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2007 DIGILAW 267 (JK)

Romesh Chander v. Special Tribunal, J&K

2007-12-03

NISAR AHMAD KAKRU, VIRENDER SINGH

body2007
Per Kakru ACJ: 1. Willful non adherence on the part of the appellants to the sanctioned plan of the construction, traceable to the major deviations in the set backs, height of the building etc. was sought to be compounded before the Special Tribunal, but of no avail, resultantly, invocation of extraordinary writ jurisdiction of the writ court but in vain, consequently, this intra-court appeal mainly on the ground of an instance of like violation which has been refuted by the other side with the support of an affidavit of the Administrator, who has no scores to settle with the appellants and against whom no malafides are averred. More so, no documentary evidence even worth the name is annexed with the appeal to lend support to the allegation of violation, thus rebuttal has to receive credence leading to an irresistible conclusion that the averment relating to the violation mentioned expressly in the writ petition is unfounded. 2. This brings us to the commission of error attributed to the Tribunal by the learned counsel for the appellants because of its decliner to compound the violation. The argument being dependent upon the availability of the power of the Tribunal to compound the violations, second proviso to sub-section (4) of section 229 of the Jammu and Kashmir Municipal Act, Samvat 2008 assumes significance which may be noticed: "Provided further that the Minister Incharge Local Self Government or the authority appointed by him in this behalf may, either before or after the filing of the appeal, compound the offence and accept by way of compensation such sum as he or it may deem reasonable subject to such rules, regulations and orders as may be prescribed. Where an offence has been compounded no further action shall be taken against the aggrieved person in respect of the offence so compounded," 3. Undoubtedly the proviso enshrines the power to compound the offence but the power has to be exercised as envisaged by rules, regulations and orders as may prescribed which stand prescribed and are called "the Jammu and Kashmir Municipal (Unauthorized Construction) Rules, 1977". Relevant to the controversy being rule 3 which may be extracted: "3. Undoubtedly the proviso enshrines the power to compound the offence but the power has to be exercised as envisaged by rules, regulations and orders as may prescribed which stand prescribed and are called "the Jammu and Kashmir Municipal (Unauthorized Construction) Rules, 1977". Relevant to the controversy being rule 3 which may be extracted: "3. On receipt of an appeal from any person aggrieved by the 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, is satisfied that the offence is of a 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. Explanation: For purposes of this rule an offence of minor nature shall include- (1) effecting internal or external changes in the existing building or raising of a new structure without a. having increased the ground average, height or the building prescribed for that area under any Zoning Regulations or Bye-laws save as otherwise specified hereinafter. b. having affected the requirements of rights of way on roads/lanes by protruding buildings, sun-shades balconies and or any other projections (have projection and terrace floor projection within 2-0" width excepted) prescribed for that area under Zoning Regulations/Bye-laws; c. having violated the front and rear set backs prescribed under any Zoning Regulations/Bye-laws in such cases where there be any building of adjacent plot-holder having its front or rear facade towards the new structure without clear distance equal to the height or the new structure; d to g ............" 4. In 1997 the rules were amended vide SRO 39 dated l4th January, 1997, which reads: "SRO 39. In 1997 the rules were amended vide SRO 39 dated l4th January, 1997, which reads: "SRO 39. In exercise of the powers conferred by the second proviso to sub-section (4) of Section 229 of the Jammu and Kashmir Municipal Act, Samvat 2008, the Government hereby makes the following amendment in the Jammu and Kashmir Municipal (Unauthorized Construction) Rules, 1977 the same having previously been published in the government Gazette: - Amendment: In the said Rule Explanation below rule 3 shall be substituted by the following: - "Explanation: - For purposes of this rule an office of a minor nature shall include any erection or re-erection of a building which has taken place in violation of the sanction issued under section 221 of the Jammu and Kashmir Municipal Act Samvat 2008 or deemed sanction under section 222(4) of the said Act, provided that such erection or re-erection,- a. does not violate the approved land use of area as Notified in the Master Plan, b. . .................... c. does not violate by more than 10% the permissible ground coverage as prescribed in the bye-laws, d. does not violate the permissible height of the building as prescribed in the bye-laws, and e. ..................." 