1. This appeal arises from the final notice served on the appellants by the respondent vide no.MC/K/2007-08/24, dated 14.5.2007 asking him to `demolish the Building within five days from the date of service of the notice.' Aggrieved by this final notice in terms of Section 7(3) of the Control of Building Operations Act, 1988 (herein after `the COBO Act' only), Sh. Sat Pal and another (herein after `the appellant's') filed this appeal under Section 13 of the COBO Act challenging the final notice on the grounds, inter alia, that the notice is silent about the khilafwarzi (violation) committed by the appellant; that that land bearing khasra no.254-min measuring 5 marlas was allotted to one Fazloo whose legal heirs sold a kotha in the same land to Jugal Kishore s/o Nathu Brahmin. The latter, however, demolished the kotha and raised some superstructure at the same place and finally transferred the semi-finished structure in favour of the appellant on receipt of a consideration of Rs.11 lakh, through a deed of agreement for sale of dated 9th August 2006; that the appellants completed the construction for their residential house at the said site by investing a huge amount of money; that there are other buildings including hotels in the area also but no demolition process was ever undertaken by the Municipality & the present notice is only discriminatory; that the structure does not create any traffic hazards or public nuisance; that the appellants & prior to him Jugal Kishore had applied for sanction of the house plan but the same was never accorded without any reason and that the appellants are ready to compound the case. In these premises it is prayed to set aside the impugned notice or in the alternative compound the matter. 2. The respondents allege that the appellants have unauthorisedly and without prior permission of the Municipal Committee Katra, constructed a Hotel named Himani Guest House for commercial purposes, which is against the permissible land use as the same is earmarked for Residential purposes only; that it is not denied that one Jugal Kishore had submitted a map for sanction for residential house but sanction could not be granted for want of required `No Objection Certificates' (NOC) from the concerned authorities. Moreover the present construction is not according to site plan said to have been submitted for approval by Jugal Kishore; that the appellants have covered 100% of the land without keeping required setbacks so much so that total plot area of the land is 989 sft and the appellants have covered 968 sft at the Ground Floor, 1062 sft at the First Floor & 1062 sft at the Second Floor also; that the above dimensions would show that the appellants have raised projections (Balcony projections over the public lane (See para 7 of Objections) at the Ist & IInd Floors. It is submitted that the violation committed by the appellant is not an offence of minor nature & the same cannot be compounded. Drawing showing the status of construction is also placed on the record. 3. Learned advocates for the parties have addressed rival arguments at length. Mr. L.K. Sharma advocate for the appellants has placed thrust on the fact that Sh.Jugal Kishore had already submitted a map/site plan for being approved by the Municipal Authorities but despite the lapse of statutory period, it neither rejected the same nor communicated to said Sh. Jugal Kishore that the proposed construction had been refused and, therefore, in order to vindicate his right vested in him under Rule 7 of the Control of Building Regulations, 1998 (hereinafter `Regulations'), the appellants who have stepped into shoes of Jugal Kishore, completed the construction. According to advocate for the appellants said Sh.Jugal Kishore had sold the said land to the appellants by a deed of agreement for sale & in spite of their best efforts the appellants were not given satisfactory reply by the `Authority', so they constructed the same under their right of "deemed permission". They have committed no violation of any bye-laws. It is further submitted by learned counsel for the appellants that if the appellants have exceeded the construction as per site plan submitted by Sh.Jugal Kishore, it is only of `minor nature' & can be lawfully compounded. According to him excess to the extent of 10% is also permissible by Regulation 11(2) (iii) of the Regulations 0f 1998. On the other hand Mr.Adarsh Sharma advocate for the respondent has vehemently attacked on the submissions made by learned counsel for the appellants. According to him excess to the extent of 10% is also permissible by Regulation 11(2) (iii) of the Regulations 0f 1998. On the other hand Mr.Adarsh Sharma advocate for the respondent has vehemently attacked on the submissions made by learned counsel for the appellants. His submission is that in the first place, the appellants have failed to prove title much less a valid title on the land on which the building has been constructed. Next, he submits, even if it is believed that Jugal Kishore had submitted a site plan for approval, the M.C. Katra could not automatically sanction it without the required NOCs particularly when the present applicants never adopted the same nor informed the Authority & even if it be believed that the building has been erected under deemed permission, though it is not, it has been admitted in the memo of appeal that Sh.Jugal Kishore had submitted the site plan for residential house whereas the appellant have constructed a guest house, a commercial concern, therefore, the violation cannot be condoned and compounded. He has reiterated elaborately the objections already submitted in writing. 