JDA served demolition notice to owner dated 27.04.2017 under Section 7 (3) of the COBO Act which was preceded by a notice under Section 7 (1) of the COBO Act dated 21.10.2016, as also a notice in terms of Section 12 (1) of the COBO Act dated 31.03.2017 directing for stopping illegal constriction of a commercial building which was being illegally raised without permission of the JDA as required under the COBO Act
Owner challenged the order of demolition before Tribunal, Jammu which was quashed and owner was directed to pay building permission fee as prescribed for the construction of a Banquet Hall within a period of two months failing which JDA would be at liberty to remove the constructions vide Tribunal order dated 9-10-2018 directing to compound violations of owner
JDA disagree with Tribunal order of compounding violations of Banquet Hall appealed against Tribunal order before Hon’ble High Court Jammu vide Case- WP ( C) No.2689 of 2019 claiming that owner has not taken any building permission from the JDA to construct the above Hall and, as such, the Tribunal could not have allowed the appeal on the basis of the ‘No Objection Certificate’ alleged to have been granted by the BDO treating it to be a building permission.
During arguments by both sides before Hon’ble High Court, it was established that the construction of the Banquet Hall by owner is in contravention of the provisions of the COBO Act and, as such, JDA was within its domain to direct for its demolition. The Special Tribunal manifestly erred in holding the constructions to be legal on the basis of the ‘NOC’ of the BDO which in no way is relevant and material to enable construction within the local area.
Owner meanwhile approached Hon’ble Supreme Court against J&K High Court order dated 8-3-2022 under Special leave to Appeal ( C) No (S) 5586/2022 wherein Supreme Court in its order Dated 8-4-2022 sustained order of Hon’ble High Court Jammu agreeing that COBO Act ,1988 applies to development area and permissions and approvals are also required and accordingly dismissed petition
But sadly in spite of all this , the Banquet Hall Hill Top is still functional as JDA didn’t take follow-up action against owner after Hon’ble Supreme Court sustained demolition order of Hon’ble High Court Jammu which is contempt of Hon’ble Courts which should be taken seriously by LG Administration
GY CORRESPONDENT
jammu, sep 5
It is an established fact that influential politicians in J&K made huge fortunes during their stint in power and managed to raise huge infrastructure against established norms and off course without the permission of concerned departments . On such instance has come to fore where a former Minister Ch Zulfikar Ali constructed Banquet Hall under name and Style Hill Top Banquet Hall fully AC comprising Khasra No.1084,1180,1181,1089 and 1090 at village Channi Chawadhi without permission of JDA and paying any requisite fee and started functioning of Banquet Hall without JDA permission. However when hue and cry was raised in the year 2016 over construction of this Banquet Hall by also covering govt land, the JDA woke up from slumber that a Banquet Hall has been constructed and functioning without their permission. However JDA initiated proceedings for the demolition of the unauthorized constructions alleged to have been raised by former Minister. Accordingly, an order of demolition dated 27.04.2017 came to be passed under Section 7 (3) of the COBO Act requiring the owner to demolish the alleged unauthorized constrictions, failing which the same were to be removed by the JDA at the cost of owner. The aforesaid order of demolition was preceded by a notice under Section 7 (1) of the COBO Act dated 21.10.2016, as also a notice in terms of Section 12 (1) of the COBO Act dated 31.03.2017 directing for stopping illegal constriction of a commercial building which was being illegally raised without permission of the JDA as required under the COBO Act. It deserves mentioning here that It was only after owner was given a show cause notice and a notice directing to stop the construction work and when the constructions were not stopped that the final order for the demolition of the Banquet Hall allegedly constructed on a plot of land comprising Khasra Nos. 1084, 1180, 1181, 1089 and 1090 situate at village Channi Chawadhi, Jammu, was passed.
However owner challenged the order of demolition by filing an appeal before the Jammu and Kashmir Special Tribunal, Jammu. The appeal has been allowed on the ground that there is no violation of the land use and that owner has raised construction on the basis of the ‘NOC’ granted by then Block Development Officer (BDO).Since the permission granted by the BDO was not challenged by the JDA, the demolition order dated 27.04.2017 is without jurisdiction and liable to be quashed. Accordingly, the demolition order was quashed and owner was directed to pay building permission fee as prescribed for the construction of a Banquet Hall within a period of two months failing which JDA would be at liberty to remove the constructions vide Tribunal order dated 9-10-2018 directing to compound violations of owner. Worthwhile to mention here that JDA disagree with Tribunal order of depositing building permission fee of Banquet Hall appealed against Tribunal order before Divisional Bench (DB) of Hon’ble High Court Jammu vide Case- WP ( C) No.2689 of 2019 in the case titled Vice Chairman, JDA Vs Ch Zulfikar Ali (Owner) & others of Banquet Hall Hill Top.Above order was impugned in the writ petition and learned counsel appearing for JDA, argued that owner has not taken any building permission from the JDA to construct the above Hall and, as such, the Tribunal could not have allowed the appeal on the basis of the ‘No Objection Certificate’ alleged to have been granted by the BDO treating it to be a building permission.