5. The legislative intent we gather from the expression used in the provisions of law reproduced above is nothing more excepting that the Tribunal has the power to compound minor violations and not major ones. That is the end of it. Situated thus compounding a major violation by the tribunal would amount to transgression of limits fixed by the statute. The contention of the learned counsel for the appellants to concede to power of compounding otherwise also appears to have been urged simply to be rejected for the reason that the Tribunal has to exercise the jurisdiction as per the statute and rules, which make a minor violation compoundable, and not a major one. The power to compound the major violations, being wanting, the Tribunal had no option but to refuse compounding because of the admitted fact that the appellants are guilty of a major violation. In addition to that it was after an indepth examination of the claim of the appellants besides material available that a finding came to be returned by the Tribunal to the effect that the violation is of a serious nature which effects the planned development of the area, therefore, refusal to compound the offence. In addition to that it was after an indepth examination of the claim of the appellants besides material available that a finding came to be returned by the Tribunal to the effect that the violation is of a serious nature which effects the planned development of the area, therefore, refusal to compound the offence. The reasoning advanced being quite tenable, the Tribunal cannot be said to have faltered. 6. The learned counsel for the appellants placed reliance on Kewal Krishan Gupta v. Jammu and Kashmir Special Tribunal and others (AIR 2005 SC 2578), to persuade us to hold that the statutory restrictions cannot work as an impediment for the Supreme Court or the High Court in exercise of its writ jurisdiction. Contention is urged to canvass that it is on the basis of availability of such power alone that the apex Court in the judgment supra displayed, indulgence even in a major violation. We are certainly not: unmindful of the legal position that the power of the High Court to issue writs is free from fetters obviously, perfectly within its jurisdiction to pass orders/directions called for, to do substantial justice between the parties. Situations are conceivable where it may become necessary for the High court to exercise its extraordinary writ jurisdiction to protect a citizens property from demolition provided the facts and circumstances warrant indulgence but case on hand is not the one because of the reason that the appellants have not only made deviations from the original plan but in spite of being cautioned through notices from time to time to desist from the construction beyond the sanctioned plan, continued with the construction, taking law in their own hands, violating all the norms and raised the height of the building upto 56 ft. instead of 35 ft. and completed the building in flagrant violation of the laws and committed illegality on which count there is no denying by the appellants. In such circumstances the protection to the appellants property would lead to enforcement of illegality. In that view of the matter refusal by the writ Court to grant the relief is the only answer. Thus we find no error with the judgment. 7. In such circumstances the protection to the appellants property would lead to enforcement of illegality. In that view of the matter refusal by the writ Court to grant the relief is the only answer. Thus we find no error with the judgment. 7. Reverting to the judgment referred in the preceding para mention of the fact that prevailed upon the apex Court to approve of the compounding becomes imperative, perusal whereof reveals that by the time the case came up for consideration before the apex Court, land use of the property in the SLP had been changed, conversely, in the case on hand the amended building regulations which were in operation at the time when the appellants made the illegal construction remain unaltered and in fact same are reiterated by amended rules reproduced above. That makes world of difference between the two sets of facts and dissimilarity of facts being manifest the appellants cannot obtain any advantage from the judgment. 8. Reliance was placed on the interim direction of one of the coordinate benches of this Court dated 09-03-2005 to contend that the direction was passed by the bench to stretch the scope of the LPA to bring the alleged violations within its ambit. The submission needs to be appreciated in the light of the direction dated 09-03-2005 itself which may be extracted: "The dispute in this letters patent appeal arising from an order of the learned Single Judge on a writ petition relates to a commercial building. The appellant got building plan sanctioned for construction of shopping complex but made major deviations not only as regards set backs but also the height of the building. As regards set backs, the violation was compounded by the Special Tribunal, the correctness of which we gravely doubt. Ax regards the height which alone is the subject matter of dispute in this appeal, it is stated on behalf of the appellant that Corporation has acted on pick and choose basis. In many similar cases it did not take the matter to the High Court. Counsel states that he will furnish the list of such cases. Having regard to the significance of the question, we direct the counsel for the Corporation to also produce the list of cases in which the matter was taken to the High Court but without success. In many similar cases it did not take the matter to the High Court. Counsel states that he will furnish the list of such cases. Having regard to the significance of the question, we direct the counsel for the Corporation to also produce the list of cases in which the matter was taken to the High Court but without success. The Corporation will also produce particulars of the cases which attained finality by reason of the order of this Court or Supreme Court but the matter was not pursued further." 9. The direction speaks the only intention that is to know the mandate of the decisions of the High Court and the Supreme Court apparently to find their impact on the case on hand and nothing beyond that. The argument hints at an effort to catch at a straw as otherwise it doesnt have any bearing on the case. The contention being irrelevant to the disposal of the case, fails. 