1. This appeal has been directed against the order No. MJ/Estt/CEO/970 dated 31.7.2009 passed by respondents, by virtue of which appellant has been asked to demolish the unauthorized construction raised at house no.340 exchange road Jammu, within a period of five days from the date of the service of the notice. 2. Appellant has challenged the order impugned on the grounds that, order impugned is against law and facts and suffers from material illegalities and irregularities. That order neither specifies the alleged khilafwarzi nor gives the details of the alleged khilafwarzi carried by the appellant while raising the construction. That the appellant got the site plan sanctioned from the Municipal Authorities somewhere in 2005 and completed the construction by the end of 2006 and that time no objection was raised by the JMC. That the appellant has not violated any set back as is alleged by the respondents. That the ground floor and first floor of the building already existed in which only renovation was carried as per sanctioned site plan. 3. It has further been mentioned in the memo of the appeal that, when the appellant had gone abroad in connection with his official duties and this fact was known to the respondents, but the respondents deliberately have chosen to initiate the action in absence of the appellant. Thus the order on the face of it illegal, unwarranted and is not in accordance with the law. 4. That the appellant has not changed the land use as no school is functioning in the first floor of the building nor has any school been opened, but a crhche has been opened, where children up to the age of 3 years are kept during day time, that does not fall with in the purview of the school. That no prior notice before passing the order impugned was served upon the appellant as the appellant had left the in the last week of June 2009 and came back to India in the month of August, 2009, so the order impugned has been passed behind the back of the appellant and has been passed in gross violation of the principles of natural justice. 5. Notice of this appeal was issued to respondents. 5. Notice of this appeal was issued to respondents. Respondents have appeared and filed the objections stating that appellant was permitted vide Building Permission No. 458/BS/04 dated 31-3-05 to construct 1st floor of residential house consisting of one room, toilet, lobby, kitchen, W.C trace and stair case with built up area of 937 sft over an area of 2023 sft of the plot. 6. That instead of that, appellant has constructed five rooms, toilet and corridor and stair case against the approved plan. That appellant has covered 1664 sft instead of 937 sft of the plot area. That the appellant has to keep 10'-6" front set back and 8' rear set back. The appellant has covered these set backs with construction. That The appellant has violated the violated the provision of the sanctioned plan, J&K COBO Act, and J&K COBO Regulation and prescribed bye laws and Master. 7. That the land use of this pocket is special area where both residential and commercial activities area allowed but the appellant was permitted to raise the construction of residential Building, while he is using the building for commercial purpose by running a school in the name and style of play way school. 8. That the built up area raised unauthorizedly has been worked out as under:- Total Area = 2023 sft S.No. Specification Sanctioned Area Constructed Area Violation 1. Construction on the first floor 937 sft 1664 sft 727 sft 9. During the pendency of appeal one Deepankar Manhas filed an application for impleading him as a party but on 30-5-2011, that application was withdrawn. 10. I have given my thoughtful consideration to the whole aspect of the matter and perused the record and memo of the appeal. In the present case, it is fact appellant was granted permission for raising construction on first floor by respondents vide permission no. 458/BS/04 dated 31-3-05, in the shape of one room, toilet, Lobby, Kitchen W.C Terrace and stair case total area of 937 sft. 11. Now, when notice impugned was issued, appellant had already raised the construction and constructed excess area thereby covering 1664 sft instead of 937 sft. In this way 727 sft has been raised in excess on first floor. 12. 11. Now, when notice impugned was issued, appellant had already raised the construction and constructed excess area thereby covering 1664 sft instead of 937 sft. In this way 727 sft has been raised in excess on first floor. 12. Now the question arises for the adjudication whether the violation committed by appellant can be compounded or not and secondly, whether running of crhche as mentioned in memo appeal fall in the category of commercial activities. 13. Firstly, I will deal with violation in the shape of excess construction of an area of 727sft raised by the appellant. It is a fact that at this moment, construction has been completed and respondents did not take any action, when the construction was in progress, now they have missed the bus. Had the respondents been so vigilant and honest, then construction should have been stopped at the initial stage. If at this stage, violation in the shape excess construction raised by the appellant is demolished, definitely appellant shall suffer irreparable loss. 14. Secondly, it has been admitted by the respondents that, this area is a mixed zone where the commercial as well as residential activities are allowed. Further as per Master plan 2021, in residential area certain activities are permitted. 8.2 Permissible Uses: The uses permitted in the various land use zones and permissible on approval by the Competent Authority are given as under. The area of basement shall not be counted in FAR if used for parking and storage. Mezzanine shall be taken into floor area ration. RESDENTIAL 8.2 (a) Use Permitted: Dwellings of all types, guest houses, boarding houses, dharamshala, night shelter, rooming houses, rooming houses customary home occupation, schools offering general educational courses, libraries, parks, playgrounds, golf courses, nurseries, green houses, and general purpose farms, churches, temples, mosques and other religious buildings, clubs, cultural and philanthropic associations of non-commercial nature, swimming pools for community use, professional establishments satisfying the requirements of some customary occupations and private nursing homes, convenience shopping, local shopping. 15. So it can be inferred from above clause of master plan that in residential area activities of schools offering, general educational courses are allowed. 16. Our Hon'ble High Court in OWP No. 778/05 in case title Building Operation Controlling Authority Municipal Corporation Jammu through Commissioner Jammu Municipal Corporation, Town Hall Jammu Versus 1. Smt. Joyoti Singh S/o Dara Singh R/o Rehari Colony, Jammu. 2. 16. Our Hon'ble High Court in OWP No. 778/05 in case title Building Operation Controlling Authority Municipal Corporation Jammu through Commissioner Jammu Municipal Corporation, Town Hall Jammu Versus 1. Smt. Joyoti Singh S/o Dara Singh R/o Rehari Colony, Jammu. 2. J&K Special Tribunal Jammu has held that establishments narrated in user permitted in clause 8(2) of Mater Plan 2021 are considered to be permitted in residential area. 17. In this case Hon'ble High Court was dealing with opening Nursing Home in residential area. 18. Further creche or day play school for small kids cannot be termed as school in real sense, because no formal education is provided to kids. 19. In view of what has been discussed above, i think permitting demolition at this stage; will not be just and proper. 20. Therefore keeping in view the facts and circumstances of the case, I allow the appeal of the appellant and compound the violation of 727 sft as reported by the respondents. Appellant is directed to pay Rs. 30/- per sft. as compounding fee for an area of 727 sft. to the respondents within a period of 2 months from today. 21. The file of this court be consigned to record after due completion