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2017 DIGILAW 170 (JK)

Snober Shah v. Chairman, BOCA, SMC, Srinagar

2017-04-04

KOSSAR AHMAD QURESHI

body2017
ORDER : KOSSAR AHMAD QURESHI, J. (MEMBER) 1. This appeal is directed against the order bearing No. SMC/Enf/1218-21 dated 09.12.2013 issued by Respondent No. 3 i.e. Chief enforcement Officer, SMC, Srinagar, whereby the appellants have been directed to demolish/pull down the structure situated at Karan Nagar, Srinagar which has been made in contravention of the terms and conditions of building permission. The details of the deviations/violations with rough site plan are shown overleaf of the impugned notice. The circumstances giving rise to the present appeal are briefly given as under:- The appellants are the owners and in possession of residential house and the land underneath and appurtenant thereto situated at Karan Nagar, Srinagar and are intended to raise the construction of a double storeyed residential house having shops in the ground floor and accordingly applied to the respondent No. 1 for building permission which has been granted in favour of the appellants vide order No. 471 of 2003 dated 10.09.2003 for construction of double storeyed residential house having shops in the ground floor at Karan Nagar, in Estate Chattabal and in pursuance of the said sanction, the appellants have raised the construction in the year 2004 and again applied for raising of second floor over the existing shop and residential building which has also been granted and the appellants raised the construction as per the sanction and at that time the respondents i.e. BOCA, further submitted that the BOCA without issuing the notices u/s. 7(1) and 7(3) of the J & K Building Operation Controlling Authority Act sealed the premises of the appellants vide order dated 07.10.2013 as per the orders of Hon'ble High Court dated 30.09.2013 in the OWP (PIL) No. 5/2013 titled Mujeeb Andrabi v. State of J & K and others. The reply of the appellants was not considered by the Commissioner, SMC, and accordingly the appellants filed a CMP No. 2413/13 through their attorney. Praying therein that they be permitted to file an undertaking before the Hon'ble Court providing therein that they will use the building/structure as per the permission granted in their favour and will not change land use in any manner whatsoever. The permission has been granted for residential use with shop in the ground floor. Praying therein that they be permitted to file an undertaking before the Hon'ble Court providing therein that they will use the building/structure as per the permission granted in their favour and will not change land use in any manner whatsoever. The permission has been granted for residential use with shop in the ground floor. The Hon'ble High Court decided the CMP of the appellants in which the appellants were directed to file an undertaking before the Registrar Judicial of the J & K High Court as per the following directions:- a. That the applicant will use the premises strictly in accordance with the permission granted to them and will not change land use of the premises; b. The applicants will not conduct any commercial activities in whatsoever manner in the residential house; c. Any violation committed by them henceforth would tantamount to breach of the undertakings, making them liable for having committed contempt of court and shall be dealt with in accordance with the provisions of law. 2. Further submitted that in pursuance to the said order, the appellants through their attorney submitted an undertaking before the Registrar Judicial of the Hon'ble High Court and thereafter, the SMC, issue the de-sealing order vide No. SMC/Enf/988 dated 06.12.2013 and now the appellants are in possession of the said building. That on 28.11.2013, the appellants have received a show cause notice from the respondent No. 3 which was replied on 30.11.2013 and it was mentioned in the reply that the construction has taken place in the year 2003-04 as per the sanction granted by the BOC and it was further stated that the building was sealed and accordingly the appellants moved a CMP before the Hon'ble High Court and the appellants undertook before the Hon'ble High Court that they will not change the nature of the structure and will use the same as per the sanction granted by the authority. Accordingly, the Hon'ble DB of the Hon'ble High Court allowed the CMP of the appellants and directed the appellants to submit an undertaking before the Registrar Judicial of the Hon'ble High Court, which was submitted by the appellants before the Registrar Judicial of the Hon'ble High Court and thereafter, the respondents de-sealed the premises of the appellants and the appellants are using the upper floors as a residential and in the ground floor there are shops which too have been permitted in pursuance to the sanction granted by the authority. Thereafter, the respondents through respondent No. 3 have issued another notice to the appellants under section 7(3) of the Control of Building Operations Act vide No. SMC/Enf/1218-21 dated 09.12.2013 by virtue of which the appellants have been directed to demolish/pull down the structure above mentioned. The appellants are aggrieved of the impugned notice challenged the same on the following grounds:- i. That the impugned order discloses that the SMC is the statutory authority which is not correct. The authority has been constituted under section 3 by the government under SRO 152 of 2005 and it is the authority who is competent to issue the said notices and the respondent No. 3 has no authority to issue the impugned demolition notice, as such, on this count also the impugned notice deserves to be set aside; ii. That the respondent No. 3 has no power to issue such notice as he has relied on SRO 289 dated 21.07.1999, the said SRO is not in existence and the authority has not been