The main legal point established in the judgment is that unauthorized construction violating the permissible setbacks prescribed in the bye-laws constitutes a major offence and is not compoundable.

Muzaffar Hussain Attar, J.

1. The Jammu Municipal Corporation through its authorities sent a notice to respondent No. 1-writ petitioner asking him to demolish the structure comprising of one garage (room) measuring 17' x9'-9" with attached toilet measuring 3'-6"x7' having been raised without seeking building permission from the competent authority. It is also stated in the notice that said unauthorized construction has been raised in the rear setbacks area of the plot.

2. Being aggrieved of the notice/order of demolition dated 22.12.1998, writ petitioner-respondent filed statutory appeal before the J&K Special Tribunal, Jammu. After hearing learned counsel for the parties and considering the matter, the learned Tribunal dismissed the appeal of the respondent-writ petitioner vide order dated 12.05.1999. The said order is taken note of.

"Before Amit Kushari, Chairman J&K Special Tribunal, Jammu."

File No. Date of Instt. Date of decision

STJ/367/98 23.12.98 12.05.1999

S/O Sh. Bhushan Chander

R/o 30-A/D Gandhi Nagar, Jammu

......Appellant

Vs.

Executive Officer,

Municipality, Jammu

......Respondent.

Appeal against the order/notice No. 99/4/KWO/98 dated 22.12.1998 passed by the Executive Officer Jammu Municipality.

ORDER

Arguments of Shri Anil Sharma, Advocate for the appellant as well as the arguments of Sh. K. B. Gupta, Advocate for the Jammu Municipality were heard and the records available on the file were also gone through. From the arguments of advocates for the parties and the records available on the file the following facts have emerged:-

The appellant herein in September, 1988 through a registered sale deed purchased a residential house bearing No. 30 A/D situated at Gandhinagar, Jammu comprising of two rooms, on drawing room, a garage and compound. Recently the appellant has raised the construction of a room measuring 17'x9'-9" with attached toilet measuring 3'-6"x7' without seeking any building permission from the competent authority in the rear setback area of the plot. Sh. Anit Sharma, Advocate for the appellant stated that although the construction has been raised without seeking building permission from the Jammu Municipality, but his being a minor offence which may be compounded. Mr. Sharma further stated that the construction is in his own plot and no encroachment has been pointed out by the Jammu Municipality in its report. While rebutting Sh. K. B. Gupta, advocate for the Jammu Municipality stated that the appellant has committed a serious offence by raising construction unauthorizedly in the rear as well as side set back area of the plot, Mr. Gupta also highlighted the provisions of SROs of Housing and Urban development department dated 14.1.1997 and 28.05.1998 and stated that the present construction has been raised after the issuance of said SROs and so the offence has to be treated as major and cannot be compounded.

I have considered the arguments advanced by both the advocates for the parties and have also considered the records available on the file.

During the course of arguments the advocate for the appellant has admitted before the undersigned that the appellant has raised the construction in the side and rear set back area of the plot and that too without seeking any building permission from the Jammu Municipality. It has also been admitted by the advocate for the appellant that the offence was committed by the appellant in December, 1998. The SRO's of Housing and Urban Development Department J&K dated 14.01.1997 and 28.05.1998 are therefore quite applicable in the present case. As per the provisions of these SROs the present construction cannot be treated as a minor offence and so the request made by the advocate for the appellant for compounding the offence cannot be accepted. The appeal is therefore dismissed. The Jammu Municipality is directed to take immediate necessary steps to demolish the unauthorized construction of the room and the toilet. The demolition should be carried out preferably

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