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JAMMU & KASHMIR HIGH COURT AT JAMMU
Janak Raj Kotwal, J.
Kanav Khajuria and Ors. - Appellant
Versus
State of J&K and Ors. - Resopndent
OWP No. 449 of 2015, MP No. 639 of 2015, OWP No. 450 of 2015, MP No. 640 of 2015, OWP No. 451 of 2015, MP No. 641 of 2015 and OWP No. 470 of 2015, MP No. 669 of 2015
Decided On : 22-05-2015
Control of Building Operations Act - Unauthorized Change of User - Sections 4, 7, 8 - The judgment upheld the applicability of sections 7 and 8 of the Act and the power of the Authority to take action, including issuing orders of demolition, in cases where unauthorized changes of user in violation of the Master Plan are made, even without effecting structural changes in the building. The notices (orders) under section 8(1) of the Act in all the cases were quashed, and the respondent-Authority was directed to de-seal the premises. The quashment of the order, however, did not confer any right on the petitioners to make or continue with any unauthorized erection or re-erection (structural change/renovations) to the building/premises. The respondent-Authority was directed to issue fresh show cause notices within two weeks' time to the owners of the buildings as well as to the persons running the commercial activities, and to take appropriate action in terms of sections 7 & 8 of the Act afresh after hearing/providing an opportunity of being heard to them, having regard to the residential uses as permitted in the concerned area/zone as per SRO 64 dated 16.02.2010.
Fact of the Case:
The petitioners sought writs, orders, or directions in the nature of Certiorari quashing notices (orders) for sealing of their business premises issued in terms of section 8(1) of the Act. They also sought Mandamus commanding the respondents to de-seal their business premises. In one of the petitions, the petitioners sought a writ of Mandamus declaring the action of the respondents in invoking provisions of section 7 and 8 of the Act against their businesses activities as illegal and bad in the eyes of the law. The petitioners also sought quashing of notices under section 7(1) issued to them.
Finding of the Court:
The judgment upheld the applicability of sections 7 and 8 of the Act and the power of the Authority to take action, including issuing orders of demolition, in cases where unauthorized changes of user in violation of the Master Plan are made, even without effecting structural changes in the building. The notices (orders) under section 8(1) of the Act in all the cases were quashed, and the respondent-Authority was directed to de-seal the premises. The quashment of the order, however, did not confer any right on the petitioners to make or continue with any unauthorized erection or re-erection (structural change/renovations) to the building/premises. The respondent-Authority was directed to issue fresh show cause notices within two weeks' time to the owners of the buildings as well as to the persons running the commercial activities, and to take appropriate action in terms of sections 7 & 8 of the Act afresh after hearing/providing an opportunity of being heard to them, having regard to the residential uses as permitted in the concerned area/zone as per SRO 64 dated 16.02.2010.
Issues: The issues raised in the writ petitions included the applicability of sections 7 and 8 of the Act, the legality of the notices (orders) for sealing of the business premises, and the permissibility of the commercial activities in a residential zone as per the Master Plan.
Ratio Decidendi: The judgment established the applicability of sections 7 and 8 of the Act and the power of the Authority to take action, including issuing orders of demolition, in cases where unauthorized changes of user in violation of the Master Plan are made, even without effecting structural changes in the building. The judgment also emphasized the importance of hearing the affected parties and taking into account the permissibility of commercial activities in a residential zone as per the Master Plan.
Final Decision: The notices (orders) under section 8(1) of the Act in all the cases were quashed, and the respondent-Authority was directed to de-seal the premises. The quashment of the order, however, did not confer any right on the petitioners to make or continue with any unauthorized erection or re-erection (structural change/renovations) to the building/premises. The respondent-Authority was directed to issue fresh show cause notices within two weeks' time to the owners of the buildings as well as to the persons running the commercial activities, and to take appropriate action in terms of sections 7 & 8 of the Act afresh after hearing/providing an opportunity of being heard to them, having regard to the residential uses as permitted in the concerned area/zone as per SRO 64 dated 16.02.2010.
Janak Raj Kotwal, J.
1. The Jammu and Kashmir Control of Building Operations Act, 1988 (for short, the Act) has been enacted to amend and consolidate the law relating to control of building operations in the State. Section 4 of the Act prohibits inter alia 'development' of any site or to erect or re-erect any building in any area except with the previous permission of the Authority concerned. Section 3 authorizes the State Government to appoint an Authority for the purpose of the Act for an area to which the Act applies. Section 7 provides for demolition, alteration or pulling down of a building so far as it is necessary to remove the violation and section 8 empowers the Authority concerned to issue an order directing sealing of such building/site.
2. In all these petitions, petitioners seek issue of writ, order or direction in the nature of Certiorari quashing notices (orders) for sealing of their business premises issued in terms of section 8(1) of the Act. Petitioners also seek Mandamus commanding the respondents to de-seal their business premises. In OWP No. 470/2015, petitioners also seek writ of Mandamus declaring the action of the respondents in invoking provisions of section 7 and 8 of the Act against their businesses activities as illegal and bad in the eyes of law. In OWP Nos. 449/2015 and 451/2015, petitioners also seek quashing of notice under section 7(1) issued to them.
3. I may state briefly and shorn of unessential, the background facts, mostly admitted or indisputable, leading to these writ petitions:
OWP No. 470/2015
3(a). Petitioner No. 1, Kanav Khajuria claims that he is in the process of setting up a spa and beauty saloon in first floor of 'building known as 29-D/C' Gandhi Nagar, Jammu and for that purpose was making necessary renovations in the rooms, whereas petitioner No. 2 claims to have already set up a Gym under the name and style of 'M/S Waves Gym' in the ground floor of the said building. It is stated by the petitioners that respondent No. 3, Mohinder Gupta is owner of this building and he has rented out its first and ground floor to petitioner Nos. 1 and 2 respectively.
3(b). Respondent No. 2-the Building Operation Controlling Authority, Municipal Corporation, Jammu, through its Chief 'Khailafwarzi Officer', firstly, issued a notice under section 7(1) of the Act dated 01.11.2014 to Vikaram Mahajan the son of petitioner No. 3 pointing out that he has started unauthorized construction of additions and alteration to convert the aforementioned residential building into commercial without permission of Jammu Municipal Corporation, thereby he has changed the land use by converting the whole residential building into commercial one, that commercial activities would cause nuisance, traffic hazards and other environment problems much to the inconvenience of neighbouring residents and called upon him to show cause within 48 hours as to why khilafwarzi/violation should not be demolished. After more than five months the Authority issued notice (order) dated 06.04.2015 under section 8(1) directing sealing of the building stating in the notice inter alia that interior renovation work has been restarted in spite of affidavit dated 23.12.2014 whereby he (Vikaram Mahajan) had undertaken that the said accommodation shall not be used for any commercial purpose.
3(c). Earlier than the aforementioned notices to Vikaram Mahajan, respondent No. 2 had issued demolition order under section 7(3) of the Act dated 06.07.2013 against petitioner No. 2 followed by a notice (order) of sealing under section 8(1) dated 06.04.2015 qua the Gym (supra).
OWP No. 449/2015
3(d). Petitioners-1 & 2, Dr.Ajay Gupta and Dr. Ashma Mahajan, have set up a Dental Clinic in a hall over the drive-way of aforementioned building No. 29-D/C. According to the petitioners, this portion of the building is owned by petitioner No. 3, S.K. Gupta, who has leased out the hall and a bathroom to petitioners 1 & 2 and that petitioner No. 2 is the daughter of
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