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2008 DIGILAW 31 (JK)

Rajeev Gupta v. Jammu Municipal Corporation

2008-02-05

D.K.Kapoor

body2008
1. Sh. Rajeev Gupta S/o Mohan Lal Gupta R/o Fattu Chowgan, Jammu (hereinafter referred to as `the appellant') applied for permission to construct a residential house, and submitted drawings i.e. proposed site plan for sanction in terms of Section 5 of the J&K Control of Building Operation Act,1988 (herein after `the COBO Act'). It is the appellant's case that he was accorded permission vide no.118/BS/2002 dated 10.7.2002 for constructing a three-storey building & he erected only a two-storey building on land bearing khasra no.345 min at Chowgan Fattu, Jammu. Respondent no.3 (Chief Khilafwarzi Officer) served a show cause notice vide no.MJ/Estt/58/CKO/1/2003 dated 18.10.2003 calling upon him to explain within 48 hours as to why the unauthorized construction raised by him against the sanctioned plan, at the first floor, be not demolished. The sanction obtained by the appellant, referred to herein above, was shown to respondent no.2 (Executive Officer) on spot as such "the notice was adequately & sufficiently replied then & there." It is the further case of the appellant that the show cause notice issued by respondent no 3 is non-est `as the same has been issued without any authority under law.' However, the appellant has further pleaded in the memo of appeal that respondent no.1 issued a final notice vide no.MJ/Estt/CKO/3/2003 dated 28.10.2003 directing the appellant to demolish the unauthorized construction within 5 days. The appellant has challenged this final notice before this Tribunal on a variety of grounds, inter alia, that since the show cause notice was not given by a competent person therefore even the final notice is against law & facts; that show cause notice was nonetheless replied on the spot as above said and as such final notice ought not to have been served on the appellant; that the building has been constructed by the appellant according to the sanctioned plan therefore also the final notice is worthless ; that the impugned notice is vague as it does not state as to how the construction of the first floor is unauthorized; that the appellant has deposited huge fee which is prescribed for commercial constructions only as such the impugned notice deserves to be quashed. 2. 2. In their detailed report no.BS/03-4 dated 02.4.2004 the respondents (through respondent no.2) submitted that the appellant was given permission to construct a three storey residential house by demolishing his old house, comprising of two bedrooms, two toilets, drawing, store, kitchen and stair-hall and three feet wide passage in front of rooms covering 1236 sft of the built up area on each floor. As against the said permission the appellant has constructed 5 nos. shops, duplex height foyer in front of the shops & stair-hall at the ground floor covering a built up area of 1386 sft at the ground floor. On first floor, however, the appellant is alleged to have constructed 5 nos. shops, stair-hall & 4 feet wide passage in front of the shops covering a built up area of 1058 sft. It is alleged that "This obviously is infringement of the sanctioned plan & also in violation of the prescribed building bye-laws, which is a major violation." It is further alleged that the appellant has `constructed the shopping complex with 100% of the plot area whereas the permissible limit as per prescribed building bye-laws & sanctioned plan is 70% of the plot area, which is again a major violation'; the appellant is further alleged to have `encroached the Municipal lane of dimension = 7.6 ft & 12.00 ft, by constructing the above said structure illegally & unauthorizedly; that the appellant has constructed four feet wide balcony projections overhanging over the three sides of the lane and has also increased the construction at roof terrace; that the land use of this pocket is earmarked as residential but the appellant has constructed ten shops in the already congested mohalla of old city thus creating acute congestion and also straining the already existing infra-structure like roads, water supply, electricity, traffic congestion, nuisance & pollution etc in the said pocket; that the appellant had given an undertaking on affidavit(stamp paper) that he will not use this construction for commercial purposes or he will not rent out the same for commercial purposes but he has constructed the shopping complex in utter disregard even to his undertaking. The built-up area unauthorizedly constructed by the appellant has been worked out as under: 1. Built up area at ground floor = 1386 sft; 2. Built up area at the first floor = 1058 sft; 3. Area under balcony projection = 340 sft. overhanging the lane. The built-up area unauthorizedly constructed by the appellant has been worked out as under: 1. Built up area at ground floor = 1386 sft; 2. Built up area at the first floor = 1058 sft; 3. Area under balcony projection = 340 sft. overhanging the lane. It is submitted that the unauthorized construction raised by the appellant in no way can be said to be offence of `minor nature' and hence cannot be compounded. It is prayed that the pleas raised by the appellant are false, frivolous, misconceived & as such the appeal be dismissed with costs. 