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2008 DIGILAW 19 (JK)

Banarsi Dass v. Executive Officer

2008-01-31

D.K.Kapoor

body2008
1. The appellant is alleged to have unauthorizedly constructed a double-shuttered shop at the edge of the road measuring 17'.00"x 13'.6", on the open space and in front of his existing house at Rajpura without obtaining permission from the BOCA (herein after `the Authority'). The building line of the existing shop from the centre of the road is hardly 19 feet as against the prescribed distance of 25 feet as per the Master Plan. He is alleged to have committed violation of the Master Plan as well as Ribbon Development Act. He is further alleged to have raised 1'-3" wide projection overhanging over the road. He has also disturbed the existing building line. It is the further allegation against the appellant that the land use of the area is residential but by constructing shops the appellant has acted against the Master Plan. The appellant, alleges the respondent, also failed to establish his title over the land where he has erected twin shops. It is rather alleged that he has raised shop on the State (PWD) land unauthorizedly built up area = 278 sft & Balcony Projection = 23 sft. The Executive Officer (BOCA) communicated the above to this Tribunal vide no. BS/65-66 dated 26.6.2001. 2. On noticing the violation, Khilafwarzi Officer, MCJ served a notice in terms of Section 7(1) of the COBO Act (hereinafter referred to as `the Act') on the appellant vide his No.MJ/Estt/4/1/KWO/2001 dated 17.4.2001 telling the appellant that he had laid slab (lintel) on a likely `basement' at Rajpura & asked him to explain within 48 hours as to why the same be not demolished as he had not sought permission under Section 4 of the Act. It appears that he did not show any reason/cause, therefore, the Authority served a final notice under Section 7(3) of the Act commanding him to demolish the said construction within five days failing which the respondent would do the same itself, at his risk & cost. It appears that he did not show any reason/cause, therefore, the Authority served a final notice under Section 7(3) of the Act commanding him to demolish the said construction within five days failing which the respondent would do the same itself, at his risk & cost. The appellant challenged this final notice no.MJ/Estt/4/3/KWO/2001 dated 25.4.2001 through this appeal on the grounds, inter alia, that he is the owner-in-possession of house no.365 constructed on land measuring 6 marlas & 107 sft situate at Rajpura; that the shops were constructed over the said land way back some ten years ago but he had replaced the wooden batons' roof by a RCC lintel; that appellant's son has been running a shop M/s Sharp Vision, and deals in Electrical goods over there; that he has not disturbed the alignment but made only said renovation; that he has not been provided an opportunity of being heard by way of a show cause notice and that he has not encroached any piece state land. 3. Heard learned counsel for the parties & perused the entire record available on file. In the first place, the appellant cannot say that he has been condemned unheard & no opportunity to show cause was awarded to him in as much as he himself has annexed the notice u/s 7(1) of the Act, which is in the nature of shows cause. Therefore the plea that he was not given any audience before issuing a final order under section 7(3) of the Act is not tenable. The appellant, however, did not show cause in reply to said notice for the reasons best known to him and as such he cannot plead non-service of a show cause notice. Regarding title qua the land, the appellant very fairly pleaded in the memo of appeal that he is the owner of the house no.365 situated at Rajpura & has annexed a copy of the GR No.000048 dated 11.6.1998 issued by Tehsildar JDA in proof of payment of development charges for plot no.713,where house no.365 has been constructed. Learned advocated appearing for the appellant has submitted that said shops were constructed in front of the house ten years ago & the appellant has changed the wooden roof by a RCC lintel only, though permission was not obtained but it is only a bona fide act on the part of the innocent appellant. Learned advocated appearing for the appellant has submitted that said shops were constructed in front of the house ten years ago & the appellant has changed the wooden roof by a RCC lintel only, though permission was not obtained but it is only a bona fide act on the part of the innocent appellant. In fact when the appellant has come up with a tangible case in his memo of appeal I wonder why the respondent did not counter it by way of any demurer & contented himself by alleging that it is state land without even referring to any number etc. of the state land. Indeed a presumption of bona fide allotment & user arises in favour of the appellant on account of GR (supra) and affidavit sworn by him, which has not been rebutted by the respondent. There is not even a whisper in its report dated 26.6.2001 (supra) in this connection. Moreover the appellant's claim that his son has been running shop in these shops for more than ten years cannot also be out rightly turned down as he has furnished documentary proof that he has been running shop in the name & style of M/s Sharp Vision & deals in electrical goods there. He has presented a Xerox copy of Form "C" issued by Labour Inspector under the J&K Shops And Establishment Act,1966 which is valid up to 31st March 2001.It wears departmental number 222/223 & is dated 3.9.1998.The registration No.5C/III/8/96 is issued to his son for his establishment i.e. M/s Sharp Vision. In addition to it the appellant has also furnished copy of Form "O" showing that M/S Sharp Vision shall observe Sunday as close day with effect from 21.7.1998, which is issued by Labour Inspector Circle- III, Jammu. He has also attached a Certificate of Verification, issued by Weights & Measures Department. These documents are to be presumed true if not rebutted. The respondent has not taken any pain to show that these documents are forged etc. Moreover the appellant has supplied photographs of the shops also upon which a signboard of M/s Sharp Vision is shown hanging. The cumulative effect of this documentary evidence is that the appellant has successfully established that these shops are old ones & he has been running business since 1998 in these shops. 4. Moreover the appellant has supplied photographs of the shops also upon which a signboard of M/s Sharp Vision is shown hanging. The cumulative effect of this documentary evidence is that the appellant has successfully established that these shops are old ones & he has been running business since 1998 in these shops. 