It is shocking to note that after status Quo dated 4-5-2021 obtained from J&K Special Tribunal by owner, JMC maintained status Quo of shutting their eyes and ears but the owner during status quo period successfully raised three more violated floors on ground floor wherein status quo was enforce covering nearly 12000 sqft each besides walls raised on 4th floor and a room with active support of enforcement staff deputed in the area.
When illegal construction was going on smoothly, whistle blowers along with aggrieved people strongly objected to continue construction when Status Quo was in placed, JMC as a eye wash action served owner BOCA notice under section 7(1) vide No. JMC/CEO/60/01/2022 dated 12-1-2023 but without taking follow-up action against owner served owner corrigendum vide No. JMC/CEO/1808-11 dated 24-2-2023 which reads that owner had laid down slab on first,2nd,3rd floors and also raised walls of 4th floor of the building without JMC permission
J&K Special Tribunal compounded unauthorized construction comprising ground, first ,2nd and third floor which nearly becomes 4702.32 sqmt ( 50615) sqft in terms of Regulation 11 of COBO Regulations as per Unified Building Bye-laws 2021 which becomes nearly Rs 50 lacs at the rate of Rs 1000 per Sqm each floor. The compoundable violations included ground floor 1076.20 Sqmt, first floor as 1084.57 Sqm, 2nd floor as 1270.81 sqm and third floor also 1270.81 sqm besides directing to demolish walls raised on 4th floor besides directing owner to pay additionally costs in addition to compounding fee to the tune of Rs 1 lakh per floor for three floors under section 13 (4) of COBO Act as the construction of three floors was done by owner when the Status Quo was enforced at the site
GY CORRESPONDENT
Jammu, may 24
In the last ten years, the menace of illegal and unauthorized constructions of buildings and other structures within jurisdiction of Jammu Municipal Corporation has acquired monstrous proportion. What needs to be emphasized is that illegal and unauthorized constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of Jammu city but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorized constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of unauthorized constructions frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorizedly constructed multi-storeyed structures raised by economically affluent people. The failure of concerned authorities to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by Jammu Municipal Corporation when it is required to deal with those who have money power or unholy nexus with the power corridors.
To put the things in right perspective, JMC allowed construction of ground floor nearly measuring 12000 Sqft of additional building of International Delhi Public School(IDPS) in Sunjwan, Ward 74 in the year 2021 when owner Suminder Singh didn’t get the site plan approved from JMC. However under public pressure when the construction of ground floor was completed, JMC served owner demolition BOCA notice under Section 7(3) BOCA Act 1988 vide No. MJ/CEO/1/3/21 dated 24-4-2021 The owner was given five days time to demolish violations failing which the same will be done by JMC at his cost and risk. The owner against BOCA demolition notice approached J&K Special Tribunal Bench-III vide File No.STJ/145/2021 and got Status Quo dated 4-5-2021 in case titled Suminder Singh Vs JMC BOCA Authority. Once the owner got the status quo , JMC took no pains to take follow-up action.
It is shocking to note that after status Quo dated 4-5-2021 obtained by owner, JMC maintained status Quo of shutting their eyes and ears but the owner during status quo period successfully raised three more violated floors on ground floor wherein status quo was enforce covering nearly 12000 sqft each besides walls raised on 4th floor and a room was also constructed on floor with active support of enforcement staff deputed in the area. JMC despite knowing status Quo in place didn’t take any action against owner when he was raising violated floors what to think of appealing against owner over violation of status Quo order when the owner deserved to be served BOCA notices under relevant section. When illegal construction was going on smoothly, whistle blowers along with aggrieved people strongly objected to continue construction when Status Quo was in placed, JMC as a eye wash action served owner BOCA notice under section 7(1) vide No. JMC/CEO/60/01/2022 dated 12-1-2023 but without taking follow-up action against owner served owner corrigendum vide No. JMC/CEO/1808-11 dated 24-2-2023 which reads that owner had laid down slab on first,2nd,3rd floors and also raised walls of 4th floor of the building without JMC permission.JMC with a heavy heart was forced to seal the premises under section 8(1) of BOCA Act 1988 vide No. JMC/CEO/1688-94 dated 30-1-2023 after this illegal construction came out in public domain. The additional structure raised by owner was practically sealed on 31-1-2023 and the press release released by JMC after four days of sealing done at the site. Despite all this the Tribunal temporarily de-sealed the part of school premises where classes were being run for removal of study material /relevant material lying inside after owner filed a representation for de-sealing of building till 28-2-2023 with a condition that during this time the owner will not raise any further construction dated 14-2-2023
The owner against this sealing order again approached Hon’ble J&K Special Tribunal Bench-III with fresh application vide File No. STJ/03/23 dated 6-2-2023 which was decided on 7-2-2023 in addition to application under trial vide File No. STJ/145/2021 dated 4-5-2021. The Tribunal with strict direction to owner to avoid any further violation of Status Quo in place and not to take any plaster /construction work failing which maintained that the status quo will automatically ceased to exist in case of further violation. More over the field staff was directed to report to Tribunal the status at sight fortnightly and in case if owner does any deviation, the JMC will be at liberty to proceed as per law . However after temporary de-sealing till 28-2-2023 vide order No. JMC/Estt/1503-08 dated 9-5-2023 remained permanently de-sealed after that.