3. I have heard learned counsel for the parties & perused the record on the file. Sh. S.Sethi appearing for appellant has vehemently argued that the respondents received a sum of Rs.80,340/- as sanctioning fee, which shows that the respondent permitted the appellant to construct shops as the said amount of fee is only prescribed for commercial buildings. According to Sh. Sethi the respondents have not initiated any action against the appellant with clean hands as they first permitted the said building to be constructed and then issued show cause & the final notice, which shows the Corporation, had no objection to the erection of said building. His further submission is that the area has been, in reality, used as a "mixed Zone" i.e. residential-cum-commercial, therefore the allegation that the appellant exceeded the constructed area vis-a-vis the sanctioned plan, is only of minor nature and can be lawfully compounded. Sh. Sethi has presented copy of the judgment of this Tribunal in case titled Raghubir Singh v. Executive Officer, Jammu Municipality Jammu & Anr. (File No.779/ST, instituted on: 22.3.1990 & decided on 23.8.1991 by the then learned Judicial Member Sh.T.N.Bhat) and persuaded me to believe that the locality is earmarked as `commercial' & in the case of Raghubir Singh, Municipality had passed a site plan for marketing complex & they cannot differentiate the appellant's case on hypothetical grounds. He submits the appellant's case can also be lawfully compounded. His further argument is that the notice is issued by a person who is not competent & the notice itself is cryptic in as much no allegation of unauthorized construction is made in the said notice, therefore, the whole proceedings initiated by the respondents against the appellant are unwarranted & have no legal sanction. His further argument is that the notice is issued by a person who is not competent & the notice itself is cryptic in as much no allegation of unauthorized construction is made in the said notice, therefore, the whole proceedings initiated by the respondents against the appellant are unwarranted & have no legal sanction. On the other hand learned counsel for the respondents submit that the appellant has committed gross violation of the Zoning regulations & the Master plan; that he has not even adhered to his undertaking; that simply because the appellant maneuvered to deposit fee for commercial building that by itself is not sufficient to believe that he was accorded permission to constructed a shopping complex & that by encroaching upon the Municipal lane; that Patel Bazar is a commercial area & is quite distinguishable from old city & locality of Fattu Chowgan, which is completely a residential area & if some shops have come up therein those are only in violation of the Municipals & the appellant cannot take the benefit of acquiescence on the part of the Municipality Jammu; that due to his vast unauthorized construction public at large is put to great inconvenience & the building has become a hub of utter nuisance & source of intermittent pollution in the locality. According to Mr. Nanda, it does not make any indifference if there is no mention of violation of ground floor in the show cause notice as the details are usually ascertained afterwards. He has also countered that simply because the appellant has used less area than permitted in the site plan, if the appellant has violated the permission and/or permissible land use. Learned counsel for the respondents submit that in view of the details submitted in writing & as the appellant failed to show any cause/ground on service of notice, the appeal deserves to be dismissed so that Municipal Corporation proceeds to demolish this unauthorizedly constructed shopping complex. 4. Let us first meet the main contention raised on behalf of the appellant that the notices under Section 7(1) & 7(3) have not been issued by the `competent person'. 