ORDER Brief facts of the case is that appellant is owner of a building situated at 81-A/D Gandhi Nagar, Jammu and the building has been let out to Mrs. Bhavna Sharma for running up a Coaching Centre under the name and style of A.K. Vidhya Mandir Coaching Centre for imparting education to the students in Jammu through the medium of delivering lectures. The said institute after obtaining the premises on rental basis, has made necessary internal changes for the class rooms/Cabins, reception etc. In addition to this institute has also deployed security guards for management and effective control of the institute. These security guards also regulate the parking etc. The institute on its own has already declared that no parking shall be permissible within the 100 mtrs. of the premises so that no congestion of traffic takes place. In A/D Block Gandhinagar Jammu many educational institutes, private public schools, banks, furniture shops, are in existence and functional for quite considerable period and details of these commercial activities existing in the said vicinity have been duly reflected in photographs. Photographs of site plan duly prepared by draftsman of all the institutions, schools and other commercial activities etc. for the ready reference collectively annexed and marked as Annexure-"A". These activities have been permitted in the said area and Gandhi Nagar area has come under the mixed zone and is no longer a residential area as earlier earmarked in the master plan. Appellant received a show cause notice bearing NO. MJ/CEO/601 dated 8th Feb., 2011whereby it was alleged that the opening of the coaching centre shall lead to the violation of land use from residential to commercial besides being inconvenient to the residents of the locality. After receiving of show cause notice, appellant herein replied comprehensively and duly received by the respondent on 12.2.2011. Subsequently respondent issued the impugned notice bearing No. MJ/CEO/601/3/2011 dated 22.03.2011 u/s 7 (3) of the control of Building Operation Act 1988. Impugned notice is annexed as Annexure-"D" 1. Impugned notice is nonest, void ab initio and without jurisdiction. After receiving of show cause notice, appellant herein replied comprehensively and duly received by the respondent on 12.2.2011. Subsequently respondent issued the impugned notice bearing No. MJ/CEO/601/3/2011 dated 22.03.2011 u/s 7 (3) of the control of Building Operation Act 1988. Impugned notice is annexed as Annexure-"D" 1. Impugned notice is nonest, void ab initio and without jurisdiction. Bare perusal of the statutory provisions makes it evident that the authority can exercise the powers only in the event of erection or re-erection of any building which has been commenced or is being carried on or has been completed without permission referred to in section 4 or in contravention of any condition subject to which any permission has been granted. Since there is no allegation of any violation of building permission against the appellant herein, issuance of impugned notice is without jurisdiction. 2. That the rapid growth in Jammu city, various areas which although were earmarked as residential area but have been converted into mix zone wherein residential as well as commercial activities have taken place. AD block of Gandhinagar is one of such areas which has become mixed zone due to various developments. Respondents can not initiate the alleged action by pic and choose method against the appellant simplicitor. Admittedly, neither any show cause notice nor any final notice has been issued against any of other intuitions, owners of various organizations etc. who are already running these activities in the vicinity since long. 3. The issue with respect to the change of land use in residential areas which are previously earmarked as residential areas but with the passage of time has come under mixed zone for residential, commercial, light industrial and other uses has been adjudicated upon the Hon'ble Supreme Court in Kewal Krishan Gupta v. J&K Special Tribunal and others reported in AIR 2005 SC 2578 : 2004 (2) JKJ HC-443 (DB). Para 16 is reported hereunder: 16. Finally, apart from these reasons for which the impugned judgment is liable to be faulted, our attention was drawn by the learned counsel for the appellant to notification dated 9.8.2004, SRO- 263 issued by the Commissioner and Secretary to the Govt. of Jammu and Kashmir by which the master plan for Jammu; 2021 has been published. Finally, apart from these reasons for which the impugned judgment is liable to be faulted, our attention was drawn by the learned counsel for the appellant to notification dated 9.8.2004, SRO- 263 issued by the Commissioner and Secretary to the Govt. of Jammu and Kashmir by which the master plan for Jammu; 2021 has been published. Paragraph 6.9.11 at page 81 of the said master plan specifically provides that B.C. road area is earmarked as special area to be developed as a mixed used zone having residential, commercial, light industry, institutional and other uses. The phase of rapid growth of industrial development also make it unnecessary for permitting demolition of the structure even if it be in contravention of the provisions of the Act or the zone provisions in the previous master plan. Considered from all angles, it appeared that the High Court need not have taken an activist role in directing demolition of the offending structure which had been permitted to be compounded by the competent authority namely, the Tribunal. 4. Appellant has also submitted a detailed reply of the show cause notice despite that respondent has issued the impugned notice without recording any reasons and in case there is any violation of the municipal laws, the appellant seek the compounding of the same on the payment of appropriate compounding fee. Respondents have failed their objections and it has been stated that appellant has converted residential building into commercial one by opening a coaching centre under the name and style of A.K.Vidhya Mandir without obtaining the permission from JMC. The appellant has violated the provisions of J&K Control of Building operation Act 1988 and by laws and master plan. The details of the violation has been given in para-4 of the written objections reproduced hereunder for ready reference: Para 4 That the appellant has committed the violation as he has not obtained the permission from JMC for running Tutorial in a purely residential area which is mandatory as per law. The appellant has also not kept the parking space for the purpose of parking the vehicles. Thus the appellant has violated the provisions 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 master plan As per site Quantum of violation In sft. %age 1. Plot area 7293 Sft. 2. Thus