constituted by the government under said SRO, therefore, the impugned notice is without jurisdiction and without any competence to the respondent No. 3 as such demolition notice be set aside; iii. That the respondent No. 3 has stated in the impugned notice that the power has been delegated to him vide order dated 24.09.2008 when the post of Chief Enforcement Officer was not created which was created in the year 2011, therefore, the impugned notice deserves to be set aside on this count also; iv. That the respondent No. 3 has stated in the impugned notice that the power has been delegated to him vide order dated 24.09.2008 when the post of Chief Enforcement Officer was not created which was created in the year 2011, therefore, the impugned notice deserves to be set aside on this count also; iv. That the impugned order speaks that the building has been converted into commercial building which fact is not correct as the appellants have already submitted an undertaking before the Hon'ble High Court stating there that they will not change the nature of the building and the building will be used as per sanction granted by the authority i.e., shops in the ground floor and the rest of the storey's being used as residential and at present also the same are being used as residential and the Hon'ble High Court has not directed the respondents to proceed ahead after ten years, therefore, on this count also the impugned notice deserves to be set aside; v. That the impugned notice discloses that the construction violates the planned development of the city and violates the zoning regulations and it further discloses that the construction is contrary to the land use. The said facts are baseless and incorrect. As stated hereinabove, that the appellants are adhered to the sanction granted by the authority so the question of change of land use does not arise as also stated in the reply submitted to the show cause notice under section 7(1) of the J & K Control of Building Operation Act to the respondent No. 3 but the respondent No. 3 has not considered the said reply of the appellants, as such, there is no violation to the land use; vi. That the procedure as laid down under the J & K Control of Building operation Act, has not been followed while delegating the powers. It is further submitted that the authority cannot delegate the powers to number of persons. It is only BOCA which has to satisfy while issuing the impugned notice and the part of the satisfaction cannot be delegated. Therefore, on this count, also the impugned notice deserves to be set aside; vii. That the impugned notice/order has been passed by the respondent No. 3 without any competence, as such, the same is without jurisdiction; viii. It is only BOCA which has to satisfy while issuing the impugned notice and the part of the satisfaction cannot be delegated. Therefore, on this count, also the impugned notice deserves to be set aside; vii. That the impugned notice/order has been passed by the respondent No. 3 without any competence, as such, the same is without jurisdiction; viii. That the order under challenge has been passed by the respondents in a mechanical, omnibus and routine manner without application of mind and without going into the facts and circumstances of the case, therefore, the same is illegal, unwarranted, unjustified and against the settled principles of law and as such deserves to be set aside. 3. In opposition to the appeal the respondents have filed their objections wherein they have pleaded that the appeal of the appellants preferred under section 13 of Control of Building Operations Act, against the order of the demolition is not maintainable for being legally and factually wrong and incorrect and deserves to be dismissed. It is further submitted that the appellants are aggrieved of the order passed against them by respondents whereby they have been asked to remove illegal and unauthorized construction raised in violation of permission granted by the competent authority. Further submitted in their objections that the impugned notices have been issued in pursuance of the order passed by the Hon'ble Division Bench of J & K High Court at Srinagar in OWP (PIL) No. 05/2013. Further submitted that appellants have been granted two permission for construction of double storeyed residential house having shops in ground floor and arising of 2nd floor over the existing building vide permission Nos. 471 of 2003 dated 10.09.2003 and 281 of 2004 dated 23.06.2005 but the appellants have in contravention of the building permissions converted the whole structure into commercial building after maintaining the following setbacks:- 4. Further submitted that the appellant has not maintained the setbacks and also grossly deviated the sanctioned plan and raised a big structure in total disregard of the permission granted by the competent authority and further raised height of the structure from 32 sqfts. to 38 sqfts., despite that the area in question falls under zone D-15 which has been earmarked as "Residential as per the Master plan while as the structure in question is fully commercial and has been sealed for contravention of Master Plan. to 38 sqfts., despite that the area in question falls under zone D-15 which has been earmarked as "Residential as per the Master plan while as the structure in question is fully commercial and has been sealed for contravention of Master Plan. Further submitted that the permission granted by the respondents to the appellants has been grossly deviated by the appellants and raised a big structure in total violation of the permission granted by the competent authority which is very serious nature, willful and deliberate and accordingly the appeal preferred by the appellants needs to be dismissed. 5. I have perused the pleadings of the parties and have gone through the record on file and have also heard the learned counsel for the parties. 