1. This appeal has been directed against the Notice/Order MJ/Esstt/46/3/CEO/06, passed by respondent No. 3 dated 19-09-2006, by virtue of which the appellant has been directed to demolish the construction raised at channi himat jammu, within period of five days from the date of notice. 2. The appellant has challenged the impugned notice on the grounds that, the appellant is owner in possession of land falls in khewat no. 2 Khata. No. 146/155 situated at Channi Himmat, Jammu and has constructed his house on the said land and the appellant has made some minor repairs earlier and no new construction has been raised. 3. That the appellant has further stated that the, no notice prior to notice dated 19/06/2006 was ever served upon the appellant to explain his position and directly notice impugned served upon the appellant, which is against the principle of natural justices and the order impugned is against the provisions of law and is required to be set aside. That the appellant has not violated any provisions of the Municipal Act and J&K COBO Act, as such the order impugned has been passed maliciously, illegally and without any basis and is liable to be set aside 4. That the appellant has not raised any construction or made any major repair to be existing structure but has only made minors alteration, which do not come within the preview of construction. That no effective hearing has been given to the appellant after serving of show cause notice as the factual potions has been brought in to the notice of the respondents but the respondents with a pre determined mind issued the impugned order which shows the bias in the mind of the respondents. 5. That the notice impugned is also required to be set side on this ground that the respondents have mentioned the wrong address of the appellant and the said land is not property demarcated in the said notice. 6. Notice of this appeal was issued and served to the respondents. Respondents, have appeared through their counsel and has filed objections stating therein. That the appellant had constructed one bed room, two toilets, pooja room, looby, drawing, store, kitchen, porch and two stair case at the ground floor without any permission from the authority. 6. Notice of this appeal was issued and served to the respondents. Respondents, have appeared through their counsel and has filed objections stating therein. That the appellant had constructed one bed room, two toilets, pooja room, looby, drawing, store, kitchen, porch and two stair case at the ground floor without any permission from the authority. The appellant has further raised the construction 0f three rooms, two toilets, store, pooja, lobby, verandah and stair case at first floor without obtaining any building permission from the authority though the notices were issued fro the first floor but the appellant did not produce any building permission of the ground floor indicated that the ground floor raised unauthorized. The appellant has violated the provisions of J&K Control of Building Operation Act, 1988, J&K Control of Building Operation Regulation 1998 and Master plan, prescribed building bye-laws. 7. That the appellant has to keep 16"-6' front set back, 10' side set back at one side and 10' rear set back aper the norms. But on spot the appellant has kept 11' front set back, partially 2'-6- side set back and the rear set back the appellant has covered with construction. As per Regulation 11 of J&K COBO Act 1988 and J&KCOBO Regulation 1998 the violation of the set backs is major in nature and cannot be compounded. The appellant has violated the provisions of set back by covering it with construction. Hence committed major violation which cannot be compounded. 8. That the built up area raised unauthorizedly has been worked out as under:- Total plot area = 2514.5 sft Built up area at G. Floor = 1682 sft. Built up area at 1st Floor = 1682 sft 9. I have given my thoughtful consideration to the whole aspect of the matter and have also gone through the record available. 10. Counsel appearing for the respondents has stressed upon that the appeal of the should not be allowed and respondents be allowed to demolish the house of the appellant. 11. On the other hand counsel appearing for the appellant stated that the no new construction has been raised by the appellant, only some minor repairs have been done. 12. I have considered rival contention of both the parties and gone through law governing the matter. 13. 11. On the other hand counsel appearing for the appellant stated that the no new construction has been raised by the appellant, only some minor repairs have been done. 12. I have considered rival contention of both the parties and gone through law governing the matter. 13. Title of land has been proved, because photo copy of revenue record intaqual ( mutation ) reveals that appellant is owner of land. Even otherwise title has not been disputed by respondent. 14. Now next question arises, as to whether construction or Khailfwarzi is minor or major in nature. 15. Rules 10 and 11 of COBO.REULATIONS are necessary for deciding the matter. These reads as under:- 10. Appeals (1) An appeal against the order of the Authority made under section 5 and 7 of the Act shall lie before the Chairman of the J&K Special Tribunal or such other Member of the said Tribunal as may be decided by the same Chairman. 11 The Appellate Authority may compound an offence of a minor nature specified in sub clause (2) of these Regulations; Provided that the compounding fee shall be worked out on the basis of rates to be notified by the Government. (2) For the purpose of these Regulations an offence of a minor nature shall include any erection or re-erection of the b building which has taken place in violation of permission referred in section 4 of the Act or deemed permission as referred in Sub-clause (2) of clause (7) of these Regulations provided that such erection or re-erection: (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 set backs prescribed in the bye laws: (iii) does not violate by more than 10% the permissible grounds coverage a prescribed in the bye laws : and (iv) does not violate the permissible height of the building as prescribed in the bye laws. 16. Bare perusal of these regulations, it is evident that, this Court can compound construction /Khailfwarzi of minor in nature. 