JUDGMENT : Ramesh Kumar Wattal, Member (Judicial) In this appeal the appellant is aggrieved of the order No. JMC/CE0/260/3/2015 dated 11-09-2015 passed under section 7(3) of Control of Building Operation Act by the respondent No.1, whereby the appellant was directed to demolish the construction/violations as indicated in the order within 5 days of the service of the order. The said notice was received by the appellant on 11-01-2016. 2. That the appellant is owner in possession of building situated at Janipur Housing Colony, Jammu and the first floor of the aforesaid building was being used for commercial purposes and the same was constructed in the year 2014 by removing tin shed by the appellant. Thereafter the appellant has raised construction of the first floor. Vide Agreement to sell dated 16-10-2014 the appellant has purchased the leasehold rights of the aforesaid JDA plot measuring 25' X 50' from the lessee in whose favour the lease deed was executed in his favour. 3. That before issuing the order impugned no notice as required under section 7(1) was ever served upon the appellant, however, in the order impugned the respondent has depicted and portrayed the same and only a notice under section 7(3) was served to the son of the appellant. The appellant has not committed any violation of any sort. It is further submitted it is the mandate of law that when a person has been served with a show cause notice under sub-section (1) of section 7 of the Act asking him to show cause as to why the contravention or unauthorized construction be not removed or altered. The authority is required to pass an order of demolition U/s 7(3) of the Act only (i) after hearing that person and (ii) on being satisfied that the erection or re-erection of the building is in contravention of the provisions of section 3 or 7 of the Act. Then and then only the authority shall order the demolition and not by giving a latitude to the person to take such action. Then and then only the authority shall order the demolition and not by giving a latitude to the person to take such action. It is therefore imperative on the BOCA serving a notice U/s 7(1) of the Act that he must served a notice, thereafter if any reply is given shall considered the same and record its satisfaction but in the present case no such notice was ever served upon the appellant and the proceedings initiated are bad and required to be set aside as the law is very clear in this regard the aggrieved person must be informed before proceeding under section 7(3) of the Act, failing which the proceedings initiated are required to be quashed. 4. That the order impugned is vague apart from being illegal one and as such has been passed in a mechanical exercise of the power and in a rough shod manner. 5. That the appellant has not committed any violation of the provisions of the Act or any bye-laws but the respondent have issued the order in a mechanical exercise of the power in order to harass and humiliate the appellant. 6. That the order impugned has cast a shadow of cloud on the rights of the appellant as a potential threat of demolition has been given to appellant, as he has been asked to demolish the alleged unauthorized construction within a period of five days from the receipt of the notice failing which the same shall be demolished at the risk and cost of the appellant. The notice is punitive in nature and is not sustainable. 7. That the order impugned has not been passed in consonance with the provisions of COBA Act and law is clear on this issue that a particular thing is to be done in particular manner then the same should be done in prescribed manner or should not be done at all. The order impugned is bad in view of non compliance of the provisions of law. 8. That the notice is quite vague, as it does not describe the exact spot/location and the property. The notice is a stereotyped one only repeating the language of Control of Building Operation Act and no action can be taken until and unless the requirement of law is fulfilled by making a proper service upon the appellant. 8. That the notice is quite vague, as it does not describe the exact spot/location and the property. The notice is a stereotyped one only repeating the language of Control of Building Operation Act and no action can be taken until and unless the requirement of law is fulfilled by making a proper service upon the appellant. It is further submitted that the notice impugned does not disclose even as which part of the property and at what place and its location the construction is bad and requires to be removed. No such particulars has been given in the notice impugned which smacks of arbitrariness and mechanical exercise of the powers on the part of the authorities in order to harass and humiliate the appellant. 