Om Parkash vs Administrator Jammu Municipality and Another

R.C. Gandhi, J.—This appeal has arisen out of the judgment and order dated December 17, 1999, whereby learned Single Judge has

allowed the writ petition (OWP No. 620/96) and directed the demolition of the unauthorised construction raised by the appellant in violation of the

municipal laws.

A brief resume of the facts is that respondent No. 1 (hereafter called the respondent) noticed that the appellant was taking steps to lay concrete

slab on the second floor of the building situate in Raghunath Bazar. Jammu, without seeking sanction of the site plan. The respondent issued notice

u/s 229 of the Municipal Act on December 14, 1993 asking the appellant to stop the unauthorised construction and demolish it within three days.

Despite that the appellant continued to raise the construction. The respondent on January 3, 1994, issued notice u/s 225 of the Municipal Act,

directing the appellant to stop the construction forthwith. Thereafter again, on February 28. 1994, the respondent issued another notice asking the

appellant to desist from continuing with the construction work. The appellant did not pay any heed to the notices and continued to raise the

construction. Ultimately, final notice u/s 229 (3) of the Act was issued to the appellant asking him to demolish the construction. By that time, the

appellant had raised the construction up to 4th floor. At this stage of the construction, the appellant approached the J&K Special Tribunal

challenging the notices in appeal. During the pendency of the appeal, appellant did not refrain from raising further construction and completed 5th

floor also in utter disregard of the municipal laws. The Tribunal on February 01, 1995, appointed a Commissioner, Shri J.N. Dar, Assistant

Registrar, to visit on the spot and report about the factual unauthorised construction raised by the appellant. The Commissioner vide his report

dated February 6, 1995, reported the unauthorised construction to the extent of 3rd floor (408 sq. ft.). 4th floor (408 sq. ft.), 5th floor (302 sq.

ft.) and Balcony (27 sq.ft.) - total 1145 Sq. ft. and height of the building up to 70 ft. against the prescribed limit of 35 ft. and also left the set back

line from the centre of the road only 16 ft. against the prescribed limit of 25 ft. The appellant increased area of the ground floor by raising 2 ft. wide

Balcony projection towards the road, and the construction thereon up to 4th floor has been raised. The Tribunal after hearing learned counsel for

the parties, vide its order dated April 25, 1996, compounded the unauthorised construction treating it as minor offence in terms of Rule 3 of the J

& K Municipal (Unauthorised Construction) Rules, 1977 (hereinafter, Rules 1977) on payment of compounding fee at the rate of Rs. 15 per sq. ft.

and construction of balcony projection of 27 sq. ft. at the rate of Rs. 30/- per sq. ft. Aggrieved of the order of the Tribunal, the respondent

preferred a writ petition (OWP No. 620/96) before this Court. The learned Single Judge, after hearing learned counsel for the parties, allowed the

petition and set aside the order of the Tribunal and directed the respondent to demolish the unauthorised construction within four weeks and to

submit the compliance report.

The appellant has challenged the correctness and legality of the order, under appeal, on the grounds that the learned single Judge has decided

the matter without examining the record of the respondent. The other ground taken is that the Master Plan sanctioned under the Development Act,

1970, was in vogue and operative at the relevant time, therefore, the Municipal Act has no application in the area in view of the operation of the

Master Plan. The last ground set out in the memorandum of appeal and canvassed is that other similarly situated persons, who have raised

unauthorised constructions in earlier years, their constructions have not been demolished though the same were challenged by the respondent-

Municipality before the Court of law and their cases stood compounded but the appellant has not been dealt with the same standard.

We have heard learned counsel for the appellant, perused the memorandum of appeal, order under appeal and other evidence on record.

The admitted facts are that the construction has been raised without the approval of site plan by the Municipality and in utter disregard of the

municipal laws. Despite notices issued by the Municipality under Sections 225 and 229 (3) of the Municipal Act, construction was not stopped

and continued to be raised up to 5th floor with height of the building at 70 ft. which is beyond the permissible limits of 35 ft. Report of the

Commissioner with regard to the unauthorised construction has not been disputed.

