Unauthorized constructions cannot be legitimized due to administrative delays; strict compliance with building regulations is essential.

JUDGMENT :

1. Issuance of writ of certiorari quashing Order dated 11^th October 2012, passed by J&K Special Tribunal (“Tribunal” hereinafter) in an Appeal titled as Jameel Hussain Farooqi and another v. BOCA and others, filed by respondents 1&2 herein against Order of Demolition dated 4^th August 2012, is sought for by petitioners in the instant writ petition.

2. It is appropriate to see what petitioners state in their writ petition.Petitioners aver that building permission no.6060 of 2012 dated 2^nd May 2012 was given in favour of respondents 1&2 herein to construct a three storeyed residential house with basement floor having three shops in the ground floor. However, respondents 1&2 raised construction in blatant violation of terms and conditions of building permission. Proceedings under J&K Control of Building Operation Act, 1988 (“Act of 1988” for short) were initiated against respondents. Finally, order of demolition bearing no.SMC/Enf/ 624-27 dated 4^th August 2012 under Section 7(3) of the Act was issued by petitioners. Respondents 1&2 preferred Appeal before Tribunal. Violations/ deviations have been compounded by Tribunal against composition fee of Rs.1,29,100/- by order impugned. Hence this writ petition.

3. Reply has been filed by respondents 1&2. They have their side of story, which is that Tribunal after enquiry and examination of case including facts involved about deviation in construction of building, has found that deviation is of minor nature. It is claimed by respondents 1&2 that petitioner no.2 with oblique motives issued Notice dated 1^st August 2012, under Section 7(1) of the Act and that the said notice was never served upon respondents nor is there any proof available with writ petition to show existence of such a notice or its service upon respondents and consequently issuing of demolition is void ab initio. It contravenes not only principles of natural justice but also provisions of Section 7(1) of the Act. Notice of demolition has been issued just after a period of three days from the date of issuance of show cause notice allegedly issued on 1^st August 2012 and, as such, there was no occasion for respondents to reply to non-existent show cause notice. Order of demolition does not in specific terms show as to what was offence or deviation or contravention made by respondents in construction of building. Building permission does not prohibit construction of concrete columns. The rough sketch showing alleged violations relate to deviations in the setbacks on the front, rare and one side of building and there is no other violation indicated in rough sketch as it appears from writ petition and annexures attached thereto. The Tribunal has taken all aspects into consideration and in the interest of justice compounded the case, more particularly when respondents have used their own land and have not encroached upon any State land or caused any inconvenience to neighbourhood. It is also stated by respondents that BOCA did not act timely when deviations were initiated and that writ petition is a belated exercise and has been filed to cover negligence committed by petitioners and officers manning the department. Had petitioners been aggrieved, they would not have allowed construction of huge building before their very eyes as the office of SMC is hardly 20 meters away from building of respondents.

4. I have heard learned counsel for parties and considered the matter.

5. There is no denial to issuance of building permission in favour of respondents, but, for three storeyed residential house with basement floor having three shops in the ground floor. The said building was sanctioned subject to the following setbacks:

i. Front side of the proposed construction is to be maintained at a distance of 65’-00” from the central line of Road towards north side.

ii. Rear side of the proposed construction is to be maintained at a distance of 10’-00” from the nearest edge of plot towards south side.

iii. One side of proposed construction