhere to the bye-laws of the Jammu Municipal Corporation 2011 and Jammu Master Plan 2000-21. The Corporation reserved the right to inspect the ongoing construction and in case of any deviation or violation, the permission shall be deemed withdrawn. The BOCA is at liberty to revoke the sanction at any given point of time if the conditions for grant of permission are violated.

The respondents started construction. When it was noticed that certain unauthorized constructions had been raised on the site, notice under Section 7(1) of the J&K Control of Building Operations Act 1988 (for short „the 1988 Act‟) was issued to the respondents by BOCA, on 02.03.2018, stating that the slab of basement had been laid down in violation of the permission, while disturbing the rear and front set back areas. Illegal construction was seriously affecting the planned development of city. It was accompanied by another notice under Section 12(1) of the 1988 Act directing the respondents to discontinue with unauthorized construction on the spot. On 13.03.2018, order under Section 7(3) of the 1988 Act was passed, stating that only basement had been constructed by that time and construction of ground floor was in progress. Violations were pointed out. It was directed that the violations be removed immediately. The respondents approached the Tribunal against the aforesaid order passed by the BOCA. The Tribunal vide order dated 14.03.2018 had stayed the operation of the aforesaid order. The order dated 14.03.2018 passed by the Tribunal was challenged by the petitioner before this court by filing OWP No. 1883/2018 which was disposed on 17.09.2018 by passing the following order:

"The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.

In this petition, the petitioner inter alia has assailed the validity of the order passed by the J&K Special Tribunal, by which, the Tribunal has stayed the operation of the notice issued by the petitioner under Section 7(3) of the Control of Building Operation Act, 1988.

When the matter was taken up today, learned counsel for the petitioner submits that the respondents are proceeding ahead with the construction work in view of the interim order passed by the J&K Special Tribunal. In rebuttal, learned counsel for the respondents submits that the respondents shall not raise any construction on the land in question during the pendency of the appeal before the J&K special Tribunal. The aforesaid statement is taken on record.

In view of the aforesaid statement, the writ petition is disposed of with the direction to the J&K Special Tribunal to dispose of the appeal preferred by the respondents expeditiously in accordance with law."

As the record shows, the matter again came to this court in WP(C) No. 224/2020 filed by the petitioner where order dated 14.12.2018 passed by the Tribunal was challenged. Notice in the aforesaid petition was issued on 23.01.2020 which was accepted by the counsel for the respondents on the same day. The aforesaid petition is still pending in this court.

Subsequent thereto another notice dated 31.12.2019 was issued by BOCA to the respondents under Section 7(1) of the 1988 Act.

The aforesaid notice mentioned that the site in question was inspected by the staff of the Corporation on 17.09.2019 and 26.12.2019. It mentions that the respondents had raised another fire escape staircase in the set back to the tune of 288 sq.ft. each at basement and ground floor. The details of the violations committed by the respondents were also given in the notice dated 31.12.2019. The same reads as under:

"No.MJ/CEO/46/1/2019 Dated:31.12.2019.

Sub: Notice under provision of Section 7(1) of J&K Control of Building Operation Act, 1988.

It is reported by the Khilafwarzi Inspector I/c area and through numerous complaints received in this office from time to time that you have continued the unauthorized construction over and above the area compounded by the Hon‟ble Special Tribunal at Main Raod, Sidhara, Jammu. The detailed violation chart alongwith the drawing showing the construction raised at site against the approved plan issued by JMC vide office No.260/BS/17 dated 05.08.2017 is enclosed herewith.

That the site was inspected by the staff of JMC, Building Section on 17.09.2019 and subsequently on 26.12.2019 and it has been reported that you have raised another Fire Escape staircase in the side set back to the tune of 288 Sqft each at basement and ground floor.

That the total construction / approved construction / violation as on date is as under:

Total construction at site

1,41,165 sqft.

Approved area as per the Building permission

31,844 sqft.

Total violation

1,09,321 sqft.

Area compounded by Tribunal

64,238 sqft.

Violation after compounding

45,083 sqft.

That you have raised the illegal construction of 45,083 sqft over and above the area that has already been compounded by the Tribunal.

That you have not observed the required set back areas.

That the said illegal construction seriously effects the planned Development of Jammu city and contravene the zoning regulations.

Now, therefore, in exercise of powers conferred under Section 7(1) of the J&K State Control of Building Operation Act, 1988 read with resolution No.1st Dated 21.05.2010 published in the Government Gazette dated 2nd Jan 2014 of the Building Operation Controlling Authority Municipal Area, Jammu, I hereby call upon you to show cause within a period of 48 hours from the date from the date of service of this notice, as to why the Khilafwarzi/violation as detailed above, should not be demolished."

