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2009 DIGILAW 544 (JK)

Vinod Amla v. Chief Executive Officer

2009-11-06

A.K.Shan

body2009
1. The appellant has challenged across the ambit of this appeal, a demolition notice issued by BOCA Jammu under Section 7(3) of Control of Building Operation Act on number of grounds mentioned in the memo of appeal. 2. As per record available with this Tribunal including the report submitted by the respondent no.2, the appellant is owner and in possession of a residential house No:12 situated in main road Bakshi Nagar Jammu which was purchased by her from one Yogeshwar Lal vide sale deed dated 28.5.1979. After purchasing the house the appellant raised further construction on the ground floor and made alteration and variation keeping the front face on northern side open. 3. According to the appeal the son of appellant Rajesh Amla being post graduate was unemployed and in order to make him self-dependent, the appellant raised shops in front set back for business purpose, upon which the then Municipality Jammu issued a notice No:45/2/CKO/99 dated 5.8.1999, which was challenged before this Tribunal. 4. This Tribunal decided the same on 29.10.1999 and compounded the Khilafwarzi by charging commercial fee @ Rs.25/- per sft. This Tribunal did not touch the passage which was by the side of the shop which was treated as space used for commercial purpose. 5. By the passage of time when the family of the appellant expanded she applied for building permission to raise 1st and 2nd floor over the existing ground floor which was sanctioned by the respondent vide order No:681/BS/06 dated 12.2.2007. 6. As per record submitted by the respondents on 23.10.2007, Khilafwarzi Officer went to spot and found that appellant has raised the construction work at 1st floor against the approved plan and no set back has been maintained. He also noticed that the appellant had completed the construction work on 2nd floor up to roof level and shattering was in process. He stopped the work on spot and submitted report to his superior officer where upon it was directed that show cause notice may be issued to the appellant and accordingly the same was issued on 25.10.2007, calling upon the appellant to show cause within 48 hours as to why Khilafwarzi should not be demolished. Notice for dis-continuation of the unauthorized construction was also issued. 7. Notice for dis-continuation of the unauthorized construction was also issued. 7. The appellant sent a reply to this notice on 27.10.2007 reciting therein that she had obtained the building permission and has given order to carpenter to prepare the wooden frame which had yet not been installed. Thus she requested for dropping the proceeding against her. The reply was sent to Assistant Enforcement Officer and Enforcement Inspector (E.I) for report by the Enforcement Officer (E .O.). 8. Both these officers named above went to spot and submitted a report dated 29.10.2007 according to which building plan submitted by the appellant for raising construction on 1st and 2nd floor for residential purpose had been approved vide JMC No: 681/BS/06 dated 12.2.2007 but the appellant had raised one hall on 1st floor without giving partition wall and rooms and started the construction on 2nd floor which was against the building plan. In this reply the nature of Khilafwarzi on 2nd floor has not been disclosed. The report also makes mention that appellant was fixing the wooden frame and converting the hall into residential one. 9. On the basis of above report the EO directed the above mentioned two officers to draw out the violation if the appellant has committed and also ensure that appellant does not raise any further construction which was earlier done. This direction was issued on 29.10.2007. The E.I. submitted a report dated 31.12.2007 mentioning therein that appellant had completed the construction work of a hall on 2nd floor by laying RCC slab in the set back area which was against the approved plan, despite issuance of notice to her. He recommended for issuance of final notice to the appellant. 10. It was on 2.1.2008 that the E.O directed issuance of final notice which was issued on 28.1.2008. The record of the respondents reveals that it was again on 1.3.2008 that E I upon the direction of his superior officer went to inspect the site along with A E O and noticed that appellant had constructed the 1st and 2nd floor against the approved plan by raising the partition walls at 1st floor. As per the said officer partition wall has not been raised at 2nd floor which seems to be a hall. The officer expressed his inability to find out the status of 2nd floor. According to him no construction work was going on. As per the said officer partition wall has not been raised at 2nd floor which seems to be a hall. The officer expressed his inability to find out the status of 2nd floor. According to him no construction work was going on. Because the present appeal was filed on 1.2.2008 and status quo was directed to be maintained on spot, the E O being aware of the order of this Tribunal directed his E I to visit the spot and report as to whether order of status quo has been maintained or not. The said Inspector submitted a report that no construction work was going on, where upon the AEO was directed to keep a constant vigil and ensure that no further construction work is carried out. 11. It was on 6.3.2008 that A.E.O and E.I. were directed to report the existing status of 1st and 2nd floor and to report whether it is for commercial or residential purpose. 12. The factual report was submitted by E I on 13.3.2008 according to which the appellant had raised the partition wall on 1st floor without fixing door and windows and on 2nd floor no partition wall was raised and the construction was against the approved plan. In the opinion of the said officer the construction looked like a commercial. This report was directed to be submitted to this Tribunal, by the E.O. on 13.3.2008. 