4. Much emphasis has been laid on behalf of the appellants on the fact the Sh.Jugal Kishore had submitted a site plan for approval by the respondent but it was neither rejected nor sanction was granted within the statutory period therefore the appellant constructed this building under bona fide belief of their right of `deemed permission' as such they have committed no violation. I am afraid; it is not the correct position of law. It is admitted in the memo of appeal that 5 marlas of land under khasra no.254 was allotted in favour of Fazloo & on his death his legal heirs sold the same to Sh.Jugal Kishore, who in turn demised the it in favour of the appellants by a deed of agreement to sell dated 9th March,2006. But there is no document on the file to prove (1) that Fazloo and/or his LRs had been conferred ownership right regarding this State land; and (2) there is no deed of transfer made by the said LRs in favour of Jugal Kishore, nor even an affidavit etc has been procured from the so-called LRs of Fazloo allottee. The argument is only off the hat. Regulation 8 deals with permission for construction to be granted to person establishing `Ownership of land'. The argument is only off the hat. Regulation 8 deals with permission for construction to be granted to person establishing `Ownership of land'. It prescribes: (1) No permission shall be granted unless the applicant has provided sufficient proof in support of his ownership of the land. (2) The following documents shall be taken as sufficient proof of ownership of the land unless this is disputed in court of law: (i) sale deed/gift deed/lease deed or any other legal mode of transfer executed in the court of law; (ii) decree of legal heir passed by the Court of law; (iii) mutation attested by the officials of revenue department; (3) The permission granted by the Authority shall not by itself confer any right of ownership of the land or building, as the case may be, upon any person. 5. The appellants have produced no document referred to in clauses (i) to (iii) above, in order to prove valid title of the land vested in their favour or for that matter in favour of said Sh. Jugal Kishore or even said Fazloo allottee who may have been vested the right to sell this piece of land. It is also not the case of the appellants that they (or Sh.Jugal Kishore) had annexed any such document with the application/site plan allegedly submitted for approval. In fact the land is a State land & the appellants have failed to establish ownership in their favour qua the same, therefore, they could not be granted permission to construct any building on this piece of land, nor can they take the advantage of `deemed permission' for want of ownership/title of the land in their favour. Their position qua the said STATE LAND is only that of a trespasser. There is every likelihood that Jugal Kishore & the appellants may have hatched a conspiracy to grab a very precious piece of state land in the fast growing commercial township of Katra. Let us not forget that Sh.Jugal Kishore had no right or title in him to alienate or transfer this piece of land to anyone including the appellants, therefore, the so-called transfer of this land made by him is void ab initio. Fazloo allottee or for that matter his heirs, if any, seem to have been screened away from the illegal activity as if they never had any right or interest in the said piece of land. 6. Fazloo allottee or for that matter his heirs, if any, seem to have been screened away from the illegal activity as if they never had any right or interest in the said piece of land. 6. Indeed Regulation 7 provides for `deemed permission.' Nevertheless unless the applicant `provides sufficient proof' of ownership of the land being used for construction purposes, he cannot take the benefit of even `deemed permission'. It can be gathered from the record that the deed of Agreement to sell dated 9th March 2006 executed between Jugal Kishore & the appellants is only a subterfuge to the illegal & unscrupulous act of alienating State land and a ploy to wrest permission for erecting an unauthorised building on the State land. Sh.Jugal Kishore is shown as `Seller' & the appellants-'purchasers' without any title in favour of Jugal Kishore. These people have grabbed the State land in that fashion without a wink in the eye of those who ought to watch the interests of the State. The document is, in fact, clothed with all the stipulations of a sale deed where sale consideration of Rs.11 lacs passed on from the purchaser to the self-styled-seller. It is only attested by a Notary Public though it is a compulsorily registerable deed. Moreover the deed of agreement to sell is only sham document/transaction as the proposed vendor has no right or title in him which he agreed to transfer in favour of the appellants herein and has been manufactured to defeat the soul & spirit of the Roshni Act (J&K State Lands/Vesting of ownership[p to the occupants) Act,2001). This apart, Reliance placed by learned counsel for the appellants on the case title Administrator Municipality Jammu & Anr. Vs. Jammu Principal Dewan Badri Nath, Educational Trust Mubarak Mandui Jammu (OWP No.524/97) is only misconceived as the facts and circumstances in both the cases are totally different from one another and have not even the remotest concurrence with each other. This apart, Reliance