It is highly surprising that when JMC and its enforcement staff badly failed to implement status quo order at the site , Enforcement Officer Anil Kashyap in an eyewash action served owner BOCA notice under provision of Section 7(1) vide No. JMC/Enf/19/01/2021-24 dated 29-7-2024 under BOCA Act 1988 instead of Commissioner JMC action under Section 256 of JMC Act 2000 and projected favourable violations in favour of owner and didn’t project actual violations served ultimatum to owner to reply to this notice within 48 hours as to why Khilafwarzi should not demolished violated structure but didn’t take any follow-up action in this regard
JMC in BOCA notice 7 (3) projected violated area of 360 Sqft against sanctioned 1960+ 180 Porch area making it 16.8%, first and 2nd floors constructed 2915 Sqft each against permitted 1960 Sqft covering excess area 955 Sqft making violations as 48.7%. In the notice it was wrongly mentioned that owner was to leave front 19 ft 9 inch and owner left 25 ft 3 inch however as per approved site plan the owner was mandatory to leave nearly 31.5 ft from front side. However in reality the violation of front side was 6 ft 2 inch, likewise the owner was supposed to leave rear 10 ft but left nothing and made 100% violations, side-1 was to be left 10 ft and owner left only 5.5 ft and made nearly 45% violations, other side was to be left 6.6 ft but owner left only 6 ft.
When RTI application filed in this regard to seek action taken by Commissioner JMC under Section 256, the Enforcement Officer replied that with regard to asked information, no record is available vide letter No. JMC/Enf/217-20 dated 11-9-2024 whereas law section replied that asked information doesn’t pertains to law section vide letter No. JMC/Lit/2 dated 17-8-2024 which clearly points out that JMC somehow want to shield violated construction of owner
GY CORRESPONDENT
jammu oct 14
One Subash Chander s/o Raj Gopal owner of residential plot 9 Sector-6 measuring 50×100 (5000) Sqft on the main central road side of Channi Himmat Housing Colony in Ward-50 got approved building plan from JMC vide No. 1423/JMC/BS/2020 dated 31-3-2021. As per approved site plan, the owner was allowed ground floor 2140 Sqft including porch 180 Sqft, first and 2nd floors 1960 Sqft each. The owner was mandatory to observe setbacks including front 31.5 ft, side-1 ,10 ft, side-II, 6.5 ft and rear 10 ft . The owner with the help of concerned enforcement staff raised violated structure against residential approved site plan without maintaining setbacks. JMC however to save their skin after serious questions were put to enforcement staff how unauthorized construction continued even after serving COBO notices to owner at the initial stage, JMC after time period of two months served owner COBO notice of demolition under section 7(3) vide No.MJ/CEO/19/03/2021 dated 11-9-2021 issued by Joint Commissioner ( R&E) after expiry of 52 days when there floors of equal size of violative construction was already completed besides the owner also did not construct Porch and constructed three equal floors covering 3000 Sqft each. As per the notice JMC maintained that the owner violated an area of 360 Sqft against sanctioned 1960+ 180 Porch area making it 16.8%, first and 2nd floors constructed 2915 Sqft each against permitted 1960 Sqft covering excess area 955 Sqft making violations as 48.7%. Similarly the owner was to leave front 19 ft 9 inch and owner left 25 ft 3 inch however as per approved site plan the owner was mandatory to leave nearly 31.5 ft from front side. However in reality the violation of front side was 6 ft 2 inch, likewise the owner was supposed to leave rear 10 ft but left nothing and made 100% violations, side-1 was to be left 10 ft and owner left only 5.5 ft and made nearly 45% violations, other side was to be left 6.6 ft but owner left only 6 ft.
However the owner approached J&K Special Tribunal against BOCA notice served to owner under section 7(3) and got Status Quo vide No.STJ/iii/F/236/2021 dated 15-9-2021. Special Tribunal in its judgement asked the Council of owner to produce digital photographs of structure and accordingly the next hearing was fixed on 29-10-2021 and till date the case is still under trial before Bench-III. But the owner did not abide by the direction of Tribunal and by covering the front side of structure with large opaque sheets continued work viz tiles work, marble laying, ceiling work and other allied works and also constructed 4th floor measuring 800 Sqft during status Quo order in place and the same was not mentioned in the notice served to owner. But the JMC didn’t file appeal against owner before Tribunal over contempt of Tribunal order.
However when the trial began again, JMC filed favourable objections in favour of owner and did not point out actual violations in objections filed as mentioned above especially from front side wrongly saying that the owner was to leave 19’ 9” whereas as per approved site plan the owner was to leave 31’- 5” and on the ground the owner only left 25’.3” according to JMC besides total violations as observed by JMC was 2273 Sqft whereas the actual violation is much more than the JMC quoted. Moreover the owner also raised 4th floor excluding Mumty which was not mentioned in objections filed by JMC.
