Krishen Chand vs State and Others

Nirmal Singh, J.—This is a petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and

Kashmir for issuance of writ in the nature of certiorari quashing the order impugned dated 29-7-2006 passed by the respondent-3, vide which the

proposal of the petitioner for the construction of 1st floor and 2nd floor has been rejected; further directing the respondents not to interfere in the

peaceful construction of 1st and 2nd floor raised by the petitioner.

The case set up by the petitioner is that, the petitioner is a lessee of Vinayak Missar Dharamshala Trust with respect to a shop, which was

originally leased to his father in 1932 and after the death of the father of the petitioner, the lesser has executed fresh lease deed of the said shop in

favour of the petitioner in the year 1975. The petitioner wanted to raise the construction on the 1st and 2nd floor over the existing shop for his

residence. The petitioner obtained the permission from his lesser and submitted layout plan prepared by the qualified engineer to the respondent2

by paying the requisite fee of Rs. 100/- on 8-9-2004 as per the statutory provision. The further case of the petitioner is that the respondent-2

neither sanctioned the construction nor rejected the same within a period of 60 days and the petitioner has acquired a indefeasible right of deemed

permission under Rule 7.3 of the Control of Building Operation Regulations, 1998. It is further stated that when the petitioner did not receive any

reply from the respondent-2, he started raising construction of the 1st floor as per the lay out plan in the month of October, 2005 but the

respondent-2 issued notice dated 6-10-2005 asking the petitioner to discontinue the construction and thereafter got the construction of the

petitioner stopped. The petitioner filed objections to the notice and also submitted no objection certificates from all the concerned departments. It

is thus stated that as the application of the petitioner has not been decided within the stipulated period of 60 days, therefore, the application

submitted by the petitioner seeking permission to raise the construction would be deemed to have been sanctioned.

On notice, the respondents 2 and 3 admitted that the petitioner sought permission to raise the construction of Ist and 2nd floor at Vinayak

Bazar, Jammu. After receiving the application, copy of the lay out plan was forwarded to all the members of the authority for their inspection and

opinion including the Chief Town Planner, A.C. Nazool, A.C. Revenue, Executive Engineer(PHE), Executive Engineer(PDD) and Executive

Engineer (Sewerage and Drainage). It is stated that the petitioner took the lay out plan himself for getting the opinion of these members, which is

evident from para-2 of Annexure-D and averments made in Annexure-E attached with the petition. But when the case of the petitioner was placed

in the meeting of the Building Operation Controlling Authority, AC Nazool pointed out that the case of Vinayak Misser Dharamsalla was under

process before AC Nazool and the NOC of the Collector is to be obtained. Letter No. 658/BS/05 dated 29-1005 was written to the Collector

for that purpose but the NOC has not been received. It was further pleaded that the petitioner has himself taken the responsibility of getting the

opinion of different departments and the opinions were not available with the authority for considering the grant or refusal of permission within 60

days. Therefore, the petitioner cannot take the benefit of deemed permission.

Mr Vishal Kapoor, learned Counsel for the petitioner submitted that the petitioner is a lessee of Managerial authority of Vinayak Mishar

Dharamshala, Jammu, since 1932. He being a law abiding citizen, sought permission from the respondent authorities to raise the construction of the

Ist and 2nd floor under Rule 7.3 of the Control of Building Operations Regulations 1998. It is submitted that before filing of application seeking

permission, the petitioner deposited the requisite fee of Rs. 100/vide GR No. 3163681 dt. 8th of Sept'04 and also placed on record the No

Objection Certificates from the office of Chief Town Planner, PWD, PDD, PHE, Revenue department, Department of Nazool and the requisite

permission from Vinayak Mishar Dharamshala Trust. It is submitted that under the aforesaid rule, if a plan is submitted for sanction, the authority

concerned has to take a decision within a specified period of 60 days and if a party is not receiving any intimation regarding rejecting of his

application within this prescribed period from the date of submission of the said application, then it is to be presumed that the plan has been

sanctioned. It is contended that when the petitioner did not receive any intimation from the authorities concerned within the stipulated period, he

started raising construction presuming that the plan submitted by him has been approved. It is submitted that the respondents vide impugned order

which has been passed after a period of two years of submission of the application by the petitioner have communicated to the petitioner that his

plan has been rejected and this has been done without passing a speaking order. It is contended that under the rules, if the plan is to be rejected,

then respondents are bound to pass a speaking order within the prescribed period. The learned Counsel for the petitioner further contended that

similarly situated persons namely Surinder Kumar, S/o Kundan Lal and Ram Nath Sharma, S/o Govind Ram Sharma, who are also the lessees of

the aforesaid Trust have been granted permission to raise construction over first and second floor, whereas the permission has been denied to the

petitioner. It is stated that the respondents have also allowed one Chajju Ram to raise the construction over first and second floor.

Learned Counsel for the petitioner further contended that some persons in the same area have raised illegal constructions and the Jammu and

Kashmir Special Tribunal has compounded their cases and the said constructions have been regularized. It is thus submitted that when the plan was

submitted before the authorities and the said authorities have not taken the decision within the prescribed period of sixty days, then under Rule 7(3)

of the aforesaid Regulations, there would be a deemed permission.

