Jda vs Vishal Gupta And Another

The petitioner-JDA has approached this Court challenging the order dated 16.05.2017 [impugned herein] passed by the J&K Special Tribunal, Jammu (hereinafter referred to as the 'Tribunal'). The impugned order was passed in an appeal filed by respondent No.1 herein, challenging the order dated 20.03.2017 passed by the Building Operation Control Authority, under Section 7(3) of J&K Control of Building Operation Act, 1988 [for short 'the Act') whereby respondent No.1 herein was directed to remove the illegal construction within a period of five days, failing which, the same shall be removed by the enforcement wing of the JDA at the cost of respondent No.1.

2 The brief facts of the case are that respondent No.1, being the Managing Trustee of Dhanwanti Memorial Trust, approached the petitioner i.e JDA for grant of permission for construction of school building. The total area for which permission was granted on different dates and in different phases was around one lac sq. feet. It is submitted that when the construction site was inspected by the petitioner, it came to fore that respondent No.1 had violated the setbacks as provided in the building permission granted by the JDA. It is further submitted that, in addition to the said violation, respondent No.1 had also constructed structures on the rear side of his school building without any requisite building permission from the competent authority. It is submitted that the since the said violations were made by respondent No.1, a notice under Section 7 (3) of the Act was issued to him. However, the said notice came to be challenged by him under Section 13 of the Act by filing appeal before the Tribunal. The Tribunal, vide its order dated 16.05.2017, after hearing the parties, disposed of the said appeal and regularized the construction raised in violation of the sanctioned building permission by way of compounding. Since the total deviations of 11111 sq.ft were made by respondent No.1, therefore, he was directed to pay a compounding fee of Rs.166,665/- i.e @ Rs.15/- per sq.ft to the petitioner-JDA.

3 Assailing the order passed by the Tribunal, learned counsel for the petitioner-JDA submits that the impugned order is wholly illegal and contrary to the provisions of the Act and the Master Plan as the Tribunal had compounded the violation and acted in contravention of the Act, Regulations and Master Plan. It is submitted that as per the Master Plan, minimum rate for compounding any construction is @ Rs.25 per sq. ft., whereas the Tribunal has compounded the same @ Rs.15/- per sq,. ft which is against the law.

4 Per contra, learned counsel for respondent No.1 submits that though respondent No.1 has not violated the building laws and that the construction was raised as per the plan approved by the competent authority, yet he is ready and wiling to pay the compounding fee @ 25 per sq. ft to the petitioner-JDA.

5 In view of the submissions made by learned counsel for the parties and the fact that respondent No.1 is ready to pay the compounding fee @ 25 per sq. ft to the petitioner-JDA, no useful purpose would be served by keeping the present petition pending . Accordingly, while partly setting aside the impugned order, the present writ petition is disposed of by directing respondent No.1 to pay the compounding fee @ 25 per sq.ft for the violations as assessed by the petitioner i.e 11111 sq.ft. Now respondent No.1 shall pay a compounding fee of Rs. 2,77,775/- to the petitioner. Respondent No.1 shall deposit the compounding fee in the official account of the petitioner-JDA within a period of one month from the date, a copy of this order is made available to it. In case the compounding fee is not deposited within the period prescribed, the order of demolition which was impugned in the appeal filed before the Tribunal shall come in operation and the petitioner-JDA would be at liberty to demolish the impugned construction.

Disposed of as above.