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2004 DIGILAW 52 (JK)

Kali Dass v. Executive Officer, Municipality

2004-03-11

S.N.JHA, V.K.JHANJI

body2004
Per V.K. Jhanji, J. This Letters Patent Appeal is directed against order dated 29th April, 1999 passed by the learned Single Judge in writ petition, OWP No. 853/93, dismissing the writ petition, being without any merit. The Jammu Municipal Authorities served notice dated 19th February, 1992 under Section 229 of the Municipal Act upon the appellant calling upon him to demolish within three days from the date of service of the notice the unauthorized construction of a shop situated at the main road at Talab Tilo, Jammu. Second notice dated 27th February, 1992 was served on him to demolish the construction within seven days failing which the same would be demolished at his risk and cost. Aggrieved by the notices, the appellant preferred an appeal before the Jammu and Kashmir Special Tribunal (hereinafter referred to as "the Tribunal"). The Tribunal dismissed the appeal by order dated 21st April, 1992. The appellant filed a Review Petition, seeking review of the above order passed by the Tribunal. The Review Petition was also dismissed. The Tribunal recorded a firm finding of fact that the appellant had raised unauthorized construction, in violation of the provisions of the Municipal Act, Master Plan and Town Planning Act and that the construction, which comes within the road alignment, will have adverse affect on the planned development of the area. The appellant was also not able to prove his ownership over the land on which the unauthorized construction had been raised. The Tribunal also did not find any merit in the appellants contention that he had only effected minor repairs/additions and alterations in the shop. The appellant, being aggrieved of the orders of the Tribunal, filed writ petition, OWP No. 883/93. During the pendency of the writ petition, the learned Single Judge appointed Mr. Rohit Kapoor, Advocate, as Commissioner with a direction to go on the spot and report in regard to the location of the shop vis-a-vis the middle of the road, existence of other shops in line with the shop in question and whether the present location of the shop interfered or tended to interfere or obstructed flow of passage on the road? The local Commissioner, after spot inspection, submitted as follows: "1. There is a 10 feet wide passage in front of the shop, underneath it appears to be covered Nallah. The surface is covered with a thick layer of clay. The local Commissioner, after spot inspection, submitted as follows: "1. There is a 10 feet wide passage in front of the shop, underneath it appears to be covered Nallah. The surface is covered with a thick layer of clay. Thereafter the 10 feet wide passage, there is a road alignment which is 26 feet and 8 inches wide infront of the shop in question. Thus the shop in question is situated at a distance of 23 feet & 4 inches from the middle of the road alignment. 2. There are a number of shops on both the right and the left side in line of the shop in question. I restricted my count of the shops in line at 42. There are many more shops in line of the shops in question on both the sides. 3. In my judgment of the things on spot, present location of the shop in question do not interfere or tends to interfere or obstructed flow of the passage on the road, at least at this point of time." On the basis of the report submitted by the Commissioner, the learned counsel for appellant argued before the learned Single Judge that the other shops in the vicinity being in the same alignment as that of the petitioner, the same did not warrant demolition. The learned Single Judge, however, did not find any merit in the submission made by learned counsel for the appellant, as, in the opinion of the learned Single Judge, the construction raised by the appellant was recent in origin whereas the other shops were old and that the entire construction raised by the appellant was without permission of the competent authority. The learned Single Judge also found that the concept of set-back was totally ignored and the provisions of Prevention of Ribbon Development Act, which were mandatory in nature, had been violated. The learned Single Judge on finding that the construction was in breach of the provisions of the Municipal Act, Prevention of Ribbon Development Act and other laws on the subject, observed that the same could not be permitted to remain. Accordingly, the writ petition was dismissed. The appellant has come in appeal against that order of the learned Single Judge. The learned Single Judge on finding that the construction was in breach of the provisions of the Municipal Act, Prevention of Ribbon Development Act and other laws on the subject, observed that the same could not be permitted to remain. Accordingly, the writ petition was dismissed. The appellant has come in appeal against that order of the learned Single Judge. The grounds taken in the appeal are that the appellant by raising the construction has not violated any of the provisions of the Municipal Act, Rules and Bye-laws framed thereunder as, according to him, he had not raised any new construction, but conducted only some repairs, including replacement of a temporary roof by a concrete slab. Secondly, the other shops being in alignment of the shop, there was no violation of the Ribbon Development Act. We have heard learned counsel for the parties and carefully perused the record of this case. There is a firm finding of fact both by the Tribunal as well as by the learned Single Judge that the shop in question was raised unauthorisedly and that the concept of set back was totally ignored. We need not go into this aspect of the matter again. However, the learned counsel for the appellant argued that leaving of set back was not necessary and, even if so, the construction tantamounted to a minor