13. As per page- 9 of the record submitted by respondents, in para 10 it is recorded that no partition wall has been raised on upper floor which indicates that there is apprehension that appellant may use same for commercial purpose. This report was also directed to be submitted to this Tribunal through Municipal advocate. 14. On 29.3.2008 the Joint Commissioner returned the file to the Law officer with request that report of the violation committed be obtained from the Town Planning Section so that comprehensive report can be submitted to this Tribunal. 15. On 3.4.2008 surveyor was directed to make the measurement on spot. The surveyor submitted the compliance report on 9.5.2008. 14. On 29.3.2008 the Joint Commissioner returned the file to the Law officer with request that report of the violation committed be obtained from the Town Planning Section so that comprehensive report can be submitted to this Tribunal. 15. On 3.4.2008 surveyor was directed to make the measurement on spot. The surveyor submitted the compliance report on 9.5.2008. As per page 15 of the record submitted by respondent the permission was granted for the construction of 1st and 2nd floor for residential purpose over the existing construction of residential house with 15% coverage on 1st and 2nd floor but the appellant violated the approved plan by constructing halls for commercial use instead of residential accommodation and had covered 100% of the plot area. The appellant had also changed the land use of the existing ground floor from residential to commercial. Front set backs as per approved plan was to be 15 feet and rear set back 6 feet which had been kept by the appellant. He had also projected the balcony projection to 2'-9" towards the road side and 3" to the lane side. 16. On 15.5.2008 DTP was directed to visit the spot and examine the violation of each floor. The DTP went on spot on 19.5.2008 and found that all the three floors were built at site with 100% ground coverage. The structure on 1st and 2nd floor looked like to be used for commercial purpose. 17. Meanwhile a detailed report dated 9.6.2008 along with record was submitted by the respondents to this Tribunal to which counter was filed by the appellant denying the averments made therein. In the report the facts noted earlier have been recited and it is specifically reported that appellant has covered 100% of the plot area on all the three floors whereas the permissible coverage limit is 65%. It has also been mentioned in the report that appellant has covered the front and rear set back with construction on all the floors which is a major violation. The appellant is alleged to have extended 3-8" wide balcony projection over hanging the lane and 2-9" over hanging the road, thereby increasing constructed area illegally. The built up area raised unauthorisedly has been given in detail in the report. 18. I have heard the learned counsel for the parties and examined the record. 19. The appellant is alleged to have extended 3-8" wide balcony projection over hanging the lane and 2-9" over hanging the road, thereby increasing constructed area illegally. The built up area raised unauthorisedly has been given in detail in the report. 18. I have heard the learned counsel for the parties and examined the record. 19. At the out set it may be noticed that after the appellant preferred appeal the respondents still carried out the inspection of the house in question without the permission of this Tribunal. Once the matter was sub-judice respondents should have kept their hands off. Anyhow till the filing of the appeal the responsible officer of the respondent went to spot and reported the violation of approved plan on 1st and 2nd floor as already noticed here-in-above. Even show cause notice dated 25.10.2007 also makes reference to this nature of violation. The final demolition notice is also in respect of said violation which has been challenged through the medium of the present appeal. It is not understandable as to why the responsible officer of the respondent failed to take note of the violations made on ground floor and other mentioned in the report dated 9.6.2008 or other violations as mentioned in the detailed report submitted in this appeal. 20. Till the filing of appeal the nature of violation was not reported to be commercial but subsequently after filing of the appeal when parties have been directed to maintain status quo, the responsible officer of the respondents went to spot and reported that construction on 1st and 2nd floor looked like a commercial. If the nature of violations mentioned in the report dated 9.6.2008 is taken note, the same appears not to have been brought to the notice of the appellant by serving show cause notice. The appellant should have been given opportunity to explain her stand which has not been done. Even there is no demolition notice issued by the respondent in respect of violation mentioned in the report dated 9.6.2008. Neither is it the case of the respondents that the violations mentioned in the said report have been made after filing of the appeal. 21. Even there is no demolition notice issued by the respondent in respect of violation mentioned in the report dated 9.6.2008. Neither is it the case of the respondents that the violations mentioned in the said report have been made after filing of the appeal. 21. So in the absence of the show cause notice and demolition notice referred above, the appellant has been prevented from challenging the same before this Tribunal and in this background this Tribunal cannot look into the violations mentioned in the report dated 9.6.2008. The respondents have been making the reports and observations from stage to stage giving an impression that violations were going on till the filing of the report dated 9.6.2008, which is not a fact, as per the facts and circumstances of the case noted here-in-above. In the beginning the report of AEO and E.I. is confined only to the construction of hall on 1st and 2nd floor. They have clearly mentioned in their inspection report that construction in question was carried out in accordance with the building permission except the partition walls which were not approved in the site plan. The reports of officers of the respondents is in conflict and at variance to each other making no head or tail and rather creating confusion as to what actually was going on spot. 22. I am not going to make any observation in this regard because the same is not the subject matter of the memo of appeal but to the contrary the learned counsel for the appellant has shown magnanimity and admitted that she is ready to furnish an undertaking that in case of widening of road she will not claim any compensation for demolition of the required portion of the house and will also reduce the width of balcony from 3'-8" and 2'-9" to the permissible 2'-6". 