placed by learned counsel for the appellants on the case title Administrator Municipality Jammu & Anr. Vs. Jammu Principal Dewan Badri Nath, Educational Trust Mubarak Mandui Jammu (OWP No.524/97) is only misconceived as the facts and circumstances in both the cases are totally different from one another and have not even the remotest concurrence with each other. In Dewan Badri Nath's case the Trust had dismantled old building owned by it on account of being unsafe for children/students & permission applied for reconstruction was delayed by the Municipality & the Hon'ble Single Bench held that `the reconstruction without express permission of the Committee was not such which attracted the extreme step of demolishing the same.' Reference to Dewan Badri Nath Trust case is of no help to the appellants as construction in the case at hand is out and out illegal. 7. Another important aspect of the matter in this context that cannot escape judicial notice is that the entire story of submission of proposed site plan is an afterthought & concocted & connivance of the Municipal authorities of Katra cannot be ruled out in this most sinister and ominous transaction. The much-talked-about deed of agreement to sell of the land is dated 9th March 2006 & attested by the Notary on 22.3.2006 {Annexure A(6A)} but the application filed by Sh. Jugal Kishore for sanctioning the proposed site plan is dated 16.6.2006, received/acknowledged by the Khilafwarzi Inspector on 15/7/06. The contents of this application are as under: (verbatim) The President Municipal Committee, Katra Sub:- Sanction of drawing for construction of residential house. Sir, With due respect, I submit a drawing of eight copies residential house to be construction ward no.1 Katra. May please be construction necessary formalities may be informed and obliged. Dated Thanking you 6/07/2006 Your faithfully Sd/ Sh. Jugal Kishore Sd/- K.I S/o Nathu Ram 15/7/2006 R/o Ward No. 1 Katra 8. The purpose of highlighting the application is only to appreciate that once Sh. Jugal Kishore had sold the land by a deed of agreement to sell attested on 22.3.2006 what made him to apply for sanctioning the proposed site plan on 06.07.2006 i.e after more than THREE MONTHS he parted with this land, as a self-styled owner, as per the appellants' version. Jugal Kishore had sold the land by a deed of agreement to sell attested on 22.3.2006 what made him to apply for sanctioning the proposed site plan on 06.07.2006 i.e after more than THREE MONTHS he parted with this land, as a self-styled owner, as per the appellants' version. Even the copy of the site plan is nowhere dated, nor it wears signature of the applicant and nor has even the Architect put date after his/her stamp etc. These facts cumulatively point out that gross violation of the COBO Act/Regulations etc. has been committed by the appellants in order to construct this palatial GUEST HOUSE ON THE STATE LAND FOR COMMERCIAL PURPOSES ONLY, and connivance of the concerned Municipal officials Katra is obviously writ large on the record & speaks volumes about their unwholesome role in the wicked game. This further replies the argument of deemed permission vigorously canvassed with great tumult on behalf of the appellants. 9. Coming next to the contention on behalf of the appellants that they are being discriminated as there are numerous other buildings (residential & hotels) in the vicinity of their building and no action has been taken against them, suffice it would be to say that such a plea is not available to the appellants as held by the Hon'ble High Court in OWP No.27/92 decided on 30.11.2000, titled Kasturi Lal Vs. J&K Special Tribunal & Anr. (Hon'ble Justice T.S. Doabia, as his lordship then was ). J&K Special Tribunal & Anr. (Hon'ble Justice T.S. Doabia, as his lordship then was ). After discussing the law laid down by the Hon'ble Apex Court of Country in M.I. Builders Pvt.Ltd. v. Radhey Sham & foreign judgments, it has been laid down as under: From the above it can be safely concluded that:- (i) that the Municipal authorities to act in a manner which should lead to implementation of the Municipal Laws and not in a manner which may lead to its contravention; (ii) no amount of acquiescence on the part of the Municipal authorities can operate by way of equitable estoppel; (iii) Zoning lay outs & building by-laws are required to be complied with, otherwise this can lead to several social problems; (iv) that if a building is constructed contrary to law, then the courts should not protect such illegal action; (v) that merely because in some other matters no action is taken by the Municipality would not be a ground not to take action where break of Municipal law has taken place. (Highlighting mine) 10. This Judgment is a complete answer to the submission of the learned advocate for the appellants that no other violator in the vicinity has been touched by the Municipality therefore he cannot be singled out and penalized for breach of any Municipal laws. The appellants have not even brought to the notice of this Tribunal any case of such type of violation as has been committed in their vicinity, in the facts & circumstances discussed herein above, therefore, also plea of equitable justice is not available to them. 11. The next plank of argument advanced Sh.L.K.Sharma advocate for the plaintiffs is that since the Building Operation controlling Municipal authorities did not consider the construction raised by the appellant as of serious violation of Municipal