The respondents were to show-cause as to why the illegal construction raised by them be not demolished. Along with the notice, a detailed chart of the violations, was also annexed. To appreciate the contentions raised by the learned counsel for the parties, it would be appropriate to extract the same:

"Violation Chart Showing the construction raised at site vis- à-vis approved plan by JMC vide this office no.260/BS/17 Dated:-05/08/2017

S. No.

Description

As per permission issued vide No.260/BS/17 Dated 05/08/17

Constructed at site

Violation

1

Basement

11854.0 sqft

21946.0 sqft

10092 Sqft

2

Ground Floor Area Ground Floor Slab projection

6000.0 Sqft

Nil

18239.0 Sqft

2226.0 Sqft

12,239.0 Sqft

2226.0 Sqft

3

First Floor area First Floor slab projection

6000.0 Sqft

Nil

18632.0 Sqft

2226.0 Sqft

12,632.0 Sqft

2226.0 Sqft

4

Second Floor area Second Floor slab projection

6000.0 Sqft Nil

13632.0 Sqft

2226.0 Sqft

12,632.0 Sqft

2226.0 Sqft.

5

Third Floor area Third Floor slab projection

1990.0 Sqft

Nil

14454.0 Sqft 2

226.0 Sqft

12464.0 Sqft

2226.0 Sqft

6

Fourth Floor area Fourth Floor slab projection

Nil

Nil

19381.0 Sqft

2041.0 Sqft

19381.0 Sqft

2041.0 Sqft

7

Fifth Floor area Fifth Floor slab projection

Nil

Nil

11120.0 Sqft

1196.0 Sqf

11120.0 Sqft

1196.0 Sqft

8

Sixth Floor area Sixth Floor slab projection

Nil

Nil

5488.0 Sqft

556.0 Sqft

5488.0 Sqft

556.0 Sqft

9

Setbacks

a)

Front Setback

120'0" From C/L of road & 30'0" from plot line

106'0" from C/L of road & 17'3" from plot line (ground floor and above floor) 88'9" from C/L of road & NIL from Plot line (for basement)

14'0" from C/L of road & 12'9" from plot line (for Ground Floor & above floor) 31'3" from C/L of road & 30'0" from plot line (basement)

b)

Rear Setback

75'1-1 ½ "

Nil

75'1-1 ½ "

c)

Side Set Back

10'0"

12'3" to 14'6"

Nil

d)

Alter Side Set back

10'0"

Nil

10'0"

F.A.R

73.49

436.18

362.69

Land use

Commercial

Under Construction

From the facts as noticed above, it is clear that the respondent Nos. 1 & 2, are not law abiding citizens. They were granted permission to raise construction to the extent of 31,844 sq. ft. as against that they raised construction of 1,41,165 sq ft. Additional to the tune of 1,09,321 sq. ft. In earlier round of litigation they got some area compounded on payment of Rs. 50/- per sq. ft. as compounding fee. OWP No. 224/2020 filed by BOCA against that order passed by Tribunal is pending in this Court. An area of 64,238 sq. ft. was apparently held to be permissible by the Tribunal in the present case. Still thereafter additional construction was found to the tune of 45,083 sq. ft., which was compounded by the Tribunal, vide impugned order.

The fact remains that as against sanctioned area of 31,844 sq. ft., the construction raised is 1,41,165 sq. ft., still the plea sought to be taken is that they should be allowed to use that space, merely because they had deposited the amount of compounding fee assessed by the Tribunal or had spent huge amount to raise the construction. These issues required consideration by the respondent Nos 1 & 2, before deciding to raise additional construction in violation of the sanctioned plan. The fact remains that the respondent Nos. 1 & 2 are not aggrieved against the order passed by the Tribunal, as they have not challenged the same and while accepting, deposited the compounding fee.

In these factual aspect of the matter, it is directed that operation of impugned order passed by the Tribunal shall remain stayed and the petitioner is directed to seal the additional unauthorized construction raised by the respondent Nos 1 & 2, which has been compounded vide impugned order.

CM No.4227/2020 for interim relief is disposed of accordingly.

Still further to put the record straight and also to fix responsibility of the persons, who are entrusted the duty to oversee the construction being raised but keep their eyes closed, the competent authority shall get the matter enquired into and fix responsibility. The role of structural engineer, who is to oversee the construction also needs to be examined, as to why he did not report the matter to the authorities that construction is being raised beyond the sanctioned plans, in case he is some kind of a licensee or person authorised by the petitioners.

Not only this even the role of the officers of J&K Bank is also required to be gone into by the competent authority in the bank as to how they had sanctioned and advanced loan worth crores of rupees for raising a building beyond the sanctioned plan.

A copy of the order for the purpose be sent to the Chairman and Managing Director of the J&K Bank by the Registrar Judicial of this Court.

The writ petition be heard with OWP No. 224/2020, pertaining to earlier order passed by the Tribunal, with reference to the same building.