The argument of learned counsel for the appellant that learned Single Judge has not examined the record, is not sustainable as notices issued to

the appellant and report of the Commissioner, have been appended with the writ petition. Learned counsel has not pointed out as to which else

record was available and not considered by the learned Single Judge. Therefore, this plea of the learned counsel is devoid of merit.

The next plea of learned counsel with regard to the operation of the Master Plan for Raghunath Bazar at the relevant time, therefore, the

provisions of the Municipal Act ceased to operate, is also misconceived. The Development Act, 1970, provides three types of plans i.e.. Master

Plan, Zonal Development Plan and the Site Plan. Sections 7 & 8 of the Development Act deal with Master Plan and Zonal Plan respectively.

Section 11 of the Development Act, on which reliance has been placed for excluding the jurisdiction of the respondent, is reproduced hereunder :

Cessation of the provisions of certain Acts.-- (1) As from the date of operation of plan in a zone, fixed u/s 11.--

(a) the provisions of the Jammu and Kashmir Town Planning Act, 1963;

(b) Chapter XXII of the Jammu and Kashmir Municipal Act, 2008;

(c) Clause (4) of Section 45 and Section 46 of the Jammu and Kashmir Town Area Act, 2011;

shall cease to apply to the zone in which the plan is operated, for such period as the Government may by notification specify.

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Section 11 of the Act is also extracted below for the purposes of convenience and reference ;

Date of operation of Plan.-- Immediately after a master and a zonal plan and the date of its operation has been approved by the Government,

the Government shall declare the area as a zone for purposes of this Act and shall also publish in the Government Gazette a notice indicating the

approval of the plan and the date of its operation and name of the place where a copy of the plan may be inspected at all reasonable hours.

It is evident from the aforesaid provisions of law that Section 11 envisages not only the Master Plan but Zonal Plan also. From the date of

declaration by the Government of the zonal plan for a particular area for the purposes of the Development Act, the mandate of Section 54 shall be

operative. Learned counsel, no doubt, has shown that the Master Plan has been approved and notified in the year 1979 for Jammu city but he has

not been able to make out that the zonal plan of this area where the construction was raised, has been notified by the Government in order to seek

application of Section 54 so as to exclude the implementation of the provisions of the Municipal Act. The scheme of the Development Act is that

the Master Plan and Zonal Plan for a particular area is required to be declared and notified by the Government and unless it is done for the

purposes of the Development Act, the provisions of the Municipal Act, cannot be said to be inoperative. The area where the construction has been

raised, has not been declared as Zonal Plan, therefore, the provisions of the Municipal Act cannot be said to be inoperative.

The next argument of learned counsel for the appellant is that a few unauthorised constructions raised beyond the height of 35 ft. without

permission of the Municipality, have been compounded and not demolished, the appellant should also be dealt with accordingly and for that reason

he traces discrimination in terms of Article 14 of the Constitution. The concept of Article 14 is positive and not negative. The Supreme Court, while

dealing with this provision of law, has held in case Gursharan Singh v. New Delhi Municipal Committee. AIR 1996 SC 11765 as under (Para 9) :

.......... This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. To put it in

other words. If an illegality or irregularity has been committed in favour of any individual or a group of individuals, the others cannot invoke the

jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State or an authority which can be held to

be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied

the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which

are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are sanctioned by law in

their favour on principles of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article

226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and

perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must

be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process

there has been a discrimination. None of the 98 Stall holders were impleaded as parties to the writ petitions. The appellants questioned the validity

of the allotment of 98 shops on conessional rates, without trade zoning restrictions in favour of the stall-holders of Panchkuian Road, but they were

primarily interested that same concessions in respect of licence fee and relaxation in trade zoning restrictions, be also extended to them. Any such

claim on their behalf cannot be entertained on the basis of concept of equality before law as enshrined in Article 14 of the Constitution."" (Para 9)

