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2008 DIGILAW 190 (JK)

Des Raj Sharma v. Jammu Municipality

2008-05-14

D.K.Kapoor

body2008
1. Facts of this case lie in a narrow compass. The appellant is alleged to have constructed a residential building consisting of three rooms, store, pooja room. The entire construction has been allegedly raised by the appellant without obtaining building permission from the BOCA. It is further alleged that the appellant has raised 2'-6" wide balcony projection overhanging over the Nallah and front road and had constructed the Ist Floor on the existing projection towards Nallah side. He is further alleged to have extended 2'-6'' wide Balcony projection on the first floor thereby again increasing the constructed area at roof terrain. The appellant is also alleged to have raised construction on the front and rear set back of the area and has thus disturbed the setback space. He is further alleged to have constructed a shop on the front set back at the edge of the road thereby disturbing the land use of the area, which is earmarked as residential. Further allegation against the appellant is that he has covered more than 90% of the plot area on the ground floor and more than 100% of the ground area at the first floor. Although the permissible limits as far as prescribed by the Building Bye-Laws is 60% of the plot area. This also is a major violation. It is also in the report No.BS/21-22 dated 04.05.2003 submitted by the Executive Officer, Jammu Municipality, Jammu, that the appellant also failed to establish the title of the land on which he has constructed the said building. The BOCA has finally summed-up the unauthorized construction as under:- (a) Build up area on ground floor: 1311 sft. (b) Build up area on Ist Floor: 1814 sft. (c) Balcony projection: 203 sft. (d) Build up area under shop on ground floor: 239 sft. 2. A show cause notice was served upon the respondent but he did not stop construction, therefore, final notice under section 7(3) of COBO Act vide No.NJ/Est./2/3/KWO/02 dated 24.04.2002 was served upon the appellant directing him to demolish the unauthorized construction within 5 days. He has, however, challenged the final notice before this Tribunal. 3. Record of the BOCA was called for and the later has furnished a detailed report (supra). He has, however, challenged the final notice before this Tribunal. 3. Record of the BOCA was called for and the later has furnished a detailed report (supra). Counsel for the appellant has submitted that he had purchased a constructed house through a sale deed dated 11th March, 2000 which was duly registered by the Sub Registrar, Jammu, dated 30.05.2000 (Photostat copy enclosed) and wanted to make additional accommodation in the said building and hence submitted a proposed site plan along with an application to the BOCA and paid a fee of Rs.100/- vide GR No.1744142 dated 31.01.2002 but despite the expiry of the statutory period of 60 days, the BOCA neither rejected the application for approval of the said plan nor communicated to the appellant to complete other formalities. Therefore, believing in "Bona fide right of deemed permission" he has added some rooms in the already existing building and has not violated any Zoning Regulations. He has also supplied a Photostat copy of the mutation No.1429 made with respect to the aforesaid sale deed and the learned counsel for the appellant has submitted that there is overwhelming evidence to establish the right of the appellant regarding title of the land. He has further submitted that the violation committed by the appellant is of minor nature and the same can be lawfully compounded. He has further submitted that the appellant has not changed the land use of the area in as much as he is alleged to have constructed a shop but the constructed area, which is styled as shop by the BOCA, is in fact a garage for keeping his vehicle and not for any commercial activity. The appellant is ready to furnish an undertaking that in case it is established in future that the said portion of the building is used for commercial purpose, the BOCA may demolish the same unreservedly without any objection from the appellant. 4. On the other hand Shri K.B.Gupta, Advocate has submitted that simply because the appellant had submitted an application or a proposed site plan for approval by the BOCA, it does not give him any right to raise construction in violation of the Municipal laws/rules/zoning regulations. According to him the offence is not of minor nature and the same cannot be compounded. 5. According to him the offence is not of minor nature and the same cannot be compounded. 