Jammu & Kashmir High Court
Mohan Lal vs Building Operation Controlling ... on 23 May, 2022
Sr. No. 7
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 742/2020
CM No. 1869/2020
CM No. 1745/2020
Mohan Lal .....Appellant(s)/Petitioner(s)
Through: Mr. P.N. Raina, Sr. Advocate with
Mr. Sachin Dogra, Advocate
Vs
Building Operation Controlling Authority ..... Respondent(s)
and Anr.
Through: Mr. Harshwardhan Gupta, Advocate.
Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
23.05.2022
(OPEN COURT)
Per : Thakur-J
The petitioner primarily challenges the order dated 21.01.2020,
under section 8(1) of the Control of Building Operations Act, 1988, whereby,
the building being constructed by the petitioner, allegedly in violation of the
building plans, has been ordered to be sealed. The petitioner also challenges
the notice dated 23.07.2019, issued under Section 7(1) of the Control of
Building Operations Act, 1988 (hereinafter referred to as 'Act') and also
seeks mandamus commanding the official respondents to grant
NOC/permission for completing the remaining construction.
From the facts, as they emerge from the pleadings on record, it can
be seen that the petitioner was granted a permission to construct a building
with stilt parking and first floor and with permission to construct 1200 sq. ft.
of ground floor. The Municipal Corporation having realized that the
petitioner was committing violations of the building permissions, issued a
notice under Section 7(1) dated 23.07.2019 to the petitioner, to which a
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reply was submitted on 29.07.2019. Subsequently, the authority concerned
issued the sealing order on 21.01.2020, in exercise of powers under Section
8(1) of the Control of Building Operations Act, 1988. According to the
record, the petitioner has committed the following violations which are
reproduced herein under as chart: -
S. Description As per Constructed Violation Done Remarks
No. permission at site
In SFT Excess % of
Ground
Coverage
1 Plot Area 4205
2 Coverage
A Basement 1200 sqft 1200 sqft 100% un-
Floor authorized
B Ground Floor 1200 sqft 1440 sqft 240 sqft 20%
C 1st Floor 1200 sqft Not constructed
Shape of the
D Set Backs
plot is also
3 Front 15'-0" Varies from 18'- Nil
changed at
0" to 23'-0"
site. It is not
A Rear 38'-0" 26'-0" 12'-0"
as it is in
B One Side 10'-0" 12'-0" Nil
approved
C Other side Nil Nil Nil drawing.
D Height 22'-0" 16'-0"1200 Nil
5 FAR G+! Basement +G
6 Land Use Stilt for parking Still under
& first floor construction but
commercial commercial in
appearance.
From the aforementioned chart, it can be seen that the petitioner had
constructed a basement floor, which was hundred per cent unauthorized
and not only this, but the set backs were also seriously compromised.
Another fact which was admitted during the course of arguments by
Mr. P.N. Raina, learned Sr. Counsel that even after receipt of notice under
Section 7(1) issued by the authority, the petitioner had continued to raise
the construction beyond the permissible limits, which were prescribed in the
building permission. Although, Mr. P.N. Raina, learned Sr. Counsel submits
that the petitioner had dug only 4 feet from the ground level and that what
was constructed was, in fact, stilt parking and not a basement, yet from the
photographs on record, it can be presumed otherwise. The issues which
have been highlighted during the course of arguments are: -
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i. That the authority issuing the sealing order No. JMC/CEO/275-
77 dated 21.01.2020 under Section 8(1) of the Act i.e. Joint
Commissioner (Adm.), Municipal Corporation, Jammu, has no
jurisdiction, inasmuch as, the jurisdiction would be only
traceable in terms of communication dated 16.09.2019,
whereby, the powers were vested in the Assistant
Commissioner, Revenue, JMC. However, learned counsel for the
respondents, Mr. Harshwardhan Gupta, Advocate, clarified that
the said powers vested in the Assistant Commissioner,
Revenue, were in addition to the authorization already granted
in terms of resolution No. 1st dated 21.05.2010, whereby, the
Joint Commissioner (Adm.), Municipal Corporation, Jammu, was
authorized to exercise the power under Section 8(1). We are
fully satisfied with the plea of the learned counsel for the
respondents, Mr. Harshwardhan Gupta and feel that there is no
jurisdictional error in the Joint Commissioner (Adm.), Municipal
Corporation, Jammu, issuing the order of sealing. The order of
sealing, therefore, cannot be said to be bad in any manner on
the ground of jurisdiction.
