Owner against approved site plan constructed basement 1200 sqft and two shops on it instead of Stilt parking, Ist floor 1440 sqft making 20% violations and also not maintain setbacks Rear 26 ft. Side-1, 12 ft and shape of plot also changed at site as it was not as per approved drawing, constructed basement by covering hundred percent area without observing setbacks
Owner being a retiree as Superintending Engineer managed a report from private Geo-Globe Consultants Soil and Material Testing Laboratory dated 5-5-2019 that whatever minor deviations has been done on the guidance of structural Engineer citing loose soil of plot which were simple ploys to save unauthorized construction in the name of danger to building during earthquake whereas nothing of that sort has been found in nearby constructions raised strictly as per approved site plan
Owner made an appeal to High Court to withdraw appeal but Court didn’t let owner to withdraw appeal. However with a view to get a clearer picture on this aspect, Hon’ble Divisional Bench appointed Court Commissioner to submit detailed and comprehensive report extent of violations committed in regard to building permissions granted
Tribunal conveniently forgotten Hon’ble Justice Dhiraj Singh Thakur under OWP No.697/2017,1A No.1/2017 dated 15-3-2019 reprimanding Tribunal for compounding violations beyond its jurisdiction of 10% and has weighed more with the Tribunal rather Than concentrating on the rule position which prohibits compounding of a major violation
JMC didn’t appeal against Tribunal order of compounding violations beyond 10% before High Court Jammu which makes stand of JMC in this particular case highly ambiguous as on one hand application for depositing compounding fee hasn’t been approved by Commissioner JMC so far and on other hand allows construction work after de-sealing of premises when case was still under trial
Such types of orders have been encouraging total lawlessness as everyone feels that they can raise any construction without permission and later on same shall be compounded. Moreover stringent view of the shortfall in duties of the Khilaf Warzi officer/Enforcement Inspector of the area concerned should also be taken who were also accountable and kept their eyes shut when construction was being raised without any sanctioned plan
GY CORRESPONDENT
jammu, jul 5
Plot 22-P (Private land of old village Channi Kamala) a Kandi Belt owned by one Mohan Lal son of Garibu Dass measuring 4205 Sqft in Sector-3 Ward-51 on main road Housing Board colony. The owner got approved commercial plan stage-1st vide No. 738/JMC/BS/18 dated 14-02-2019 with 3005 Sqft open area and stilt parking 1200 sqft for public parking and Ist floor 1200 sqft. And setback shall be maintain by 15 ft. Front side‘I’ 10 ft, Rear side 38 ft and deposited labour cess 43200 for stilt parking and Ist floor under Khasra No. 4 &5 Min, Sector-3 Ward-51, Channi Himmat Govt Housing colony Channi Himmat Jammu. The owner getting site plan approved from JMC constructed basement 1200 sqft and two shops on it instead of Stilt parking, Ist floor 1440 sqft making 20% violations and also not maintain setbacks Rear 26 ft. Side-1, 12 ft and shape of the plot also changed at site as it was not as it is in approved drawing.
Against permitted stilt floor at stage 1st constructed basement by covering hundred percent area without observing setbacks with the help and patronage of JMC enforcement staff. Under public pressure, JMC served owner COBO notice under section 7 (1) of COBO Act 1988 vide No. MJ/CEO/147/1/2019 dated 23-07-2019 but the construction continued without any follow-up action by JMC resulting in raising of huge commercial structure on strong foundation of basement constructed against approved site plan. When locals questioned JMC enforcement staff for unauthorized construction, JMC under pressure served to the owner COBO notice sealed the complex under provision of section 8(1) of J&K control of building operation Act 1988 vide no. JMC/CEO/275-77 dated 21-01-2020 for constructing illegal basement against permitted ground floor as stilt floor for parking purpose.
However owner challenged the sealing order dated 21.01.2020, under section 8(1) of the Control of Building Operations Act, 1988, before the J&K Special Tribunal dated 24-2-2020 but Tribunal dismissed appeal citing decision in this regard beyond its jurisdiction. Thereafter owner approached J&K High Court Jammu & Kashmir and Ladakh at Jammu WP(C) No. 742/2020, CM No. 1869/2020, CM No. 1745/2020.The petitioner primarily challenges the order dated 21.01.2020 under section 8(1) of the Control of Building operations Act, 1988, whereby, the building being constructed by the petitioner, allegedly in violation of the building plans, has been ordered to be sealed. Owner also challenged the notice dated 23.07.2019, issued under Section 7(1) of the Control of Building Operations Act, 1988 (hereinafter referred to as ‘Act’) and also seeks mandamus commanding the official respondents to grant NOC/permission for completing the remaining construction. From the facts, as they emerge from the pleadings on record, it can be seen that the petitioner was granted a permission to construct a building with stilt parking and first floor and with permission to construct 1200 sqft of ground floor. The Municipal Corporation having realized that the reply was submitted on 29.07.2019. Subsequently, the authority concerned issued the sealing order on 21.03.2020, in excise of powers under Section 8(1) of the Control of Building Operations Act, 1988. According to the record, the petitioner has committed violations Basement floor 1200 sqft. 100% unauthorized, Ground Floor 1440 sqft violation done 240 sqft. Rear side constructed 26 ft. cess violation 12 ft. Shape of the plot is also changed at site. It is not as it is in approved drawing. From the aforementioned chart, it can be seen that the petitioner has constructed a basement floor, which was hundred per cent unauthorized and not only this, but the setbacks were also seriously compromised.