5. Before proceeding to comment on merits of the case I would like to return findings on the plea "of the deemed permission" with respect to the erection or re-erection of the building. Regulation 7 of the Jammu & Kashmir Control of Building Operation Regulation, 1998 (SRO 165 dated 28th May, 1998) prescribes procedure for grant of permission with respect to erection or re-erection of a building. The application accompanied by the 8 copies of the site plan has to be submitted along with fee of Rs.100/- to the BOCA for approval of the same. A discretion vests in the Authority under Sub-rule (2) of rule 7, to either `grant the permission subject to such conditions as may be specified or refuse permission'. In the event of refusal the Authority is under a statutory obligation to specify the grounds for such refusal. It is, however, incumbent on the Authority dealing with grant of permission to `decide the matter within a maximum period of sixty days from the date of submission of the application'. Rule 7(3) vests a right in the applicant of deemed permission where `no decision is taken by the Authority within the stipulated period of sixty days' the sub-rules prescribes that `the permission shall be deemed to have been accorded'. The rule is mandatory in nature & it casts an obligation & duty on the Authority to grant permission required under Section 4 of the Act on the application made under Section 5 of the Act, if it does not chose to refuse such permission. It vests a corresponding right in the applicant seeking permission to erect or re-erect a building if the Authority neither granted permission nor refused the same within the maximum period of sixty days. The duty in the Authority is further reinforced by Rule 7 (4) which mandates that if the `Authority refuses to grant permission, the grounds of such refusal shall be communicated to the applicant within seven days' from the decision taken by the Authority to refuse such permission. The duty in the Authority is further reinforced by Rule 7 (4) which mandates that if the `Authority refuses to grant permission, the grounds of such refusal shall be communicated to the applicant within seven days' from the decision taken by the Authority to refuse such permission. The Sub-rule in unambiguous words lays down that it is incumbent upon the Authority to convey the decision of refusal to grant permission for erecting or re-erecting a building and the legislature has fixed a period of maximum seven days for such an action after the Authority takes the decision to deny permission to an applicant. The language of this sub-rule (4) cumulatively read in conjunction with the preceding sub-rules irresistibly shows that once the Authority decides not to grant permission to an applicant it has the duty to inform such an application of the decision and for this purpose the Legislature has fixed a period of seven days. Now, what will happen if the Authority takes a decision not to grant permission within sixty days, as required under Section 4 of the Act on the application made under Section 5 of Act, and does not also intimate the applicant of such refusal within the period stipulated in sub-rule (4) of Rule 7,there is no prohibition for an applicant to erect or re-erect his building in exercise of the right of `deemed permission' vested in him in terms of sub-rule (3) of Rule 7 of the Regulations. Such a person is, however, required to adhere to the Zoning Regulations, byelaws and the provisions of the Master Plan etc made for the area. The provision incorporated in Regulation 7 is in the shape of a beneficial legislation which protects the law abiding citizens' rights to have their proposed site plan approved with the statutory promptness. 6. In view of the aforesaid vivid position of law on the subject no judgment is required to be cited and yet I shall take up an opportunity to support this view by a few important judgments of our own High Court. In case titled Municipal Council Jammu Vs. 6. In view of the aforesaid vivid position of law on the subject no judgment is required to be cited and yet I shall take up an opportunity to support this view by a few important judgments of our own High Court. In case titled Municipal Council Jammu Vs. Bakshi Amar Nath reported in 1976 JKLR 273 , His Lordship Mr.Justice MRA Ansari, Hon'ble the Chief Justice (as his lordship then was), while discussing the scope and ambit of Section 221 & 222 of the J & K Municipal Act, 2008, which provision is pari materia with the provisions contained in rule 7 of the COBO Regulations, 1998, has very succinctly laid down the law in para 8 at page 277-278.It will be profitable to reproduce the relevant paras hereunder... "6.Under sub-section (1) of section 222 no discretion is left to the Executive Officer to sanction the erection of any building if it is in contravention of any byelaws made under the Act or if it is in contravention of any scheme sanctioned under the J&K Town Planning P Act. Under sub section (2) the Executive Officer is given the discretion either to refuse or to sanction the erection of any building for any other reasons. 7. In the present case the Executive Officer has not refused to sanction the erection of the building either under sub section (1) or under sub section (2). He has also not sanctioned the erection of the building with any modifications as provided in sub section (3). The question, therefore, for consideration is, whether the respondent has constructed the shop in contravention of the provisions of sub section (4) of section 222 of the Act. 8. The first part of sub section (4) places a time limit for the passing of order by the Executive Officer either sanctioning or refusing to sanction the erection of a building, and if the Executive Officer omits to pass an order within sixty days of the receipt of a valid application under section 221 of the Act refusing to sanction erection of a building, then sanction for the erection of the building is deemed to have been given. This is a salutary provision for protecting the citizen from inaction on the part of the Executive Officer to pass orders promptly on the applications made for