Similarly, a mistake committed by the instumentalities or authorities of the State, is not enforceable in the Court of law to seek parity or similar

treatment on the same analogy in view of the law laid down in case M/s. Faridabad Ct. Scan center Vs. D.G. Health Services and others, wherein

the Supreme Court observed (Para 3) :

We fail to see how Article 14 can be attracted in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated

with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other persons, and, therefore, there will be

discrimination against others if correct orders are passed against them..............."" (Para 3)

The Apex Court in case M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu and Others, , has taken very serious note of such unauthorised and

illegal constructions and cautioned the Courts not only to direct the demolition but to direct holding of inquiry also for such constructions to bring

the offenders to book. Para 92 (of JT) : (Para 90 of AIR) of the judgment relevant for the purpose is reproduced hereunder :

Number of cases coming to this Court pointing to unauthorised constructions taking place at many places in the country by builders in connivance

with the Corporation/Municipal officials. In the series of cases, this Court has directed demolition of unauthorised constructions. This does not

appear to have any salutary effect, in cases of unauthorised construction coming to this Court. While directing demolition of unauthorised

construction. Court should also direct inquiry as to how the unauthorised construction came about and to bring the offenders to book. It is not

enough to direct demolition of unauthorised construction, where there is clear defiance of law................

The appellant, therefore, is not entitled to seek relief under Article 14 of the Constitution on the ground that he has been discriminated.

Perusal of Rule 3 (1) of the Rules 1977 indicates that the Tribunal was not right in compounding the unauthorised construction treating it as a

minor offence. This rule is extracted below :

On receipt of an appeal from any person aggrieved by the order of the Executive Officer directing him to demolish, alter or pull down the

building, or part thereof under Sub-Section (3) of Section 229 of the Act, the Minister or the Authority appointed by him in this behalf, may

compound the offence committed by the appellant and accept by way of compensation such amount as he or the Authority may, subject to these

rules, deemed reasonable; provided the Minister of Authority, as the case may be, is satisfied that the offence is of a minor nature and does not

amount to serious violation affecting the planned development of the area or zoning Regulations or Bye-laws applicable to that area.

Explanation.-- For purposes of this rule an offence if minor nature shall include.--

(i) effecting internal or external changes in the existing building or raising a new structure without --

(a) having increased the ground average height of the building prescribed for that area under any Zoning Regulations or Bye-laws save as otherwise

specified hereinafter;

(b) xx xx xx xx

(c) having violated the front and rear set backs prescribed under any Zoning Regulations/Bye-laws in such cases where there be any building of

adjacent plot-holder having its front or rear facade towards the new structure without clear distance equal to the height of the new structure;

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The unauthorised construction raised by the appellant has violated the prescribed height of the building to the exte of 35 ft. and has also violated

the prescribed limit of 25 ft. set back line from the centre of the road leaving it only 16 ft. These violations, therefore, are not minor in nature and

terms of the mandate contained in Rule 3 (supra). The Supreme Court in case Pratibha Co-operative Housing Society Ltd. and another Vs. State

of Maharashtra and others, while dealing with the proposition of unauthorised constructions, has held (Para 6) :

........... It was pointed out by Mr. K.K. Singhvi, learned counsel for the Corporation that the tendency of raising unlawful constructions by the

builders in violation of the rules and regulations of the Corporation was rampant in the city of Bombay and the Municipal Corporation with its

limited sources was finding it difficult to curb such activities. We are also of the view that the tendency of raising unlawful constructions and

unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful

constructions are against public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. The violation of F.S.I. in

the present case was not a minor one but was to an extent of more than 24,000 sq.ft. Such unlawful construction was made by the Housing

Society in clear and flagrant violation and disregard of F.S.I. and the order for demolition of eight floors had attained finality right up to this Court.

The order for demolition of eight floors has been substantially carried out and we find no justification to interfere in the order passed by the High

Court as well as in the order passed by the High Court as well as in the order passed by the Municipal Commissioner dated 13th November.

1990.

No other point was urged by the learned counsel for the appellant.

In view of the aforesaid reasons, we are of the opinion that the present appeal is devoid of merit and deserves dismissal which is accordingly

dismissed. No order as to costs.