Building Operation Controlling ... vs Amit Sachdeva And Another
2021 Latest Caselaw 188 j&K

                                                                          110
                 HIGH COURT OF JAMMU AND KASHMIR
                            AT JAMMU
                                                 WP(C) No. 302/2021
                                                 CM Nos. 1791 & 1518/2021
                                                 CAV No. 1473/2020

Building Operation Controlling Authority,                       .....Petitioner(s)
Municipal Area, Jammu and others

                   Through :- Mr. S.S. Nanda, Sr. AAG.

                          V/s

Amit Sachdeva and another                                     .....Respondent(s)

                   Through :- Mr. Pranav Kohli, Sr. Advocate with
                              Mr. Arun Dev Singh, Advocate.
CORAM :
         HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
         HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                                   ORDER

25.02.2021

1. The present writ petition has been filed against the order dated

31.08.2012 passed by the J&K Special Tribunal, Jammu Bench (hereinafter

referred to as the „Tribunal‟), whereby the order of demolition issued by the

Control of Building Operations Authority under the Control of Building

Operations Act, 1988 (hereinafter referred to as the „Act of 1988‟) has been set

aside. The Tribunal in its order was of the view that the respondents herein had

been granted the NOC dated 12.05.2017 to set up a Diagnostic Centre initially

for a period of 11 months, which was then required to be renewed from time to

time. The stand of the petitioners is that the said NOC was never renewed, as

the same was otherwise contrary to the Land Use Regulations, which were

applicable in the area.

2. It is stated that Gandhi Nagar is primarily a residential colony with

certain commercial areas carved out and delineated more appropriately in the

master plan issued, which has now further been amended and applicable till the

year 2032. The Tribunal appears to have been of the view that once the control

of building authority had itself granted the NOC in favour of the private

respondents herein, who had invested a huge amount thereupon, the "Principle

of Promissory Estoppel" would be attracted, preventing the Municipal

Authorities to take any action whatsoever in that regard.

3. It has further been held that running a Diagnostic Centre in the area in

question was a permissible activity even as per the new master plan, which is

in force.

4. Mr. S.S. Nanda, learned Sr. AAG, appearing on behalf of the

petitioner states that the NOC earlier granted was not in accordance with the

provisions of the master plan and ought not to have been given, in any case, it

was stated that having not been renewed, any activity conducted by the private

respondents from the premises in question was impermissible inasmuch as, the

building plans approved by the Municipal authorities were not for purposes of

running a Diagnostic Centre, but for residential purposes only. It was stated

that the NOC, on which the Tribunal has placed reliance, was issued much later

after the building plans had been approved and the building completed.

5. It appears that the Municipal Authorities had issued notices under

Sections 7(1) dated 04.12.2017 & 7(3) dated 18.12.2017 of the Act of 1988 on

the ground that the use of the premises in question was contrary to the building

permission and, therefore, had ordered the demolition of the premises in

question. It was precisely in that backdrop that the controversy had landed

before the Tribunal by way of a statutory appeal against the action taken by the

petitioners.

6. Counsel for the respondents placed a lot of emphasis on the

jurisdiction of the petitioners to take recourse to the provisions of the Act of

1988, primarily, on the ground that once the building had been completed and

there was no erection or re-erection or construction undertaken by the

respondents in any manner, the issue with regard to change of user of the

premises was beyond the purview of the authorities under the Control of the

Act of 1988, therefore, all actions taken by the petitioners therein would be

non-est in the eyes of law.

With a view to rebut this contention, learned counsel for the

petitioners placed reliance upon Section 241 of the Municipal Corporation Act,

2000 read with Section 253 of the said Act to bring home the point that even

the change of user of the premises would be covered under the definition of

erection or re-erection and further, that Section 253 of the Act did give the

power to the Municipal Authorities to order demolition and stoppage of the

building being used on account of such a user.

7. One of the arguments raised by the learned counsel for the

respondents was that the provisions of the Municipal Corporation Act could

never be invoked for justifying the action taken by the Authority under the Act

of 1988 and that if at all, the powers under the Municipal Corporation Act were

to be invoked, then notice ought to have reflected that the powers were being

exercised under that particular Act. In our opinion, this view may not be

acceptable for the simple reason that it is a settled law that if the action taken is

traceable to any power, which is otherwise vested in an authority, then

notwithstanding the nomenclature of the order or the Section referred to

therein, the action cannot per-se be held to be bad.

8. Having gone through the provisions of the Municipal Corporation Act,

we feel that the Municipal Authorities are, primarily, entrusted with the task of

ensuring sanctity of the building by-laws, the construction activity, the

maintenance of the provisions of the master plan under the development Act,

which also includes the owners‟ responsibility to ensure that no building

erected by a person after having obtained permission for a particular purpose is

permitted to change the user of the said building contrary to the building

permission so granted, lest it brings about an unplanned development in the

city, making the lives of the citizens difficult or miserable. Although the

purpose, for which the Diagnostic Centre has been set up is stated to be

associated with rendering medical facilities, yet we feel that the power

exercised by the Corporation on the face of it, cannot be said to be illegal. We

make it clear that we have expressed this view only for purposes of considering

the issue of grant of interim relief in favour of the petitioners and it should not

be considered to be the final view, which will be taken only after the objections

are filed and considered in detail in their correct perspective. We, therefore,

find that Mr. S.S. Nanda, learned Sr. AAG has made out a prima-facie case in

his favour. The judgment and order passed by the Tribunal is, therefore, stayed.

The building will not be used for a purpose other than residential as per the

sanction granted by the Municipal Corporation.

9. List along with OWP Nos. 787/2017, 1673/2017 and WP(C) No.

1838/2020 on 16.04.2021.

                                          (Javed Iqbal Wani)        (Dhiraj Singh Thakur)
                                               Judge                       Judge
            JAMMU
            25.02.2021,(Ram Krishan)


RAM KRISHAN
2021.03.09 14:50
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