permission to erect buildings. This is a salutary provision for protecting the citizen from inaction on the part of the Executive Officer to pass orders promptly on the applications made for permission to erect buildings. By virtue of this provision the citizen is saved from the inconvenience of waiting indefinitely for the Executive Officer to pass orders on his application. Further the orders which the Executive Officer is required to pass within the time prescribed under sub section (4) are final orders either sanctioning or refusing to sanction the erection of buildings. It would defeat the very purpose of this salutary provision if the Executive Officer passes an interim order refusing to sanction the erection of a building pending the passing of final orders beyond the period prescribed under this section".(Emphasis is mine) 7. Some assistance can also be sought from the case of N.N.Barman v. Gauhati Metropolitan Development Authority, reported in AIR 2000 Gau 91 , para 31 at page 97 wherein Hon'ble Mr. Justice M.Sharma while discussing the scope of sections 327 & 328 of the Gauhati Municipal Corporation Act (1 of 1978),which provisions are almost analogous to the provisions enshrined in Rule 7 of the J&K COBO Regulations emphasized that "these sections in clear term indicates that unless the Commissioner/Engineer so empowered intimates to the applicant about the refusal/grant of permission within 60 days from the receipt of application thereof the concerned applicant can proceed with the construction/reconstruction of any building, as if deemed permission had been granted but from the provisions of these sections it transpires that these sections are mandatory which provide that no person shall erect/re-erect building without written permission of the Corporation." Hon'ble Judge further held in para 31 at page 97 as under: "From the reading of both the sections together, it is to be noted that it is obligatory on the part of the G.M.C to dispose and intimate the refusal/acceptance of the permission on the application within 60 days from the date of receipt of the application falling which the concerned applicant is not debarred from proceeding with the construction works. The decision of the G.M.C. in examining and granting permission in view of the above provisions of the Act, as submitted by Mr. The decision of the G.M.C. in examining and granting permission in view of the above provisions of the Act, as submitted by Mr. Roy, cannot be said to be in conflict with the requirement of the Master Plan and the Zoning Regulation or Development Scheme and, therefore, the deemed permission of the petitioner after expiry of the statutory period of 60 days is not illegal". 8. In a recent case titled Krishan Chan Vs. BOCA, his Lordship Hon'ble Mr. Justice Nirmal Singh, Judge High Court of Jammu & Kashmir, while discussing the scope of Rule 7 of the COBO Regulations, 1998 held as under in case titled Krishen Chand v. State & Ors. reported in 2007 (3) JKJ 263 as under: "Where the plan has been submitted by the applicant was neither accepted nor rejected by the Municipal Authority within the time prescribed therefor, the applicant has the right to proceed with the construction presuming that his plan is deemed to have been sanctioned". Hon'ble Mr. Justice Nirmal Singh placed reliance on a judgment of the Punjab and Haryana High Court reported in 1991 PLJ 627 titled Improvement Trust, Bathinda Vs. Satinder Kour. His lordship also relied on AIR 1973 Delhi 275 titled Friends Housing Society and Ors. Vs. Delhi Administration and Ors. and held in para 12 at page 267 as under:- "On a construction of this provision of law, a Division Bench of this Court in Municipal Corporation of Delhi Vs. Smt. Kamla Bhandri, Letters Patent Appeals Nos. 138-D of 1964 and 143D of 1965 decided on 1.12.1969 (Delhi) by S.N. Andley, J, (as he then was) and Hardayal Hardy, J, observed that in spite of the fact that in Section 337 of the Corporation Act there was a provision for the sanction to be deemed to have been granted on the expiry of the statutory period, the result under section 313 would be the same and the action of the standing committee would be inter vires if it was performed within the prescribed time and it would be ultra vires if performed after its expiry. The Court, therefore, finally held: "In our view, the reasonable construction is that if the Standing Committee does not act within the time prescribed, the restriction upon the utilization of the land stands removed." This authority, so far as this court is concerned, lays down the law authoritatively. The Court, therefore, finally held: "In our view, the reasonable construction is that if the Standing Committee does not act within the time prescribed, the restriction upon the utilization of the land stands removed." This authority, so far as this court is concerned, lays down the law authoritatively. The result is if the Standing Committee has allowed sixty days to expire without rejecting the plan or asking for further information, it would be deemed to have been sanctioned." (Emphasis is mine) 9. The above discussion of law leaves nothing more to interpret than that the provisions of `deemed permission' enshrined in the rule 7 of the Regulations,1998 vests a very valuable right in a citizen/applicant or a tax payer of the Municipal Corporation (or any Municipality) that if he applies for permission under Section 4 of the J&K COBO Act for erection or re-erection etc of his building, after fulfillment of the requisite formalities of procedure required under Section 5 of the COBO Act and Authority neither accepts nor refuses the permission and nor communicates the decision taken on his application within a maximum period of sixty days, the applicant has the statutory right to raise his constructed under the bona fide belief right of `deemed permission' in his favour.The only duty that is imposed on the applicant under such a situation is that he is bound to take care that he does not thereby violate the Zoning Regulations prescribed for the area or other Municipal bylaws while raising such construction. 