1. By this appeal order dated 15.7.2009 passed by respondent No: 1 refusing the permission to use the residential house by the appellants for commercial purpose has been assailed, with the prayer for setting aside the same and directing the respondent No. 1 to grant the said permission in terms of new Master Plan 2021. 2. The brief facts leading to the filing of the present appeal are as under, as disclosed from the record and the memo of appeal:- 3. The appellants are husband and wife. There is a plot number 69 adjoining B.C.Road Jammu which is owned by them. The plot was bifurcated into two parts by the appellants. The plot belonging to appellant no: 1 measures 2915 sft. and that of No: 2 as 2773 sft. In the year 2003, with the object of constructing residential house, appellants applied for grant of building permission from the respondent No.1. Sanction was accorded vide two orders dated 16.8.2003 and 28.7.2004 respectively. 4. According to the appellants they raised the construction in their respective portions in the year 2003 and 2004 itself strictly in accordance wit the building permission. 5. As per the appellants, Master Plan for 2021 was brought into force by the Government vide Order No: 263 dated 9.8.2004 which permitted the use of land at B.C.Road both for residential and commercial purposes. In order to run the commercial activities in their respective houses, appellants submitted an application on 7.4.2006 to respondent no: 1 for grant of permission. This application was received on 10.4.2006 in the office of the respondent No.1. The copy of receipt has been annexed as Annexure-C.' 6. Respondent No: 1 did not respond for about 3 years where upon the appellants filed a writ petition No: 560/09 along with CMP No: 741/01 in the Hon'ble High Court for a direction to the Municipal Corporation to grant permission to the appellants for use residential premises to commercial purposes in terms of new Master Plan, along with other allied reliefs mentioned in page-5 of the present appeal. The Hon'ble High Court was pleased to pass the interim direction in the CMP on 21.5.2009 to the following effect:- "Issue notice to the respondents returnable within four weeks. Requisite steps within one week. CMP No: 741/2009. Notice and appearance as above. The Hon'ble High Court was pleased to pass the interim direction in the CMP on 21.5.2009 to the following effect:- "Issue notice to the respondents returnable within four weeks. Requisite steps within one week. CMP No: 741/2009. Notice and appearance as above. It seems that the petitioners have under SRO No: 263 dated 9.8.2004 filed an application before the Commissioner, Municipal Corporation, Jammu for grant of permission for using raised construction for commercial purposes. No decision thereon has been taken till date. The respondent, Municipal Corporation shall take decision on the said application within four weeks. Result be communicated to the petitioner. Further completion of the construction in terms of the earlier approved site plan is not opposed but shall be raised strictly in accordance with the approved plan, if not otherwise barred and shall be under the close supervision of the Municipal Officers so that no deviation from the actual plan is made by the petitioner. Objections, if any, within the notice period". 7. In the light of the direction of the Hon'ble High Court the respondent No: 1 by his order 15.7.2009, rejected the prayer of the appellants for use of residential premises to commercial activities on the following grounds:- "Whereas, the application of S. Darshan Singh and Smt. Manjeet Kour for raising construction for commercial purpose has been considered in terms of directions of the Hon'ble High Court and the same has been found as, without merits due to the reason that the building raised for commercial purposes necessarily should have adequate space for parking of vehicles which in the instant case does not exist, as the said applicants have not kept provisions of parking of the vehicles required in the proposed Building. More so the cases of Building Permissions for commercial purposes which are bound to generate additional, traffic as per the existing rules need to be referred to UTEIC and have to be essentially cleared by the UTEIC for ensuring that such of the areas which are already overcrowded do not further hamper the traffic movement and effect the convenience of general public adversely. The instant case of building permission is located at B.C.Road Highway near Rehari Crossing which is already congested and overcrowded, as such, the permission for converting residential building to commercial use cannot be considered without sufficient provision of parking in the proposed construction" 8. The instant case of building permission is located at B.C.Road Highway near Rehari Crossing which is already congested and overcrowded, as such, the permission for converting residential building to commercial use cannot be considered without sufficient provision of parking in the proposed construction" 8. This order has been assailed by the appellants on the following grounds:- 1. The reasons given for refusing permission are in- sufficient and not compatible to the requirement of law. 2. That the premises of the appellants have sufficient parking space as compared to the adjoining buildings which have been granted permission to use their residential premises for commercial activities. 