On the other hand, Mr. S.S. Nanda, learned Counsel appearing for the respondents submitted that Vinayak Mishar Dharamshala Trust, Jammu

is not the owner of the property and this property is owned by the State, and therefore, the said Trust cannot agree for raising construction over

the first and second floor. It is submitted that the Municipal Corporation has to seek no objection certificates from various authorities and in doing

so, more time has been taken than the prescribed period under the rules. It is thus submitted that if on account of aforesaid reason, more time has

been taken in deciding the application of the petitioner, then it cannot be said to be a deemed permission. It is stated that the submission of a plan

by a party does not mean that the same is in accordance with the Act and the bye laws made there under.

After hearing learned Counsel for the parties and perusing the record, I am of the opinion that this petition has merit and deserves to succeed.

It is admitted fact that the petitioner submitted the layout plan before the respondents for according sanction to raise the construction on 1st and

2nd floor on 8.9.2004 and also deposited the requisite fee. The respondents have not taken any decision on the application of the petitioner within

the stipulated period i.e. 60 days as per Rule 7(3) of the Control of Building Operation Regulations 1998, which Rule reads as under:

Grant of permission: (3) The authority shall decide the matter within a maximum period of sixty days from the date of submission of the

application and in case no decision can be taken within this stipulated period, the permission shall be deemed to have been accorded.

A perusal of above rule provides that once an application is made to the authority, then the said authority has to decide the same within a period

of 60 days from the date of submission of the application. In case no decision is taken by the authority concerned within the stipulated period, then

the permission shall be deemed to have been accorded. Sub-Rule 4 of Rule-7 of the aforesaid Regulations further provides that in case the

authority refuses the grant of permission, then the grounds for such a refusal shall have to be communicated to the applicant in writing within seven

days from the date of decision.

In the instant case, as it has been noticed above, the petitioner submitted application for according permission on 8.9.2004. The respondent-

authority has neither informed the petitioner that there is any defect in the application nor it has been communicated to the petitioner that the

application has been considered within the stipulated period and the same has been rejected. When the authority has not considered the application

within the stipulated period, then as per Sub-Rule 3 of Rule 7 of the Regulations, permission would be deemed to have been accorded.

The High Court of Delhi in the case of Friends Housing Society and Others Vs. The Delhi Administration and Others, , while interpreting Sub-

section 3 of Section 323 which is perimeteria to Sub-Rule 3 of Rule 7 of the Control and Building Operation Regulations, 1998, has held as under:

On a construction of this provision of law, a Division Bench of this Court in Municipal Corporation of Delhi v. Smt. Kamla Bhandri, Letters Patent

Appeals Nos. 138-D of 1964 and 143D of 1965 decided on 1-12-1969 (Delhi) by S.N. Andley, J. (as he then was) and Hardayal Hardy, J.

observed that in spite of the fact that in Section 337 of the Corporation Act there was a provision for the sanction to be deemed to have been

granted on the expiry of the statutory period, the result u/s 313 would be the same and the action of the standing committee would be inter vires if

it was performed within the prescribed time and it would be ultra vires if performed after its expiry.

The Court therefore, finally held: ""In our view, the reasonable construction is that if the Standing Committee does not act within the time

prescribed, the restriction upon the utilization of the land stands removed."" This authority, so far as this Court is concerned, lays down the law

authoritatively. The result is if the Standing Committee has allowed sixty days to expire without rejecting the plan or asking for further information ,

it would be deemed to have been sanctioned.

Similar view has been taken by the Punjab & Haryana High Court in the case reported as Improvement Trust Bhatinda v. Satinder Kaur 1991

PLJ 627, wherein it was observed that when plan is submitted to the Municipality for sanctioning and the Municipal Committee neither sanctions it

nor rejects it within the stipulated time, the applicant can proceed with the construction and the plan will be deemed to have been sanctioned.

The respondents in this case, as noticed above, have not taken any decision on the application of the petitioner nor have informed the petitioner

about the rejection of his application within the stipulated period and it is only after a period of two years of submission of the application by the

petitioner that the respondents vide the impugned order i.e. 29-7-2006 have rejected his application. The said order reads as under:

To

Sh. Krishen Chand,

S/O Sh. Girdhari Lal

At Vinayak Bazar, Jammu.

No.: 152/BS/06 dated 29-7-06

Sub.: Your application for grant of Building permission.

Kindly refer to your application for grant of building permission for construction of First and IInd floor over the existing ground floor shop at

Vinayak Bazar, Jammu.

In this connection, it is to inform you that your building permission case was placed before the members of this Building Operation Controlling

Authority and it was decided to reject the proposal for the construction of first and IInd floor.

Sd/

joint Commissioner,

Municipal Corporation,

Jammu.