laws as it permitted the same to be raised up to three storey level, therefore, the same may be treated as `offence of minor nature' & permitted to be compounded. This submission also does not find favour with me & is hereby repelled. This submission also does not find favour with me & is hereby repelled. The `compounding' of an offence of minor nature is permissible only under Regulation 11 i.e. If it- (i) does not violate the approved land-use of area as notified in the Master plan or Town Planning Scheme; (ii) does not violate the permissible front ,rear, or side setbacks prescribed in the bye-laws; (iii) does not violate more than 10% the permissible grounds coverage as prescribed in the bye-laws ;and (iv) does not violate the permissible height of the building as prescribed in the bye-laws. The appellants' case does not fall within the folds of any clause mentioned herein above. They are rather alleged to have constructed a GUEST HOUSE i.e. a building for commercial use in the area earmarked for Residential purpose only, thereby violating the approved land-use. Their action, therefore, does not and cannot be said to an offence of `minor nature' so that the same may be compounded. 12. Another important aspect of the matter which needs attention at the appellate stage is that there is no denying the fact that appellants have made use of 100% of the land without leaving the required setbacks. At the first & second floors even balcony projections have been raised in such a manner that they overhang the public lane/road, which is impermissible under COBO Regulations. This fact can be seen on a bare look at the pictures/photographs of the building of Himani Guest House, showing front elevation thereof and it gets further support from the latest drawings submitted on behalf of the MC Katra with their objections etc. It has been held in a STAR case titled Munshi Ram v. State of J&K & Ors., reported in 2004(3) JKJ 202 (DB). In para 28 at page 229 as under: "The judgment relied upon by the learned counsel is therefore 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." 13. 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." 13. In Munshi Ram's case (supra) he was served a notice by Khilafwarzi Officer, Municipality Jammu that he had started construction of the hotel in violation and against the sanctioned plan but since he continued the illegal construction, Executive Officer MCJ served a final notice asking him to demolish the construction unauthorisedly raised by him failing which the Municipality, it was directed, would demolish the same at his cost & risk. Munshi Ram challenged this notice of demolition before the Special Tribunal Jammu. After a few other proceedings in his case, fresh notices were served on Munshi Ram who continued construction in utter disregard to the relevant notices & again challenged the same before the Special Tribunal. The Tribunal on 10th December, 1996 stayed the operation of the impugned notice of 6.12.1996 but directed the "parties" to maintain status quo till next date of hearing. Munshi Ram however filed a Writ Petition in the High Court challenging order dated 10th December 1996 passed by the Special Tribunal Jammu. Later, this Tribunal directed the compounding of the violation allegedly made by said Munshi Ram holding that "It reveals that appellant has raised unauthorised construction against the sanctioned plan covering an area 10662.50 sft. The violation being not of serious nature, the same is compounded @ Rs.25/- sft. for the above area which he has constructed against the sanctioned plan". Commenting on the findings of the Special Tribunal, Hon'ble High Court held at page 214 that "It is pathetic and saddening that the Tribunal presided over by a Judicial Officer of the rank of District and sessions judge should have fallen prey to the greed of a person not bothered about adherence to law even in the least, and, without recording a finding and without application of mind to the ramifications of the huge violation, area wise much more in magnitude, than the area covered by the approved site plan, that too at the busiest centre of City of Jammu, described the violation just not of serious nature. The Tribunal though has taken note of the fact that the violations have encroached upon the State land as well, yet he has described it not of a serious nature. The Tribunal has not bothered to take note of the fact that by his so doing, the right of way of general public was going to be seriously affected. Even more criminal is the attitude demonstrated by the concerned officers/officials of the Municipality who have chosen not to challenge the order of the Tribunal and, instead, have rested with acceptance of the compounding fee." (Emphasis is mine) 14. In another co-ordinate Division Bench of the Hon'ble High Court of Jammu & Kashmir, in case Bansi Lal Raina v. J&K Special Tribunal, reported in 2004(1) JKJ 524 where 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 unauthorised 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 unauthorised 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) 15. The above discussion of law vis-a-vis factual matrix of this case which is an example of high degree of violation of the Municipal laws etc. in the commercial town of Katra. The modus operandi is not less than the mafia-type-usurpation of the state land which had been allotted to Fazloo for residential purposes. He has since died & the impious nexus of revenue-municipal officials in alienating