4. Let us first meet the main contention raised on behalf of the appellant that the notices under Section 7(1) & 7(3) have not been issued by the `competent person'. Section 7(1) speaks about the service of a show cause notice on the person raising construction of a building within the Municipal Corporation or Municipality or Local Area, as the case may be, either without permission as required under section 5 of the Act or in violation of the sanction granted in his favour. Similarly, a final notice under Sub-section (3) of Section 7 of the Act is served as a consequence of the show cause notice. In both the cases the `notice' spoken of is to be served by the `Authority' defined in Section 2(1) of the COBO Act i.e. Building Operations Controlling Authority (BOCA) constituted under Section 3 of the Act. Section 3 of the Act deals with "Constitution of the Authority" for any Local area, Municipal area, Town area, Notified area or area notified under the Jammu and Kashmir State Town Planning Act,1963 & the "Authority" in respect of these areas `shall be appointed by the Government from time to time by notifying in the Government Gazette.' It is, therefore necessary that before a person acts as `Authority', he must be shown to have been appointed by the Government & his appointment as such must be published in the Government Gazette. Besides the appointment of Authority as above said, the Act further prescribes procedure for "delegation of powers by the Authority" thus appointed. Section 16 of the Act read in juxtaposition with Rule 9 of the Control Of Building Operation Regulations, 1998 prescribes that the Authority appointed in terms of Section 3 of the Act is invested with power to delegate any power exercisable by it under the Act (barring, of course, the power to make regulations) in any official or local authority provided such delegation of power is published in the Government Gazette. All powers thus delegated in any official etc are required to be specified in the notification published in the Government Gazette. All powers thus delegated in any official etc are required to be specified in the notification published in the Government Gazette. Rule 9 further prescribes that the Authority has the discretion to delegate powers under section 7(1) and 7(2) of the Act, to issue show cause notice asking the defaulter as to why a building should not be altered or demolished; powers under Section 7(3) of the Act to pass an order directing a person to demolish, alter or pull down a building or a part thereof, powers of sealing of the unauthorized construction under Section 8(1) and powers under Section 12 of the Act to issue notice to stop building operation and removal of persons there from. In order to vindicate the scheme of the Act & Regulations, powers have been delegated by the Authority in the following officials/officers of the Jammu Municipality by Resolution No.4; dated 27.11.1999 of the Building Operations Controlling Authority Jammu Municipal Area, Jammu & has been published in the Government Gazette issue dated 3.2.2002. 1. Executive Officer Sec.7, 8(1), 9, 12; 2. Chief Khilafwarzi Officer Sec.7(1),7(2),9,12(1)& 12(2) 3. Khilafwarzi Officer Sec.9, 12(1) & 12(2): & 4. Asstt. Khilafwarzi Officer Sec. 12(1). 5. A perusal of the record on the file (as also Annexure with Memo of appeal) would show that Notice No.Mj/Estt/58/CKO/1/2003 dated 18.10.2003 was served by the Chief Khilafwarzi Officer under Section 7(1) of the Act and as such it cannot be said that the notice under Section 7(1) has been served on the appellant by a person who was not competent to serve such notice. In view of the delegation of power by the Authority, as published in the Government Gazette (supra), Chief Khilafwarzi Officer was certainly competent to issue said show cause notice. Likewise, Notice No.MJ/Estt/58/CKO/3/2003 dated 28.10.2003 under section 7(3) of the Act has been served by BOCA, Municipal Area Jammu, whose competency cannot also be questioned. Therefore there is no force in the argument of Sh.Sethi that the notices under Section 7(1) & 7(3) have been issued by persons not competent to issue the same. 6. Simultaneously, however, Sh.Sethi submitted that notice under Section 7(1) was duly responded therefore it does not lie in the mouth of the Authority to say that the appellant has raised construction unauthorizedly. 