ORDER 1. Appellant has assailed the order No: MJ/CEO/41/3/3013 dated 20.05.2013 passed by the respondent on the grounds that the order impugned against law, facts and position existing on spot. As such, same is not sustainable and deserves to be set aside. By virtue of impugned order appellant had been asked to demolish the construction whereas the appellant is the owner in possession of plot situated at Sector-2,Near Metador stop Channi Himmat Jammu and the area of the plot is 7500 Sft. And the appellant had raised the construction according to the permission as vide order No; 1000/BS/09 dt. 1.9.2009.As the building raised is a commercial one. Land of the area in question is commercial and permission is also sought for commercial purpose and while raising the construction, only minor deviation less then 8% has been done by the appellant. Before taking any decision against the appellant, it was obligatory on the authorities to serve a show cause notice u/s 7(1) Control of Building Operation Act, 1988 which is indispensible condition for holding further proceedings and directing the defaulter to demolish the unauthorized construction which is lacking in the present case and the proceedings initiated against the appellant deserves to be set aside. As the appellant have been deprived of an opportunity as being heard. Further stated that appellant has not committed any violation of the provision of the Act or any bye-laws , but the respondents had issued the impugned order in a mechanical manner. The notice does not described exact spot the exact spot/location of the property and impugned notice is stereo type and only repeating the language of Control of Building Operation Act and no notice can be served unless requirements are not fulfilled. As per impugned order, respondents have mentioned the nature of violations i.e. 1.58% at ground floor, 3.18% at Ist floor 26.6% at 2nd floor and 26.6% at 3rd floor and same is compoundable as per Regulation of J&K Control of Building Operations 1998. Appellants has raised the walls on the other side, it is loose soil and there is every possibility of collapsing of the building. 2. The respondents have filed the detailed objections That the appellant was permitted to raise the commercial construction vide plan no. Appellants has raised the walls on the other side, it is loose soil and there is every possibility of collapsing of the building. 2. The respondents have filed the detailed objections That the appellant was permitted to raise the commercial construction vide plan no. 1000/BS/2009 dated 1.9.2009 at Sector-2, Near Matador Stand, Near Channi Himmat, Jammu and relevant para, 4 and 5 are reproduced hereunder for ready reference: 4- That the appellant has not maintained the proper set back as approved by JMC thus committed major violation of master plan as well as the permission granted by the JMC. The appellant has violated the provision of J&K Control of Building Operation Act, 1988 and J&K Control of Building Operations Regulation, 1998. The appellant has made following violations. These are: S.No. Particulars As per permission As per site As per site Quantum of violation In sft. %age 1. Plot area 7500 sft 2. Coverage a) Basement 4126 sft 4576 sft. 450 sft. b) Ground floor. 2943 Sft. 3062ft. 119 Sft. 1.58% c) First Floor 2943 Sft. 3182 Sft. 239 Sft. 3.18% d) second floor 2943 sft. 3182 sft. Sft. 239 Sft 3.18% e) third floor 2400 sft 3057 Sft. 657 Sft 8.76% 3. a) Front set back 22'-101/2'" 22'-101/2'" Nil Nil b) Rear set back 16'-0" 13'-6" 2'-6" for part 26% for part c) side set back 12'-0" 2'-6" for part 10'-0" 83% for part Other side 12'-0" 12'-0" Nil Nil 4. a) Land Use Commercial Under construction b) Height 46'-6" c) FAR 149.72 166.44 16.72 11.16% 5. That the total violation committed by the appellant is as under: Total plot area -- 7500 Sft. Violation at basement -- 450 Sft. Violation at ground floor -- 119Sft. Sft Violation at first floor. -- 239 Sft. Violation at second floor. -- 239 Sft. Violation at Third floor. -- 657 Sft. Total violation. -- 1704 Sft. 3. And para 4 of the objections, appellants had obtained the permission from the respondent for raising the construction for commercial purpose. And as per permission appellant was under obligatory to raise the construction at the basement: 4126 Sft, ground floor :2943 Sft. First floor:2943 Sft., 2nd floor: 2943 and 3rd floor 2400Sft. 4. But as per site appellant had constructed basement: 4576 Sft.: ground floor: 3062 Sft., First floor:: 3182, second floor:3182 