BUILDING OPERATION Vs. JYOTI SINGH
LAWS(J&K)-2006-4-13
HIGH COURT OF JAMMU AND KASHMIR
Decided on April 22,2006

Building Operation Appellant
VERSUS
Jyoti Singh Respondents

JUDGEMENT

- (1.) THE petitioner, a statutory authority has called in question order dated 9 -9 -2005 passed by respondent No.2 in exercise of its appellate jurisdiction under the provisions of Control of Building Operations Act, 1988.
(2.) BRIEFLY stated the facts as emerge from the record reveal that respondent No.1 applied to the petitioner for grant of sanction/permission for construction of building at Ist Floor of the existing house for residential purposes. Petitioner granted sanction/permission for construction vide its sanction No. 139/BS/2002 dated 24 -7 -2002 and approved the plan with certain conditions as appended to the sanction order. It is alleged that respondent No.1 commenced construction in violation of the sanction plan. On the report of the Khilafwarzi Inspector a Show Cause Notice dated 4 -9 -2003 was issued to respondent No.1 to discontinue the construction, followed by notice dated 20 -10 -2003 to demolish the un -authorized construction. In the meanwhile respondent No.1 applied for sanction/permission in respect to the alleged un -authorized construction which request is said to have been rejected in the meeting held on 24 -2 -2004. A fresh demolition Notice No. MJ/Estt/38/3/CKO/03 dated 9 -6 -2004 came to be served upon respondent No.1. This demolition order was appealed against before respondent No.2, the J&K Special Tribunal, Jammu. During the pendency of the appeal a report was filed by the petitioner giving details of the nature and extent of violation vide its report dated 2 -9 -2004. It was stated that the violation is serious in nature. Special Tribunal, the Appellate Authority decided the appeal vide the impugned order dated 9 -9 -2005. The Tribunal on consideration of the report and the Master Plan allowed the appeal and ordered compounding of the construction at the rate of Rs 15/ - per Sq ft in respect to the area measuring 5158 Sq ft and at the rate of Rs 20/ - per Sq ft in respect to the Balcony projection. Challenge to this order is based upon the ground that the violation is major in nature and not compoundable under the Building Operations Regulations 1998 which permit the compounding of only minor violations.
(3.) WITH a view to explain the violation of Regulations Mr. S.S. Nanda, learned counsel appearing for the petitioner has referred to the report of the Municipal Corporation and argued that huge construction has been raised at the first floor in gross violation of the sanction plan and the construction on the second floor is totally without any permission, whereas Balcony has been constructed over hanging the road. According to Mr. Nanda, the area is purely residential and respondent No.1 has constructed a Nursing Home in violation to the Master Plan. Petitioner reported the following violations to the Tribunal during the pendency of the appeal: - 1. "That the appellant has constructed the building against the sanctioned plan. She was permitted vide this office No. 139/BS/2002 dated 24 -7 -2002 to construct residential house at first floor comprising two bed rooms, kitchen, drawing room, living room, two toilets and stair -hall covering built up area of 1935 Sqft. As against this at site, the appellant has constructed 13 rooms, big central hall and toilets, covered passage, stair -hall and ramp covering an built up area of 5138 Sft. This obviously is in deviation of the sanctioned plan that too infringement of the prescribed building bye -laws and the control of building operations Act of 1988 which is a major violation. 2. That the appellant has also raised 26" wide balcony over hanging over the road thereby increasing further constructed area illegally and unauthorisedly. 3. That the appellant further has constructed three rooms one big hall, covered passage, ramp and stair -hall unauthorisedly at second floor over the recently raised first floor without any plan sanctioned. The appellant thus has again violated the prescribed building bye -laws and the control of the Building Operations Act of 1988. 4. The construction raised on the second floor is without any plan sanctioned and in contravention to the provision of the Master Plan.;


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