Sham Grover vs Municipal Committee and Another

Admitted.

Appellant was called upon to demolish an unauthorised construction raised by him within seven days from the date of receipt of the notice dt.

20th Dec., 1991. This was challenged before Jammu and Kashmir Special Tribunal, Jammu. It was pleaded before the Tribunal that the land over

which the store has been constructed by the appellant is in his possession and he is the lessee of the shop, His case was that he could raise the

construction over the said land in terms of the lease deed. It was also pleaded that he has not committed breach of any of the provisions contained

in the Jammu and Kashmir Municipal Act, therefore, the notice calling upon him to remove the unauthorised construction was totally uncalled for.

The Tribunal is pursuance of an order passed by it on 1st Jan., 1992, called upon the Executive Officer, Jammu Municipality, to submit a report.

The report was submitted by the concerned officer. The violations which were pointed out are as under:

The nature and extent of violation is that the construction of shop has been made on set back of the road and also raised 1'6"" wide sun shade

projection on road side without permission. The L.T. line is also passing over the illegal as shown on the map enclosed. The distance of the

offending structure from the centre of the road is 10'9"" whereas permitted building line from centre of the road is 25';

The map to scale as desired is enclosed;

The plot area could not be ascertained because saledeed/revenue documents has not been adduced by the appellant;

The appellant has erected construction without obtaining the building permission and too in the set back and therefore, he has violated the

building byelaws, Master plan, Town Planning Act and R.D. Act.

Thereafter, the appellant was called upon to meet the report referred to above Both the sides were heard. It is apparent from the order passed

by the Tribunal that as the inspection was conducted on 7th April, 1992 in presence of the parties, it was noticed that the structure had been raised

at the corner of the plot. At this corner, the roads of two sides met at right angle. It was also found that the construction is up to the edge of the

roads and the concept of set back has not been observed at all. The construction was found to be new and was made for commercial purposes.

The sun shade projected on the road and the electric lines were passing over it. It was noticed that some shops already existed there and they

were in the same line as the shop in question. Taking note of the above facts and the spot inspection, the Tribunal came to the conclusion:

i. That no building could be constructed which is within 25 feet from the centre of the road;

ii. That the building in question has been constructed in breach of what has been noted at Serial No. (I) above:

iii. That no doubt, there are other constructions also which have not observed the concept of set back but then, this cannot be made a ground to

compound the violation. This is because:

a. The building has been constructed at the junction of the two roads;

b. That the area is residential and the building in question cannot be used for commercial purposes.

Ultimately, the Tribunal came to the conclusion that this is not a minor breach and is not compoundable under the Jammu and Kashmir

Municipal (Unauthorised Construction) Rules, 1977. The appeal preferred by the appellant was dismissed. A writ petition was preferred in this

Court. This also came to be dismissed. The fact that the construction was on the edge of the two roads and the concept of set back was not

adhered to, was taken note of. The order passed by the Tribunal was upheld. Against the judgment passed in the writ petition, a review petition

was also preferred. The argument put across before the learned Single Judge, who was called upon to exercise review jurisdiction was that the

electric motor of 2 HP capacity was installed in the year 1983 and this was so installed with the due permission. It was accordingly pleaded that

the construction should be deemed to have been raised with the permission of the Municipality and it had no right to seek its demolition. This

review petition stands dismissed. The appellant has now preferred this Appeal under clause 12 of the Letters Patent. What is sought to be urged is

i. That the Jammu Municipality having given the permission to install 2HP electric motor in the said premises cannot turn around and seek

demolition of the building on the ground that the same is being used for commercial purposes;

ii. That the appellant had obtained a no objection certificate from Jammu Municipality;

iii. That the violation, if any, is minor in nature;

iv. That even other constructions exist in the area which are also in the same building line as the one raised by the appellant.

It is urged that if others could be permitted to raise the construction, then there was no justification to call upon the appellant to demolish the

building in question.

v. That only a sun shade was newly constructed, otherwise, the construction is old one.

So far as factual position is concerned the Tribunal inspected the spot. This inspection was conducted on 7th April, 1992. It was found that the

building in question is a newly constructed building. It is being used as a shop. It abuts at the corner of the junction of the two roads and this has

been constructed within the prohibited zone i.e. within 25 feet from the centre for the road. If this be the factual position, then the only question

which is required to be gone into is as to whether the appellant can contend that the notice of demolition should not be given effect to because at

some stage the Municipality has acquiesced in the matter and that similar constructions exist in the area.