During pending trial of case before High Court, JMC served another BOCA notice under section 7(3) vide No. MJ/CEO/147/3/2019 dated 8-4-2022 after 27 Months of sealing dated 21-1-2020 when the same should have been served within four weeks by JMC. However JMC to shield owner’s violated construction hatched a well laid nefarious design and guided owner to approach J&K Special Tribunal Bench-II against demolition notice and got status Quo from the Tribunal vide file No. STJ/107/22 dated 13-4-2022. It deserves mentioning here that the owner being a retiree as Superintending Engineer managed a report from private Geo-Globe Consultants Soil and Material Testing Laboratory dated 5-5-2019 that whatever minor deviations has been done on the guidance of structural Engineer citing loose soil of plot which were simple ploys to save unauthorized construction in the name of danger to building during earthquake whereas nothing of that sort has been found in nearby constructions raised strictly as per approved site plan.
It deserves mentioning here that the owner made an appeal to High Court to withdraw the appeal but the Court didn’t let owner to withdraw the appeal. However with a view to get a clearer picture on this aspect, Hon’ble Divisional Bench ordered dated 23-05-2022 we deem it necessary to appoint a Court Commissioner, who would submit a detailed and comprehensive report with regard to the nature and extent of the works executed by the petitioner, the extent of violations committed in regard to the building permissions granted and most importantly, whether what is constructed by the petitioner was, in fact, a stilt parking or a basement. Accordingly, Court appoint Dinesh Rampal, Retd. Chief Engineer, PWD, as Court Commissioner, who shall be paid Rs. 50,000/- as Commissioner’s fee, which shall be deposited in the Registry of this Court within three days by the petitioner. The report will be submitted by the Court Commissioner within one week positively. The Commissioner shall visit the spot on this Friday i.e. 27.05.2022, in the presence of the Municipal Authorities as also the petitioner. Photographs will also be taken for which additional Rs. 2,000/- will be deposited in the Registry of this Court by the petitioner, to be handed over to Court Commissioner on next date before the Hon’ble Court 02-06-2022.Meanwhile, it is made clear that based upon the report, if it is found that any of the statements of the learned counsel for the petitioner were incorrect with regard to the actual status on spot, we would impose 6 WP(C) No. 742/2020 CM No. 1869/2020 CM No. 1745/2020 exemplary cost. This petition will not be permitted to be withdrawn till the matter is considered by the Court.
Worthwhile to mention here that in a strange way, J&K Special Tribunal ignoring huge violations at the site in question which were not at all compoundable as it was beyond 10% violations which is maximum limit for compounding violations has compounded violations dated 25-1-2023 at the site vide File No.STJ/107/2022 dated 11-4-2022 directing that the constriction of basement raised by the owner to the extent of 1200 Sqft may be compounded by charging the compounding fee prescribed for commercial structures @ of Rs 1000 per sqm,the excess construction at ground floor to the extent of 240 Sqft may also be compounded by charging fee @ of Rs 1000 Sqm and the setback violations of 12 feet may be compounded by charging fee @ of Rs 1000 Sqm. It deserves mentioning here that Tribunal conveniently forgotten Hon’ble Justice Dhiraj Singh Thakur under OWP No.697/2017,1A No.1/2017 dated 15-3-2019 reprimanding Tribunal for compounding violations beyond its jurisdiction of 10% and has weighed more with the Tribunal rather Than concentrating on the rule position which prohibits compounding of a major violation. High Court directed Tribunal not to compound any violation which being in the nature of a major violation is otherwise not compoundable as per the Act of 2002 and the regulations framed thereafter.
Accordingly the owner was directed to deposit compounding fee in the concerned head of JMC within thirty days failing which demolition order may be acted upon. The owner in this regard has moved an application for depositing compounding fee but the same hasn’t been approved by Commissioner JMC so far and as a result of which ,the owner has filed contempt against JMC before Tribunal. Sources however have disclosed that the owner has deposited compounding fee in the concerned JMC head.
However one main thing which is difficult to digest is that why JMC didn’t appeal against Tribunal order of compounding violations before High Court Jammu which makes stand of JMC in this particular case highly ambiguous. It deserves mentioning here that when JMC de-sealed the premises of owner, the owner continued construction for two months and completed pending works when he was not allowed to raise any construction as the case was under trial but JMC didn’t take any action against owner and now yet again premises has been sealed which is nothing but mockery of BOCA notices and BOCA Act 1988 as a result of which the owner successfully raised such a huge violated structure.
But here it was seen that the Tribunal by passing a totally illegal order had directed compounding of the violations on payment of compounding fee. Moreover in the similar case High Court has pointed out that such types of orders have been encouraging total lawlessness as everyone feels that they can raise any construction without permission and later on the same shall be compounded. The Court while staying the order of the Tribunal passed an order which also indirectly were to serve as an example for others directed that anyone floor of the building in question be sealed by the petitioners, at the option of the respondent. The Court also took a stringent view of the shortfall in duties of the Khilaf Warzi officer of the area concerned who was also accountable and kept his eyes shut when the construction was being raised without any sanctioned plan or was made to do so. The concerned authority was ordered by the Court to take strict action against such Khilaf Warzi officer and report to Court.
