1. The brief facts to the landing of this appeal before this Tribunal are as under:-

Appellant is the owner of the house No: 1869-F situated in Gandhi Nagar Jammu which was constructed in the year 1975 after obtaining permission from the concerned Authority of that time. Besides the residential house, shops were constructed on the outer part of the land.

As per appellant, a room was constructed over the shops for being used as clinic as the appellant is a Doctor by profession.

When the appellant was posted outside Jammu at different places he could not utilized the clinic. In the year 2006 when he was posted at Jammu he replaced the roof of the clinic which had been badly damaged and was leaking profusely. At the same time the appellant constructed a underground water tank to cater the needs of his family members. Both the activities were carried out without seeking any permission from the respondent.

2. On 14.11.2006 the respondent served a final notice for demolition of the clinic and closing down the underground water-tank, upon which the appellant filed the present appeal.

3. In the appeal, it is alleged that final notice is illegal because no show cause notice was earlier served upon the appellant. It is further stated that final notice is silent as to the nature of the violation, its size and location of the construction as to whether it is on ground floor or 1st floor.

4. As per the appellant he was in dire need of repair of the roof of the clinic which remained closed for years together, so he replaced the roof with RCC slab which does not amount to violation of the Building Operation Controlling Authority Act.

5. So far the case of the respondent is concerned, it is highlighted in the detailed objection-cum-report dated 21.8.2007 signed by Chief Enforcement Officer Municipal Corporation Jammu. As per this report the appellant has raised the construction over the existing shops in the front set back of the plot area without obtaining any permission from the BOCA.

6. It is further alleged that appellant was to keep 26 feet front set back but instead he has raised the construction in the front portion of the set back area which is in violation of Building Operation Regulation and can be termed a major violation which is not compoundable.

7. The construction of the under ground water tank without obtaining permission is also projected in the report which is termed as violation of the J&K Control of Building Operation Act 1988. It is further alleged that as per Master Plan the building line from the centre line of the road was to be kept at 40 feet whereas the offending structure is only 30 feet away from the centre of the road which is a major violation and cannot be compounded.

8. It is further claimed in the report that land use is only for residential purpose whereas the appellant has constructed a commercial hall on the 1st floor which is a major violation and cannot be compounded.

9. The built up area constructed illegally and un-authorizedly by the appellant has been worked out as under:-

Built up area on the first floor =759 sft.

Built up area of under-ground tank. =48.5 sft.

10. I have heard the ld. counsel for the parties and examined the record minutely.

11. Re-iterating the grounds adopted in the memo of appeal Mr. K.K.Jandial on behalf of appellant has inter alia argued that re-roofing does not amount to erection or re-erection and as such required no permission from the concerned Authority. In support of his argument he cited a judgment titled Pawan Kumar Vs. Executive Officer (OWP No: 844/95) decided by the High Court on 20.8.2001. .

12. Mr. Jandial further argued that appellant cannot be blamed for violation of front set back or constructing his house at a distance of 40 feet from the centre of the road because it was on account of duly sanctioned permission that the house and shops were constructed in the year 1975. He also argued that concept of front, back and sides set backs is alien when the construction is made on th

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