6. Simultaneously, however, Sh.Sethi submitted that notice under Section 7(1) was duly responded therefore it does not lie in the mouth of the Authority to say that the appellant has raised construction unauthorizedly. How the notice has been replied, is averred in para 4 of the memo of appeal that the approved site plan `was shown to Respondent no.2 on the spot. The Respondent No.2 was apprised of the fact as regards to the valid sanction of the construction of building by respondent No.2,as such the notice was adequately and sufficiently replied then and there'. That appears to be only hypothetical. Sub-section (3) of Section 7 of the Act prescribes that `if the persons to whom the notice has been given refuses or fails to show cause within a period specified under sub-section (1) or if after hearing that person, the Authority is satisfied that the erection or re-erection of the building is in contravention of the provisions of this section, the Authority shall by order direct the person to demolish, alter or pull down the building etc.' Admitting for the sake of argument that the appellant had shown permission to Respondent no.2 at the site, how is this going to help him when the construction undertaken by the appellant was in utter violation of the permission granted for residential building and when the appellant has blatantly admitted that he has constructed ten shops at the site. This argument of Sh.Sethi is devoid of any merit & hence repelled. 7. Next contention of Sh.Sethi, learned Advocate is that the area where the building of the appellant is situated is a mix-zone area where commercial as well as residential buildings are constructed, therefore the violation of the appellant can be treated as minor in nature as he has erected building according to the site plan so much so that he has covered even lesser area at the first floor than the sanctioned. According to Sh.Sethi such violation could be lawfully compounded. I am afraid there is no substance in the argument advanced by Sh.Sethi. There is a report of the Chief Town Planner issued at the time of sanctioning the proposed site plan submitted by the appellant, (Sh. Vinod Malhotra) no. According to Sh.Sethi such violation could be lawfully compounded. I am afraid there is no substance in the argument advanced by Sh.Sethi. There is a report of the Chief Town Planner issued at the time of sanctioning the proposed site plan submitted by the appellant, (Sh. Vinod Malhotra) no. CTPJ/BPC/2002-03/89 dated 22.5.2002, wherein he has in unambiguous words mentioned in para (4) that `due caution must be taken by the Municipality to ensure that the proposed construction is not misused under commercial use. The applicant should be asked to give an affidavit in this regard.' Moreover there is no gain denying the fact that the appellant submitted a site plan for sanction for residential construction by replacing the old residential house. The appellant could be presumed to know the `land use of the area' and that it was in his knowledge that permission for commercial activities (shopping complex) could not be given in the said locality. He therefore executed an UNDERTAKING in the form of an AFFIDAVIT duly verified on 24th May 2002 that he "will not raise any commercial construction." In addition to it the site plan submitted for approval for which various authorities under the COBO Act issued NOCs, was only meant for replacement of old dilapidated residential building by a new residential building. Simply because the clever appellant deposited a sum of Rs.80,340/-,which is equivalent to the fee required for building permission of commercial nature, would not by itself be a proof of the fact that the Municipality/respondent permitted him to erect constructions of shops. Let us recapitulate that the appellant neither applied for permission to construct shops at the site, nor his case was processed by the Authority for permission for commercial construction & nor such permission was granted by the Authority. 8. Although Mr. Sethi has referred to this Bench judgment in the case of Raghubir Singh (supra) but that pertains to Patel Bazar & not Chowgan Fattu. The former is certainly an area where commercial activities are permitted in the Master Plan but Chowgan Fattu is purely a residential locality in the old city. 8. Although Mr. Sethi has referred to this Bench judgment in the case of Raghubir Singh (supra) but that pertains to Patel Bazar & not Chowgan Fattu. The former is certainly an area where commercial activities are permitted in the Master Plan but Chowgan Fattu is purely a residential locality in the old city. So Sh.Sethi cannot derive any benefit from Raghubir Singh's judgment (supra).There cannot be denial of the fact that some shops may have been constructed by some persons by unscrupulous means & the Municipal authorities did not proceed to demolish the same or they may have been impeded by any other considerations but that will not amount to acquiescence by the Municipality. The Hon'ble DB of the High Court of Jammu & Kashmir repelled the argument raised on behalf of a violator