Kewal Kishan Gupta vs J. &k. Special Tribunal

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(SC) 831

2005(4) Supreme 196
Supreme Court of India
(From Jammu & Kashmir High Court)
D.M. Dharmadhikari and B.N. Srikrishna, JJ.
Kewal Kishan Gupta —Appellant
versus
Jammu and Kashmir Special Tribunal & Ors. —Respondents
Civil Appeal No. 2592 of 2004
With
Civil Appeal Nos. 2593/2004 and 2595/2004
Decided on 11-5-2005
Counsel for the Parties :
For the Appellant : G.L. Sanghi, Sr. Advocate, Rohit Tandon and Pavan Kumar, Advocates.
For the Respondents : Bhaskar Y. Kulkarni, Hari Shankar, Ashok Mathur, Advocates.

Headnote:Jammu and Kashmir Municipal Act, 2008—Section 229—Power to demolish the offending structure—Transfer of leasehold rights from the previous leaseholders to the appellant—Appellant applied to the Jammu Municipality to grant permission to put up a new construction on the leased land—Permission was granted to appellant to raise construction of 2,274 sq.ft. on ground floor and 1,390 sq.ft. on the first floor—Show cause notice served on appellant alleging certain violations of the applicable laws—Appellant was served with an order calling upon him to demolish the construction which was alleged to be unauthorised—Appellant filed an appeal against the order before the Tribunal—Tribunal made an order holding that appellant had blatantly violated the sanctioned plan by constructing a commercial complex of 11,470 sq.ft.—Tribunal held that it was a major offence which could not be compounded, therefore granted to Municipality the liberty to demolish this offending structure—However, Municipality called upon the appellant to deposit the compounding fee—Appellant filed writ petition challenging order of the Tribunal—Whether Division Bench of the High Court was justified in directing the Jammu Municipality to take immediate action for demolition of unauthorized construction—(No).
       Held : A careful reading of the second proviso to sub-section (4) of Section 229 of the Act suggests that the Minister Incharge Local Self Government or the authority appointed by him (the Special Tribunal, in our case) is fully empowered to pass an order for compounding the offence, either before or after filing of the appeal. Obviously, such order could be made upon hearing of the appeal also. The Order dated 6.3.1998 made by the Tribunal also appears to have been made without noticing the specific provision of the second proviso to sub-section (4) of Section 229 of the Act. Consequently, the order states that the Municipality was given the liberty to demolish the offending structure, or if not, to accept a compounding fee for the entire area of 11,470 sq.ft. @ Rs. 80/- per sq.ft. In other words, the order of the Tribunal gave an option to the appellant before it of saving the construction from demolition upon payment of the compounding fee. The order of the Tribunal, though passed in ignorantia of the second proviso of sub-section (4) of Section 229 of the Act, was perfectly within its jurisdiction as it was exercising the power exercisable by a Minister Incharge or his appointee thereunder. Consequently, the learned Single Judge was justified in expunging the unnecessary remarks made by the Tribunal as to the absence of will for demolition on the part of the Municipality and quashing the said remarks. It was not open to the learned Single Judge to substitute his discretion in the matter and uphold the order of the Tribunal only to the extent of demolition of the unauthorized construction. Though, the learned Single Judge does not in express words set aside the finding with regard to the compoundability of the offence, we presume it to be the consequence of the order. (Para 14)
       That the Tribunal had jurisdiction to levy a compounding fee is clear from the terms of the second proviso to sub-section (4) of Section 229 of the Act. That the Municipality was willing to do so is evident from the Municipality’s notice dated 18.5.1998 demanding the compounding fee and also the fact that the Municipality at no point of time appeared to be aggrieved by the order made by the Tribunal, as it did not challenge the said order. Finally, the third count on which the Division Bench held against the appellant, namely, that there was conversion of the land use from residential to commercial, contrary to the lease deed, also appears to be without substance. (Para 15)
       The phase of rapid growth of industrial development also makes it unnecessary for permitting demolition of the structure even if it be in contravention of the provisions of the Act or the zoning provisions in the previous Master Plan. Considered from all angles, it appears that the High Court need not have taken an activist role in directing demolition of the offending structure which had been permitted to be compounded by the competent authority, namely, the Tribunal. (Para 16)

Judgment

Srikrishna, J.—These three appeals arise out of connected proceedings and, therefore, can be disposed of by a common judgment.

Facts :

Civil Appeal No. 2592 of 2004

2. Kewal Kishan Gupta-appellant applied to the State Government of Jammu & Kashmir in the Revenue Department seeking sanction of transfer of leasehold rights over certain Nazool land situated at B.C. Road Rehari, Jammu, from the previous leaseholders, Dileep Kumar and Dhani Ram. By an order made on 13.9.1990, the State Government in the Revenue Department sanctioned the transfer of leasehold rights from the previous leaseholders to the appellant “on the existing terms and conditions”.

3. A lease deed was executed on 24.10.1990 between the Governor of Jammu & Kashmir and Kewal Kishan Gupta. Clause 2(1) of the lease deed stipulated as under:

“2. the lessee hereby covenants with the lessor as follows:-

1. The land shall be used solely and exclusively as residential purposes, and the lessee shall within three years of the execution of the lease deed erect thereon buildings according to the plan and elevation approved by the Collector and attached hereto or as it may be subsequently altered or varied with the written consent of the Collector Jammu on behalf of the lessor.”

4. It is the case of the appellant that although B.C. Road was shown as residential zone in the Master Plan, factually and predominantly, most of the properties situated at B.C. Road were being used for commercial purposes. The buildings on the said road used for commercial purposes belonged not only to private parties, but also consisted of several Government offices as well as banks and public sector undertakings. In the appeal memo, the appellant has named a large number such commercial entities, which were using the buildings along the B.C. Road at the time the lease deed was entered into.

5. It is also the case of the appellant that his predecessor-in-title had put up an old construction on the said leased land which was in dilapidated state. The appellant applied to the Jammu Municipality (Respondents Nos. 2 and 3) to grant permission to put up a new construction on the leased land. On 22.11.1992 such permission was granted to the appellant to raise construction 2,274 sq. ft. on the ground floor and 1,390 sq.ft. on the first floor. The appellant commenced the construction, but could not complete the same before the validity of the permission ran out. The appellant applied to the Jammu Municipality, which by Order No. 28 dated 29.4.1997 revalidated the permission for the construction. On 2.6.1997, the appellant was served with a notice from the Executive Officer of the Jammu Municipality calling upon him to refrain from cutting and digging of earth for construction of basement on the leased land. There was certain correspondence between the Jammu Municipality and the appellant on the subject, which finally resulted in a letter dated 17.7.1997 from the Executive Officer of the Jammu Municipality informing the appellant that he was permitted to go ahead with the construction and that, in addition to the ground floor, he would be permitted to raise one more storey above it. On 4.10.1997, the appellant was served with a communication from the concerned officer of the Municipality alleging certain violations of the applicable laws and called upon to show cause within three days. On 14.10.1997, the appellant was served with an order calling upon him to demolish the construction which was alleged to be unauthorized. The appellant filed an appeal against such order before the J&K Special Tribunal (hereinafter referred to as ‘the Tribunal’). The Tribunal made an order dated 6.3.1998 holding that the appellant had blatantly violated the SRO of 14.1.1997 inasmuch as after taking the sanctioned plan to construct an area of 3,664 sq. ft. for residential purpose, the appellant had constructed a commercial complex of 11,470 sq.ft. The Tribunal felt that it was a major offence which could not be compounded a

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