23. The proposal from the learned counsel for the appellant if accepted will not cause any miscarriage of justice. Whenever the respondents or any other agency feel necessity of widening of road or lane, the appellant will not claim any compensation. The appellant is also permitted to reduce the balcony projections to the permissible width of 2'-6" within a period of 2 months. To this effect the appellant shall furnish an undertaking failing which the respondents will be at liberty to demolish the projections. 24. The appellant is also permitted to reduce the balcony projections to the permissible width of 2'-6" within a period of 2 months. To this effect the appellant shall furnish an undertaking failing which the respondents will be at liberty to demolish the projections. 24. Now coming to the other aspect of the case i.e. as to whether any violation has been made by the appellant by constructing two halls in the 1st floor and 2nd floor for commercial use and whether same can be compounded or not. 25. Another aspect is to be taken into consideration is about the 100% coverage at ground floor without leaving any front or set back on ground, 1st and 2nd floor. 26. During argument the learned counsel for the appellant made reference to the judgment of this Tribunal passed on 29.10.1999, in the appeal filed by the appellant. After going through the said judgment it is noticed that appellant had constructed a shop for being used by her son who was unemployed. The construction of shop was regularized for an area of 375 sft. by imposing the compounding fee besides 75 sft. for use as SH which was also converted to some construction. It is further noticed from the judgment that the house in question had been purchased in 1976 by the appellant. To this effect the appellant has also placed in the present appeal the copy of the sale deed according to which the house already existed in the land which was purchased by the appellant. The judgment supra further reveals that 1800 sft. was under old house. It was on the remaining portion in which the construction raised including shop was compounded by this Tribunal. 27. In this background when the house was in existence on 1800 sft. in the year 1976 and on the remaining portion the construction was compounded, the respondents are not justified in leveling allegation against the appellant for not keeping front or rear set backs. Similarly the appellant cannot be blamed in this regard for covering the cent percent area on the ground floor. 28. The serious allegation against the appellant is that by constructing two halls in question, same will be used for commercial purposes at any time in future which is not permissible in the said area. Similarly the appellant cannot be blamed in this regard for covering the cent percent area on the ground floor. 28. The serious allegation against the appellant is that by constructing two halls in question, same will be used for commercial purposes at any time in future which is not permissible in the said area. However, the learned counsel for the appellant by making a reference to the Master Plan submitted that the area can be used for residential and commercial purpose. 29. In other words the Master Plan permits the mixed used of the area. If it is so then appellant cannot be said to have committed any major violation by constructing halls for use of commercial activities. It is also submitted by the learned counsel for the appellant that the commercial activities are going on in the neighbourhood which facts has not been denied by the learned counsel for the respondents. 30. Although the respondents have apprehension about the halls to be used for commercial activities but learned counsel for the appellant made an admission that same are surely going to used for business activities and requested for imposing compounding fee on the ground that constructing halls in violation of the building permission is permissible. 31. Once the Master Plan allows the mix use of the area then the construction of two halls on 1st and 2nd floor for running commercial activities can be termed as infringement of the terms of building permission which is compoundable as per Regulation 11 of the COBO Act. 32. This proposition of law has not been disputed by the other side. So far not keeping front and rear set back on 1st and 2nd floor is concerned, there was no necessity under law for the appellant to keep such set backs, because it is only on the ground floor that such set backs are required to be kept. 33. The unauthorized construction on the 1st and 2nd floor has been worked out by the respondent as 3600 sft. and under balcony projection 345 sft. which has not been disputed by the learned counsel for the appellant. Accordingly the compounding fee of Rs.26/- per sft. for commercial activities and Rs. 13/- per sft. for balcony projection is imposed upon the appellant which shall be deposited by her within a period of two month. 34. and under balcony projection 345 sft. which has not been disputed by the learned counsel for the appellant. Accordingly the compounding fee of Rs.26/- per sft. for commercial activities and Rs. 13/- per sft. for balcony projection is imposed upon the appellant which shall be deposited by her within a period of two month. 34. Record of the JMC be returned back along with copy of this order and file of this Tribunal be consigned to record after due compilation.