9. That the appellant being aggrieved of the same and therefore challenged the order on the following grounds; (i). That the order impugned is contrary to the facts of the case and position existing on spot. (ii). That the appellant has not indulged in any violation of any of laws in raising construction, therefore, order impugned deserves to be set aside. (iii). That the order impugned is patently illegal, vague, in as much the same does not specify as to which part of the construction is bad which effects the plan development of city and contravene the zoning regulation. (iv). That the order impugned is nothing but a colorable exercise of the powers, the order impugned is passed in a rough shod manner and without application of mind and without providing opportunity of being heard thus the order is required to be set aside. (v). That the respondent have got no competence under the Control of Building Operations Act, 1988 to serve the notice impugned by invoking powers under the said Act. The Act under which the respondent's authority was constituted stood repealed without any saving clause, thereby rendering no competence with the respondent to usurp the powers under the Control of Building Operations Act, 1988. (vi). That the impugned notice does not spell any violation regarding any kind of construction, re-erection on the subject matter least to talk of any violations of the Building Bye Laws. In absence of such allegations the impugned notice is ill conceived and only aimed at harassing the appellant for unknown reasons. (vii). That the appellant has made only white wash and minor alteration in the said building. In absence of such allegations the impugned notice is ill conceived and only aimed at harassing the appellant for unknown reasons. (vii). That the appellant has made only white wash and minor alteration in the said building. Moreover the building of the appellant in the same alignment of the other building of the locality. 10. That the Hon'ble High Court of Jammu and Kashmir in a case titled BOCA v. Jyoti Singh and Anr. in OWP No. 778/2005 has held that the area from B.C. Road to Janipur is commercial area and the same can be used for commercial purpose. Since the area situated at Janipur as such the same can be used for commercial purpose as per the judgment of the Hon'ble High Court. 11. If there is any violation the same may kindly be compounded in the interest of justice and prayed that the appeal may very kindly be accepted and order impugned be set aside. On the other hand the respondents stated that the appellant has laid the slab over the existing pillar on the ground floor and also started the construction work on the first floor at Janipur Housing Colony, Jammu without permission from JMC, thus violated the provisions of Master Plan and J&K Control of Building Operations Regulation, 1998. Thus the respondent issued the show cause notice under section 7(1) and 12(1) of COBA on 11-08-2015 on the report submitted by the Enforcement Officer on 10-08-2015 to discontinue the operation of unauthorized construction. 1. That the appellant has not filed any reply to the notice under section 7(1) and 12(1) of COBA, therefore, the final notice/order under section 7(3) of COBA was issued on 11-09-2015 and served on 11-09-2015 to the appellant/ violator, wherein the violator was directed to demolish the unauthorized construction/violation as detailed in the notice/order under section 7(3) of COBA within five days, failing which the same would be demolished at his own risk and cost. 2. That the appellant has laid the slab over the existing pillar on the ground floor and also started the construction work on the first floor at Janipur Housing Colony, Jammu without permission from JMC. 2. That the appellant has laid the slab over the existing pillar on the ground floor and also started the construction work on the first floor at Janipur Housing Colony, Jammu without permission from JMC. The total plot area is 1385 sqft and the appellant had to cover 65% of the plot area that too with the permission of JMC but the appellant has covered 100% of the plot area at ground and first i.e. 1385 sqft at ground and first floor each and also raised the construction over the second floor of 51 sqft i.e. in the shape of a toilet. 3. That the appellant has committed the violation as he has not obtained the permission from JMC and also not observed the required set backs, thus the appellant has violated the provision of Master Plan, J&K Control of Building Operation Act, 1988 and J&K Control of Building Operations Regulation, 1998. The appellant has made following violations:- S. No. Particulars As per Master Plan As per site Qtm of violation IN SFT In %age 1 Plot area 1385 sqft 2 Coverage 65.00% (a) Ground Floor 900 sqft 1385 sqft 485 sqft 35.00% (b) First Floor 900 sqft 1385 sqft 485 sqft 35.00% (c) Second Floor 900 sqft 51 sqft Nil Nil 3 (a) Front Set Back 11'-6" & 5'-0" Nil 11'-6" 100.00% (b) Rear Set Back Nil Nil 5'-0" 100.00% (c) Side Set Back Nil Nil Nil Other side Nil Nil Nil Nil 4 Land Use Residential Commercial 5 Height 40'-0" 36'-0 Nil Nil 6 F.A.R. G+2 G+2 Nil Nil 4. That the total violation committed by the appellant is as under:- Total Plot Area 1385 sft Violation at ground floor 1385 sft Violation at first floor 1385 sft Violation at second floor 51 sft Total Violation: 2821 sft 5. That the contents of the appeal are baseless and hence denied. The appellant has not observed the required set back and also changed the land use from residential to commercial therefore, the offence is not compound-able and appeal is liable to be dismissed. 6. The site plan and the statement showing allowable and violated norms in the case titled above are annexed herewith for ready reference of the Hon'ble Tribunal. 7. The appellant has not observed the required set back and also changed the land use from residential to commercial therefore, the offence is not compound-able and appeal is liable to be dismissed. 6. The site plan and the statement showing allowable and violated norms in the case titled above are annexed herewith for ready reference of the Hon'ble Tribunal. 