Worthwhile to mention here that meantime the case was transferred to Tribunal Bench-II from J&K Special Tribunal Bench-III. Hon’ble Tribunal Bench-II deciding all previous appeals file No. 145/2021 with file No.17/2023 dated 6-2-2023, file No.40/2023 dated 6-3-2023,file No.102/2023 dated 6-2-2023 and file no. STJ/103/2023 dated 16-3-2023 in its 22 pages order dated 29-5-2023 verdict that the construction of building unauthorized comprising the ground, first ,2nd and third floor are permitted to be regularized by compounding violations nearly 4702.32 sqmt which is more than 50615 sqft in terms of Regulation 11 of COBO Regulations as per Unified Building Bye-laws 2021 which becomes nearly Rs 50 lacs. Accordingly the compounding fee was fixed at the rate of Rs 1000 per Sqm each floor. The compoundable violations included ground floor 1076.20 Sqmt, first floor as 1084.57 Sqm, 2nd floor as 1270.81 sqm and third floor also 1270.81 sqm. As per order, the owner was directed to demolish walls raised on 5th floor. It is interesting to note that after some total of violations so compounded it becomes an outstanding amount of Rs 50 lacs excluding labour cess which would not have deposited in JMC exchequer had the Golden Yug not published detailed stories and woke up JMC from deep slumber.However , the owner was directed to pay additionally costs in addition to compounding fee to the tune of Rs 1 lakh per floor for three floors under section 13 (4) of COBO Act as the construction of three floors was done by owner when the Status Quo was enforced at the site and JMC was directed to spend this amount in some social service initiative launched for citizens of Jammu.
Worthwhile to mention here that in Tribunal order there was clear direction to JMC that before de-sealing structure of Suminder Singh, JMC should conduct safety and security audit of building . Meanwhile JMC in this regard constituted a committee to implement order of Tribunal Bench-II to chart out violations. As per the order, JMC BOCA Authority shall take fresh measurements of construction raised by owner and assess the compounding charges within a month time and the compounding charges shall be notified by BOCA Authority within one week and the same shall be deposited by owner within next two months failing which the appeal will automatically dismissed and the JMC will be at liberty to demolish unauthorized construction without any further notice to owner. Besides as per Tribunal order, neither took any action taken against staff responsible for allowing unauthorized construction during status Quo order nor implemented compounding order and when the unauthorized construction was supposed to be demolished. Anyhow JMC approached High Court Jammu on 19-3-2024 after an expiry of nearly ten months in case title JMC BOCA Authority Vs Suminder Singh owner of IDPS & others under WP © No. 661/24, CM No.1607/2024, Caveat No. 371/2024 against Tribunal’s orders on the basis that the building in question was constructed without JMC permission and Tribunal compounded violations beyond its jurisdiction outlined in Regulation 11 terming Tribunal’s order highly erroneous.
Further Tribunal also neglected whether it had the authority to compound such violations based on relevant Acts and in-force Regulations. JMC in the appeal before High Court maintained that once the Tribunal concludes that an unauthorized structure has been erected without building permission, issuing directions allowing the appeal becomes unwarranted and has the effect of inadvertently regularizing illegal construction of IDPS building and pleaded in prayer that their writ petition is allowed and the impugned order of Tribunal dated 29-5-2023 be quashed but didn’t demanded demolition of building as the violations were much higher than the level of compounding. Anyway the Hon’ble High Court Jammu in its direction dated 27-3-2024 kept the impugned order of J&K Special Tribunal kept in abeyance and ordered status Quo to be maintained by owner and JMC and owner in no case will further raise any construction in that case the JMC shall be at liberty to take further course of action as per Municipal Act. However the unauthorized building is still intact due to negligence of JMC which applied dilly-delaying tactics resulting in matter reached High Court when the same should have been done at the initial stage of violation that is when unauthorized ground floor was being raised without JMC permission.
It is truly unfortunate that Court has been inundated with complaints in the writ petitions pointing out unauthorized constructions. Invariably all these complaints are being found true and correct in the status reports which are filed by the Municipal Corporations. “All these would show gross negligence by the officers of the municipal corporations and also their failure to abide by the statutory duties and discharge of their public law obligations Once it is found that the petitioner is a rank – encroacher, then obviously his illegal possession cannot be permitted to be continued, that too, under the order of the court, as it is the bounden duty of the court to ensure that such wrong doer is discouraged at every stage and not permitted to prolong the litigation. The Hon’ble Supreme Court in unequivocal terms held that no consideration should be shown to the builder or any other person where construction is unauthorized and it was further held that this dicta is now almost bordering the rule of law. Further Courts cannot exercise discretion which encourages illegality and perpetuates any illegality. Unauthorized construction, if it is illegal cannot be compounded and has to be demolished. The unauthorized construction raised has not only to be demolished but even the land upon which the said construction has been raised has to be evicted and thereafter handed over to the municipal authorities.
