Jammu & Kashmir High Court
Sh. R.P.Gupta Son Of Late Bindra vs State Of Jammu And Kashmir on 30 October, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No.527/2011
Sh. R.P.Gupta son of late Bindra .....Petitioner(s)
Ban Gupta resident of House No.
107/A Sector 09 Trikuta Nagar
Jammu Prop. M/S Shirdi Yatri
Niwas Trikuta Nagar, Jammu
Through: Mr.S.D.Sharma Advocate.
Vs
1 State of Jammu and Kashmir ..... Respondent(s)
through Commissioner Secretary
Housing and Urban Development
Department.
2. Building Operation Controlling
Authority JMC through its
Chairman.
3. Chief Executive Officer Building
Operation Controlling Authority
JMC Jammu
4. Chief Khilafwarzi Officer
Building Operation Controlling
Authority JMC Jammu.
Through: Mr. S.S.Nanda Sr. AAG
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT(ORAL)
1 The petitioner has challenged notice bearing
No. MJ/CEO/514/1/2011 dated 15.04.2011 issued by the
respondent-Jammu Municipal Corporation whereby the petitioner has
been asked to show cause within a period of 48 hours as to how he is
running a Hotel/Lodge in his residential premises situated at plot
No.107/A, Sector No. 09, Trikuta Nagar, Jammu. The impugned notice
has been issued by the respondents in exercise of powers under Section
7(1) of the J&K Control of Building Operation Act, 1988 (hereinafter
referred to as the „Act of 1988‟).
2 As per the case of the petitioner, he is owner of a lodge consisting
of (04) rooms at ground floor located at Plot No.107/A, Sector No. 9,
Trikuta Nagar, Jammu and the said rooms are being put to use by him as
temporary accommodation for guests coming from outside the State to
visit Jammu. It has been submitted that the petitioner has converted the
said (04) rooms into a lodge for night shelter of outsiders who visit Jammu
city.
3. It has been further submitted that the petitioner had applied for
registration of his aforesaid premises under the name & style of "Shirdi
Yatri Niwas" with the Tourism Department on 22.09.2009 and he had also
sought NOC from the Jammu Municipal Corporation, but no action has
been taken by the respondents. Instead, the respondents have issued the
impugned notice thereby threatening to seal the premises of the petitioner.
According to the petitioner, as per the definition of „residential use‟ given
in the Master Plan notified vide SRO 64 dated 06.02.2010, the guest
houses and the night shelters are included in the definition of „residential
use‟ and, as such, it was not open to the respondents to issue the impugned
show cause notice.
4 The respondent-Jammu Municipal Corporation has filed its
reply to the writ petition in which it has been submitted that the petitioner
is admittedly using the premises in question for commercial purpose,
though he has been granted permission to raise a residential building on
the plot in question. It has been contended that the commercial use in a
dwelling house is strictly prohibited even as per the Master Plan, 2021.
Therefore, the respondent-Jammu Municipal Corporation was well within
its power to issue the impugned notice. It has been further contended that
the petitioner, by running a lodge in the residential premises, has sought to
change the land use of the area as provided in the Master Plan which is
strictly prohibited.
5 I have heard learned counsel for the parties and perused the
record.
6. As per the impugned notice, the petitioner is alleged to have
converted (04) rooms and (02) shops on ground floor of his residential
house situated at plot No.107/A, Sector N.9, Trikuta Nagar, Jammu into a
Hotel/Lodge. It is the case of the respondents that the petitioner was
permitted to raise a residential building on spot and he has converted it
into a guest house and has also constructed two shops on the ground floor.
Therefore, the impugned notice calling upon the petitioner to show cause,
is perfectly in accordance with law.
7 Section 07 of the Act of 1988, which is relevant to the context,
provides as under:
7. Order of demolition of buildings in certain areas.-
(I) Where the erection or re-erection of any building has
been commenced or is being carried on or has been
completed without the permission referred to in section 4 or
in contravention of any condition subject to which any
permission has been granted, the Authority shall isslre a
notice in writing calling upon the person to show cause
within a period of 48 hours, why the building should net be
altered or demolished as may be deemed necessary to
remove the contravention.
(2) The Authority shall cause the notice to be affixed on the
outer door of some conspicuous part of the building
whereupon the notice shall be deemed to have been duly
served upon the owner or the occupier of the building.
(3) If the person to whom the notice has been given refuses
or fails to show cause within a period specified under
subsection (I) or if after hearing that person, the Authority is
satisfied that the erection or re-erection of the building is in
contravention of the provisions of this section, the Authority
shall by order direct the person to demolish, alter or pull
down the building or part thereof so far as is necessary to
remove the contravention within a period not exceeding five
days as may be specified in the order and if the person Pails
to comply with the direction, the Authority may itself cause
the erection or re-erection to be demolished after the expiry
of the said period and may for that purpose use such Police
Force as may be necessary which shall be made available to
him by the Police Department on requisition.
(4) All expenses incurred for such demolition shall be
recoverable from the owner and/or the occupier in the same
manner as arrears of land revenue".
8 From a perusal of the aforesaid provision, it is clear that if the
erection or re-erection of any building has been commenced or is being
carried on or has been completed without the permission or in
contravention of any condition subject to which permission has been
granted, the Municipal Corporation is empowered to issue a notice in
writing calling upon such person to show cause within a period of 48
hours, as to why the building should not be altered or demolished to
remove the contravention. It is further provided that if the cause is not
shown or if explanation is found to be unsatisfactory, an order of
demolition has to follow. Section 8 of the Act of 1988 vests power with
the Authority concerned to seal the premises before or after making an
order of demolition under Section 7.
9 In the instant case, as per the allegations made in the impugned
notice, the petitioner has built two shops in the residential house and has
converted (04) rooms into a guest house/lodge thereby contravening the
conditions subject to which permission was granted to him for building a
residential house on the plot in question. Therefore, the respondent-Jammu
Municipal Corporation was well within its powers to issue the impugned
notice calling upon the petitioner to show cause as to why the building in
question should not be altered so as to remove the contravention and it
was also well within its jurisdiction to call upon the petitioner to show
cause as to why the building should not be sealed. The petitioner, instead
of showing cause against the notice whereby he could have projected his
contention that, as per Master Plan, 2010, running of a lodge or guest
house is permissible in a residential building, has rushed to this Court and
filed this writ petition challenging the show cause notice which is clearly
premature in nature. As already stated, the impugned show cause notice
can, by no stretch of imagination, be treated as one beyond the scope and
power of the respondent-Municipal Corporation and, as such, it would not
be open to this Court to interfere in the impugned show cause notice in
exercise of its writ jurisdiction.
10 For the foregoing reasons, I do not find any merit in this
petition. The same is, accordingly, dismissed. Interim directions, if any,
shall stand vacated.
(SANJAY DHAR)
JUDGE
Jammu
30.10.2024
Sanjeev
Whether approved for reporting? Yes/No
