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2008 DIGILAW 2 (JK)

S. Lakhbir Singh v. JMC

2008-01-07

D.K.Kapoor

body2008
1. This appeal is against the final order passed by the BOCA Jammu directing the appellant to demolish the unauthorized construction raised by him at the 1st floor of his already existing house. He was directed to do the needful within 5 days failing which the BOCA will demolish the same at the risk and cost of the appellant. The appellant has pleaded that he has not committed any violation of the Zoning Regulation and had affected repairs in the damaged house which developed cracks on account of earthquake that afflicted the entire state. He has also stated that on the service of notice under Section 7(1) of the COBO Act, he had submitted his reply on 27.12.2005 stating that he had repaired the old house damaged on October 8 earthquake. He had also complained that his neighbour Kulvinder Singh had raised a totally new construction without being objected to by the BOCA or any other person. He has also attached Annexure-D with memo of appeal, a representation to the Joint Commissioner Municipal Corporation Jammu duly signed by a number of residents of the said locality making the grievances that Kulvinder Singh had raised unauthorized construction in the Rani Mandir, Below Gumat area and action against him was solicited. It is also pleaded that despite requests no action was taken against said Kulvinder Singh. 2. Record of the BOCA has been called for and perused. It is alleged in report No: BS/21 dated 16.9.2006 that the appellant has constructed two rooms and stair case at the 1st floor without obtaining building permission and had extended balcony projection to the extent of 3'-6" wide hanging over the lane and that he had covered 100% plot area against the permissible limit of 70%. The total violation allegedly made by the appellant at the 1st floor is equivalent to 351 sft. and balcony projection equivalent to 78.50 sft. 3. I have heard Learned Counsel for the parties and perused the record on the file. There is reply(Annexure C) to the show cause notice which is also accompanied by representation of the people of the locality making grievances against one Kulvinder Singh who had raised illegal construction but no action was taken against him. 3. I have heard Learned Counsel for the parties and perused the record on the file. There is reply(Annexure C) to the show cause notice which is also accompanied by representation of the people of the locality making grievances against one Kulvinder Singh who had raised illegal construction but no action was taken against him. In order to support the same, the appellant has furnished some photographs showing cracks in his old building and the building of Kulvinder Singh abutting his said house showing that gross violation has been committed by Kulvinder Singh. Photograph No. 6 shows that the construction raised by the neighbour of the appellant, opening windows towards the 1st floor area of the appellant is exceeding his superstructure. As compared, the violation made by Kulvinder Singh neighbour of the appellant whose house is just abutting, can be seen at the 1st sight. Shri K.B. Gupta standing counsel for the respondent was asked as to whether any action was not taken against him but he has submitted that simply because no action was taken against Lakhvinder Singh, the appellant cannot be allowed to regularize his unlawful construction. 4. Indeed the law of the land prescribes that it would not be a defence to any person alleged to have raised unauthorized construction in violation of the Municipal Rules, Regulations and Bye Laws etc. that some other violators are not taken to task and no action has been initiated against them nevertheless in the facts and circumstances of this case, the construction raised by the appellant at the Ist floor and by Kulvinder Singh are both appearing to be fresh ones. There is apparent gross violation, made by the Kulvinder Singh as compared to the violation, if any, made by the appellant herein. If the 1st floor building of the appellant is directed to be demolished on the basis of allegation made against him, without taking any action against his next door neighbour Kulvinder Singh he will have to take this decision with a pinch of salt only but the faith of common man in the judicial system is sure to receive a jolt and people are sure to make mockery of the law. Faith of the common man is the justice delivery system is sure to be eroded. 5. Faith of the common man is the justice delivery system is sure to be eroded. 5. The allegation against the appellant is that he had constructed two rooms and staircase at the 1st floor without obtaining prior permission from the BOCA and the violation is up to 351 sft. No other allegation that the appellant has made any violation of the Zoning Regulations, nor any Zoning Regulation has been referred to. Accordingly there is no legal impediment directing to compound the said violation which I presently order to be done. The appellant shall pay the compounding fee of the built up area of 351 sft. @ Rs.12.50/- per sft which is equivalent to Rs.4387.50/-. The appellant shall make payment of compounding fee within a period of one month where after the respondent may recover the same under the provision of law and on payment of such compounding fee the said construction will stand regularized. 6. Regarding 100% coverage of the plot area as against 70% permissible, I would say that the residential house of the appellant is the property of Rani Mandir Trust which has been leased out to him since to prior 1983 and as such this plea is not tenable at this stage. At the same time allegations that the appellant has extended balcony projection by 3'-6" cannot be admitted as gospel truth on account of the clear picture shown through photographs No:6 annexed with memo of appeal by the appellant, which categorically shows that the Lakhvinder Singh has extended his construction by a number of feet from the outer wall of the construction of room made by the appellant on his 1st floor against which no action has been taken. 7. Whereas I decide the appeal as above said, I also direct the BOCA to take action against Kulvinder Singh and make out a case of the violation made by him within a period of one month from the date of this order. He shall be entitled to peruse all the photographs copies annexed by the appellant in this appeal for the purpose of furnishing evidence of gross violation made by Shri Kulvinder Singh in his construction abutting just to the 1st floor of the appellant herein. He shall be entitled to peruse all the photographs copies annexed by the appellant in this appeal for the purpose of furnishing evidence of gross violation made by Shri Kulvinder Singh in his construction abutting just to the 1st floor of the appellant herein. If required, the application may be moved by the BOCA, in that case photographs will be handed over to him against proper receipt for evidence in the case against Kulvinder Singh the case file could be called and requested to be consolidated with the case against the Lukhvinder Singh at the request of BOCA. A copy of this order be furnished to BOCA through standing counsel. Record of the BOCA be returned back and file of this court be consigned to record after due completion.