16. Bare perusal of these regulations, it is evident that, this Court can compound construction /Khailfwarzi of minor in nature. For the purpose of offence of minor in nature with regard to construction, so raised in violation section- 4 COBO Act, means that construction, shall not violate the approved land use of area as notified in Master plan or Town planning Scheme, secondly it does not violate permissible front rear or side set back prescribed in bye-laws and thirdly it does not violate more than 10% permissible ground coverage as prescribed in the bye-laws and lastly does not violate permissible height of building as prescribed in bye-laws. 17. As per report land use in area is residential and construction raised is also residential, so there is no violation with regard to first regulation. 18. As per report, appellant was to keep 16.6 feet front set back, whereas appellant has kept 11 feet. Secondly appellant was to keep 10 feet side set back, whereas, he has partially 2.5 feet. Lastly appellant was to keep 10 feet rear set back, whereas appellant has covered. 19. Generally set back are required to be kept on ground floor and these are not necessary for first floor and thereon, unless a grave violation has been performed. 20. Ground floor, in present case is already existing and show cause notice, which is basic for issuing final notice, also does not mention about construction of ground floor. 21. Counsel for respondent has stated that ground floor has also been constructed without permission. I have also gone this aspect of matter, Section 7 of BOCA reads as under; -- 7. Order of demolition of building in certain areas (1) Where the erection or-erection of any building has been commenced or is being carried on or has been completed without the permission referred to in section 4 or in contravention of any condition subject to which any permission has been granted, the Authority shall issue a notice in writing calling upon the person to show cause within a period of 48 hours, why the building should not be altered or demolished as may be deemed necessary to remove the contravention. (2) The Authority shall cause the notice to be affixed on the outer door of some conspicuous part of the building whereupon the notice shall be deemed to have been duly served upon the owner or the Occupier of the building. (3) If the person to whom the notice has been given refuses or fails to show cause within a period specified under Sub-section (1) or if after hearing that person, the Authority is satisfied that the erection or re-erection of the building is in contravention of the provisions of this Section, the Authority shall be order direct the person to demolish after or pull down the building is in contravention within a period not exceeding five days as may be specified in the order and if the person fails t o comply with the direction, the Authority may itself cause the erection or re-erection to be demolished after the expiry of the said period and may for that purpose use such police Force as may be necessary which shall be made available o him by the Police Department on requisition. 22. Bare perusal of above said section, it is evident that before issuing any final notice of demolition, a show cause notice has to served. So a show cause notice, thereby informing the defaulter about detail of violation committed by him is sine qua for issuing final notice of demolition of illegal construction. In this way final notice should be based upon facts narrated in show cause notice. 23. In present case, perusal of show cause notice reveals that, fact of construction raised at ground floor has not been mentioned. So construction raised at ground floor cannot be taken note in present appeal. For this purpose, Respondent may proceed according to law against appellant. 24. In term of regulation iii, appellant was to cover 60% of ground while raising construction on first floor, whereas, appellant has covered 67%. As per this regulation 10% of excess ground coverage is termed as minor. So appellant can cover 66%. In this way appellant has covered 1% more than, what can be termed as minor offence as per regulation 11 of the Act. 25. With regard to regulation iv, regarding height, there is no violation. 26. In the present case, construction has already been completed; authorities of the respondent have remained mum, till the construction is completed. In this way appellant has covered 1% more than, what can be termed as minor offence as per regulation 11 of the Act. 25. With regard to regulation iv, regarding height, there is no violation. 26. In the present case, construction has already been completed; authorities of the respondent have remained mum, till the construction is completed. Had authorities been so honest and vigilant, the construction would have been stopped at very initial stage.. In case at this stage, excess violation in term of regulations 11 of act, is allowed to be demolished, appellant shall suffer loss in term of money as well mentally. At present law of equity demands that construction should not be demolished. 27. Further in case titled Kewal Krishan v. J&K Special Tribunal AIR 2005 SC 2578 , the Apex Court has held at Para no.16 held that, it is unnecessary permitting demolition of the structure even if it be in contravention of the Act or zoning provision. 28. Therefore, keeping in view the facts and circumstances of the case, Violations committed by raising construction on first floor by appellant can be termed as minor in term of regulation 11, these can be compounded. Appeal of the appellant is thus allowed. Appellant is directed to pay Rs. 40 /- per sft. as compounding fee for an area of 1682 sft. to the respondent, within a period of 2 months from today. After deposit of compounding fees, construction shall be deemed to be regularized. In case fees is not deposited as per this order, than respondent may proceed under law against appellant. Record along with copy of order be sent back. The file of this court be consigned to record after due completion