In Attorney General v. Corporation of Sutherland (1876) Ch D 634:45 LJ Ch 839:34 LT 921, the position of Municipal Authority while

performing its statutory duties was compared with that of a trustee. It was observed that the authorities would be guilty of breach of trust in case

they fail to perform this duty. Hundred years later in 'K.R. Shenoy v. Udipi Municipality', AIR 1974 SC 2177, the action of UP Municipality

permitting construction of a cinema hall in the residential area was struck down. It was observed that the Municipal authorities are supposed to act

for the public benefit and if a Municipality acts in excess of the power conferred by the Act or abuses that powers, then, in such cases, it is not

exercising its duties. It was observed that the excess of power cannot be validated by acquiescence in or regulated by operation of principle of

equitable estoppel. What was observed in the case of Maddison v. Alderson (1883) 8 AC. 476, was taken note of. It was observed that the

courts of equity would not permit the statute to be made an instrument of fraud.

The necessity to adhere to zoning layouts was commented upon by the Supreme Court of United States in the case of Agins v. City of Tiburon,

(1980) 447 US 255. It was observed that it is in the public interest to see to it that the land is used for the purpose so specified. In case this is not

done, then it can lead to destruction of scenic beauty. Disturbance of ecology and the environmental hazards related to the geology, fire and floor

and other related consequences of urban sprawl would be the consequential results. The zoning layouts not only benefit the public at large but they

also serve the city's interest and assure careful and orderly development. Same concern was shown by the U.S. Supreme Court in the case of

Samuel Berman v. Andrew Parker, (1954) 99 Law Ed 27; 348 US 26, wherein it was observed that nonobservance of these regulations can

suffocate the spirit by reducing the people who live there to the status of cattle. This may lead to a situation where living would become an almost

insufferable burden yet in another decision in (he case of Belle Terre v. Burce Boraas (1974) 39 Law Ed 2nd 797: 416 US 1, the Supreme Court

of United States observed that the police power is not confined to elimination of filth, stench and unhealthy places. The State has the power to

regulate layout zones so that the citizens at large can lead a healthy life. Therefore, the view expressed by the Tribunal in the present case, which

view has been upheld by a learned Single Judge of this Court that the construction of a shop in the residential area and that too without giving

respect to the concept of set back is a major offence and cannot be compounded, is a view to which no exception can be taken.

8, The other argument that other buildings have been permitted to come in the area and they have also not observed the concept of set back, and

therefore, this lapse, if any is required to be compounded, be also examined.

The Supreme Court of India in the case of M.I. Builders Pvt. Ltd. v. Radhey Sham. JT 1999 (5) 3 SC 42, has taken a very serious note of such

unauthorised and illegal constructions and cautioned the Courts nor only to direct the demolition of unauthorised constructions but also to direct

holding of inquiry as to how these constructions were permitted to come. These observations were taken note of by a Division Bench of this Court

in the case of Om Parkash v. Administration, Jammu Municipality and another, LPA (OW) No. 22/2000 decided on 28th March. 2000. The

precise argument that since others have been permitted to raise constructions and therefore, this lapse should be condoned, was taken note of. It

was observed that the concept of Article 14 is positive and not negative. Reference was also made to the decisions of the Supreme Court in

Gursharan Singh v. New Delhi Municipal Committee, AIR 1996 SC 1177 and 'Faridabad C.T. Scan Centre v. D.G. Health Services and others.

(1997) 7 SCC 752, wherein it was observed that 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. In the above Letters Patent Appeal, reference was also made to the provisions of

Section 11 of the Development Act of 1970 which provides for Master Plan, Zonal Development Plan and the Site Plan. It was accordingly

observed that these zoning regulations are required to be observed. In the above case, an unauthorised construction was raised beyond the

prescribed height and it was also within 25 feet from the centre of the road. These violations were held to be major and the appeal preferred by the

appellant in the aforementioned case was dismissed. In the light of the judicial pronouncements noticed above and in view of the findings recorded

by the Tribunal holding that the violation is major and that it cannot be compounded, it cannot be said that the view expressed by the learned Single

Judge of this Court is required to be given a fresh look. The fact that the building exists at the corner of the two roads and it obstructs the passage

and poses a danger to the moving traffic can also be not lost sight of.

In view of the above, this appeal is found to be without merit and is dismissed.