Building Operation Controlling Authority vs Shashi Gotam and Others

Tashi Rabstan, J.â€"The challenge in this petition is to order dated 04.04.2013 passed by the J & K Special Tribunal, Jammu, remanding the case

of respondent No. 1 to petitioner-Authority for consideration afresh. The case of petitioner-authority is that vide Order No. 1232/BS/2010 dated

29.12.2012 respondent No. 1 was permitted to construct residential house at Karan Nagar, Jammu with built-up area of 845 sq. ft., at ground

floor and 538 sq. ft. on 1st floor on a plot area of 1230 sq. ft. Further case of petitioner-Authority is that instead of raising construction as per the

approved plan, respondent No. 1 raised construction on ground floor covering an area of 900 sq. ft. against the sanctioned limit of 845 sq. ft., and

also covered an area of 858 sq. ft. on first floor against the sanctioned limit of 538 sq. ft., i.e., 14% excess at ground floor and 46% excess at first

floor. Thus, as per annexure ""E"" to the petition, the total violation is 375 sq. ft. (55 sq. ft. at ground floor and 320 sq. ft. at first floor). It is

contended that instead of maintaining proper set-backs, respondent No. 1 deviated from the sanctioned plan, thus has violated the provisions of J

& K Control of Building Operation Act, 1988 (hereinafter, for short, the Act) and J & K Control of Building Operations Regulations, 1998.

Accordingly, petitioner-authority issued the show cause notice to respondent No. 1 on 11.05.2012 under Sections 7(1) and 12(1) of the Act to

discontinue the operation of unauthorized construction. It is contended that against the said notice respondent No. 1 preferred an appeal before the

learned J & K Special Tribunal, Jammu and the learned Tribunal vide its order dated 04.04.2013, impugned herein, set aside the show cause

notice and remanded the case to the petitioner Authority for consideration of regularization. It is this order which is challenged in the present

petition.

The ground taken by the petitioner-authority is that no appeal lies against the notices under Sections 7(1) and 12(1) of the Act but the learned

Tribunal entertained the same without jurisdiction. Learned counsel appearing for petitioner-authority, while referring to Regulations 10 & 11 of the

J & K Control of Building Operations Regulations, has argued that the learned Tribunal has failed to appreciate the said Regulations while passing

the order. It is contended that although the learned Tribunal has the power to regularize the violation of minor nature, it cannot direct the petitioner-

Authority to regularize such violation which is more than 10% of the sanctioned limit.

Objections have been filed on behalf of respondent No. 1 controverting the stand taken by the petitioner. It is contended that the learned

Tribunal has rightly considered and decided the appeal filed by respondent No. 1. It is further contended that there is no infringement of any

provision of law as admissible to the field and the present petition is liable to be dismissed.

Heard learned counsel appearing for the parties and perused the file.

Before proceeding further, it would be relevant to reproduce Regulation 11(2) of J & K Control of Building Operations Regulations, 1998 so as

to properly adjudicate the case in hand.

11(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 set backs prescribed in the bye-laws;

(iii) does not violate by more than 10% the 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.

A plain reading of the aforesaid Regulation reveals that if any construction is raised in violation of the Master Plan, Town Planning Scheme or if it

violates the permissible front, rear or side set backs prescribed in the bye-laws, or the construction violates by more than 10% the permissible

ground coverage or it violates the permissible height of the building as prescribed in the bye-laws, the same are considered to be major violations

and cannot be compounded.

Admittedly, the petitioner-Authority has itself pleaded in the writ petition that respondent No. 1 has raised construction over an area of 900 sq.

ft. against the sanctioned limit of 845 sq. ft. at ground floor. As per pleadings of the petitioner and in terms of Annexures ""E"" & ""G"" to the writ

petition, the quantum of violation at ground floor is 55 sq. ft., which is 14% excess of the sanctioned limit. What methodology the petitioner-

Authority has adopted in reaching out that respondent No. 1 has raised 14% excess construction against the sanctioned limit is not understandable.