10. I arrogate to myself a duty, for the purpose of public awakening as to what is the legal position in respect of getting a site plan sanctioned by the Municipal authorities. No person can undertake of or carry out development of any building in any Municipal Area, Local Area, Notified Area or Area Notified under The Jammu and Kashmir State Town Planning Act, 1963, or erect or re-erect any building or make or extend any excavation or lay out any means of access to a road in such area unless prior permission of the authority concerned in writing is obtained. A citizen desirous of making any kind construction or reconstruction etc, as abovesaid, has to make an application in writing to the Building Operation Controlling Authority, which must be accompanied by 8 copies ten copies as per Circular issued by Executive Officer vide No.MJ/Estt/527/BS/99 dated 14.7.1999) of the building plans duly drawn and signed by a duly registered Architect or Draftsman registered with the concerned Municipality/Town Area Committee/Notified Area Committee indicating (i) the key plan clearly describing the location of the proposed building (ii) nature and use of the existing site and use of the proposed building i.e. whether residential, commercial, industrial etc; (iii) section & elevation of the buildings in each floor; (iv) specifications of the building; (v) the position of doors/windows and drainage outlets with reference to the adjacent site and (vi) the position of the approach to the site, along with an attested copy of the proof of the ownership record of the land. This done, it becomes the bounden duty of the Chairman of the Authority to get the proposed site the inspected by the person duly authorized by the Government, who shall record his opinion in the prescribed Form within seven days from the date of submission of the application. A bad practice has developed deep among the people to construct their buildings without prior sanctioning of the proposed site plan on account of the harassment being meted out in various Municipal offices so much so that it has been noticed that office of BOCA hand over copies of the proposed site plan to the applicant for getting NOCs from various authorities before sanctioning of the map submitted by them. This breeds corruption and a number of such applicants succumbs to the pressure tactics & red tapism being practiced in the Municipal offices & falls prey to the corrupt practices being perpetuated in their offices. In fact it is the duty of the Chairman of the Authority to forward a copy of the Building Plan to all the Members of the Authority for their inspection and opinion and it is none of the applicant's duties to get the site inspected and get report from them. In fact it is the duty of the Chairman of the Authority to forward a copy of the Building Plan to all the Members of the Authority for their inspection and opinion and it is none of the applicant's duties to get the site inspected and get report from them. As already said, the Chairman of the Authority shall then place the application and Building Plan along with Inspector's report before the Authority for its consideration, when the later will either grant permission or refuse the same, within a maximum period of sixty days. If the Authority cannot decide an application for sanction of the proposed site plan within sixty days, the permission shall be deemed to be accorded and an applicant can start raising his building without violating the Zoning Regulations prescribed for the area & the provisions of the Master Plan and/or Prevention of Ribbon development Act. Let it be further known that in case the Authority refuses to grant permission it shall communicate to him the grounds of refusal with seven days from the decision of refusing permission. The Regulations prescribe that it shall be sufficient proof of ownership if the applicant furnishes copy of the sale deed/gift deed/lease deed or document recognizing any other mode of transfer. In order to achieve the required implementation of these Regulations even the then Executive Officer, Jammu Municipality issued a Circular vide No.MJ/Estt/527/BS/99 dated 14.7.1999, which is in consonance with these regulations & clearly indicates that the copies of the proposed site plan shall be forwarded to the members of the Authority of their report after inspection by the officer appointed therefor. 11. In view of the above position of law there is ample evidence to believe that the appellant did apply for permission before commencement of construction of his residential house and submitted the required application on 31.01.2002 and paid fee vide G.R.No.1744142.The then Executive Officer JMC also forwarded `blue prints' of the proposed building to be constructed, to various authorities.