Lakes & Waterways Development Authority & Ors vs Mukhtar Ahmad Guroo & Anr

Rajnesh Oswal, J

1) Aggrieved of the order of demolition issued by the petitioners under Section 7(3) of the J&K Control of Building Operations Act, 1988, for demolition of unauthorized construction raised by the respondent No.1 over a plot of land comprising Survey No.136-min situated in Estate Habak, Khushki District Srinagar, the respondent No.1 had filed a statutory appeal before the respondent No.2. The respondent No.2 vide order 18.07.2017, allowed the appeal and ordered compounding of unauthorized construction raised by the respondent No.1 for a compounding fee of Rs.60/ per sqft.

2) The petitioners have approached this Court for quashing of the order dated 18.07.2017 passed by the respondent No.2 on the ground that the respondent No.2 could not have compounded the unauthorized construction as the respondent No.1 instead of raising construction of plinth area of 1681 sqft, raised the same on a plinth area of 2207 sqft. and the said violation could not have ben treated as minor deviation.

3) The respondent No.1 has filed his response stating therein that he had obtaining a building permission vide order No.81-BLDG/LDA of 2016 dated 04.04.2016, for construction of double storeyed residential house and commenced construction under the supervision of field staff of the petitioners. On account of technical advice, the respondent No.1 was compelled to affect minor changes but the said deviation does not exceed 30% which is within condonable limits. The respondent No.1 has also claimed to have paid the compounding fee to the petitioners vide demand draft dated 25.07.2017.

4) The respondent No.1 has also filed a supplementary affidavit in support of his objections and has placed on record a sale deed in respect of land measuring 1 kanal and 1 ½ marlas as also the site plan demonstrating the exact location of the construction raised by him.

5) Learned counsel for the petitioners submitted that the respondent No.1 had instead of raising the construction of a plinth area of 1681 sqft., has raised the construction of a plinth area of 2207 sqft. and the violation committed by the said respondent cannot be termed a minor violation which could have been compounded by the respondent No.2. He further vehemently argued that since respondent No.1 in his statutory appeal had never prayed for compounding of the unauthorized construction raised by him, the respondent No.2 in absence of any such prayer could not have ordered the compounding of unauthorized construction raised by the respondent No.1. In order to buttress his submissions, learned counsel for the petitioners placed reliance upon the judgment of a Coordinate Bench of this Court in the case of Deputy Director Enforcement and another vs. Mohammad Rafiq Sheikh and others (OWP No.203/2017 decided on 03.08.2023).

6) Heard and perused the record of the Tribunal-respondent No.2.

7) The perusal of the record reveals that vide order dated 04.04.2016, the petitioners had granted sanction in favour of respondent No.1 for raising construction of double storeyed residential house and compound walling on the plot of land comprising Survey No.136-min. The said permission was granted in respect of plinth area of 1681 Sqft. and compound walling for a length of 320 Rft. As per the permission, the following setbacks were required to be maintained by the respondent No.1:

North Side : 10.00 Feet

South Side : 46.00 Fee/60.)) Feet from centreline of adjacent road

East Side : 10.00 Feet

West Side : 10.00 Feet

8) The petitioners claim to have issued a show cause notice dated 24.11.2016 under Section 7(1) of the Act (supra), wherein respondent No.1 was asked to show cause as to why the construction raised by him in contravention of the approved plan be not demolished/pulled down.

The violations as reported in the notice (supra) were as under:

Approved plinth area =1681 Sft.

Present plinth area =2207 Sft.

Deviation =526 Sft.

9) It appears that the respondent No.1 did not respond to the aforesaid show cause notice which prompted the petitioners to issue a notice/order of demolition under Section 7(3) of the Act (supra) for demolition of unauthorized construction as mentioned above.

10) The respondent No.1 assailed the aforesaid order of demolition through the medium of statutory appeal. During the pendency of appeal, the respondent No.2 appointed a Commission for spot inspection and the Commission after spot verification reported as under:

“There exists a Two storey structure with slab, adjacent on the road of Habak Naseembagh, The setback of the structure (south side) is 39 ft from the edge of the road and 52ft from the centre of the Road. On north side 10ft set back have been maintained with the house which the appellant said belongs to his father. On west side 10ft & 3 inches have been maintained with the yard of Dr. Nazir Ahmad. On the south side 34 ft set back have been maintained with the open land. The structure is 38 ft in front and back. Two sides of 59 ft each. The total Buildup area is 2242. ft. The height of the structure is 20.5 ft from the ground level. Permitted plinth area is 1681 sqft. issued by the secretary LAWDA. Hence there is deviation of 561sqft. The current status report of the watcher along with photographic evidence is hereby annexed with the report.”

11) The learned Tribunal, after perusal of the file and the records, vide its order dated 18.07.2017, compounded the violations. It is this order which is under challenge before this Court by way of the present writ petition.

12) The only contention raised in the present petition by the petitioners is that since the respondent No.1 has exceeded the plinth area while raising construction in contravention of the building permission granted to him, so the respondent No.2 could not have compounded the same as the same was a major violation.

13) Regulation (9) of the Jammu and Kashmir Control of Building Operations Regulations, 2001 lays down that the Appellate Officer may compound an offence of minor nature provided the appellant holds the proprietary rights over the land brought under un-authorized construction subject to payment of permission fee. The Explanation appended to Regulation (9) prescribes that 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 sanction 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 set backs prescribed in the permission;

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

14) The violation committed by the respondent No.1 does not fall within the ambit of the exceptions as mentioned above while defining the ‘minor offences’. Though the learned Tribunal-respondent No.2 has not specifically returned a finding that the respondent No.1 has committed a minor violation but the tone and tenor of the impugned order passed by the respondent No.2 demonstrates that the Tribunal has compounded the same by considering it to be a ‘minor offence’. This Court too finds that the violation committed by the respondent No.1 while raising the construction is minor in nature, so far as the enhancement of the plinth area is concerned.

15) The other contention raised by the petitioners is that in the statutory appeal preferred by respondent No.1, he had not sought compounding of the violations committed by him while raising construction.

16) This Court has perused the relief part of the statutory appeal preferred by respondent No.1 and found that besides praying for quashing of the impugned notice, he had also prayed for issuance of any other direction or order which the Tribunal deemed fit and proper in the facts and circumstances of the case. Once the respondent No.1 had submitted himself at the mercy of the Tribunal to pass any order in the facts and circumstances of the case, the petitioners cannot urge that since respondent No.1 had not prayed for compounding of the unauthorized construction, the respondent No.2 could not have compounded the same. The judgment of the Deputy Director Enforcement and another vs. Mohammad Rafiq Sheikh and others (OWP No.203/2017 decided on 03.08.2023) is not applicable to the facts and circumstances of the instant case as the Coordinate Bench has specifically referred to the prayer made in the appeal preferred by the respondents therein and in that case, the respondents therein in their statutory appeal had simply prayed for quashing of the demolition notice. In view of above, there is no force in the contention raised by learned counsel for the petitioners, as such, the same is rejected. Besides this, the controversy involved in the present petition is identical to the controversy that was involved in writ petition bearing OWP No.550/2018 decided by a Division Bench of this Court on 10.11.2022. In terms of the said judgment, the aforesaid writ petition filed by the Lakes & Waterways Development Authority-the petitioners herein, has been dismissed. Therefore, the judgment passed by the Division Bench of this Court in the writ petition (supra) applies on all fours to the instant writ petition.

17) In view of the above, this Court does not find any reason to show indulgence in the matter. The writ petition is dismissed being without any merit.