Meanwhile Senior counsel of owner, on the other hand, contended that at the relevant time, the Master Plan of 2021 was in existence whereas JDA initiated action against owner as per the Master Plan 2032. The BDO had rightly granted ‘No Objection Certificate’ and the constructions raised are not in violation of any law. The land use of the aforesaid land had no longer remained to be the forest area but stood changed to commercial vide order dated 12.01.2017 of the Revenue Department.
But Counsel from JDA argued that there was no dispute to the fact that owner has constructed the Banquet Hall and that he does not possess any building permission of the JDA to construct it. The constructions have been raised only on the strength of the certificate of the BDO and the Sarpanch Panchayat Halqa Chowadhi, Jammu.
It is pertinent to mention here that the Jammu and Kashmir Development Act, 1970 provides for the constitution of development authorities for any local area as a body corporate and provides for the preparation of Master Plans and Zonal Plans,the development of the area is supposed to take place in accordance with the said plans. The said Act vide Section 13 clearly provides that no person including the department of the Government shall undertake or carry out development of any land or building in any zone unless permission for such development has been obtained in writing from the authority in accordance with the provisions of the Act.In view of the above provisions contained under Section 13 of the Act, no one is authorized to construct any building under the development area without the permission in writing of the authority.
Moreover Jammu Development Authority is a creation of the aforesaid Act and the law relating to building is controlled and governed by the COBO Act. It, vide Section 4 provides that no person shall undertake or carry out development of any site or erect or re-erect any building in the Municipal area or any other local area except with the previous permission of the Authority concerned in writing.Also the land in question is within the Municipal limits or the development area and is within jurisdiction of the JDA. This fact stands established vide SRO 263 dated 9.08.2004 wherein the area Channi Chowadhi finds mention at S. No. 60 which extends the area and adds it to the local area of Jammu.
Further as per provisions of the Act and the COBO Act reveal that a permission in writing of the authority is necessary for raising any construction and that the BDO or the Sarpanch has no role to play in grant of such permission.The ‘NOC’ issued by them that they have no objection, if the Banquet Hall is constructed is not a permission to construct and notwithstanding the said NOC, it was incumbent upon owner to have obtained permission in writing of the Authority before initiating the construction work which, admittedly, was not taken.
During arguments by both sides before Hon’ble High Court, it was established that the construction of the Banquet Hall by owner is in contravention of the provisions of the COBO Act and, as such, JDA was within its domain to direct for its demolition. The Special Tribunal manifestly erred in holding the constructions to be legal on the basis of the ‘NOC’ of the BDO which in no way is relevant and material to enable construction within the local area. The said NOC only states that BDO and others have no objection if the Banquet Hall is constructed subject to construction Bye Laws and permission from the relevant department.
The aforesaid ‘NOC’ is not a permission to construct as envisaged in law and, as such, is a meaningless document and it was not necessary for the petitioners or anyone to challenge it. It was not even in public domain before the initiation of the present proceedings. There was no question of assailing it.The Special Tribunal itself has mentioned and directed Owner to deposit building permission fee prescribed by the Government with the BOCA/JDA for the purposes of construction of Banquet Hall within a period of two months which clearly reflects that the Tribunal was conscious of the fact that there was no building permission and that no such permission could be granted without submitting an application and depositing the requisite fee for the purposes.
Since no building within the development area could have been raised without the prior permission of the Authority, the construction of the Banquet Hall is per se in contravention of law and is unauthorized which could not have been saved by the Tribunal on the strength of ‘NOC’ issued by the BDO/Sarpanch, firstly, for the reason that they had no authority of law under the two Acts to issue any such certificate and, secondly, the said certificate only states that they have no objection if the Banquet Hall is constructed which does not amount to granting of building permission. In view of the aforesaid facts and circumstances, the impugned judgment and order of the Tribunal dated 09.10.2018 was declared unsustainable in law and accordingly quashed on 8-3-2022.
The owner meanwhile approached Hon’ble Supreme Court against J&K High Court order dated 8-3-2022 under Special leave to Appeal ( C) No (S) 5586/2022 wherein Supreme Court in its order Dated 8-4-2022 sustained order of Hon’ble High Court Jammu agreeing that COBO Act ,1988 applies to development area and permissions and approvals are also required and further said that undated certificate of BDO and Sarpanch which states that NOC is subject to construction bye laws and permission from any other department if pending, citing finding no good ground and reason to issue notice dismissed the petition. Hon’ble Supreme Court further remarked that in case , the owner takes recourse to the said remedies, it will be examined and decided by in accordance with law.
But sadly in spite of all this , the Banquet Hall Hill Top is still functional as JDA didn’t take follow-up action against owner after Hon’ble Supreme Court sustained demolition order of Hon’ble High Court Jammu. JDA should immediately undertake course correction and immediately abide by directions of Hon’ble Supreme Court and High Court Jammu as there can’t be two sets of rules one for poor and another for well off that too at the cost of JMP-2032 and Unified Building Bye-laws 2021.