6. Perusal of the material on record shows that the appellants has been accused of deviating the sanctioned plan in contravention of the terms and conditions of building permission of concerned authority by way of changing the shape and size of the plinth area of the building, while as the appellant's case is that they have been granted building permission for construction of double storeyed residential house having shops in the ground floor at Karan Nagar in Estate Chattabal Srinagar initially in the year 2003 Vide order No. 471 of 2003 dated 10.09. and thereafter in the year 2004 again applied for raising 2nd floor over the existing shop and residential building permission which too was granted in favour of the appellants and the appellants raised the construction as per the sanction and the respondents has not raised any objection at that time and is almost complete now. 7. Now the question arises whether the construction raised by the appellant is violating any zoning regulations, etc. or not, in order to find whether the violation is in the nature of 'offence of minor nature' so that the same may be compounded under law. There is no encroachment of the neighbourers' adjacent land, nor is any other kind of nuisance attributed to the appellant. 8. In the instant case, it is not disputed that appellants have raised the construction after obtaining the proper building permission order No. 471 of 2003 dated 10.09.2003 and there is also no dispute with regard to the land of the appellants, likewise there is no variance regarding the approved land use of the area vis-à-vis. said construction. 8. In the instant case, it is not disputed that appellants have raised the construction after obtaining the proper building permission order No. 471 of 2003 dated 10.09.2003 and there is also no dispute with regard to the land of the appellants, likewise there is no variance regarding the approved land use of the area vis-à-vis. said construction. But in the instant case, the respondents have submitted that permission was granted in favour of the appellants for construction of double storeyed residential house having shops in ground floor and raising of second floor over the existing building vide permission Nos. 471 of 2003 dated 10.09.2003 and 281 of 2004 dated 23.06.2005 whereas the appellants have in contravention of the building permission converted whole structure into commercial, as such, have deviated the building permission in per storey by 595 sqft., so admittedly, there is 1785 sqfts. total deviation in the permission granted by the respondents. 9. Now the question arises whether this deviation falls in the minor offence or major offence. It may not be out of place to mention here that until the appellants have completed the said house, the respondents remained silent as no effective steps were taken to stop the same. The passive conduct of the respondents for the whole period during which the construction has been raised clearly reflects that they had no objection regarding the said construction and now at this stage, the respondents cannot be allowed to demolish the same as the appellants will be subjected to huge losses and if the deviations are not compounded, it will have the effect of bringing down even the construction raised in accordance with the sanctioned plan thereby causing serious prejudice to the rights and interests of the appellants. Even otherwise, there are no allegations against the appellants of any encroachment made by him over any other's land/state land/lane or drain and even otherwise, there is no allegation of any traffic hazard or inconvenience to the public in general due to construction of this house. 10. Even otherwise, there are no allegations against the appellants of any encroachment made by him over any other's land/state land/lane or drain and even otherwise, there is no allegation of any traffic hazard or inconvenience to the public in general due to construction of this house. 10. Having regard to the fact that the appellants have now completed the construction, it would be most unfair and harsh if respondents are allowed to pull down the house for the deviation made by the appellants in the case and keeping in view the entire facts and circumstances of the case as discussed above, this Tribunal is of the opinion that the deviation and land use violation should be compounded on payment of compounding fee as the same will be in the interests of justice. Being an apex appellate authority, the Tribunal has ample powers to compound the offences of a nature as involved in the instant case and further Tribunal cannot act as a mute spectator to the high-handedness of the respondents. 11. It is, therefore, directed that the total deviation is 595 sqft. in each storey made by the appellants from sanctioned Building Plan be hereby regularized by way of compounding. The appellants shall pay a compounding fee of Rs. 60/- per sqft. for three stories as commercial which calculates to Rs. 595 x 60 x 3 = 107100/- (Rupees One Lac Seven Thousand and One Hundred Only). The appellants shall deposit the said fee in the Addl. Treasury under Major Head 8448-Deposit of Local Fund dealing with the Municipal Chest by way of treasury challan, within a period of two months from today, failing which the appeal filed by the appellant shall be deemed to have been dismissed and in that eventuality, the respondents will be at liberty to remove the violation as per impugned notice dated 09.12.2013. The Treasury Officer Addl. Treasury Tankipora is directed to receive the compounding fee from the appellant and copies of the receipt should be forwarded to the Tribunal as well as to the respondent No. 1. Status-quo/stay if any, is hereby vacated. Let the copy of the order/judgment be sent to respondent No. 1. File shall be consigned to records after due completion along with the order/judgment announced. Disposed off.