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2012 Supreme(J&K) 747
J&K SPECIAL TRIBUNAL AT JAMMU
Sanjay Gupta, J.
Kusam Bhatia -Appellant
Versus
Building Operation Controlling Authority, Jammu -Resopndent
STJ-328-02 [In the Matter of: Appeal against notice No. MJ-Estt-178-CKO-2002 dated. 13.11.2002 issued by respondent No. 1 with a prayer for setting aside the same.]
Decided On : 19-04-2012
Ajay Vaid, Vinay Chib.
The court emphasized the conditions for compounding construction of a minor nature and the requirements for construction not violating the approved land use, set backs, ground coverage, and building height as prescribed in the bye-laws.
Headnote:
Unauthorized Construction - Building Permission - COBO Regulations - 10, 11 - The court discussed the appellant's unauthorized construction and the relevant COBO Regulations, specifically focusing on the provisions of Rules 10 and 11. The court emphasized the conditions for compounding construction of a minor nature and the requirements for construction not violating the approved land use, set backs, ground coverage, and building height as prescribed in the bye-laws. The court also considered the mixed land use in the area and the permissions granted for running a school, ultimately deeming the construction as minor in nature and regularizing it upon the deposit of requisite fees.
Fact of the Case:
The appellant raised unauthorized construction on the 2nd floor of a building after obtaining permission for construction on the ground floor and first floor. The respondent issued a notice to demolish the unauthorized construction, leading to the appellant filing an appeal.
Finding of the Court:
The court found that the construction raised by the appellant was considered as minor in nature and was compounded at a specified rate per square foot, which would regularize the construction upon the deposit of requisite fees. The court also directed an investigation into the non-production of the original case record by the respondent.
Issues: Unauthorized construction, deemed permission, non-production of original case record, mixed land use, permissions for running a school, honest working of the respondent department.
Ratio Decidendi: The construction was deemed as minor in nature and was regularized upon the deposit of requisite fees. The court also directed an investigation into the non-production of the original case record by the respondent.
Final Decision: The construction of 3281 square feet raised on the 2nd floor by the appellant was considered as minor in nature and was compounded at a specified rate per square foot, which would regularize the construction upon the deposit of requisite fees. The court also directed an investigation into the non-production of the original case record by the respondent.
2. Appellant in the memo of the appeal, has stated that after obtaining permission for construction from Jammu Municipality, she raised ground floor and first floor on plot situated at Patoli Magotrian Top Sherkhania Jammu. That appellant wanted to raise construction on 2nd floor in aforesaid building and for that purpose, she applied to respondent for grant of building permission. That along with application form a fee of Rs. 100/- as fee of application was deposited on 12.2.2002. That at the time of raising constriction on ground floor and first floor, NOC were obtained from the required authorities. That appellant case for raising construction was taken before in meeting of respondent, but till date sanction has not been communicated. Appellant was told that permission was sanctioned by respondents. Accordingly, appellant raised construction on second floor. That after construction was raised; notice impugned was issued, which is against fact and law. That notice has been issued without jurisdiction. That, no communication regarding rejection of permission was communicated to appellant.
3. This appeal was filed on 15.11.2002 and despite availing many opportunities during period of more than nine and half years, respondent did not produce the record.
4. Counsel for appellant produced a map of construction on 9.2.2011 and it has been stated that this is alleged construction.
5. While perusing the map, this court deemed it necessary to direct respondent to go on spot for appraising the court, with respect to Khailfwarzi, for just decision of appeal as per map placed by appellant. Accordingly, it was directed to respondent to go on spot and prepare a detailed report of alleged construction and violation, if any.
6. Respondent accordingly submitted report and record after preparing it afresh. Title of land has been proved, because photocopy of registered sale deed has been annexed.
7. Appellant has rested his case on deemed permission. But facts remains, that construction is without proper permission, Even if construction is raised on deemed permission,it is required to be seen as to whether, it is as per master plan and as per regulation or not.
8. Rules 10 and 11 of COBO.REULATIONS are necessary for deciding the matter. These reads ac under:-
10. Appeals
(1) An appeal against the order of the Authority made under section 5 and 7 of the Act shall lie before the Chairman of the J&K Special Tribunal or such other Member of the said Tribunal as may be decided by the same Chairman.
11. The Appellate Authority may compound an offence of a minor nature specified in sub clause (2) of these Regulations;
Provided that the compounding fee shall be worked out on the basis of rates to be notified by the Government.
(2) For the purpose of these Regulations an offence of a minor nature shall include any erection or re-erection of the b building which has taken place in violation of permission referred in section 4 of the Act or deemed permission as referred in Sub-clause (2) of clause (7) of these Regulations provided that such erection or re-erection:
(i) does not violate the approved land use of area as notified in the Master Plan or Town Planning Scheme;
(ii) does not violate the permissible front, rear or side set backs prescribed in the bye laws:
(iii) does not violate by more than 10% the permissible grounds coverage a prescribed in the bye laws: and
(iv) does not violate the permissible height of the building as prescribed in the bye laws.
9. Bare perusal of these regulations, it is evident that, this Court can compound construction /Khailfwarzi of minor in nature. For the purpose of offence of minor in nature with regard to construction, so raised in violation section- 4 COBO Act, means that constr