( Reference may be made to his one of communications no.376/131/2001 dated 16.3.2002,addressed to XEN Sewerage and Drainage, Jammu along with blue print for necessary action). The Authority neither approved the plan submitted by the appellant nor rejected and not communicated him any ground of refusal of sanctioning his plan, within 60 days. The Authority neither approved the plan submitted by the appellant nor rejected and not communicated him any ground of refusal of sanctioning his plan, within 60 days. The corresponding date of service of show cause notice under Section 7(1) of the COBO Act i.e. 09.4.2002 establishes that the appellant can be presumed to have commenced construction of his residential house after sixty day of his application for permission, obviously under bona fide exercise of his right of deemed permission. 12. Now let us see whether the construction raised by the appellant is violative of any Zoning Regulations etc or not, in order to find whether the violation is in the nature of `offence of minor nature' so that the same may be compounded under law. Allegation at S.No.1 pertains to construction of rooms at the ground floor; allegation at S.No.2 is regarding construction at first floor; allegation at S.No.3 is regarding construction made at the setback area without stating as to how much setback was required to be maintained by appellant & how he has violated the same; allegation No.4 pertains to violation of land use as it is alleged that the appellant has constructed a shop at the front setback though the land use of the area is "residential" only; S.No5 speaks about coverage of 90% of the plot area at ground floor as against permissible 60% & 100% covered area at first floor; at S.No.6 it is alleged that the appellant has not established title qua the land and at S.No.7 built up area is stated as per measurement. 13. In the first instance the appellant has established his title qua the said building by producing a Photostat copy of the sale deed dated 11th Mar, 2000 duly registered with Sub-registrar Jammu on 03.6.2000, which shows that the appellant purchased a built up house from the vendor. 13. In the first instance the appellant has established his title qua the said building by producing a Photostat copy of the sale deed dated 11th Mar, 2000 duly registered with Sub-registrar Jammu on 03.6.2000, which shows that the appellant purchased a built up house from the vendor. Allegation that the appellant has increased the area of construction beyond the permitted area also falls within the definition of `offence of minor nature' and can be lawfully compounded on payment of composition fee prescribed under the Jammu and Kashmir Municipal (Unauthorised Construction ) Rules,1977 read with rule 11 of Regulations,1998.Regarding the violation of Balcony projections guidance can be sought from the Jammu and Kashmir Municipal (Unauthorised Construction ) Rules,1977 (herein after `the Rules,1977'),which permit the compounding of the balcony projection up to 2'-6" where it is not over the Municipal lane. As alleged in the BOCA report (supra) the balcony projections overhang `the nallah', therefore, there is no legal bar to treat this kind of violation as `offence of minor nature' and for the purpose of compounding. It is alleged that the appellant has constructed a shop thereby changing the `land use' of the area, which is earmarked as `residential'. In fact the photograph shows and it is admitted by the appellant that this room is constructed for being used as a `garage' for parking of own car & not for any commercial use. A huge number of residential houses in the city have this type of garages for parking of their vehicles & this cannot be said to be a violation which cannot be compounded. There is no encroachment of the neighbourer's adjacent land, nor is any other kind of nuisance attributed to the appellant. He is alleged to have used 90% of the plot area at ground floor in his construction as against permissible to the extent of 60%.He can be permitted to exceed up to 10% of the permissible ground coverage. The major part of the alleged construction is compoundable. The appellant shall pay compounding fee for built of area=1511 sft at the ground floor @ Rs.12.50 ps per sft; for built up area at First floor=1814 @ Rs.14/-per sft & @ Rs.30/- per sft for balcony projection area calculated = 203 sft and @ Rs.50/-per sft for `garage' area=239 sft. The major part of the alleged construction is compoundable. The appellant shall pay compounding fee for built of area=1511 sft at the ground floor @ Rs.12.50 ps per sft; for built up area at First floor=1814 @ Rs.14/-per sft & @ Rs.30/- per sft for balcony projection area calculated = 203 sft and @ Rs.50/-per sft for `garage' area=239 sft. But since he has covered 20% of the ground floor in excess of the permissible limit, the Authority shall work out the area which is in excess by 20% & take appropriate action as may be permissible under law. The appeal succeeds partially, as indicated herein above. The Authority shall recover the total amount of compounding fee thus imposed, from the appellant within a period of three months. Interim stay is hereby withdrawn. Record of the respondent shall be returned after retaining copies of the report etc. & this Tribunal file be consigned to record.