OWP No.1521/2015

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HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

OWP No.1521/2017

MP No.1/2017

Date of order:10.11.2017.

Som Nath

v.

State of J&K and others.

Coram:

Hon’ble Mr. Justice Sanjeev Kumar, Judge

Appearing counsel:

For the Petitioner(s)

: Mr.Vilakshana Singh, Advocate.

For the Respondent(s)

: Mr. S.S.Nanda, Sr. AAG for R-1 and 2.

i/

Whether to be reported in

:

Yes/No

Press/Media

ii/

Whether to be reported in

:

Yes/No

Digest/Journal

1.

The petitioner is aggrieved of the order/office note of respondent No.2,

the Executive Officer, Municipal Committee, Sunderbani, whereby he has

directed the compounding of violations made by respondent No.3 while raising

construction of his house. The petitioner has also sought a direction to the

respondent Nos. 1 and 2 to demolish the construction raised by respondent No.3

in violation of the approved plan by following the provisions of Control of

Building Operations Act, 1988 and the Regulations framed thereunder.

2.

The petitioner claims that he is owner in possession of a land measuring 3

½ marlas comprising in Khasra No.2789, khata No.2552/1998 and khewat

No.192/189 situated at Ward No.10 of the Municipal Committee, Sunderbani. It

is further averred that that respondent No.3 also owns a piece of land measuring

4 marlas quite adjacent to the land of the petitioner. The petitioner submits that

respondent No.3 got a building plan approved from the competent authority of

the Municipal Committee, Sunderbani but raised construction contrary to the

sanctioned building plan and, therefore, committed major violations. It is

submitted respondent No.3 was under an obligation to keep front set back of 56

feet and rear set back of 3 feet towards the land of the petitioner but he raised

OWP No.1521/2015

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the construction without keeping any such setbacks and therefore, violated the

approved/sanctioned plan with impunity. He, therefore, urges that the violations

committed by respondent No.3 being major are not compoundable in law.

Petitioner’s further grievance is that besides, violating the sanctioned plan, the

petitioner also projected his gallery towards the land of the petitioner against

which the petitioner approached the Civil Court by way of a civil suit for

permanent prohibitory injunction etc., which, the petitioner claims, is subjudice

in the Court of Additional District Judge, Rajouri. The petitioner also claims

that with a view to stop respondent No.3 from committing major violations of

the approved building plan, the petitioner approached respondent No.2 for

taking legal action but nothing was done. Ultimately in response to an

application filed by the petitioner under Jammu & Kashmir Right to

Information Act, 2009, respondent No.2 informed the petitioner that the

violations noted had been compounded. Despite request made by the petitioner,

copy of the order compounding violations was not supplied, which compelled

the petitioner to approach the appellate authority under the Right to Information

Act and finally the impugned note was supplied to him.

3.

The petitioner has challenge the impugned note on the ground that the

impugned note, whereby the violations committed by respondent No.3 have

been compounded by respondent No.2 is bad in the eye of law being contrary to

the provisions of Control of Building Operations Act, 1988 and therefore,

cannot sustain and also that before passing the order of compounding the

violations no satisfaction was recorded by respondent No.2 as to whether the

violations committed by respondent No.3 were minor or major violations. It is

contended that the impugned note was passed in most mechanical manner and

therefore, cannot sustain in the eye of law.

4.

Respondent Nos. 1 & 2 and 3 have filed their separate objections.

Respondent Nos. 1 a