the appellant has violated the provisions 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 master plan As per site Quantum of violation In sft. %age 1. Plot area 7293 Sft. 2. Coverage 33% a)Ground floor 2406 Sft. 1838 sft. Nil Nil 3. Front set back 40'-0" 38'.0" 2'.0" 5% b) Rear set back 10'.0" Plot sold out c) side set back 10'.0" 9'-9" 0"-3" 2.5% Other side 10'.0" 30'.0" Nil Nil 4. a) Land Use Residential Institutional 5. Height 40'-0" 19'-0" Nil Nil 6. FAR 99 25.2 Nil Nil 5. That the total violation committed by the appellant is as under: Total plot area -- 7293 Sft. Violation at ground floor -- 2406 Sft Total violation. -- 2406 Sft. (Commercial/Institution) 6. Learned counsel for the appellant has argued that the notices issued by respondents on 8.2.2011 and 22.3.2011 were not in accordance with the law. Under SRO-64 dated 16.2.2010, Master plan has been amended and Uses permitted under zoning Regulations given in para 8.2 which is reproduced hereunder: USES PERMITTED: Dwelling of all types guest houses, boarding houses, dharma-shall as, night shelters, nurseries, kindergartens, schools, education institutions, clinics, libraries, parks and playgrounds, golf courses, green houses, religious buildings, centers/Janjghars, swimming pool for community use, professional establishments, satisfying the requirements of Customary occupation and private nursing homes, convenience local shopping, recreational uses including clubs, gyms etc ancillary uses clearly incidental to residential uses except service uses which will create pollution, nuisance and hazard. 7. Residential use in designated area of old city. 8. The designated area of old city shall comprise of the congested part of the special area come indicated in the approved Master Plan of Jammu City. It is bounded on its west side by B.C.Road, on south side, it will extend right up to river Tawi, on its east side is the tawi river edge right up to Panjtirthi and on its northern side link road from BC Road via Vaid Mandir Complex to Radio Station. In essence it shall comprise of the densely populated mohallas of old city. 9. Residential use in this area up to plots measuring 350 Sq.mts shall be regulated as under: Ground coverage permissible 70% No. of storeys .. Ground+2 10. In essence it shall comprise of the densely populated mohallas of old city. 9. Residential use in this area up to plots measuring 350 Sq.mts shall be regulated as under: Ground coverage permissible 70% No. of storeys .. Ground+2 10. No building whether residential, commercial or institutional shall be allowed on lands with more than 30% slope. 11. Further argued that respondents were not competent to issue the show cause notice as well as final notice to the appellant under BOCA because the appellant was not raising a new construction, provision of section 7 can be invoked when there is violation of section-4 of the control of building operation Act for a ready reference . Section 4 is reproduced hereunder; No person shall undertake or carry out the development of any site in any Municipal area, Local area, Notified area or area notified under the Jammu and Kashmir State Town Planning Act, 1963, or erect or re-erect any building or make or extend any excavation or lay out any means of access to a road in such area except with the Previous permission of the authority concerned in writing. 12. Learned counsel for the appellant has further argued that there is no violation of the BOCA Act of the Master plan and in support of the arguments, learned counsel for the appellant has referred a judgment reported in 2006 (3) JKJ HC-526 titled Building Operation Authority v. Jyoti Singh, Para no. 11 and 12 of the judgment is reproduced hereunder; 11. A reading of the aforesaid clause depicts that private nursing home is also considered to be a permitted uses in the residential area. Not this only this even convenience shopping and local shopping as also the professional establishments are allowed. Even it is presumed that the area is totally residential, establishment of Nursing Home is permitted in the residential area. Respondents no . 1 is using the premises as a Nursing Home/Clinic which also comes within the definition of professional establishment and for the benefit of the local population, What is prohibited under 1988 Regulations is provided under these regulations which read: Appeals (1) An appeal against the order of 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. 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 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. 12. Under the afore mentioned regulation a construction will be deemed to be a minor construction if it does not violate the approved land use, permissible , front, rear or side set backs more than 10% of the permissible grounds coverage and permissible height. In view of the new master plan as notified vide SRO 263 dated 9.8.2004 a professional establishment. Nursing Home can be established in residential area under clause 8.2 of the master plan. Though commercial activity is permissible in this area in terms of clause 6.9.11 of the aforesaid master plan, as notified above. There is no violation of land use. The permission having been granted for construction at the first floor, the violation of front or rear set back or 10% of the ground coverage is irrelevant. It is not the case of the respondents that three is any violation of permissible height. 13. Learned counsel for the appellant further argued that it is admitted by the respondents that premises at 81 A/D at Gandhinagar Jammu has been let out to A.K.Vidhya Mandir for opening of a Coaching Centre whereas notice u/s 7 clause (3) of J&K has been issued contrary to the show cause notice as the appellant was not raising the construction of a new building. The building was already in existence and the simple allegation against the appellant is that instead of using the building for residential purpose, appellant has let out to A.K. Vidhya Mandir for opening a Coaching centre and there is change in land use of the premises. 14. Keeping in view of the facts of the case and law cited here and above, in the present case there was no violation of section 4 of the BOCA Act and respondents have wrongly invoked of provisions of section 7 of Control of Building Operation Act. The impugned notice is not sustainable in the eyes of law. Accordingly, it is set aside. However, respondents are at liberty to take appropriate action against the appellant under relevant law. Appeal is allowed and disposed of accordingly. Record of the JMC be sent back alongwith order of copy and office file be consigned to records after due completion. Appellant is directed to file an undertaking for not using the premises for commercial purpose without permission.