Sft. And 3rd floor 3057 Sft. And as per permission appellant was under obligatory to raise the construction at the basement: 4126 Sft, ground floor :2943 Sft. First floor:2943 Sft., 2nd floor: 2943 and 3rd floor 2400Sft. 4. But as per site appellant had constructed basement: 4576 Sft.: ground floor: 3062 Sft., First floor:: 3182, second floor:3182 Sft. And 3rd floor 3057 Sft. And there is no violation of front set back, whereas as per respondent, there is violation of 2'.6" and on the side set back, there is violation of 10' and a total violation shown against the appellant is 1704 Sft. 5. Learned counsel for the appellant has argued that as per the violation shown to be committed by the appellant is below 10% of the area constructed and it falls within the ambit of Regulation II and there is no major violation and case of the appellant deserves to be compounded and appeal be accepted. 6. In support of the arguments, Learned counsel for the appellant have referred a judgment reported in 2012 (2) JKJ T-19 titled S.L.Nagpal v. Building Operation Controlling Authority Jammu decided on 3.4.2012 and rule-10 and 11 of the COBO Regulations are necessary for deciding the matter. These are as reproduced hereunder: 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 compounding fee shall be worked out on the basis of rates to be notified by the Government. 11. The appellate authority may compound an offence of a minor nature specified in sub clause (2) of these regulations: Provided that 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 building which has taken place in violation of permission referred ion 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 as prescribed in the bye-laws; and (iv) does not violate the permissible height of the building as prescribed in the bye-laws. 7. On the other side learned counsel for the respondent had argued that the appellant has committed gross violation of the sanctioned plan and appeal of the appellant deserved to be dismissed and respondents authorities be permitted to demolish the construction raised by the appellant in utter violation of the sanctioned plan. No doubt, while raising the construction by the appellant, minor deviation have taken place and in case the appeal of the appellant is not accepted, it will put the appellant in trouble. Whereas the authorities were under obligation to check the site at first hand and stop the appellant from raising the construction. When the appellant had completed the construction, the respondents authorities choose the mode to issue the impugned notice for demolition of the building. 8. Learned counsel for the appellant has further argued that if the respondent had taken the steps in time and had stopped the appellant, the appellant would have never invested the huge amount for raising construction. Appellant has raised the construction on his own area and there is no any sort of encroachment either on the private land or in the State land. 9. I have heard and perused the file. Appellant has raised the construction on his own area and there is no any sort of encroachment either on the private land or in the State land. 9. I have heard and perused the file. In view of the judgment OWP No. 778/05 decided on 22 April, 2006 titled Building Operation Controlling Authority v. Jyoti Singh, Hon'ble High Court has observed the extent and quantum of construction as no relevancy to ascertain whether, it is a major or minor violation. When there is no violation of the regulation, Regulation in so far as the land use, height and ground coverage and front and rear set back is concerned and compounding of encroachment is not legal. This observation came in a OWP . 778/95 decided on April,26, 2006. In the present case the deviation which have taken while raising the construction by the appellant are minor in nature. Construction raised by appellant has not been shown in contravention of prevention of Ribbon Development Act. or Master plan. Case of appellant falls within an ambit of regulation-II of Control of Building Operation Regulations 1998. Accordingly appeal is accepted. Case of the appellant is compounded @ Rs. 75 per Sft. And compounding fee comes to 1704X75=1,27,800/-. Appellant is directed to deposit Rs. 1,27,800/- with the respondent within a period of 2 months from the date of order. In case of failure , the respondents are at liberty to take the appropriate steps. 10. Record file of the respondent may be sent back and office file shall consigned to records after due compilation.