Surprisingly Commissioner JMC didn’t take action against owner when owner raised two more floors during status quo order in place when as per Tribunal final decision dated 3-5-2024 Commissioner was at liberty under section 256 JMC Act 2000 to take action against owner in case owner starts construction during status quo order as it was not vacated by Tribunal but no action taken by serving owner fresh notice as a result of which owner completed construction of three floors when as contempt of Tribunal order JMC should have taken action against owner by serving him fresh notice under JMC Act 2000
JMC didn’t take deserving action when owner constructed ground floor 217.97 Sqmtr (2347sqft) covering 744 Sqft more area against permitted 148.90 Sqmtr thus raising vioaltive construction by 46.38% resulting in construction of equal first floor and 2nd floor nearly 600 Aqft excluding Mumty. Similarly the owner left only 4.5 mtr from front side against permitted 6 mtr thus violating 25% and left nothing on rear side and also side-1 was completely covered and left nothing making 100% violations
GY CORRESPONDENT
jammu, aug 23
One Ashok Kumar Gupta s/o Kalu Ram r/o Shama Chak Jammu purchased a residential plot 195/7 measuring 40×80 (3200 Sqft) from original alottee Mohan Lal s/o Nek Chand in Zonal planned Housing Board Colony Channi Himmat Jammu costing him worth crores in the open market in Sep, 2009. Accordingly the owner got approved residential site plan from JMC vide No. 210/JMC/BS/2022 dated 20-4-2022 wherein the owner was allowed ground floor 148.90 Sqm (1603 Sqft) including porch and first floor 139.5 Sqm (1502 Sqft).
The owner was mandatory to observe setbacks including front 6 mtr, rear 2.10 mtr, one side 2.50 mtr and height 7.5 mtr. But the owner contrary to approved residential site plan raised construction of ground floor beyond approved site plan by covering hundred percent plot area and without observing mandatory setbacks. Furthermore as per BOCA demolition notice under section 7(3) dated 25-7-2022, owner constructed ground floor 217.97 Sqmtr (2347sqft) constructing covering 744 Sqft more area against permitted 148.90 Sqmtr thus raising vioaltive construction by 46.38% . Similarly the owner left only 4.5 mtr from front side against permitted 6 mtr thus violating 25% and left nothing on rear side and also side-1 was completely covered and left nothing making 100% violations.
It deserves mentioning here that these violations were ably assisted by then Enforcement Inspector deputed in Ward-50 Ram Khajuria during May-June 2022. When JMC enforcement staff failed to act against owner for raising vciolative construction, the aggrieved locals finally approached JMC higher authorities which under pressure served owner BOCA notices earlier 7(1) vide No. MJ/CEO/14/01/02/22 dated 12-7-2022 and thereafter 7(3) BOCA demolition notice vide No. JMC/CEO/14/3/2022 dated 25-7-2022 issued by Joint Commissioner (R&E) JMC Jammu to demolish violated construction within five days from the date of serving this notice. The owner against demolition notice approached J&K Special Tribunal Bench-III with pictures of structure of ground floor by owner through counsel and got Status Quo order vide File No. STJ/iii/162/F/22 dated 28-7-2022 when there was violated construction of ground floor as per BOCA notice under section 7 (3) with a prime condition that in no case the owner will raise any further violative construction during status Quo order period and in case if owner does so , JMC will be at liberty to take action against owner as per relevant BOCA laws. The owner in the appeal also challenged jurisdiction of Joint Commissioner (R&E) to serve BOCA demolition notice and also challenged demolition notice not serves under JMC Act 2000. Moreover JMC filed owner favorable objections and also didn’t inform Tribunal that owner made contempt of Tribunal status quo order by raising first floor and 2nd floors during status Quo order in place which were not mentioned by JMC while filing objections before Tribunal.
Worthwhile to mention here that after status Quo, the work remained suspended for nearly three months. But as soon as then new Enforcement Inspector Jasbir Singh deputed in Ward-50 in the month of March,2023, the owner completed construction of first floor without maintaining setbacks covering 2347 Sqft at par with ground floor covering 2347 Sqft . But sadly JMC did nothing when owner raised construction of first floor during status Quo order period. Anyway, the J&K Special Tribunal further ordered dated 3-5-2024 and reserved the order in case title Ashok Kumar Vs JMC on 28-3-2024.
The Tribunal order further said that without going into merits of the case, the said impugned order is therefore set aside with liberty granted to JMC for initiating proceedings under Section 7 of J&K Control of Building Operation Act 1988 afresh. JMC shall also review the period of validity of building permission for residential purpose fixed as five years. JMC is also at liberty to exercise power vested with the Commissioner to require alteration of work in order to bring the structure in conformity with the building permission under section 256 of JMC Act 2000.
It reads:- ‘256, Power of Commissioner to require alternation of work. – (1) The Commissioner may, at any time during the erection of any building or execution of any work or at any time within three months after the completion thereof, by a written notice specify any matter in respect of which such erection or execution is without or contrary to the sanction referred to in section 246 or is contravention of any condition of such sanction or any of the provisions of this Act or any bye-laws made there under and require the person who gave the notice under section 243 or section 244 or the owner of such building or work either.- (a) to make such alteration as may be specified in the said notice with the object of bringing the building or work in conformity with the said sanction, condition or provisions, or. (b) to show cause why such alterations should not be made within the period stated in the notice. (2) If the person or the owner does not show cause as aforesaid he shall be bound to make the alterations specified in the notice. (3) If the person or the owner shows cause as aforesaid, the Commissioner shall by an order either cancel the notice issued under sub-section (1) or confirm the same subject to such modifications as he thinks fit.’
The Tribunal ordered that its status Quo will remain in place but during status quo order dated 28-7-2022 the owner with the help of enforcement staff deputed in the area managed to complete construction of ground and first and 2nd floors without permission of JMC but sadly JMC didn’t take any cognizance of this violated construction and also Dy Commissioner South, JMC who is also incharge of BOCA Authority in Channi Himmat area is perhaps one of the beneficiary of this violated construction as the owner must have paid handsome Gift to enforcement staff to escape action from JMC and also from contempt of Tribunal status Quo order. Since Tribunal order dated 28-7-2022 , JMC hasn’t initiate any proceedings against owner when it was duty bound to bring violated construction of first and 2nd floors construction during status Quo order in place and also it should have appelead against Tribunal order keeping in view violated construction in contempt of Tribunal Order This present development is very serious in nature and new Commissioner JMC should take serious concern of these violated constructions being raised and completed with support and patronage of enforcement staff.