4. The most important fact that cannot escape judicial appreciation is the cryptic show cause notice purported to be served on the appellant as required under Section 7(1) of the Act. The relevant portion of the notice reads, "It is reported by Khilafwarzi Inspector I/C area on 17.4.2001 that you have commenced/are carrying on/have laid down the slab on likely to be basement at Rajpura without proper permission." And the appellant was called upon show within 48 hours why khilafwarzi as detailed above should not be demolished. This is clear from the language of this mandatory notice that the appellant was conveyed that he had laid slab on the basement and asked through the show cause notice why the said violation be not demolished, meaning thereby that he was not asked to show cause what has been subsequently shown by the E.O. in his report dated 26.6.2001 (supra) & he was asked to demolish the SLAB LAID IN THE BASEMENT. Notice under Section 7(3) of the Act is silent about any violation asked to be removed by the appellant within five days. Although the appellant did not represent his case before the Authority regarding alleged laying of slab on the basement yet he cannot be penalized for a totally different violation for which he was never asked to show cause, which is an indispensable right of the aggrieved. It has been held that the show cause notice must specify the violation made by the appellant so that he is afforded an opportunity to explain his case. If the nature of violation is not communicated to the violator for seeking his explanation by way of his statutory right guaranteed under Section 7(1) of the Act, I am afraid any action initiated against him in terms of provision of Section 7(3) of Act is only unwarranted & cannot be sustained. It is unfathomable that Municipality would ask the appellant to show cause for laying of slab on basement & put forward a case construction of double shuttered shop at the final stage. Both are mutually contradictory. It is unfathomable that Municipality would ask the appellant to show cause for laying of slab on basement & put forward a case construction of double shuttered shop at the final stage. Both are mutually contradictory. A show cause notice contemplated by Sub-section(1) of Section 7 of the COBO Act is confers a very valuable right on the person on whom it is served as it is the genesis of the proceedings to be commenced by the Building Operation Controlling Authority in terms of Section 7(3) of the Act & if the said notice is ambiguous, cryptic or unreasoned ,a citizen is deprived of a very valuable right guaranteed by the statute, to explain his position & even the appellate authority would be deprived of the material for issuing process & deciding a case in the right perspectives. Courts cannot shut their eyes on this vital aspect of a case under the COBO Act as the consequences that may follow from the notice under Section 7(1) of the Act are penal in nature & therefore, a citizen cannot be caught by surprise. In a case titled Chanan Singh v. Jammu Municipality and others, their lordships of the High Court of Jammu & Kashmir have interpreted the provisions of Section 229(1) of the Municipal Act 2008 (1951 AD) in OWP 297/95 decided on February 21,2000 and held in the penultimate paragraph as under;- "The notice does not specify as to what is the nature of violation which has been unauthorizedly committed. Sec. 229 specifically provides that the Executive Officer is required to issue notice in writing stating the reasons calling upon the defaulter to show cause and demolish the unauthorized construction specifying the contravention. The notice in question is silent with regard to the nature of unauthorized construction, its size, location of the construction and whether it is on the ground floor or the first floor. The notice does not contain particulars of unauthorized construction as referred to above which is against the mandate of Sec.229 which specifies the violations and contraventions from (a) to (g) of sub-section (1). We accordingly hold this notice as xx not prepared in accordance with law. The Municipality is required to indicate in the notice the contravention while asking the wrong-doer to demolish a particular unauthorized construction. We accordingly hold this notice as xx not prepared in accordance with law. The Municipality is required to indicate in the notice the contravention while asking the wrong-doer to demolish a particular unauthorized construction. For the aforesaid reasons the writ petition is allowed only to the extent of setting aside the notice dated July 09,1992". (Emphasis supplied) 5. The provision of Section 229(I) of the Municipal Act are pari materia with the provision of Section 7(1) of the COBO Act 1988 and both the Sections mandate the service of a show cause on any violator of the Municipal Laws and hence same and seek explanation of the violator on the violation made by him before asking him, by way of a final notice, to demolish the unauthorized construction. The only difference between the two sections is that, in the farmer the words, "the Authority shall issue a notice and writing calling upon the person to show cause" and in later the words `the Executive Officer shall issue a notice in writing stating the reasons calling upon the person to show cause' are almost similar. The only conspicuous omission of words `stating the reasons' in the show cause notice in Section 7(1) of the COBO Act does not mean that the legislature intended to vest in the Authority the power to issue an ambiguous and arbitrary notice on the alleged violators of the Municipal Law asking him to show cause why the unauthorized construction raised by him be not demolished. Any show cause notice bereft of reasons and which does not specify any violation allegedly made by a citizen cannot be treated to be a notice issued under any provision of law and hence cannot be acted upon. Seeking guideline laid down by the Hon'ble Division Bench in Chanan Singh case (supra) I hold that the cryptic notice in this case is seriously prejudicial to the interests of the appellant and cannot be read in evidence against him. 6. The cumulative effect of this discussion is that the appellant has succeeded in establishing that he has not committed any violation of the Zonal Regulations, Municipal Bye Laws and other provision of COBO Act. He has not even disturbed the building line as other shops are also shown to exist in the same line in which the appellant shop is situated. He has not even disturbed the building line as other shops are also shown to exist in the same line in which the appellant shop is situated. The appellant is however, directed to pay the compounding fee for the unauthorized construction of 278 sft. for which he was required to obtain permission/sanction under Section 5 of the COBO Act, @ of Rs.12.50/- per sft (i.e. Rs.3475.00) within a period of three months from the date of this order failing which the respondent may recover the same under Law. The appellant shall remit the amount of compounding fee to the Commissioner MCJ through a Demand Draft. 7. Record of the JMC is returned against proper receipt and file of this Court be consigned to records after due completion.