HIGH COURT OF JAMMU & KASHMIR AND LADAKH

ATJAMMU

CJ Court

Case: OWP No. 494 of 2011

Sham Lal

.....Appellant/Petitioner(s)

Through :- Sh. Ajay Gupta, Advocate.

v/s

J&K Special Tribunal and Others

.....Respondent(s)

Through :- Sh. Rajnesh Raina, Advocate for

respondent Nos. 2 to 4

CORAM:

HON’BLE THE CHIEF JUSTICE

HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

ORDER

01.

Heard Sh. Ajay Gupta, learned counsel for the petitioner. Sh. Rajnesh

Raina, learned counsel has appeared for the respondent Nos. 2 to 4.

02.

The pleadings have been perused.

03.

The petitioner has assailed the judgment and order dated 24.02.2011

passed by the Jammu and Kashmir Special Tribunal (for short 8the Tribunal’).

04.

The petitioner purchased a shop 10`x 10` situate in front of House no.

276-A Gandhi Nagar, Jammu. He constructed a room on the first floor of the

shop. He was served with a notice under Section 7 of J&K Control of Building

Operation Act, 1988 ( for short the COBO Act) and thereafter a final

notice/order under Section 7(3) of the Act was passed against him on

07.01.2011 directing him to demolish the unauthorized construction within a

period of five days.

05.

The petitioner preferred an appeal before the Tribunal and the same has

been dismissed holding that the petitioner has constructed the first floor on the

shop without any building permission.

Sr. No. 12

2

OWP No. 494 of 2011

06.

The argument that first floor was in existence at the time of the purchase

of the shop in the year 2002 and that it not a new constructions, was not

accepted by the Tribunal, inasmuch as, it was found that by the petitioner9s

own documents, the construction work was going on in 2010 and that even if

the constructions were raised in 2002, since there was no permission, they were

unauthorized.

07.

It may be pertinent to mention here that in view of Section 4 of the Act,

no person within the Municipal area is entitled to erect or re-erect any building

or make or extend any excavation or lay out any means of access to a road in

such area except with the previous permission of the Authority concerned in

writing.

08.

Therefore, in the absence of any permission to construct a room on the

first floor of the shop, it is clearly violative of Sections 4 and 5 of the Act.

09.

In view of the aforesaid facts and circumstances, we find no illegality in

the impugned judgment and order of the Tribunal.

10.

The writ petition is devoid of merit. It is accordingly dismissed with

liberty to the petitioner to apply even today for the sanction of the map of the

first floor portion. If the petitioner so applies within a period of two weeks

from today, the respondent No. 4 shall consider it strictly in accordance with

law within a period of one month thereafter.

11.

The writ petition is dismissed with the above observation.

(MOKSHA KHAJURIA KAZMI) (PANKAJ MITHAL)

JUDGE CHIEF JUSTICE

JAMMU

01.04.2022

Tilak.