that since others had also raised construction in violation of the Municipal laws, he should not be singled out, in case titled Om Prakash v. Administrator Jammu Municipality & Ant (LPA/OW No.22/2000, decided on 28th March,2000), relying on AIR 1996 SC 1177 .I take up an opportunity to quote a paragraph from the judgment of Raj Kumar (OWP 714/95, Raj Kumar v. J&K Special Tribunal decided on 31.8.2000) at page 8 of the certified copy. Hon'ble Court has observed that, "The Division Bench of this Court in Om Prakash's case has taken note of a recent decision of the Supreme Court of India reported as M.I.Builders Pvt. Ltd. v. Radhey Sham (JT 1999) 3 SC 42. The supreme Court of India took very serious note of such unauthorized illegal constructions and cautioned the courts not only to direct demolition but to direct holding of enquiry also for such construction to bring the offender to book". The same position of law was reiterated in Sham Grover v. Municipal Committee Jammu and Anr. reported in 2001 SLJ 369 DB). In another Division Bench of the Hon'ble High Court of Jammu & Kashmir i.e. Bansi Lal Raina v. J&K Special Tribunal, reported in 2004(1) JKJ 524 in which the facts are almost identical to the case at hand has, while upholding the order of demolition passed by the Jammu Municipality & the appeal against such order dismissed by the Special Tribunal & Writ Petition against Special Tribunal order coming to dismissal, held at page 527 as under: "7. Admittedly the plan approved for construction by the Municipal Authority was purely meant for residential purposes. The lease hold rights of the Nazool land have been granted on concession rates for residential purposes, whereas Commissioner in his report specifically found that the building was being used for commercial purposes. The photographs which had been placed on record of the Special Tribunal not only reveal that number of shops are being run in the building, but the building has been converted for the use of a hotel under the name and style of Hotel Jammu Palace. The Tribunal on consideration of the material on record including the report of the Commissioner found that unauthorized construction was raised in October 1997.In January 1997 Housing & Urban Development Department, Government of J&K had issued a SRO which made major offences non-compoundable. Since the construction raised was totally unauthorized and was non-compoundable, the Tribunal did not find any merit in the appeal and dismissed the same vide order dated 27.2.1998.As a matter of fact the Tribunal observed that the appellant had shown little respect for law and has given a false affidavit by saying that the construction raised by him was in accordance with the sanctioned/approved plan."(Emphasis is mine) Further assistance can be sought from the famous case on the subject, titled Munshi Ram v. State of J&K & Ors, reported in 2004(3) JKJ 202 (DB).At para 28 at page 229 it is held as under: "The judgment relied upon by the learned counsel is distinguishable (Administrator Municipality Jammu v. M/s K.C.Hotels Pvt. Ltd. 1994 KLJ 665) on facts and not applicable in the present case. The violation in the instant case, as described above, is huge. A construction much more than double the approved area on construction and beyond the area of land owned by the offender cannot be said to be an offence of minor nature, not amounting to serious violation affecting the planned development of the area, Zoning Regulations or Bye-laws applicable to that area." This plethora of law, which is in support of the action of demolition, initiated by the respondents against the appellant cannot be ignored on flimsy & hypothetical grounds. 9. 9. It is the further the case of the appellant that the show cause notice served by the respondents is cryptic in nature in as much as it nowhere asked the appellant to show cause with respect to the 5 nos shops constructed by him on the ground floor & this aspect of the matter cannot be taken into consideration for want of non-compliance of mandatory provisions of Section 7(1) of the Act. True, the show cause notice issued by the Authority does not mention the violation at the ground floor but the appellant cannot take the benefit of this omission for the simple reason that he cannot be said to be prejudiced by this omission when it was in his knowledge that he got a plan sanctioned for residential purpose and furnished an undertaking also that he will not construct shops and he has admitted to have constructed 5 shops at the ground floor in addition to the 5 shops at the first floor. Besides, he only seeks `compounding' at this stage. `Compounding' of offence/violation cannot be permitted indiscriminately and as a matter of course, irrespective of the nature of violation committed by the appellant. 