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2011 DIGILAW 698 (JK)

Mohd. Qasim Dar v. State

2011-12-09

Hasnain Massodi

body2011
1. Challenge in this petition is to the order of J&K Special Tribunal dated 11.02.2011, whereby the Tribunal has dismissed the petitioner's Appeal against the order No. SMC/KH/1062-65 dated 15.01.2011 issued by the Authority under Section 7 (3) of Control of Building Operations Act, 1988. The background facts are as under: 2. The Authority under BOCA on 15.01.2011 vide SMC/KH/1062-65 served a show cause notice upon the petitioner under Section 7 (3) under J&K Building Operations Act, alleging therein that the petitioner had "erected concrete two storeyed residential structure duly slapped measuring 10 x 21 feet without permission" and asked the petitioner to show cause within a period of 48 hours as to why the structure so erected may not be demolished so as remove the contravention. The petitioner failed to show cause against the proposed demolition, constraining the Authority under the Act (COBOA) to make an order directing the petitioner to demolish/ pull-down the structure raised commencing the date of service of the order. The petitioner was also informed that in the event he failed to comply with the order, the structure would be removed at his cost and risk. 3. The notice of demolition /order NO. SMC/KH/1062 -65 dated 15.01.2011 was questioned in appeal under Section 13 of the Act ( COBOA) before J&K Special Tribunal. The Tribunal held the Appeal to be bereft of any merit and accordingly dismissed it on 11.02.2011. 4. The Tribunal order rejecting the Appeal is questioned in the present petition on the grounds that the structure in question was not constructed immediately before the demolition notice /order was issued by the Authority under the Act, (BOCOA). It is pleaded, that the petitioner constructed three storeyed structure in the year 1985 and only made renovations a year before filing of the instant writ petition i.e. 14.02.2011. It is insisted that the renovation does not amount to "new construction" nor any major deviation was made by the petitioner. The petitioner disputes power and jurisdiction of the Authority under the Act, to issue demolition notice and insists that the Tribunal without appreciating the facts in right perspective has erroneously dismissed the Appeal. 5. The respondents in their reply have disputed cause of action to the petitioner to maintain the writ petition. The petitioner disputes power and jurisdiction of the Authority under the Act, to issue demolition notice and insists that the Tribunal without appreciating the facts in right perspective has erroneously dismissed the Appeal. 5. The respondents in their reply have disputed cause of action to the petitioner to maintain the writ petition. It is pleaded, that the petitioner in January 2011 constructed three storeyed residential house at Donipora Alamgaribazar, Srinagar, without permission from Building Operations Controlling Authority and was accordingly served with a show cause notice followed by the demolition notice /order. The respondents plead, that before the Authority under the Act, proceeded in the matter the petitioner filed a civil suit in the Court of Sub-Judge Municipal Magistrate, Srinagar seeking a permanent injunction decree perpetually restraining the Authority and others under the Act, from interfering with the construction and succeeded in getting a temporary injunction against the Authority restraining it from demolishing construction raised and once the demolition notice/order No. SMC/KH/1062-65 dated 15.01.2011 was served on the petitioner, he filed the Statutory Appeal before the J&K Special Tribunal. Defending the order of the Special Tribunal, whereby the petitioner's Appeal has been dismissed, the respondents insist that the construction raised by the petitioner being without permission and in contravention of the Act, the petitioner had no ground available to assail the demolition notice/order . 6. Heard and considered. 7. Section 4 of the Act prohibits errection or re-errection of any building within the Municipal limits except with the previous permission of the Authority under the Act. Section 5 read with rules 3 and 9 Control of Building Operation Regulations 1998 provide for constitution of Authority under the Act and prescribe the procedure to be followed by the Authority while dealing with an application for grant of permission to erect or re-erect a building submitted under Section 5 of the Act. Section 5 read with rules 3 and 9 Control of Building Operation Regulations 1998 provide for constitution of Authority under the Act and prescribe the procedure to be followed by the Authority while dealing with an application for grant of permission to erect or re-erect a building submitted under Section 5 of the Act. Section 2 (3) defines building as :- (3) building means any shop, house, hut, out-house, shed, super-structure, boat, house boat and stable whether for the purpose of human habitation or otherwise and whether of masonry, bricks, wood, mud, thatch, metal or any other material whatever and includes a well and a well; In terms of Section 2 (9) to "erect or re-erect" any building includes:- (a) any material alteration or enlargement of any building; (b) mooring or installing of any boat or house-boat in the river or lake falling within the jurisdiction of any Authority; (c) the conversion