ii. The second argument that was urged was that before issuing
the order of sealing, notice ought to have been issued to the
petitioner so that he could appropriately respond. In our
opinion, the order of sealing under Section 8(1) is required to
be passed, when the authority finds either that the construction
is being raised contrary to the building plan or in case, where
the construction has been raised without permission. Notice
under Section 8 of the Act can be issued before passing an
order of demolition under Section 7, which is necessary for
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ensuring compliance to the provisions of the Act of preventing
any dispute as to the nature and extent of such erection or
work. Reference in this regard can be made to the Division
Bench judgment of this Court rendered in "Nazir Ahmad Mir
Versus State & Ors." reported in 2013(53) R.C.R. (Civil)
204. What has been observed in paragraph 14 of the said
judgment is reproduced as under: -
14. For our above recorded reasons, we hold
that the competent authority has the power to
order for sealing of unauthorized construction
even before initiating action for ordering of
demolition of any structure as provided under
Section 7 of the Act of 1988. This power is,
however, conditional, inasmuch as, immediately
after issuance of order of sealing, the competent
authority would be duty bound to initiate action in
terms of Section 7 of the Act of 1988.
iii. We also find that no illegality has been committed by the
authority while issuing order under Section 8(1) of the Act,
inasmuch as, it has been admitted during the course of
arguments by the learned counsel for the petitioner that the
petitioner had continued raising the construction despite the
issuance of notice under Section 7(1) of the Act and it would
thus be expedient to issue such a notice.
iv. That during the course of arguments, learned Senior Counsel
for the petitioner had also stated that the petitioner had
approached the Jammu & Kashmir Special Tribunal in an
appeal, challenging the notice issued under Section 7(1) and
Section 7(3) of the Act but despite that, proceeded to argue at
length the present petition. Notwithstanding the fact that we
have upheld the issuance of notice under Section 8(1) of the
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Control of Building Operations Act, both on account of
jurisdiction as also on account of the expediency, inasmuch as
the petitioner had continued to raise further construction,
despite the authorities having issued a notice under Section
7(1), we would like to test the argument of the learned counsel
for the petitioner that in fact, the construction on spot is not a
basement but a stilt parking.
With a view to get a clearer picture on this aspect, we deem it
necessary to appoint a Court Commissioner, who would submit a detailed
and comprehensive report with regard to the nature and extent of the works
executed by the petitioner, the extent of violations committed in regard to
the building permissions granted and most importantly, whether what is
constructed by the petitioner was, in fact, a stilt parking or a basement. We,
accordingly, appoint Mr. Dinesh Rampal, Retd. Chief Engineer, PWD, as
Court Commissioner, who shall be paid Rs. 50,000/- as Commissioner's fee,
which shall be deposited in the Registry of this Court within three days by
the petitioner. The report will be submitted by the Court Commissioner
within one week positively. The Commissioner shall visit the spot on this
Friday i.e. 27.05.2022, in the presence of the Municipal Authorities as also
the petitioner. Photographs will also be taken for which additional Rs.
2,000/- will be deposited in the Registry of this Court by the petitioner, to
be handed over to Court Commissioner.
List on 02.06.2022.
Meanwhile, it is made clear that based upon the report, if it is found
that any of the statements of the learned counsel for the petitioner were
incorrect with regard to the actual status on spot, we would impose
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exemplary cost. This petition will not be permitted to be withdrawn till the
matter is considered by the Court.
Registry is directed to provide a copy of this order to the learned
counsel for the parties.
(Rahul Bharti) (Dhiraj Singh Thakur)
Judge Judge
Jammu
23.05.2022
Vishal
Whether the order is speaking : Yes / No
Whether the order is reportable: Yes / No