10. Moreover Section 7(1) of the Act nowhere mandates that the Authority/respondent is under an obligation to serve a detailed & comprehensive show cause notice on the defaulter who undertook construction against the permission granted under Section 5 of the Act, thereby describing the minutest details of the violations made by him, nor is it the mandate of sub-section (1) of Section 7 of the Act. Indeed Section 229(1)(g) of the repealed Municipal Act of 2008 (1951 AD) required the Executive Officer to issue a notice in writing stating the reasons calling upon the person to show cause' but the words `stating the reasons' are conspicuously omitting in Section 7(1) of the COBO Act. The difference between the two sections that is discernible on bare reading of the two section i.e. the in former the words, "the Executive Officer shall issue a notice in writing stating the reasons, calling upon the person to show cause" and in later the words `the Authority shall issue a notice in writing calling upon the person to show cause' are not similar, legally speaking. The perceptible omission of words `stating the reasons' in the show cause notice envisaged under Section 7(1) of the COBO Act is not only a hollow formality & unwitting omission of the words `stating the reason'. The omission is rather meaningful & acceptable on the touch stone of ground realities. The COBO Act came into operation on 31st August 1988 & the Regulations were promulgated on 28.5.1998 i.e. after about 47 years of the enactment of the Municipal Act (supra).By that time legislators became wiser & had a broader vision of thinking & made laws to the expectations of people. Section 7(1) of the COBO Act unambiguously requires the violators of municipal laws etc to be put to notice so that he is given a reasonable opportunity to explain his position in connection with unauthorized construction, in order to hear him as to why the erection or re-erection commenced or completed by him be not demolished for violation (of the sanctioned plan in this case). For that matter the Authority is under no statutory obligation to communicate to him each & every minutest detail of infringement in order to seek his explanation. Legally speaking, `we cannot import a word in a provision which is not there' and at the same time `we have to interpret the law as it is'. There is plethora of law on the subject but I would take up an opportunity to refer to the latest judgment of the Hon'ble Apex Court of the country, in case titled Commissioner of Income Tax, Kerala v. M/s Tara Agencies report in 2007(5) Supreme 480 at page 498 (paras63,64,65,66 & 67) "63. In Union of India & Another v. Deoki Nandan Aggarwal,1992 Supp (1) SCC 323, a three-Judge Bench of this court held that it is not the duty of the court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. This power to legislate has not been conferred on the courts. The court cannot add words or read words into it which are not there. 64. The court cannot rewrite the legislation for the reason that it had no power to legislate. This power to legislate has not been conferred on the courts. The court cannot add words or read words into it which are not there. 64. In State of Kerala v. Mathai Verghese & Others, (1986) 4 SCC 746 , this court has reiterated the well settled position that the court can merely interpret the section; it cannot re-write, recast or redesign the section. In interpreting the provision the exercise undertaken by the court is to make explicit the intention of the legislature which enacted the legislation. It is not for the court to reframe the legislation for the very good reason that the powers to legislate have not been conferred on the court. 65. In Gwalior Rayons Silk Mfg.(Wvg) Co.Ltd. v. Custodian of Vested Forests, Paghat & Another, 1990(Supp)SCC 785, the court rightly observed that in seeking legislative intention judges not only listen to the voice of legislature but also listen attentively to what the legislature does not say. 66. House of Lords in Pinner v. Everett, (1969) 3 All ER 357 aptly observed that we have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute. 67. Therefore, the legal position seems to be clear and consistent that it is the bounden duty and obligation of the court to interpret the statute as it is. It is contrary to all rules of construction to read words into a statute which the legislature in its wisdom has deliberately not incorporated."