the said land in a most callous & unceremonious manner, which is unknown to law, & permitting a huge commercial building to be constructed thereon under their nose, cannot go unpunished. It has been held case titled Attorney General Vs. Corporation of Sutherland (1876) Ch.D 634:45 JL Ch D39:34 Lt 921 that `the position of Municipal Authority while performing its statutory duties was compared with that of a trustee'. Even in the most famous case K.R.Shenoy Vs. M.C. Udipi, AIR 1974 SC 2174 Hon'ble Supreme Court held that "The Municipality acts for the public benefit in enforcing the scheme. Where the Municipality acts in excess of the power conferred by the Acts or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess'. This discussion also shows that there is not even a single act committed by the appellants in erecting the building of Himani Guest House Katra, which can be compounded under the J & K Municipal (Unauthorised Construction) Rules 1977 read with Rule 11(2) of the Control of Building Regulations,1998. 16. There is no merit in the appeal which is therefore dismissed. The Municipal authorities (Authority) of M.C.Katra shall make suitable arrangements within one month & demolish the entire building of Himani Guest House Katra, if the appellants do not themselves do the same within this period. Information of the action taken by the MC Katra will be furnished to this Tribunal. 17. Before parting with this appeal I would like to address the legal position in suchlike cases of gross violation & connivance of the Municipal authorities, as held by courts across the country. Information of the action taken by the MC Katra will be furnished to this Tribunal. 17. Before parting with this appeal I would like to address the legal position in suchlike cases of gross violation & connivance of the Municipal authorities, as held by courts across the country. It has been further held in K.R.Shenoy's case (supra) (Relied on in OWP 714/95, Raj Kumar v. J&K Special Tribunal decided on 31.8.2000) by the Hon'ble supreme Court of the country, in the same paragraph that "If under the pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority and infringes or violates the right of others, it becomes like all other individuals amenable to the jurisdiction of the courts". The Hon'ble DB of the High Court of Jammu & Kashmir further 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 & Anr. (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 (supra).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 all illegal constructions and cautioned the courts not only to direct demolition but to direct holding of enquiry also for such construction top bring the offender to book". (Emphasis supplied) 18. At page 231, para 34 of Munshi Ram's case (supra) the observations of the Hon'ble Division Bench are discernable, which are reproduced herein below:- "In the instant case, firstly, we are satisfied that Munshi Ram as well as the concerned municipal authorities seem to have been hand-in-glove in so far as the site plan has been approved by the Municipality for an area of land more than Munshi Ram purchased and owned; secondly, Munshi Ram has committed serious violations of the approved building plan, described above; thirdly, the Tribunal does not have jurisdiction to compound major violations. Therefore, to restore sanctity of law, in our view, it is a fit case where this Court should, in exercise of its powers under Article 227 of the Constitution, issue appropriate directions." 19. Then finally at page 233 constrained by the gross violation of Municipal Laws perpetuated by the Municipal staff, the Hon'ble High Court was constrained to refer the matter to Commissioner, Vigilance Organization with the direction to conduct investigation into the facts and circumstances giving rise to the construction of colossal building "Yatri Hotel" in the heart of the city, in the following words:- "Commissioner, Vigilance Organization, Jammu and Kashmir, shall register a case and investigate into the conduct of affairs by the concerned Municipal officers/officials as observed in this judgment. Commissioner, Jammu Municipal Corporation shall provide all and every possible assistance and record to the Vigilance Organization that may be required in this behalf. Registry shall provide a copy of this order free of cost to the Commissioner, Vigilance Organization, for necessary action. The Commissioner Vigilance is directed to submit status report of the investigation to this Court during the first week of every month till its completion." 20. It may be recalled that apart from the above illegalities, one wonders how the officials of Municipality Katra were mute spectator to the rising of this three storey hotel in the residential area & that too on the state land & served notices only when the building is ready for the business. What made them not to raise any objection, raises many eye-brows on the manner in which the Municipal authorities conducted themselves in this cases & maybe in many other cases which have not to the fore. It is therefore directed that a copy of this order be sent to Commissioner, Vigilance Organization, Jammu and Kashmir, who shall register a case and investigate into the conduct & affairs by the concerned Municipal and Revenue officers/officials etc as observed in this judgment and ensure that the guilty is prosecuted. 21. Record of the BOCA, Katra be sent back immediately and file of this court after due completion be consigned to records.