Research › Search › Judgment

J&K High Court · body

2008 DIGILAW 391 (JK)

Vivek Kohli v. BOCA

2008-10-20

Vinod Gupta

body2008
1. The appellant has preferred this appeal against the order No. MJ/ESTT/98/3/CEO dated 15.12.2007, whereby the appellant is directed to demolish the construction of a kitchen on the first floor within a period of five days. 2. The appellant has stated in his memo of appeal that he has raised the construction of a kitchen on the first floor and he has received the impugned order whereby the appellant has been directed to demolish this construction. It is stated that before the issuance of this direction no show cause notice was served upon him. 3. The respondents have submitted their report wherein it is alleged that the appellant has constructed a kitchen on the first floor in an area of 117.44 sft. It is also alleged that under Master Plan the permissible building line in that area is 50 from the centre line of the road but the appellant has kept 22 from the centre line of the road. This is a major violation which cannot be compounded. In its objections to the report filed by the respondents, the appellant has stated that the report is in contradiction with the notice issued by the respondents. The notice pertains to raising the construction of a kitchen without permission and the report has been filed on other grounds. It is stated that the appellant has not raised any new construction. The kitchen on the first floor was already in existence and in order to harass the appellant, the impugned order was issued. 4. I have heard the learned counsel for the parties and perused the record on the file. 5. The first allegation as per report against the appellant is that he ha raised the construction of one kitchen in an area of 117.44 sft; on the first floor of his house without any permission. This violation is of minor nature as defined in the Regulations because the appellant has not changed the alignment of the building and has not violated any provisions of byelaws or Zoning Regulations for the construction of this kitchen. This violation is of minor nature as defined in the Regulations because the appellant has not changed the alignment which does not violate the provisions of proviso to sub clause (2) of the Regulations. This violation is of minor nature and can be compounded. 6. This violation is of minor nature as defined in the Regulations because the appellant has not changed the alignment which does not violate the provisions of proviso to sub clause (2) of the Regulations. This violation is of minor nature and can be compounded. 6. The other allegation against the appellant is that he has violated the permissible building line as per Master Plan of that area. According to them the permissible building line as per Master Plan is 50 from the centre line of the road but the appellant has kept only 22 from the centre line of the road. On the other hand, the learned counsel for the appellant has contended that the appellant has not raised any new construction and the old building is situated in the old town of Jammu city and thus he has not changed the alignment of the building. It is an admitted fact that this building is situated in the old city of Jammu and the appellant has constructed a small kitchen on the first floor without changing the alignment of the building. The Master Plan is applicable to new buildings constructed in the area and it does not affect the old buildings already existing in the old city where the buildings have been constructed since long and are interconnected and also on the end of the road. Further the provisions of Master Plan are not applicable to this case. Page 119 of the Master Plan, Jammu 2021 shows a schedule whereby proposed ways and building line are prescribed. S.No.30 describes the building line from the centre of road for the area from Residency Road Shahidi Chowk to the Circular Road as 50 from the centre of the road. This schedule itself states that this is proposed one. It does not apply to the buildings already constructed in the area. The appellant has not changed the alignment of his building. He has raised the construction within the building already constructed and there is no such allegation. Hence this allegation is not valid under law. 7. For the foregoing reasons, I would hold that the violation of raising of construction of a kitchen in the area of 117.44 sft. on the first floor of the building by the appellant is of minor nature and compoundable under law. Hence this allegation is not valid under law. 7. For the foregoing reasons, I would hold that the violation of raising of construction of a kitchen in the area of 117.44 sft. on the first floor of the building by the appellant is of minor nature and compoundable under law. Accordingly, this appeal is accepted and it is directed that the violation of the area of 117.44 sft. on the first floor made by the appellant for the construction of a kitchen in his house be compounded after charging a fee at the rate of Rs.15/- per sft. The appellant shall pay compounding fee within a period of two months from the date of this order and on payment of said compounding fee unauthorized construction of kitchen on the first floor shall stand regularized. In default of payment of compounding fee, the respondents may demolish the unauthorized construction in view of relevant provisions of law. 8. The record of the Jammu Municipal Corporation shall be returned and the file of this Tribunal after due completion be consigned to records.