As per normal calculation, the quantum of actual violation at ground floor is 55/845 x 100 = 6.5%, which certainly is much below 10% of the

permissible ground coverage as prescribed in the bye-laws, and even below the half mark of 14%. However, the situation is different when it

comes to raising of construction at first floor of the building. It seems the petitioner-Authority has misrepresented the facts in order to mislead the

Court. It is not forthcoming whether any expert of the petitioner-Authority had visited the site to know the actual violation. And, if yes, what

method the expert had adopted while calculating the quantum of violation is not forthcoming. It seems for extraneous reasons the Khilafwarzi

Officer had tried to magnify the things beyond the limits of truth. It speaks volumes about the working of petitioner-Authority and how casually the

things are being dealt with by it.

Further, there is a rampant rise in illegal and unauthorized constructions in and around Jammu City and the same can never be without the

knowledge and connivance of officials/officers of petitioner-Authority. Respondent No. 1 may not be the lone person who, as alleged, has raised

unauthorized construction in the area, but the others may have been left free by the concerned Khilafwarzi Officer for obvious reasons. This pick

and choose policy needs to be curbed strictly. Whether these officials/officers of petitioner-Authority are raising their own residential houses and

other structures as per the approved plan or not is also a big question mark that needs to be gone into. Illegal and unauthorized constructions of

buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect

various fundamental and constitutional rights of other persons. Therefore, besides taking action against the persons raising the unauthorized

construction, the concerned officials/officers of the petitioner-Authority who promote these illegal and unauthorized constructions are also required

to be dealt with by iron hands.

The Apex Court in Dipak Kumar Mukherjee Vs. Kolkata Municipal Corporation and Others, has observed as under:

What needs to be emphasised is that illegal and unauthorized constructions of buildings and other structure not only violate the municipal laws

and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The

common man feels cheated when he finds that those making illegal and unauthorized constructions are supported by the people entrusted with the

duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to

poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/un-

authorisedly constructed multi-storied structure raised by economically affluent people. The failure of the State apparatus to take prompt action to

demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by

the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.

In the present case, the learned Tribunal while setting aside the notices has not given any reasoning that how could the Jammu Municipal

Corporation compound the major violation, if raised by respondent No. 1 As per Regulation 11 of J & K Control of Building Operations

Regulations, 1998, the learned Tribunal had to decide whether the violation is minor or major and whether it had the authority to compound the

same. Without going through this aspect of the matter and deciding the same, the learned Tribunal directed the Jammu Municipal Corporation to

regularize the violation, which is clearly against the mandate of the Act and the Regulations as prescribed in the bye laws and the Master Plan.

Therefore, the Judgment relied upon by the learned counsel for respondent No. 1 in Kewal Kishan Gupta Vs. Jammu and Kashmir Special

Tribunal and Others, , has no assistance to the present case, because in the said case the Tribunal has given sufficient reasons while compounding

the violation.

In view of the above backdrop, I deem it proper to remit the case to the learned Tribunal for deciding afresh. Accordingly, order dated

04.04.2013 passed by the learned Tribunal is set aside and the matter is remitted to the learned Tribunal for deciding afresh. Learned Tribunal shall

proceed on the basis of material before it.

Before parting, petitioner-Authority/Commissioner, Jammu Municipal Corporation is directed to seek explanation of the concerned Khilafwarzi

Officer how he had reported that the quantum of violation is 14% at ground floor and 46% at first floor, and what method he had adopted while

calculating the quantum of violation. And while doing so, whether he had followed the provisions of the Act and the Regulations. Further, report be

sought from him within certain timeframe regarding the number of violations committed in his area and what action he had taken against all such

violators. If he is found guilty in discharging his duties or there seems something suspicious in his conduct, let action under rules be taken against

him. Let complete report along with Action Taken Report be submitted before the Registrar (Judicial) of this Court within two months from today.

Registrar (Judicial) to ensure that the report is submitted within time.

Registry is directed to send a copy of this judgment to Commissioner, Jammu Municipal Corporation, Commissioner/Secretary, Housing &

Urban Development Department and Chief Secretary of the State for ensuring proper implementation of J & K Control of Building Operations

Act, Control of Building Operations Regulations and the bye-laws framed thereunder. Disposed of along with connected CMA, if any.