The Tribunal Bench-III in its final verdict/decision under File No. STJ/236/2021 dated 9-5-2024 under endorsement No. STJ/402/2024 dated 16-5-2024 forwarded same to JMC Authority said that without going into merits of the case, the said impugned order in the demolition notice is therefore set aside issued under 7(3) by Joint Commissioner (R&E) JMC Jammu dated 11-9-2021 and said that Commissioner JMC is expected to take necessary steps for delegation of power under section 6, 7 (3) and (8) of the COBO Act 1988 upon the Joint Commissioner (R&E), JMC or any other officer to avoid any delay on this account in expeditors disposal of appeals as provided under Sub section (3) of Section (13) of COBO Act 1988. However Tribunal ordered that Status Quo granted by Tribunal dated 15-9-2021 will remain in operation against appeal filed by owner dated 13-9-2021 in case titled Subash Chander Sharma Vs JMC BOCA Aurhority with liberty granted to JMC `Commissioner 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 which reads :- 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.- 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 to show cause why such alterations should not be made within the period stated in the notice.If the person or the owner does not show cause as aforesaid he shall be bound to make the alterations specified in the notice.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 further ordered that Status Quo will remain in operation till JMC Commissioner takes further action as vested in him under Section 256 as per JMC Act 2000.The Tribunal ordered that its status Quo will remain in place and this order with proper receipt Commissioner JMC dated 16-5-2024.
Meanwhile JMC didn’t ensure proper implementation of Tribunal’s Bench-III order dated 16-5-2024 to initiate afresh proceedings against owner under JMC Act 2000 whose executing powers vested with Dy Commissioner South Lal Chand incharge Channi Himmat area under JMC Act 2000 who badly failed to implement Tribunal’s order at the site. As a result of which the owner with the help of enforcement staff deputed in the area managed to complete construction in all respects within month time and enter premises in May 2024 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 offered precious gifts to enforcement staff to escape action from JMC and also from contempt of Tribunal Bench-III status Quo order dated 15-9-2021 .
It is highly surprising that when JMC and its enforcement staff badly failed to implement status quo order at the site , Enforcement Officer Anil Kashyap incharge Channi Himmat area in an eyewash action served owner BOCA notice under provision of Section 7(1) vide No. JMC/Enf/19/01/2021-24 dated 29-7-2024 under BOCA Act 1988 instead of action by Commissioner JMC under Section 256 of JMC Act 2000 and projected favourable violations in favour of owner and didn’t project actual violations as mentioned above served ultimatum to owner to reply to this notice within 48 hours as to why Khilafwarzi should not demolished violated structure but didn’t take any follow-up action against owner after serving owner 48 hours ultimatum. It deserves mentioning here that Commissioner JMC was at liberty to take afresh proceedings against owner under section 256 under JMC Act 2000 within three months time whether without or contrary to the sanction referred to in section 246 or is in contravention of any condition of such sanction or any of the provision of JMC Act 2000 or any bye-laws made thereunder and require the person who gave the notice under section 243 or section 244 but as per sources Commissioner JMC has not initiated any fresh proceedings as per Tribunal order dated 9-5-2024 against owner which as on date was not implemented on the ground.
Worthwhile to mention here that when RTI application filed in this regard to seek action taken by Commissioner JMC under Section 256, the Enforcement Officer replied that with regard to asked information, no record is available vide letter No. JMC/Enf/217-20 dated 11-9-2024 whereas law section replied that asked information doesn’t pertains to law section vide letter No. JMC/Lit/2 dated 17-8-2024 which clearly points out that JMC somehow wants to shield violated construction of owner.
It deserves mentioning here that 2273 Sqft violations on three floors is still intact but JMC neither appealed against violation of Tribunal status Quo order nor owner applied for compounding of violations which caused serious loss to JMC exchequer worth lacs due to dereliction of duty on part of concerned enforcement staff deputed in Channi Himmat area which is a serious development as JMC was duty bound to take serious action against owner under JMC Act 2000 for violation of status Quo order but did nothing as a result of which violations of 2273 sqft on three floors were not removed and also no compounding of violations was done and owner despite all this has already started residing in premises. Dy Commissioner South Lal Chand incharge enforcement wing in Channi Himmat area failed to take any cognizance of ongoing violated construction as he badly failed to ensure implementation of Status Quo order of Hon’ble Tribunal by not cross-checking reports of Enforcement Officer and Enforcement Inspector deputed in Channi Himmat area. Commissioner JMC should take serious cognizance of this and whosoever is guilty in helping raising such a violated structure should be taken to task henceforth.