3. On the B.C.Road, Jammu Motor, LML Vepsa, M/s G.M.Auto Mobile M/s Swami Dayanand hospital, and Shukuntla Bar etc., have been given permission to use the premises for commercial purposes when they have less parking space and to the contrary the appellants have been meted out with hostile and discriminatory treatment by refusing the permission to use the raised construction for commercial use when the parking space is more than to the premises of the buildings referred above. 4. As per Master Plan 2021 area falling in B.C.Road Jammu has been earmarked as special area to be developed as mixed use zone and as such the respondent No: 1 had no justification to refuse permission to the appellants for running commercial activities. 5. That the Supreme Court of India in case titled Kewal Krishan Gupta v. J&K Special Tribunal reported in AIR 2005 SC 2578 has held that B.C.Road area can be used for residential as well as commercial purpose. In the light of this judgment respondent no: 1 had no jurisdiction for rejecting the application of the appellants for grant of permission asked for. 6. That the impugned order has been passed by respondent no: 1 without giving an opportunity of hearing to the appellants. 9. I have heard the learned counsel for the parties and examined the record minutely. 10. Admittedly permission was granted to the appellants for raising residential houses. It is claimed by the appellants that in 2003-2004 the land in B.C.Road area was prohibited for use of commercial activity. It was in this background that appellants sought permission for constructing residential premises after coming into force of the New Master Plan for 2021. 11. 10. Admittedly permission was granted to the appellants for raising residential houses. It is claimed by the appellants that in 2003-2004 the land in B.C.Road area was prohibited for use of commercial activity. It was in this background that appellants sought permission for constructing residential premises after coming into force of the New Master Plan for 2021. 11. It is not disputed that as per Government Order No: 263 dated 9.8.2004 New Master Plan 2021 was enforced. According to paragraph 6, 9 and 11 on page 81 of the said Master Plan area on the east of B C Road from the Palace to Exhibition ground and of the west upto Janipur Nallah has been termed as Special Area in which residential and commercial activities are permissible. 12. In the judgment before the Hon'ble Supreme Court, the matter was agitated in respect of judgment of Hon'ble High Court of J&K directing demolition of commercial structure raised in B. C. Road area, which had been permitted to be compounded by this Tribunal. The order of this Tribunal was upheld in view of the coming into force of the Master Plan 2021 by holding that Master Plan specifically provides that B C Road area is earmarked as special area to be developed as mixed use zone having residential and commercial uses. It was further observed that the phase of rapid growth of industrial development also makes it not necessary for permitting demolition of the structure even if it be in contravention of the provision of the Act or the Zoning provisions in the previous Master Plan. 13. Thus it is clear that after coming into force of the Master Plan 2021 commercial activities can be carried our in the B C Area. Admittedly the premises of the appellants are adjoining the B C road near Rehari Chungi. So there is no restriction for use of this area for commercial purposes. As held by the Honble Supreme Court, the prohibition if any to the commercial use of the area under previous Master Plan can not come in the way of appellants to use this area for commercial use. 14. The question which arises for consideration is as to whether respondent No. 1 was right in refusing permission sought by the appellants or not. 14. The question which arises for consideration is as to whether respondent No. 1 was right in refusing permission sought by the appellants or not. Once there is no ban for use of the land or house for commercial purposes as per Master Plan in B C area the respondent no.1 had no authority to refuse such permission. By the use of language in the impugned order respondent No. appears to have admitted the right of the appellants to use their premises for commercial activities. The permission has in fact been refused only on one ground that there is no adequate space for parking of vehicles. 