The impugned order, as indicated above, has been passed after two years of submitting of application by the petitioner, when he has already

raised the construction presuming that the lay out plan has been approved. Even this order of rejection of petitioner's application is not in

consonance with the provisions of Rule 7(4) of the Regulations as the refusal of the application of the petitioner has not been communicated to him

within seven days from the date of the aforesaid decision taken by the competent authority. In the impugned order, it has not been mentioned that

on which date the decision has been taken by the authority concerned regarding non approval of the lay out plan submitted by the petitioner. Not

only this, the respondent-authority has allowed the occupants of the adjoining premises to raise the construction on the Ist and 2nd floor to which

effect the petitioner has filed an affidavit giving the names of such persons who are also the lessees of aforementioned Trust and they have been

allowed to construct double and triple storeys by the Municipal Corporation and this assertion made by the petitioner in the affidavit has not been

controverted.

Mr. Vinod Shama, Commissioner, Municipal Corporation has also deposed in his affidavit that one Chajju Ram had submitted the building

plan for raising additional construction in the Dharamshalla but before his application was decided, Chajju Ram started illegal construction of the

first floor. Action under the Control of Building Operations Act, 1998 was taken against him but he filed an appeal before the learned J&K Special

Tribunal. The learned J&K Special Tribunal has passed the following order:

Regarding the construction of the impugned block on the first floor the appellant had mentioned in his appeal that he had applied to JMC to grant

permission for construction of additional block and shops but the JMC had been sitting over on permission till date without passing any order.

Executive Officer, JMC has not thrown any light in his report dated 4-8-2001 regarding the fate of application of the appellant for sanction of

building plan.

As per para-7 of SRO 165 dated 28th May,1988 issued by Housing and Urban Development Department, the JMC is bound to dispose of an

application within 60 days from the date of filing by the applicant failing which the sanction is deemed to have been granted. In view of this, the

appellant was within his right to raise the construction as applied for. The only issue which is to be determined is whether the alleged construction

as reported by the JMC in its report ibid is within the parameters of building permission norms or not. For this purpose, the case is remanded to

JMC for requisite action under law.

The Commissioner has also deposed in the affidavit that:

After the return of the file afresh show cause notice No. MJ/82/CKO/2003 dated 23-7-03 u/s 7(1) of the J&K Control of Building Operation

Act, 1988 was served upon Sh. Chajju Ram. Shri Chajju Ram has submitted the reply to the show cause notice. Available records and site

position reveals that no action has been taken after that.

The respondents have not filed any appeal or revision for setting aside the aforesaid order passed by the Tribunal and the said order has

attained finality. When the respondent authorities are allowing similarly situated persons to raise the construction, then the plea taken by the

respondents in rejecting the case of the petitioner that aforementioned Trust is not the owner of the property and the said Trust therefore, cannot

agree for raising the construction over first and second floor, is a plea which cannot be accepted because in the impugned order, no such ground

has been mentioned. Furthermore, if the respondent authorities are allowing constructions to be raised on the ground floor, then it is not

understandable as to why the lessees or sub-lessees cannot raise construction over the first and second floor when the said construction is not in

violation of the master plan.

At the hearing, learned Counsel for the petitioner made a statement that the petitioner is ready to give an undertaking before the authority that

in case the respondent/authority will demolish the other illegal constructions, the petitioner will himself remove the structure from the 1st and the

2nd floor, even though there is deemed permission in favour of the petitioner.

I have given my thoughtful consideration to this contention of the learned Counsel for the petitioner and find force in it.

The Municipal Authority is adopting double standard. On the one hand, the people who are law abiding citizens submit the applications

alongwith the lay out plans for raising construction over their property and the Municipal Authority is not taking any decision on their applications

within the statutory period and on the other hand, the people who raise the construction un-authorisedly, no action is being taken against them

when they are raising such illegal constructions and once the construction is completed, then show cause notices are issued, which are being

challenged before the J&K Special Tribunal in appeal. When the appeals are accepted by the Tribunal, the respondent authorities do not challenge

the said orders and these orders passed the Tribunal attain finality. This shows that illegal constructions are being raised with the connivance of

municipal authorities. If the Municipal authorities are really interested in stopping illegal constructions then the staff of the Municipality should take

immediate action against the persons concerned and direct the parties who are raising illegal constructions to demolish the same. The respondent-

Municipal Corporation admittedly has set up a wing and the staff employed in this wing is to check illegal constructions within the municipal limits

but the said staff is not performing its duty and is not taking any action against the persons concerned who raised illegal constructions. The

Administrator Municipal Committee is also not taking any action against those employees who allow such illegal constructions and are not reporting

the matter to the authority in time.

Therefore, it has become necessary to issue directions that whenever illegal constructions are raised and the staff concerned is not reporting the

matter in time, then the Administrator Municipality shall take a disciplinary action against all such erring officials.

For the reasons recorded above, the writ petition is allowed. The order impugned is set aside. The petitioner is allowed to raise the

construction as per the lay-out plan submitted by him to the authorities concerned , subject to the condition that the said plan fulfills the terms and

conditions of the master plan of the area concerned. The petitioner will also give an undertaking to the authorities before raising further construction

that in case the adjoining buildings which have been raised on the 1st and 2nd floor are removed or demolished by the respondents, then the

petitioner will also remove the said structure on his own.

No order as to costs.