Pinky Gupta And Others vs Building Operation Controlling Authority And Others

Ali Mohammad Magrey, J

This Letters Patent Appeal is directed against an interim order dated 25th of September, 2020, passed by the learned Single Bench in WP(C) No. 1472/2020; CM Nos. 4900/2020 and 4901/2020, whereby the learned Writ Court, on consideration of the matter, has issued notice to the respondents 1 and 2 therein/ appellants herein, with a further direction that in the meantime, the building in question shall be sealed immediately.

The facts leading to the filing of the instant appeal are that the appellants claim to to be running a 'Banquet Hall', under the name and style of 'Garden Estate' from the last more than two and a half decades. It is submitted that with the passage of time, the operations of the 'Banquet Hall' expanded and, thus, the appellants felt the need for further construction. Accordingly, the appellants, as per their need and requirement, claim to have applied for permission from time to time from the respondents which were duly granted to them. It is pleaded that the respondents, lastly, processed the case of the appellants and, vide Order No. 221/BS/17 dated 8th of July, 2017 granted building permission in favour of the appellants. However, as stated, while raising the said construction, there occurred slight deviations from the permission so granted by the respondents, resulting in issuance of notice bearing No. MJ/CEO/21/3/2017 dated 19th of September, 2017, under Section 7(3) of the J&K Control of Building Operations Act, 1988, thereby calling upon the appellants to demolish the violations. Aggrieved thereby, the appellants appear to have filed an appeal before the J&K Special Tribunal, Jammu and the Tribunal, in terms of order dated 24th of June, 2020, has compounded the aforesaid violations that have occurred in the construction of the appellants subject to payment of fee by the appellants in respect thereto. Thereafter, the respondents preferred a Writ petition, being WP (C) No. 1472/82020; CM Nos. 4900 & 4901/2020, before the learned Single Bench seeking quashing of the order dated 24th of June, 2020 passed by the Tribunal. The learned Single Bench, while considering the matter on the very motion hearing, in terms of order dated 25th of September, 2020, while issuing notice to the respondents 1 and 2 therein/ appellants herein, directed for sealing of the whole building in question. It is this order that has been assailed by the appellants/ respondents 1 and 2 in the writ petition before this Court through the medium of the instant appeal.

Mr R. K. Gupta, the learned senior counsel representing the appellants, submits that the order passed by the learned Single Bench has seriously affected the rights and interests of the appellants and has been passed even without hearing the appellants. It is submitted that the learned Single Bench has directed for sealing of the whole building of the appellants, which includes the 'Banquet Hall' which was constructed by the appellants two and a half decades ago without any violation or deviation as admitted by the respondent Corporation in the notice issued by them under Section 7 (3) of the J&K Control of Building Operations Act, 1988. It is pleaded that the violation, as indicated and marked by the respondent Corporation itself in the building plan submitted by the appellants for raising construction of second floor, was only with respect to some portion of the building already existing at the time of grant of permission for raising construction of second floor over the existing construction and, thus, there was no occasion for the learned Single Judge to direct for sealing the whole building constructed over 20 Kanals of the land, which is a 'Banquet Hall' used for organizing marriage and other social functions.

Mr Rajnish Raina, the learned counsel representing the respondents/ writ petitioners, while supporting the order passed by the learned Single Bench, submits that the deviations compounded by the Tribunal are not only contrary to the law governing the field, but also not in public interest. It is submitted that in case the said deviations are allowed, same will cause irreparable harm/ damage to the area concerned and tremendous hardship to its residents. It is contended that the whole purpose of having a Master Plan, which is a statutory document, would be defeated if the appellants were permitted to arbitrarily raise constructions in violation of the said Master Plan. The learned counsel has proceeded to state that no individual is authorised to develop the land according to its whims and fancies, ignoring the very specific purpose for which the permission has been granted or the land has been earmarked. It is pleaded that the illegal and unauthorised constructions of buildings and other structures not only violates the relevant Municipal laws in vogue and the concept of planned development of the particular area, but also affects various fundamental and constitutional rights of other persons.

We have heard the learned counsel for the parties, perused the pleadings on record and considered the matter.

Admittedly, the order subject matter of the instant appeal is ad-interim in nature and, ordinarily, the Letters Patent Bench does not interfere with such ad-interim orders passed by the Writ Courts, which are always subject to final outcome of the writ petitions, except under exceptional circumstances. However, we feel that the argument of the learned senior counsel for the appellants, in this case, qua the direction for sealing of the entire building in question by the learned Single Bench resulting in serious prejudice to the rights and interests of the appellants has substance. This is so because it is admitted position; not only on the part of the respondent Corporation, but also from the perusal of the pleadings on record, that the allegation of deviation from permission was only qua some specific portion of the construction raised by the appellants as identified and marked by the Corporation in the building plan submitted by the appellants for raising construction of second floor, which had, initially, become the subject matter of decision before the Tribunal and, thereafter, against the decision of the Tribunal, the respondents filed writ petition before the learned Single Bench, however, the learned Single Bench has directed for sealing of the entire building in question that too at the very motion stage and without hearing the appellants. In this backdrop, we feel that the order of the learned Single Bench is required to be modified to the said extent only.

In the above background, the appeal is partly allowed in the following manner:

i. The order dated 25th of September, 2020 passed by the learned Single Bench insofar as it directs sealing of the entire building in question is modified by providing that only the portion of the building shall remain sealed which has been constructed in violation of the permission granted by the respondent Corporation, as specifically pointed out and marked by the Corporation in the site plan annexed with the permission order dated 8th of July, 2017 issued by them in favour of the appellants for raising construction of second floor, and the rest of the building shall be de-sealed forthwith. The other portion of the order of the learned Single Judge shall continue to remain in operation as per the directions of the learned Single Judge;

ii. The learned Single Bench is requested to take up the matter on 23rd of October, 2020 for consideration on its own merits, after hearing the parties;

iii. Parties shall complete the pleadings in the writ petition by the next date so fixed without any fail; and

iv. This order shall remain in operation till the writ petition filed by the petitioners/ respondents herein is finally decided by the learned Single Bench.

Letters Patent Appeal, alongwith connected CM(s), disposed of as above.