Building Permission Authority ... vs Owais Mushtaq Burza And Ors
2021 Latest Caselaw 1680 j&K/2

                                                                    Serial No. 10
                                                                   Regular cause list



      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                  AT SRINAGAR

                                                     OWP No. 1293/2017
                                                      IA No. 01/2018


Building Permission Authority and Ors.
                                                                    ..... Petitioner(s)
                                   Through: -
                             Ms. Asifa Padroo, AAG


                                        V/s
Owais Mushtaq Burza and Ors.
                                                                  ..... Respondent(s)

Through: -

Mr. Jahangir Iqbal Ganai, Sr. Advocate vice Ms. Humaira Shafi, Advocate

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge Hon'ble Mr Justice Mohd Akram Chowdhary, Judge Order 27.12.2021

In the instant petition, petitioners pray for the following reliefs:-

" (i) By a writ of certiorari or any other writ or direction, the impugned Judgment dated 16.05.2017 passed in two appeals bearing Nos. STS/4459/2017 and STS/4455/2017 by the respondent No. 3 be set aside and quashed and be declared null and void.

(ii) By a writ of mandamus or any other writ or direction, the petitioners be allowed to take appropriate action in the matter as per the law on the subject."

Brief facts of the case are summarized as under:-

The respondents 1 and 2, approached to the petitioners herein for

grant of building permission in their favour for construction of two

residential houses of 1585 Sqft of plinth area for each situated in Estate

Gupt Ganga Ishber Nishat. The respondents 1 and 2 instead of raising the

construction of their residential houses as per the permission granted for two separate houses deviated from the same and raised a construction of

single Unit on a plinth area of 4830 Sqft instead of 3510, thereby making

the total deviation of 1320 Sqft in the plinth area. The petitioners, as such

having the authority to dismantle the illegally raised construction, viz in

violation of the granted permission, issued Notice No. LDA/EO/262-65

dated 11.05.2017 and No. LDA/EO/280-82 dated 13.05.2017.

It is stated that the respondents 1 and 2, challenged the said Notices

in two appeals bearing Nos. STS/4459/2017 and STS/4455/2017 before

the respondent No. 3, who in the first instance passed an order of status

quo and thereafter finally disposed of both the appeals in a composite

order dated 26.05.2017, treating the deviation as minor one, therefore,

compounded the same by imposing fee of Rs. 79,000/- @ Rs. 30/- per

Sqft and also an amount of Rs. 50,000/- for not seeking prior permission

for taking up construction jointly.

The petitioners are aggrieved of the order dated 26.05.2017 passed

by the respondent No. 3 in two above mentioned appeals and challenge

the same on the grounds detailed out in the petition.

Heard learned counsel for the parties, perused the records and

considered the matter.

Learned counsel appearing for the petitioners submits that the

impugned Judgment cannot sustain in the eyes of law keeping in view

the fact that the same does not come under the powers of compounding

of deviations of the respondent No. 3 viz, J&K Special Tribunal,

Srinagar. Learned counsel further submits that the violation/deviation

committed by the respondents 1 and 2, viz by raising a single big structure on spot instead of two residential houses for which the

permission was granted with specific dimensions and whether the

structure raised by the respondents 1 and 2 in the shape of one big storey

of 4830 Sqft instead of 3510 Sqft, viz deviation of 1320 Sqft, can be

treated as a minor deviation. It is submitted that the deviation made by

the respondents 1 and 2 cannot be treated as a minor deviation as by

doing the same respondents 1 and 2 have violated Section 9 of the

Regulations of 2001. It is submitted that the construction of a commercial

building on spot is in total violation and cannot be allowed to remain on

spot, therefore, the respondent No. 3, having no authority to compound

the deviation.

Mr. Jahangir Iqbal Ganai, learned senior counsel submits that the

Tribunal in view of facts and circumstances and on application of

Judgment passed by this court and Hon'ble Apex Court in identical cases

came to a conclusion that taking up construction as a single unit and

exceeding area of construction by just 1320 Sqft per floor that too

without disturbing the basic building norm applicable in such area has to

be treated as a minor violation and needs to be regularized by

compounding, as such, the additional construction of 2640 Sft taken up

against the approved plan of 6690 Sft and taking up of construction as a

single unit instead of two separate units needs to be considered for

regularization as the violation is minor in nature. Learned counsel further

submits that the Tribunal, accordingly, has ordered that the total

additional construction of 2640 Sft raised in both the floors by the

respondents 1 and 2 is regularized by way of compounding and the Tribunal directed the respondents 1 and 2 to deposit the compounding

fee of Rs. 79,200/- @ Rs.30/- per Sqft in the official account of the

appellants.

On examination of the records, we are of the considered view tha

the petitioner-Building Permission Authority has not granted sufficient

opportunity of being heard to the respondents 1 and 2, which could have

formed the ground for the Tribunal to allow the appeal and set aside the

notices with liberty to the petitioners to proceed in accordance with law.

In the above, formation of opinion, we are inclined not to discuss

the merit about the powers of the Tribunal qua compounding the

violation. We propose to dispose of the instant writ petition on the ground

of depriving the respondents 1 and 2 for not providing an opportunity of

being heard.

In view of above background, the instant writ petition is disposed

of in modification of order passed by the Tribunal by allowing the appeal

filed by respondents 1 and 2 before the Tribunal and set aside the

impugned demolition notices bearing No. LDA/EO/280-82 dated

13.05.2017 and LDA/EO/262-265 dated 11.05.2017, with liberty to the

petitioners to deal with the matter in accordance with law.

Disposed of.

                               (Mohd Akram Chowdhary)           (Ali Mohammad Magrey)
                                        Judge                             Judge

           SRINAGAR
           27.12.2021
           "Mohammad Yasin Dar"




MOHAMMAD YASIN DAR
2021.12.28 16:35
I attest to the accuracy and
integrity of this document