10. Yet another direction dated 20-12-2006 was pressed into service. Again by a coordinate bench which reads; "Appellants counsel seeks adjournment once again for listing of the appeal after winter vacations. To exhibit appellants bona fides, he volunteers to deposit an amount of Rs.4 lacs before the Registrar Judicial of this Court so as to provide for the eventuality in case this Court taken a view that the offence committed by the appellants was compoundable and in that case this amount would become adjustable against any amount on which the violation was ordered to be compounded Adjourned, subject however to appellants depositing Rs. 4 lacs within a period of one month with Registrar Judicial of this Court who shall keep it in a fixed deposit, subject to further orders from the Court" 11. On the basis of the above said direction it was contended that the Court had virtually conceded to the compounding of the case, therefore, directed to pay the amount but a plain reading of the direction makes it clear that compounding of the case could be considered provided offence committed by the appellants was compoundable which indisputably it is not, obviously the direction is of no help to the appellants. 12. 12. Now a word about the verbal submission of the learned counsel for the appellants that the constructions made in violation or in absence of the plans, around the building in question were not proceeded against, conversely regularized or compounded. Although the statement was made at random, yet response was shown by Mr. Nanda by denial of the allegation, contending further that no violation was regularized and each case of violation was decided by the competent forum in accordance with the law and the Corporation played no role to the advantage of the violators. In view of the stand so disclosed by the Corporation and in absence of any averment in the writ petition, the argument fails. 13. Submission was also made that in case the buildings around the subject matter of the LPA are demolished in such eventuality the appellants will have no regrets against the impugned action. The learned counsel submitted further that the Court has the power and duty to take action against such violations. To bring home the point, reference is made to the decisions of the Supreme Court in Shivajirao Nilangekar Paatil v. Dr. Mahesh Madhav Gosavi and others (AIR 1987 SC 794) and Guruvayoor Devaswom Managing Committee v. C. K. Rajan (2003) 7 Supreme Court Cases 546, but of no help to his contention because none of the judgments envisage indulgence of the High Court in absence of the pleadings and material. On the contrary the judgments are clear that unless there are strong reasons, interference should be avoided. To find out the reasons, pleadings and the material assume significance, which are wanting in the case on hand, so much so, no instances of violations are cited in the Writ Petition and those mentioned, stand refuted elaborately by the respondents. As a matter of fact the alleged violations have been registered by the appellants in their mental view, which are sought to be expressed by them through the counsel by speech rather than in writing. Suffice it to say that the adjudication in absence of the pleadings and the relevant material is impossible, for another reason also, traceable to the statement of the counsel for the appellants that the violations have been compounded by the Tribunal which have received seal of the High Court, thereby attaining finality. Suffice it to say that the adjudication in absence of the pleadings and the relevant material is impossible, for another reason also, traceable to the statement of the counsel for the appellants that the violations have been compounded by the Tribunal which have received seal of the High Court, thereby attaining finality. That being so, we are loath to unsettle the settled matters that too on a mere verbal statement. Thus contention fails. 14. Before parting with the file, we would like to reiterate that it is the absence of alleged violations in the pleadings, which prevented us from making any comment in respect of so called analogy. Nevertheless, if it is factually correct that quite adjacent and around the appellants building that is the subject matter of this LPA, the constructions made without permission or in violation of building regulations, stand compounded it is a bad and unreasonable precedent, likely to encourage the violations to, the detriment of the planned development of the city, giving rise to the feeling that law can deal only with a few who lack access to the corridors of power and the authorities at the helm and is of no consequence in dealing with the high tips, moneyed and highly influential people capable to manage compounding of the violations and retain the illegal constructions. Such state of affairs if prevalent must be discouraged and violations done away with, of course, in accordance with law so that the impression if any contracted by the public that things can be managed in utter disregard to law is dispelled. 15. In the aforementioned backdrop, the LPA is dismissed along with CMPs without any order as to costs. Interim directions passed from time to time are vacated. However In the interests of justice the appellants are granted two months to be reckoned from today for compliance of the judgment of the Tribunal. Amount deposited with the Registry by the appellants pursuant to the directions of the Court dated 20.12.2006 shall be disbursed to the appellants forthwith by the Registrar Judicial.