15. Now it is to be seen as to whether for want of parking space there is any authority vested with respondent no: 1 to refuse permission to the appellants to use their buildings for commercial purposes. 16. Although in the Master Plan it is stated that rules and regulations for special area will be framed but till date such rules and regulations have not been framed. If it is so then JMC can not of its own invent such rules and enforce them. All though rules have not been framed so for but as per Chart, in respect of such buildings to be used for commercial activities in Special Area, which is at page 97 of the Master Plan 2021, for an area of 1000 sft. Car parking area shall be equal to one and half car. In the present case so far the sanctioned site plan of appellant Darshan Singh is concerned, its total area is 2915 sft. After covering the area under building the remaining open area remains 1457.9 sft. The area in front set back is disclosed in the approved site plan as 60X40 feets. As per Chart supra parking space shall be for about 4.5 cars. Thus there is ample space in the plot of appellant Darshan Singh for parking more than 5 cars easily. 17. Coming to the case of 2nd appellant Manjeet Kour as per the sanctioned site plan the total plot area is 2773 sft. Area under construction is 1482 sft and open area is 1291 sft. The requirement of area for car parking as per Chart supra is for about for 4 cars. As per copy of site plan front set back adjoining main road is 29.6 X 33.9 feets. Area under construction is 1482 sft and open area is 1291 sft. The requirement of area for car parking as per Chart supra is for about for 4 cars. As per copy of site plan front set back adjoining main road is 29.6 X 33.9 feets. Keeping in view this space more than 4 cars can be accommodated easily there. 18. In the face of the above observations respondent No: 1 was not justified to refuse permission on the ground of lack of space for car parking. At least the respondent No: 1 should have taken into consideration the required area for car parking as discussed here-in-above which he has not done. 19. During the course of arguments Mr. Johal submitted that respondent No: 1 has charged Rs. 1 lac from appellant Darshan Singh and Rs. 50,000/- from appellant Manjeet Kour illegally. He referred to COBO Act and Master plan and other building bye laws and submitted that there is no jurisdiction with respondent No: 1 to charge such amounts which may kindly be directed to be refunded to the appellants. 20. After going through the sanction order of appellant Darshan Singh it is noticed that security deposit to ensure the non violation the sanction plan in an amount of Rs. One lac has been received by JMC. Similarly Rs. 50,000/- have been received from appellant Manjeet Kour as security to ensure that land use will not be changed. So far the case of appellant Darshan Singh is concerned; the security has been received without any authority under law. As per Section 7 of the COBO Act if a person erects a building in violation of sanctioned plan, action for demolition of the building can be initiated. There is no provision of law for demanding security for violating the terms and conditions sanctioned plan. 21. In the case of appellant Manjeet Kour Rs.50, 000/- were in fact received to prevent land use. Even presuming under the old Master Plan land could not be used for commercial purposes still security to prevent such use could not be charged. For use of the building for commercial purpose, action for demolition could be initiated. 21. In the case of appellant Manjeet Kour Rs.50, 000/- were in fact received to prevent land use. Even presuming under the old Master Plan land could not be used for commercial purposes still security to prevent such use could not be charged. For use of the building for commercial purpose, action for demolition could be initiated. But after the coming into force of the New Master Plan land in B C Area can be used for commercial purpose as swell so appellant Manjit Kour is entitled to the return of the security amount deposited by her. If the law permits the doing of any act the Municipal Corporation can not camouflage the use of such right arbitrarily by assuming an authority not vested by any Statue. 22. Accordingly the respondent No: 1 shall return the security of Rs. 1.50 lac illegally recovered from the appellants. 23. The appeal is thus disposed of with observation that appellants are at liberty to use their houses for commercial purpose, as these activities are permissible under the Mater Plan 2021 and this right has been also regularized by the Hon'ble Supreme Court and Hon'ble High Court of our State in a case titled Building Operation Controlling Authority v. Smt. Jyoti Singh OWP No. 778/05 decided on 22.4.2006 24. File be consigned to record after due compilation.