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2017 DIGILAW 161 (JK)

Rajesh v. Municipal Corporation

2017-03-29

TASHI RABSTAN

body2017
JUDGMENT : Tashi Rabstan, J. 1. Through the medium of this petition, the petitioners are seeking a direction to the respondents not to create hurdles and to allow them to undertake construction work for completion of the building over the land comprised under Khasra No. 162-Min, situate at Palace Road, Kachi Chawni, Jammu, as per the approved plan. It is averred that the petitioners being owners of the above-referred land applied before Municipal Corporation, Jammu, respondent No. 1 herein, for permission to raise construction over the said land. In order to approve the plan, respondent No. 1 sought No Objection Certificates from all the requisite departments. It is averred that the petitioners furnished all the No Objection Certificates, including the No Objection Certificate from Jammu Development Authority, Traffic Advisory Committee and Public Works Department, which were required for according approval/sanction for the plan. It is averred that Municipal Corporation, Jammu, accordingly, granted approval/sanction vide No. 23/BP/2003, dated 23.04.2003. Petitioners, accordingly, started the construction work as per the approved plan and when the basement was about to complete, they could not complete further construction due to bereavement in the family and other family problems. Thus, it is averred that the petitioners again applied for revalidation of the already approved plan and the same was granted/issued by the Municipal Corporation, Jammu after completion of all the requisite formalities vide No. 214-228/BS/2012, dated 29.05.2012. 2. Now the grievance of petitioners is that even after according approval to the revalidation of the already approved plan, respondents, particularly respondent No. 1 are not allowing the petitioners to restart the construction work and are creating hurdles. Hence, the present writ petition. 3. Objections have been filed on behalf of respondent No. 1. It is averred that no doubt approval to the revalidation of the already approved building plan was accorded in May, 2012 by the competent authority; however, in terms of Section 11 of Control of Building Operation Act, 1988, the said revalidation was valid for a period of three years only. Since the petitioners did not raise construction during the said period of three years with effect from 29.05.2012 and as the same has already expired, the petitioners at this stage cannot raise any construction without seeking afresh permission from the Jammu Municipal Corporation. 4. I have heard learned counsel appearing for the parties and also perused the writ file. 5. Since the petitioners did not raise construction during the said period of three years with effect from 29.05.2012 and as the same has already expired, the petitioners at this stage cannot raise any construction without seeking afresh permission from the Jammu Municipal Corporation. 4. I have heard learned counsel appearing for the parties and also perused the writ file. 5. It is admitted case of Jammu Municipal Corporation that the competent authority, i.e., BOCA, has already accorded approval for revalidation of the already approved building plan in May, 2012, however, the concern of respondent No. 1 is that said approval to the revalidation was valid for a period of three years only with effect from 29.05.2012, i.e., the date when the approval was accorded. 6. Before proceeding further, I would like to reproduce hereunder the relevant portion of Communication No. 214-228/BS/2012, dated 29.05.2012 addressed to the petitioners by the Senior Town Planner, Municipal Corporation, Jammu: "Approved for revalidation of the already approved building plan which was approved after obtaining NOC's from requisite deptts. and also clearance from TAC. Applicant shall not use the side set back for the building constructed on the back side of the plot and subject to the title verification from AC(R)." 7. A perusal of the above-quoted approval note for revalidation reveals that the said approval was subject to the title verification from the Assistant Commissioner (Revenue). Since the said approval was not absolute, rather the same was conditional by the Municipal Corporation, Jammu, i.e. subject to title verification from Assistant Commissioner, (Revenue), the same, therefore, would be construed and deemed to have been accorded from the date when Assistant Commissioner (Revenue) verifies the title of the land. 8. In the present case, Assistant Commissioner (R) issued the Certificate of Land Title on 02.01.2015. Thus, under the given circumstances, the approval for revalidation becomes absolute only on 02.01.2015 when the AC(R) issued the Certificate of Land Title, to which learned counsel for respondents have not disputed this position. Further, it is not the case of respondents that during this period any new policy has been introduced by the concerned authority regarding raising construction within the municipal area or there is any amendment in the Act (supra) with regard to the subject matter nor any such thing was raised by the respondents neither in the objections nor during the course of hearing of this matter. Since in terms of Section 11 of Control of Building Operation Act, the period of three years has yet not expired with effect from 02.01.2015 when the approval for revalidation became absolute, I do not see any reason for the petitioners to seek fresh building permission. Therefore, in view of the above discussion, I deem it proper to allow the writ petition. Accordingly, the writ petition is allowed and the respondents are directed not to create any sort of hurdles in the way of petitioners in undertaking the construction work for completion of the building, subject matter of present petition in terms of the approval accorded by the competent authority. Connected miscellaneous petitions, if any, accordingly, stands disposed of.