Due to no follow-up action by JMC , owner approached Hon’ble High Court Jammu under WP© No. 1865/2023,CM No. 4313/2023 dated 21-7-2023 against sealing of shop only to get de-sealing order when JMC was duty bound to take action against violations of ground floor and construction of two more violated floors first and 2nd floor covering 100% plot area without maintaining setbacks and also raising construction absolutely contrary to approved site plan which were projected in BOCA notice 7(3) dated 8-7-2022 which they conveniently put on hold after joining hands with owner
GY CORRESPONDENT
jammu, oct 16
The owner Durga Dutt of residential plot 584/4 measuring 30×55 Sqft on main road of Channi Himmat Housing Board colony got approved site plan from then prevalent Managing Director J&K Housing Board vide No. HB/DAP/604-07 dated 16-10-1998 in which owner allowed 60% built area and was duty bound to observe setbacks including front 14 ft ,rear 9 ft, allowing owner drawing room , kitchen ,porch, bedroom, kitchen, lobby toilet on ground floor 904 sqft also first floor 904 Sqft with open area 746 sqft, The owner contrary to approved site plan constructed violated ground floor only nearly 1500 Sqft each floor against sanction 904 Sqft without maintaining setbacks and started residing in the year 2001.
Thereafter in the year 2019 applied for further construction before JMC under application No. 8180 dated 26-6-2018. The Building officer along with team visited site pointed out violated construction of ground floor to which owner produced undertaking duly attested by 1st class Magistrate having Affidavit No. BZ 825752 DT26/09/2019 that he would dismantle existing violations on the ground floor before taking fresh construction first and 2nd floor strictly in accordance with approved drawing of approved site plan . Accordingly JMC approved conditional site plan vide No. 527/JMC/BS/2019 dated 8-11-2019 allowing owner first and 2nd floors 970 Sqft each, setback front 10 ft, rear 6.5 ft. The height of building fixed as 35 ft including ground floor and paid building fee Rs 3880 and labour cess Rs 23280 for construction of first and 2nd floors.
The owner as per given undertaking to dismantle existing violations on the ground floor raised equal size of first and 2nd floors at par with ground floor covering hundred percent plot area of 1500 sqft without maintaining setbacks. When this violated construction was going on, JMC didn’t take any action against owner as then Enforcement section extended unfair help to owner. However when locals raised hue and cry over violated construction, JMC under public pressure served owner demolition notice under 7(3) of COBO Act 1988 vide No. JMC/CEO/10/03/2022 dated 8-7-2022 issued by Joint Commissioner (R&E) claiming that owner raised violated first and 2nd floors on existing violated ground floor and that owner didn’t observe mandatory setbacks and raised construction absolutely against approved residential site plan asking owner to demolish violated construction within five days failing which JMC will demolish the same at the cost and risk of owner.
The owner meanwhile approached Hon’ble J&K Special Tribunal Bench-III against demolition notice vide File No. STJ/154/2022 dated 12-7-2022 and got status Quo on 13-7-2022. During trial of the case before Tribunal, the owner started converting ground floor drawing room into a big shop earlier fitting steel shutter nearly 15 ft and then glass shutter and started running commercial activity under name and style,” M/S Durga Mart without permission from JMC. However JMC in order to save their skin served owner an eyewash notice under section 7(1) of COBO Act 1988 vide No. JMC.CEO/18/1/22 dated 20-7-2022 claiming in the notice that the owner changed land use from residential to commercial without prior permission of JMC and serving owner 48 hours ultimatum to reply as to why Khilafwarzi should not demolish violation or sealed.
Anyhow JMC sealed the illegal shop under Section 8(1) of BOCA Act 1988 vide sealing order No. MJ/PS/JC/R&E/256-59 dated 1-8-2022 issued by JMC Joint Commissioner (R&E) when he lacks requisite power to serve sealing notice as then Secretary JMC was empowered to serve owner sealing notice. The Tribunal dated 13-7-2022 decided owner’s Appeal for raising violated first and 2nd floor on already existing violated ground floor on the basis of which Status Quo granted to owner. It deserves mentioning here that during trial of case, JMC didn’t project actual violation and put up weak defence by not disclosing the construction of shop and running the same under name and Style M/S Durga Mart openly making land use change from residential to commercial without JMC permission. Meanwhile the owner didn’t stop commercial activity and after sealing of shop shutter started running commercial activity from porch area. It deserves mentioning here that the owner didn’t appeal against sealing order under section 8(1) of illegal shop before Tribunal and also JMC didn’t disclose that the owner during trial of case the owner raised shop by dismantling drawing room of residential ground floor and changed residential ground floor into commercial whose trial was going on against BOCA notice under Section 7(3)
However the Tribual decided that appeal dated 12-1-2023 observing that since the notice has been served by Joint Commissioner (R&E) beyond his jurisdiction of power to serve BOCA demolition notice under 7(3) dated 8-7-2022 and ordered to set-aside this BOCA notice on technical ground but didn’t comment on merit of case and directed that JMC is at liberty to take fresh action again against owner as per law after settling the technicality of serving the notice and take fresh proceedings as per established law within jurisdiction of JMC. The Tribunal in its final verdict disposed off the appeal of owners and also disposed off any other interim order given by Tribunal including Status Quo order granted by Tribunal dated 13-7-2022 against BOCA demolition notice under Section 7(3) vide No. JMC/CEO/10/03/2022 dated 8-7-2022 but sealing order of shop remained intact.
It deserves mentioning here that JMC didn’t take fresh action as directed by Tribunal in its verdict on 12-1-2023 in case titled owner Durga Dutt Vs JMC and the onus of taking action against owner was on Dy Commissioner South Lal Chand and Enforcement Officer Anil Kashyap and didn’t abide by Tribunal’s direction and this action on their part is still awaited even after lapse 22 long months. Due to no follow-up action by JMC meanwhile the owner approached Hon’ble High Court Jammu under WP© No. 1865/2023,CM No. 4313/2023 dated 21-7-2023 against sealing of shop constructed after dismantling drawing room of residential house to get de-sealing order when JMC was duty bound to take action against violations of ground floor and construction of two more violated floors first and 2nd floor covering 100% plot area without maintaining setbacks and also raising construction absolutely contrary to approved site plan which were projected in BOCA notice 7(3) dated 8-7-2022 which they conveniently put on hold after joining hands with owner.
In light of above , these developments have badly shattered the faith of common man in JMC functioning. However now ray of hope has been witnessed since new Commissioner Dr Divansh Yadav has taken over the way he is making round of Municipal areas and openly inviting aggrieved people to register their grievances promising befitting action against all those responsible for adding miseries to sufferings of residents of Municipal areas. Further Commissioner JMC should ensure the release of detailed press notes along with pictures to print media whatever is being done by JMC particularly action taken against violators so that these violators can be shamed publically and also it will also serve as strong deterrent against future potential violators. In this way the image of JMC which has been damaged in recent years by enforcement staff who support and patronize violated construction and which has badly damaged the faith of common man will somehow be restored and also the spirit and guidelines of JMP-2032 and Unified Building Bye-laws 2021 besides JMC Act 2000 can be implemented in letter and spirit.
