Building Operation Controlling Authority & Ors vs Mohammad Amin Wani & Anr

Sanjay Dhar, J

1) The petitioners have filed the instant writ petition challenging order dated 23.10.2006 passed by the J&K Special Tribunal, Srinagar, whereby learned Tribunal has allowed compounding of deviations made by respondent No.1 while constructing a three storeyed house at Konakhan Dalgate, Srinagar.

2) It appears that the petitioners had issued a demolition notice in terms of Section 7(3) of J&K Control of Building Operation Act, 1988 (hereinafter referred to as ‘the Act’) in respect of a building raised by respondent No.1 at Konakhan Dalgate, Srinagar. The notice was issued on the basis of the allegations that respondent No.1 had violated the building permission bearing No.861 of 2004 dated 19.11.2004 by making deviations in the sanctioned plan by maintaining setbacks on all the four sides in violation of the sanctioned plan

3) It is submitted that as per the sanctioned plan, respondent No.1 was required to maintain the following setbacks:

Front: 50'-0" from the central line of road towards South side:

Rear: 15'-0"/34'-0" from the nearest edge of plot towards the North side;

One Side: 12'-0" from the edge of plot toward East side;

Other side: 10'-0" from the edge of plot toward West side.

Height: 32'-0" in all from the ground level to ridge top.

4) Upon inspection, it was found that respondent No.1 had deviated from the sanctioned plan by maintaining the setback in the following manner:

Front: 35'-0" instead of 50'-0" from the central line of road towards South Side;

Rear: 12'-6"/14'-0" instead of 15'-0"/34-0 from the nearest edge of plot towards North side

One side: 7'-0" instead of 12'-0" from the edge of plot towards East side;

Other side: 7'-0" instead of 10'-0" from the edge of plot towards West side

5) On the basis of aforesaid facts, demolition notice under Section 7(3) of the Act came to be issued by the petitioners against respondent No.1. It appears that respondent No.1 challenged the demolition notice by filing an appeal in terms of Regulation No.9 of the Jammu and Kashmir Control of Building Operations Regulations, 2001 before the J&K Special Tribunal. The learned Tribunal after hearing the parties and after noticing that there has been deviation in maintaining the setbacks, permitted respondent No.1 to compound the deviations, primarily, on the ground that the petitioners have slept over the matter for months together and allowed respondent No.1 to construct the building and, as such, they cannot now demolish the said construction having acquiesced in the action of respondent No.1.

6) The petitioners have challenged the impugned order passed by the learned Tribunal on the grounds that the deviation committed by respondent No.1 is of major nature, hence the same could not have been compounded. It has been further contended that merely because the petitioners did not take action against respondent No.1 well in time, they are not debarred from demolishing the illegal structure raised by the said respondent. It has also been contended that the learned Tribunal did not have power to compound the deviations committed by respondent No.1.

7) No reply to the writ petition has been filed by respondent No.1. In fact, the said respondent has never put in his appearance before this Court despite having been served.

8) I have heard learned counsel for the petitioners and perused the record including the record of the Tribunal.

9) So far as the power to compound an offence is concerned, the same is vested in the Appellate Authority in terms of Regulation No.9 of the Regulations. It reads as under:

Appeals. An appeal against the order of the authority made under Sections 5 and 7 of the Act shall lie before the Chairman of Jammu and Kashmir Special Tribunal or such other Member of the said Tribunal, as may be decided by the Chairman of the Jammu and Kashmir Special Tribunal.

The Appellate Officer may compound an offence of minor nature provided the appellant holds the proprietary rights over the land brought under unauthorized construction subject to payment of building permission fees at following rates-

Residential: Rs. 12.50 to Rs. 25.00 per Sft.

Walling: Rs. 25.00 per running feet.

Commercial: Rs. 25.00 to Rs. 50.00 per Sft.

The composition fee imposed by the Tribunal shall be credited into the Municipal Chest for the purposes of Section 65 of the Municipal Act.

Explanation. For the purpose of these Regulations "an offence of minor nature" shall include any erection or re-erection of a building which has come up in contravention of the permission referred to in Section 4 of the Jammu and Kashmir Control of Building Operations Act, 1988 or deemed sanctioned as referred to in sub-clause 7 (iii) of these Regulations provided that such erection or re-erection does not:

(i) violate the approved land use of the area notified in the Srinagar Master Plan.

(ii) violate the permissible front, rear or side setbacks prescribed in the permission.

(iii) Amount to conversion of residential building into commercial one or vice versa.

10) From a perusal of the aforesaid provision, it is clear that an Appellate Officer has power to compound an offence of minor nature provided the appellant holds the proprietary rights over the land brought under unauthorized construction on payment of building permission fees at prescribed rates. Explanation to the aforesaid Regulation defines an offence of minor nature as any erection or re-erection of a building which has been raised in contravention of the permission but it does not include erection or re-erection which violates the approved land use of the area notified in the Srinagar Master Plan, which violates the permissible front, rare or side set backs prescribed in the permission and which amounts to conversion of residential building into commercial one or vice versa. It is clearly provided in the Explanation that violation of permissible setbacks prescribed in the permission would not come within the definition of an offence of minor nature.

Thus, the learned Tribunal, which is the Appellate Authority, does not have power to compound an offence which is not of minor nature. That would include violation of permissible setbacks.

11) In the instant case, as already noted, the allegation against respondent No.1 is that he has violated the permissible setbacks on all the four sides. Therefore, the deviations committed by the said respondent do not qualify to be a minor offence. The learned Tribunal has acted beyond its jurisdiction by compounding the said offence.

12) The observation of the learned Tribunal that because the petitioners have acquiesced in the deviations committed by respondent No.1, as such, the same deserve to be compounded, is not in accordance with law for the reason that once the Tribunal lacked the inherent jurisdiction to compound an offence relating to violation of setbacks, no amount of acquiescence or lethargy on the part of the petitioners would vest jurisdiction in the Tribunal to compound such offences.

13) For the foregoing reasons, the writ petition is allowed the impugned order passed by the learned Tribunal is set aside.