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2017 Supreme(J&K) 764
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Tashi Rabstan, J.
Jammu Municipal Corporation and Ors. – Appellants
Vs.
Naresh Chowdhary and Ors. – Respondents
OWP No. 787 of 2011 and MP No. 1108 of 2011
Decided On : 08-06-2017
For the Appellant : S.S. Nanda, Sr. AAG
For the Respondent:S.C. Gupta, K.K. Pangotra and D.S. Parihar, Advocates
The main legal point established in the judgment is that violations related to setbacks and ground coverage are considered major and cannot be compounded under the relevant regulations.
Headnote:
Building Violation - Jammu and Kashmir Control of Building Operation Act, 1988, Section 7(1), Section 12(1), Regulation 11(2) - The court discussed the violations of construction committed by the respondent, the provisions of the Jammu and Kashmir Control of Building Operation Act, 1988, and the Regulations. It highlighted the definition of minor violations and the conditions for compounding such violations. The court emphasized that violations related to setbacks and ground coverage are considered major violations and cannot be compounded.
Fact of the Case:
The petitioner challenged an order directing compounding of construction violations committed by the respondent. The petitioner argued that the violations were major and could not be compounded, while the respondent contended that the violations were minor and had been rightly compounded by the tribunal. The court examined the relevant regulations and considered the nature of the violations.
Finding of the Court:
The court found that the violations related to setbacks and ground coverage were considered major and could not be compounded. It dismissed the writ petition, emphasizing the need for appropriate remedial measures to check violations of building laws and disciplinary action against officials involved in lawbreaking.
Issues: The main issue was whether the violations of construction were minor or major in nature and whether they could be compounded under the relevant regulations.
Ratio Decidendi: The court held that violations related to setbacks and ground coverage were major and could not be compounded, as per the provisions of the Jammu and Kashmir Control of Building Operation Act, 1988, and the Regulations.
Final Decision: The writ petition was dismissed, and the court emphasized the need for immediate remedial measures to check violations of building laws and disciplinary action against officials involved in lawbreaking.
Tashi Rabstan, J.
1. Challenge in this petition is to order dated 28.04.2011 passed by Jammu and Kashmir Special Tribunal, Jammu (hereinafter "Tribunal"), whereby it directed compounding of violation of construction committed by Respondent No. 1. The case of petitioner-authority is that vide No. 344/BS/06, dated 26.08.2006 Respondent No. 1 was permitted to raise construction of residential house for Ground floor, Ist floor and Second Floor at Plot No. 102 Sector No. 6, Trikuta Nagar, Jammu. The permission was to raise construction, comprising two bed rooms, two toilets, one kitchen, one living room and staircase covering built-up area of 1150 sq. ft. over 3299 of the plot area at each floor. On 30.10.2006, Khilafwarzi Inspector of the area reported that Respondent No. 1 started construction against the approved plan. Show Cause Notice No. MJ/Estt/93/CEO/06 under Section 7(1) and Notice No. MJ/Estt/93/CEO/2/06 under Section 12(1) of the J&K Control of Building Operation Act, 1988, both dated 31.10.2006, to discontinue the construction, were served upon Respondent No. 1. He neither showed any cause nor stopped the construction. Notice No. MJ/Estt/93/CEO/3/06, dated 04.06.2007 under Section 7(3) of the J&K Control of Building Operation Act, 1988, directing Respondent No. 1 to demolish the unauthorized construction, was, as such, served upon Respondent No. 1.
Learned Counsel for the petitioner has contended that Respondent No. 1, without obtaining permission from the authority, had started construction as aforesaid, to which a Notice dated 31.10.2006 under Section 7(1) to show cause and Notice dated 31.10.2006 under Section 12(1) of the Jammu and Kashmir Control of Building Act, 1988 to discontinue the construction, were served upon him (respondent No. 1). Respondent No. 1, unmindful of notices, did not stop the construction. Thereafter, Notice dated 04.06.2007 under Section 7(3) was issued for demolition of the construction so raised by respondent No. 1. Further case of the petitioner-Authority is that respondent No. 1 has raised the construction without maintaining setbacks as per the prescribed norms. It is further contended that committing of violation of the setbacks is a major violation as per the prescribed Building Bye Laws and Jammu and Kashmir Control of Building Regulations 1998. It is also contended that order impugned is against law and facts as observation of respondent No. 2 that show cause notices and final notice have not been properly framed and served, yet respondent No. 2 decided the appeal after giving full opportunity of being heard to respondent No. 1. Learned counsel also avers that learned Tribunal has compounded the offence without properly applying the provisions of law. It is also stand of petitioner that sanction of the plot was for residential purposes and accordingly building permission was granted for residential house, whereas respondent No. 1 has raised big halls at ground floor, first floor and second floor, for using it for commercial purposes. He asserts that change of land use is a major violation and cannot be compounded and that respondent No. 1 has violated the setbacks norms and committed major violations, which are mandatory as per the Building Bye Laws and any violation of it is a major violation. Thus, it is insisted that respondent No. 2 was not competent to compound the violations covering more than 10% of the permissible ground coverage as respondent No. 1 was allowed ground coverage of 35% of the plot area whereas respondent No. 1 has covered 50% of the plot area and respondent No. 2-Tribunal, without going into the merits of the case, compounded the violation, which was major. It is stated that instead of maintaining proper setbacks by respondent No. 1, he deviated from prescribed Building Bye Laws, thus, has violated provisions of J&K Control of Building Operation Act, 1988 and J&K Control of Building Operations Regulations, 1998. Accordingly, petitioner-authority issued S