offence and could be compounded. Erection of buildings alongside public roads is regulated by the provisions of the Prevention of Ribbon Development Act, 2007 (1950 AD) (Act No. XXVI of 2007). It extends to the whole of Jammu and Kashmir State excepting the areas other than roads maintained by the Central Government or the Public Works Department of the State included within the limits of municipalities and town areas. Section 3 of the Act states that no building shall be erected alongside any road maintained by the Public Works or any other Department within such distance from the center of the road as may be specified by a general or special order of the Chief Engineer published in the Government Gazette in respect of any such road or part thereof without the sanction in writing of the Chief Engineer. The word "building" as defined in Section 2(i) of the Act means any shop, house, hut, out-house, shed, stable whether used for purpose of human habitation or otherwise and whether of masonry, bricks, wood, mud, thatch, metal or any other material whatever and includes a wall and a well. The term "Chief Engineer", in terms of definition clause, Section 2(ii), means the Chief Engineer, Roads and Buildings Department and includes such other officer as may be authorised by the Government to perform the functions of the Chief Engineer for the purposes of the Act. In exercise of powers conferred by Section 2(ii) of the Act, the Government vide Development Department Notification SRO 208 dated 10th May, 1963 has authorized every Divisional Engineer of the Roads and Buildings Department and every Assistant Engineer of the said Department Incharge of a Special Sub-Division to perform the functions of the Chief Engineer under the Act within his jurisdiction as such officer. Further, in exercise of powers conferred by Section 3 of the Act, the Government has issued Cabinet Order No. 469-C of 1955 dated 17th April, 1955, directing that no building shall be constructed within the Municipal limits of Jammu alongside the roads mentioned in column 2 of the Schedule annexed thereto within a distance specified against each in column 3 thereof from the centre of such road without the sanction in writing of the officer named in column 4 of the said Schedule. The shop in question is situated at Talab Tilo. Against serial No. 29 of the Schedule, referred to above, the following is provided: S.N.O Description of road Distance Designation of the officer 29. Talab Tilo road from Head Distributary No.9 to Junction Hazuri Bagh road via Guest House 25 ft Divisional Enr. R&B of the concerned Divn. It is clear from the above provisions of law that no building activity could be commenced or undertaken within a distance of 25 feet from the centre of the road at Talab Tilo without the sanction in writing of the Divisional Engineer, Roads and Buildings of the Division in which the area falls. Thereafter, the State Legislature enacted the Jammu and Kashmir Development Act, 1970 (Act No. XIX of 1970) to provide for the development of the State according to plan and for matters ancillary thereto. The Act extends to the whole of the State of Jammu and Kashmir. Thereafter, the State Legislature enacted the Jammu and Kashmir Development Act, 1970 (Act No. XIX of 1970) to provide for the development of the State according to plan and for matters ancillary thereto. The Act extends to the whole of the State of Jammu and Kashmir. Section 3 of the Development Act, provided for declaration of any area to be a local area for purposes of the Act and constitution of an Authority therefore to be called the Development Authority. Section 7 provided that an Authority shall prepare a master plan for the Local Area for which it is constituted for the purposes defined therein. Pursuant to the aforesaid provisions of law, the Jammu Development Authority prepared the Master Plan for future development of the City of Jammu. The Master Plan so prepared was approved by the Government in terms of Section 10 of the Act and, as envisaged by Section 11 of the Act, notification for information of the general public was issued vide SRO 296 dated 24th May, 1979. In terms of the aforesaid notification it was, inter alia, notified that the Master Plan shall be deemed to have come into operation from 28th December, 1978. Annexure 1 to the Master Plan, as aforesaid, proposed the rights of way and building lines of existing roads. At item No. 28 thereof the following was mentioned: S.N.O Name of road Existing right of way Propsed right of way Building line from the center of road 28. Talab Tillo Road 31 80 feet from canal head to ITI 100 Feet from ITI to Talab Tilo junction 50 60 The shop in question in the instance case lies between ITI to Talab Tilo junction. The proposed right of way was thus fixed as 100 feet at this particular point and the building line from the centre of the road as 60 feet. The Master Plan bears a note to the effect that where a building line or the right of the way fixed under the Master Plan is less than the one prescribed under the Prevention of Ribbon Development Act, in such a case the right of way or the building line as fixed under the Prevention of Ribbon Development Act shall prevail and vice-versa. Meaning thereby that the distance of building line to be maintained from the centre of the road at the particular point at Talab Tilo is to be read as 60 feet instead of 25 feet under the Ribbon Development Act. In that view of the matter, if any building was raised alongside the road in question prior to commencement of the Master Plan, i.e. 28th December, 1978 at a distance of 25 feet from the centre of the road as then prescribed, that would not give a cause or justification to a person desirous of raising construction after the operation of the Master Plan at the same distance. In OWP No. 116/1987, the Sainik Co-operative House Building Society Ltd. v The State of Jammu & Kashmir, decided by a learned Single Judge of this Court on 20th April, 1999, the provisions of Ribbon Development Act have been held to be mandatory. That being so, while raising construction alongside the road in question, the distance of 60 feet prescribed had to be mandatorily maintained. In the instant case, as per the Municipality, the shop has been constructed at a distance of 18 feet and 9 inches from the centre of the road. However, the local Commissioner has reported that it is situated at a distance of 23 feet and 4 inches. In any case, thus, the shop is within the distance of 25 feet from the center of the Road and no building permission, or sanction as prescribed, has been obtained for the purpose from the prescribed authorities. Therefore, the contention of the appellant that his shop was in line with other shops and, therefore, would not cause any inconvenience or hinder the flow of passage, is misconceived and misplaced. The appellants has not brought any proof on record that these shops were raised after the operation of the Master Plan, whereas the construction in question was found to be not only recent in origin but raised even without any permission. Further, the contention that no set back was required, in view of the clear and unambiguous provisions of law as referred to above, is equally misconceived and untenable. The law laid down by the Supreme Court in M/s Rajatha Enterprises v. S. K. Sharma AIR 1989 SC 860 and cited by the learned counsel at the Bar is not attracted to the facts of this case. The law laid down by the Supreme Court in M/s Rajatha Enterprises v. S. K. Sharma AIR 1989 SC 860 and cited by the learned counsel at the Bar is not attracted to the facts of this case. The next point canvassed before us by learned counsel for the appellant was that the construction in question constituted a minor offence within the meaning of Rule 3 of Jammu and Kashmir Municipal (Unauthorised Construction) Rules, 1977 framed by the Government in exercise of the powers conferred by the second proviso to sub-section (4) of Section 229 of the Jammu and Kashmir Municipal Act Svt. 2008, and, therefore, compoundable. According to the learned counsel, since the Tribunal did not do that, therefore, the order of the Tribunal was erroneous and consequently the judgment of the learned Single Judge also was liable to be set-aside. Rule 3 of the Rules provides that on receipt of an appeal from any person aggrieved by an order of the Executive Officer directing him to demolish, alter or pull down the building or part thereof under sub-section (3) of Section 229 of the Act, the Minister or the Authority appointed by him in this behalf may compound the offence committed by the appellant and accept by way of compensation such amount as he or the authority may subject to these rules deem reasonable; provided the Minister or the Authority, as the case may be, was satisfied that the offence was of minor nature and does not amount to serious violation affecting the planned development of the area or Zoning Regulations or Bye-laws applicable to that area. In the instant case, there is a firm finding by the Tribunal that the construction in question amounts to serious violation affecting the planned development of the area. That apart, we have already held that the construction in question is against the mandate of Prevention of Ribbon Development Act. Apart from that, the term "offence of minor nature" has been defined in various sub-clauses under Explanation added to Rule 3 of the Rules. There is not a single sub-clause in explanation, which could cover the violation committed by the appellant. Even if it were so, these sub-clauses have to be read together with Rule 5 of the Rules prescribing the amount of compensation, which the Authority could accept from the defaulter on account of the minor offence committed by him. There is not a single sub-clause in explanation, which could cover the violation committed by the appellant. Even if it were so, these sub-clauses have to be read together with Rule 5 of the Rules prescribing the amount of compensation, which the Authority could accept from the defaulter on account of the minor offence committed by him. Sub-Rule (i) of Rule 5 prescribes the rate of compensation when unauthorized construction is raised before submitting the plan, i.e, building plan seeking building permission. Sub-rule (ii) deals with cases where the unauthorized construction is carried out after submission of the building plan within the period prescribed under section 222 of the Act; Sub-rule (iii) deals with a situation where the unauthorised construction has been raised after expiry of the time limit of the sanctioned building permission and without getting it renewed. Sub-rule (iv) deals with deviations against the sanctioned building plan and sub-rule (v) deals with excess coverage beyond permissible covered area. The relevant provision in the present case is Sub-rule (i) as referred to above. The wording used in the Sub-rule is "an unauthorized construction raised before submitting the plan". That means when a construction is raised and thereafter the building plan is submitted for its sanction, provided that the building plan is otherwise in consonance with other provisions of law, that it would constitute a minor offence. The building plan is necessarily to be submitted to the concerned competent authority. It is not the case of the appellant herein that his construction was otherwise lawful and that after the construction was raised he submitted the building plan to the competent authority. In fact, his case has been that he did not require seeking building permission. Therefore, the contention that the appellant had committed an offence of minor nature and the Tribunal ought to have ordered its composition is wholly untenable. In view of the above, we do not find any merit in this appeal. It is, accordingly, dismissed.