(Highlighting mine) 11. This settled position supports the view being taken by me by critically comparing the wordings in two legislations i.e. Section 229 of the Municipal Act (Now repealed) & Section 7(1) of the Control of Building Operation Act, 1988. 12. This apart in the facts & circumstances of this particular case it was sufficient that the appellant was put to explanation (show cause) regarding the unauthorized construction of ten commercial shops as against the sanctioned site plan for residential building & that too by replacing the older one. Why do we forget that the appellant had been given a fair opportunity to explain that he had erected SHOPS against the sanctioned plan for RESIDENCIAL BUILDING & he has NO EXCUSE for this GROSS VIOLATION?. Why do we forget that the appellant had been given a fair opportunity to explain that he had erected SHOPS against the sanctioned plan for RESIDENCIAL BUILDING & he has NO EXCUSE for this GROSS VIOLATION?. Moreover he has dealt with each fact in his memo of appeal, therefore also it does not lie in his mouth to plead violation of principles of natural justice. He had been provided sufficient time to prove that he had not violated the conditions of the SANCTIONED PLAN. In this connection Sh.Nanda learned advocate has read out para 18 in case R.S.Saini v. state of Punjab reported in, among other journals, in AIR 1999 SC 3579 and laid stress that when the appellant had filed a detailed written reply with reference to each one of the charges. The record also bears out that the appellant has been heard through his counsel and that complaint made that he was not given sufficient adjournments for further hearing in our opinion, would not constitute a breach of the principles of natural justice, he is estopped from taking such a plea. 13. The appellant has pleaded in the memo of appeal that Show cause Notice was responded to the Executive Officer when he visited the site. What else the appellant wanted? We cannot afford to process the law at the whims & capriciousness of the violators of law. If we did that the day is not far off when the rein of lawlessness is sure to be unleashed & the same will be unmanageable by the concerned agencies. This sufficiently answers the proposition of law raised by the learned advocate for the appellant. 14. This takes us to the violations alleged by the respondents for which there is not even iota of rebuttal by the appellant. The violations have been mentioned in detail in para 2 herein above. The appellant has not succeeded to substantiate his case as such the appeal fails. 14. This takes us to the violations alleged by the respondents for which there is not even iota of rebuttal by the appellant. The violations have been mentioned in detail in para 2 herein above. The appellant has not succeeded to substantiate his case as such the appeal fails. The respondent shall demolish the unauthorizedly constructed 5 shops at the GROUND FLOOR; 5 Shops at the FIRST FLOOR; he has covered 1386 sft area at the ground floor as against the permitted=1236 sft and has constructed duplex height foyer in front of the shops & stair-hall; On first floor he constructed 4-feet wide passage in front of the shops covering a built up area of 1058 sft; he is further proved to have `constructed the shopping complex covering 100% of the plot area whereas the permissible limit as per prescribed building bye-laws & sanctioned plan is 70% of the plot area, the appellant is further proved to have `encroached the Municipal lane of dimension = 7.6 ft & 12.00 ft, by constructing the above said structure illegally & unauthorizedly; he has constructed four feet wide balcony projections overhanging over the three sides of the lane and has also increased the construction at roof terrace. The respondents have also established that the land use of this pocket is earmarked as residential but the appellant has constructed ten shops in the already congested mohalla of old city thus creating acute congestion and also straining the already existing infra-structure like roads, water supply, electricity, traffic congestion, nuisance & pollution etc in the said pocket. None of these violations can be termed as `offence of minor nature' that may be taken for compounding as prescribed under Rule 11(2) of the Regulations or under the J & K Municipal (Unauthorized Construction) Rules,1977 circulated vide SRO 560 of 28.9.1977 read with SRO 39 of January,1997.The respondent shall proceed to demolish the above said violations committed by the appellant in his building at Fattu Chowgan & execute the demolition work within one month from the date of this order with an intimation to this Tribunal of the action taken. Record of the MCJ be returned & this file consigned to record after due completion.