7. The appellant has raised the construction in contravention to the provision of J&K Control of Building Operations Act, 1988, J&K Control of Building Operations Regulation, 1998, prescribed Bye Laws and Master Plan. The appeal filed by the appellant is baseless and therefore may be dismissed. 8. I have perused the pleadings of the parties, have gone through the file, the documents on record, the report of the commissioner appointed in the case and have also heard the parties at length. 9. Perusal of the material on file shows that the appellant has laid the slab on the pillars of the ground floor and constructed the first floor of the house without permission of the respondent for which the notice impugned was given to him. 10. As per the respondents stand the appellant instead of covering 65% of the area permissible under law has covered and brought whole of the area under construction which means about 1385 sft. with further 51 sft. constriction of toilet on second floor. 11. The construction though raised by the appellant without permission does not militate against the mandate of the provisions of master plan nor there is any encroachment on road though excess of the area exceeding 65% has been brought under construction but ordinary area in the due course the appellant would not have been denied permission up to 65% as per the master plan. 12. Counsel of the appellant has submitted that as per Jyoti Singh case the area from Amphalla to Jampur has been declared to be mixed as per the master plan. The land use is stated to be residential intended to be used as commercial. 13. No permission for change of land use can ordinarily to accorded except with permission of JMC. 14. In order to ascertain the nature of the construction and the site of the area Commission, Mr. The land use is stated to be residential intended to be used as commercial. 13. No permission for change of land use can ordinarily to accorded except with permission of JMC. 14. In order to ascertain the nature of the construction and the site of the area Commission, Mr. Karan Sharma was appointed to inspect the spot who visited the spot in presence of the parties and with regard to the locality and surroundings where the shop is situated reported as under: (a) Structures, buildings raised: No. of structures, buildings were raised. The appellant structure is on roadside. On the left side, right side, and opposite side of the appellant's structure, no. of shops exist which were running right from Janipur main stop chowk to Janipur matador stand. For the reference name of some shops were note i.e. on the left side Durga digital studio, kajaria store, Anchor Store, Usha and Luminous Store etc on right side street Mahajan sanitary ware and Hardware store, Deepak Departmental store, etc and on the opposite side S.N.N. Enterprises (which was closed at the time of inspection) Mahajan Sanitary Hardware store etc. (b) Nature of locality: the locality is commercial as well as residential. (c) Hindrance of obstacle in the movement of public and traffic. There be hindrance or obstacle in the movement of public and traffic in front of the building raised by the appellant but if in the front be used as parking place then hindrance can be caused to the traffic movement. 15. The parties were asked to file objections. Miss Sarika Sharma standing counsel has reiterated in her objections that even if there are other commercial structures it means a wrong has been committed and if wrong has been committed by one person that does given license to the appellant to commit another wrong. 16. It is true that the Court has to decide the case as per law and the pleadings of the parties but the court can not shut its eyes if some material fact has come to the notice of the court which touches the ground reality on the subject. 17. 16. It is true that the Court has to decide the case as per law and the pleadings of the parties but the court can not shut its eyes if some material fact has come to the notice of the court which touches the ground reality on the subject. 17. Commissioners under law act as eyes and ears of the court and so far as the present case is concerned, it has come to fore that there are a number of constructions in the locality which exist around the construction in question and the area is mixed and both commercial and residential construction have been raised and these serve double purpose. 18. The other shops and commercial establishments are also running business and are open. 19. Under these circumstances, it cannot be said that there is gross violation of the master plan by the appellant alone. 20. That construction does not therefore merit to be demolished on party grounds. 21. Thus excess construction of 2821 sft is compounded @ Rs. 100/- per for an amount of Rs. 282100 the appellant shall deposit the total penalty amount aforementioned in the relevant Account Head respondents within 2 months who shall also furnish an undertaking that no new construction shall be raised nor any modification of the existing construction shall be done by him without seeking proper permission of JMC and the rules and regulations of the development of master plan be observed. 22. This order shall not come in the way of the authorities in proceeding under law for violation of use of the premises but the appellant should not be proceeded against on pick and chose basis. 23. The appeal is, therefore accordingly disposed of and the same shall go to records after due completion.