Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 237 (JK)

Parveen Kumar Gupta v. State Of J. &K.

2001-10-06

NISAR AHMAD KAKRU, S.K.GUPTA

body2001
1. Admitted. 2. Notice dated 20-12-1998 calling upon the appellant to demolish the unauthorised construction raised by him within seven days from the date of receipt of the notice was challenged before Jammu and Kashmir Special Tribunal, Jammu. It was pleaded that ten appellant had repaired his own old house located in Vinayak Bazar, after securing requisite permission from Jammu Municipality (respondent-3). It was further pleaded that the appellant has not committed breach of any provisions contained in the Jammu and Kashmir Municipal Act and, therefore, the notice calling upon him to remove the unauthorised construction was uncalled for it was further pleaded that the lane is almost covered with balconies constructed by the inhabitants and as such sought compounding of the case and setting aside of the impugned order. 3. The Tribunal, in order to ascertain the factual position existing on spot, visited the place and found that there were number of rooms without any provision for natural light and proper ventilation. That there was a large sign-board with words Hotel Basera written on it, fixed on the roof of the building. There was no kitchen normally found in the residential houses. The balcony was also found projected four feet into the narrow lane virtually rendering the vehicular traffic impracticable. From this extensive survey of the site in question, the Tribunal found the violation committed to be major one and the land use having been changed unauthorisedly, the entire construction, a new one, put to commercial use in residential locality, declined the prayer of the appellant and dismissed the appeal vide order dated 21 -4-1992. 4. Aggrieved by the order of the Tribunal, the appellant herein invoked the writ jurisdiction of the court in the nature of certiorari for quashing order dated 21-4-1992. The grounds taken and urged by the appellant in the memo of appeal are identical to the one taken before the Tribunal and reiterated in the writ petition. 5. The stand of the Municipality is that the appellant raised a new construction without obtaining a prior building permission and the site plan relied upon to support his contention was without requisite sanction of the Municipality. It was further pleaded that there has been a change of land use by the appellant in constructing a hotel in residential area. 5. The stand of the Municipality is that the appellant raised a new construction without obtaining a prior building permission and the site plan relied upon to support his contention was without requisite sanction of the Municipality. It was further pleaded that there has been a change of land use by the appellant in constructing a hotel in residential area. The rooms constructed did not provide any natural light or ventilation and, thus, violated the provisions of Municipal Act and Rules and, thus, the violation committed by the appellant of the provisions of the Jammu and Kashmir Municipal (Unauthorised construction) Rules, 1977, besides Town Planning Act amounted to a major violation and, therefore cannot be compounded. The learned single judge found the petition without merit and dismissed vide order dated 13-11-2000 to the following observations: "In view of the above, this petition is found to be-without any merit and is dismissed. The petitioner is left free to remove the illegal construction within a period of two months from today, failing which the Municipal authorities would demolish the illegal construction. The amount towards compensation charges deposited with the Registrar (Judicial) of this court would be refunded. This is however, subject to the condition that the petitioner would remove the construction of his own. In case the illegal construction is not removed by the petitioner within the period afore-said and the same is removed by the Municipality, the charges incurred on the removal of the building shall be deducted from this amount". 6. To canvass the correctness of the order dated 13-11-2000 passed by the learned single judge, the appellant has preferred this Letters Patent Appeal before us. 7. So far as the factual position of the case is concerned, the Tribunal inspected the site and found a new two-storey construction raised by the appellant with a balcony projected into the narrow lane. That the building was used as Hotel under the name and style of Basera Lodge. The rooms were without any natural light and proper ventilation. Even no kitchen was provided in the building normally found in the residential houses. There has been a change in the land use unauthorisedly in violation of the provisions of the Municipal Act and the Jammu and Kashmir Municipal (Unauthorised Construction) Act, 1977. It has also not been disputed even by Mr. Even no kitchen was provided in the building normally found in the residential houses. There has been a change in the land use unauthorisedly in violation of the provisions of the Municipal Act and the Jammu and Kashmir Municipal (Unauthorised Construction) Act, 1977. It has also not been disputed even by Mr. R.P. Sangra, learned counsel for the appellant, that house constructed by the appellant has been converted into a commercial one and he is running a hotel Basera Lodge in the premises, but denied that by extension of four feet balcony into the land caused traffic hurdles as there are many balconies raised by other people in the land. He, however, submitted that the provision for light and air has been made in the building during the pendency of the writ petition and, thus, carved out a case of compounding the violation. 8. The Apex Court has taken a serious note about the unauthorised and illegal construction and cautioned the courts not only to direct the demolition of unauthorised constructions, but also to direct holding of enquiry as to how these constructions were permitted to come. While admitting the factual position with regard to the construction of the two-storey building used as a Basera Lodge, the appellant submitted that there are many other balconies projected in the vicinity in violation of the Municipal Laws and on the strength of which he sought the same to be compounded. This aspect of the matter came to be considered by the Apex Court in Gursharan Singh and others etc. etc. v. New Delhi Municipal Committee and others, AIR 1996 SC 1175 and Faridabad CT. Scan Centre V. D.G. Health Services and others, (1997) 7 SCC 752, wherein it was observed that wrong orders cannot be perpetuated with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some persons. It was further observed that zoning regulations are required to be observed. In the above case, an unauthorised construction was raised beyond the prescribed height and it was also within 25 feet from the centre of the road. These violations were held to be major and the appeal preferred by the appellant in the afore-mentioned case was dismissed. This contention of the appellant in the light of the aforesaid judicial pronouncement cannot be accepted, for the violations being major and that it cannot be compounded. These violations were held to be major and the appeal preferred by the appellant in the afore-mentioned case was dismissed. This contention of the appellant in the light of the aforesaid judicial pronouncement cannot be accepted, for the violations being major and that it cannot be compounded. 9. The Municipal Authorities while performing their statutory duties are supposed to act in the public benefit. It is in the public interest to see to it that the land is used for the purpose so specified. In case this is not done, then it can lead to ecological and environmental hazards and other related consequences of urban sprawl. It is zoning lay-out that would help the public at large, so as to assure careful and orderly development. Non-observance of the Municipal Regulations and Rules can suffocate and result in living to become unsufferable burden. 10. The finding recorded by the learned single judge in upholding the view expressed by the Tribunal that the land use has been changed unauthorisedly, construction raised without obtaining requisite permission from the Municipality, projecting balcony in violation and rooms were without any provisions of light and proper ventilation violated the provisions of the Town Planning Act and Rules, violation being major cannot be compounded, does not suffer from any infirmity, legal or factual, inviting interference in the appeal. 11. Taking a global view of the matter in its entirety, we do not find any merit in this appeal and is dismissed. Stay, if any, shall stand vacated in resultant thereof.