Subsequent policy changes permit relocation of Economically Weaker Section flats within 5 km, rendering previous construction conditions unenforceable.

JUDGMENT

Per Chowdhary J

1. Petitioner in all the petitions claims to have acquired 29 kanal 05 marlas of land comprising of Survey Nos. 49, 50, 51, 52 and 41, situate at village Sunjwan, Tehsil Bahu District Jammu along with one Mohd Ashraf; that both of them applied to the Jammu Development Authority (JDA), which has the jurisdiction over the area for grant of permission for Group Housing Project; that the JDA after seeking and obtaining „No Objection Certificates‟ from all the line departments and after examining the building plans approved the project vide Order No. CTP/JDA/BPC/646-47 dated 12.02.2015, after receipt of building fee of the project in the sum of Rs.1,06,03,650/- before accord of approval, which the petitioner deposited on 20.01.2015; that after grant of permission, Mohd. Ashraf withdrew himself from the project and transferred his interest in the land in favour of the petitioner and this fact was duly communicated to the JDA vide communication dated 20.07.2015; that the permission had been granted by the JDA for 07 blocks each comprising of 13 floors. Out of 07 blocks („A‟,‟B‟,‟C‟,‟D‟,‟E‟,‟F‟ and „G‟), block „D‟ was to be constructed for Economically Weaker Sections (EWS) of the society and the petitioner commenced the construction on 07.04.2015; that as per the advice of Architect and Structural Engineer and having regard to the topography of the area, the construction work was first started in Block „G‟ and „F‟; that the petitioner was required to create space at the depth of 22 feet to lay raft foundation and to ensure that the proposed construction is stable which can withstand the earthquake as per the National Building Code (NBC); that due to creating a depth of 22 feet and availability of sufficient space, the petitioner felt that the permission could be obtained from the JDA to use the said space for car parking; that the petitioner had been allowed to construct ground floor as a „stilt floor‟ for car parking in terms of condition No.6 of the order dated 12.02.2015 and to start first floor over „stilt floor‟ and the petitioner was required to seek further permission after construction of first floor in block „G‟ and „F‟.

2. The petitioner further claims to have applied to JDA on 14.01.2016 for release of permission of floors over the first floor which was required to be cleared by the JDA within seven days from the date of request. However, till 21.01.2016 no permission was released by the JDA despite approval of the whole project and on 04.02.2016, the petitioner was served with a notice under section 7(1) of the Control of Building Operations Act (COBA) to show cause within 48 hours, to which the petitioner responded on 05.02.2016. There being no response from JDA within seven days, the petitioner filed OWP No. 165/2016 in this Court which was disposed of on 16.02.2016. The petitioner on 20.02.2016 was informed by the JDA that the BOCA (Building Operations Controlling Authority) in its meeting held on 11.02.2016 had considered the matter and declined to accept the request on the ground that the petitioner had committed violation and he was directed not to raise any construction. The petitioner on 02.03.2016 again applied for release of permission, however, there was no response. The petitioner on 14.03.2016 filed OWP No. 376/2016 questioning the legal validity of clause 6 of the approval as also the communication dated 20.02.2016. The petitioner also filed a civil suit on 11.04.2016 wherein the civil court passed the order on 11.04.2016 that the respondents can proceed against the petitioner in accordance with law and not otherwise. The petitioner