by structural alteration into a place for human habitation of any building not originally constructed for human habitation; (d) the conversion into more than one place for human habitation of a building originally constructed as on such place; (e) the conversion of two or more places of human habitation into greater number of such places . (f) such alteration of a building as affects an alteration in its drainage or sanitary arrangements or affects its stability; (g) the addition of any room, building, out-house or other structure to any building; (h) the construction of a wall adjoining any street or land not belonging to the owner of the wall, of a door opening on to such street; and (i) reconstruction of a building or a portion thereof, by means of props, commonly known as "PAND-PAND" in Kashmir Valley; 8. The erection or re-erection of a building, as must be clear from "definition" does not only include construction of a new building on a vacant piece of land but any material alteration or enlargement of a building, addition of any space/room to the existing building or reconstruction of building or of a portion thereon. The renovation of the building thus would fall within the meaning of erection or re-erection as defined under Section 2 (9) of the Act, and such renovation cannot be undertaken without permission of the Authority in terms of Section 4 of the Act. 9. The renovation of the building thus would fall within the meaning of erection or re-erection as defined under Section 2 (9) of the Act, and such renovation cannot be undertaken without permission of the Authority in terms of Section 4 of the Act. 9. The petitioner in the present case admittedly raised construction without permission of the Authority under Section 4 of the Act. Though the petitioner claims to have raised a construction way back in the year 1985 and only embarked on renovation of the structure in the year 2010 yet the assertion does not sound convincing, inasmuch as the petitioner was not in a position to produce any permission, if any, granted in 1985 authorising him to raise the construction. The Tribunal was right in observing that in face of admission made by the appellant that the construction was undertaken without permission from the Authority under the Act, the petitioner could not be heard saying that the demolition notice was arbitrary, unjust and not called for. The Tribunal was justified in holding that the procedural rights available under the Act and Rules made thereunder having been strictly following by the Authority under the Act and the petitioner given an opportunity to show cause against the proposed demolition, the grievance as regards violation of principles of natural justice was grossly misplaced. It needs to be pointed out that the petitioner in his reply to the show cause notice No. SMC/KH 1042-45 dated 12.01.2011, admitted to have constructed two storeyed residential house about one year before the notice was issued and pleaded that construction was complete in all respects. The petitioner insisted that the construction raised by him did not infringe any of the rights of his neighbours, this was a clear admission on the part of the petitioner that he had raised construction without permission under the Act. The stand was reiterated in the memorandum of appeal filed before Special Tribunal. It would be profitable to reproduce hereunder paras 1 to 2 of reply to show cause notice and paras 2 to 3 of memorandum of appeal:- 1. The stand was reiterated in the memorandum of appeal filed before Special Tribunal. It would be profitable to reproduce hereunder paras 1 to 2 of reply to show cause notice and paras 2 to 3 of memorandum of appeal:- 1. That I am the owner and in physical possession of a piece of proprietary land measuring 20'ft by 25'ft falling under survey No. 1579 situated at Donipora Shariebhat Alamgari Bazar Srinagar Kashmir upon which I have one year before constructed single roomed two storeyed residential house with plinth area 08'ft by 18'ft area. 2. That the said construction is complete in all respects and the same took more than twenty days to complete it and while raising such construction of two rooms, none of the nearby resident are aggrieved as I have constructed the said two storeyed two rooms by fowling the BOCA Rules and regulations strictly as I have constructed the said construction by raising blind walling on one side of the said house as such no one in the locality has got effected by such constructions. 10. That the brief facts which lead to filling of the instant appeal is that the appellant is the actual owner, in physical possession of a piece of proprietary land measuring 20' X 25' falling under survey No. 1579 situated at Doonipora Shariebhat Alamgari Bazar, over and upon which the plaintiff has raised single roomed three storeyed house for residential purposes of the sizes of 08' X 18' plinth area (hereinafter called the "said property"). 11. That appellant raised the said construction some more than one year back and has been putting up in the said house along with his family members. The land over and upon which the appellant has raised the said house is owned land and does not belong to any neighbours or State land. 12. For the reasons discussed no ground is made out to over-set the order of the Tribunal dated 11.02.2011 impugned in the petition. 13. Petition is accordingly dismissed along-with CMP(s) if any.