HIGH COURT OF JAMMU AND KASHMIR AT JAMMU OWP No. 750/2002 CMP No. 783/2002 Date of decision:21.10.2008 _______________________________________________________ Soma Devi Vs. Chairman, J&K Spl. Tribunal & Ors. Coram: MR. JUSTICE J. P. SINGH, JUDGE. Appearing Counsel: For Petitioner(s) : Mr. D.R.Khajuria, Advocate. For Respondent(s) : Mr. S.S.Nanda, Advocate. i) Whether approved for reporting in Press/Journal/Media : Yes/No ii) Whether to be reported in Digest/Journal : Yes/No __________________________________ ______________________________ Soma Devi has filed this writ petition questioning Jammu and Kashmir Special Tribunal, Jammu’s order of July 8, 2002 dismissing her appeal preferred against Order Nos. MJ/Estt/CKO/25/2000 dated 8.5.2000 and MJ/Estt/25/CKO/3/2000 dated 24.6.2000 whereby Building Operations Controlling Authority had initially directed her to stop illegal construction of one room and a bath room on the ground floor of her house situated at Sarwal, Jammu and later directed her to demolish the illegal construction. 2 The case set up by the petitioner in her writ petition is that she had carried only repairs of her old house and while so doing had replaced the wooden roof of one of the rooms of her house which according to her would not amount to “major violation”, warranting demolition of the structure. Petitioner’s counsel, Mr. D.R.Khajuria, submitted that the petitioner had not raised any fresh construction and all that she had done was replacing the wooden roof of her old house so as to get relieved of the leakage which she would suffer from in rainy seasons. Learned counsel further submitted that as no bye-laws had been approved by Jammu Municipal Corporation so the alleged violation of petitioner’s raising construction in the front and rear set back would not amount to major violation warranting demolition of construction raised by her. Per contra, Mr. S.S.Nanda, Advocate submitted that according to the records, petitioner had raised construction of one room, verandah, staircase and bath room on the front and rear set back of the existing house which abuts on the road, without obtaining building permission therefor, the authorities under the Jammu and Kashmir Control of Building Operations Act, 1988, had heard her and her objections filed in 3 answer to notice no. MJ/Estt/CKO/25/2000 dated 8.5.2000 and finding that the construction raised by her amounted to major violation in terms of the Jammu and Kashmir Control of Building Operations Regulations, 1998 directed her to demolish the illegal construction vide authority’s notice no. MJ/Estt/25/CKO/3/2000 dated 24.6.2000. According to the learned counsel, the permissible building line from the centre line of the road as per the provisions of the City Master Plan has been prescribed as 25 ft. whereas the structure raised by the petitioner was hardly 15 ft. away from the centre line of the road. The petitioner had violated the provisions of the Prevention of Ribbon Development Act, 2007 and construction raised by her had therefore rightly been ordered to be demolished. I have considered the submissions of learned counsel for the parties, gone through the records, the report of the Commissioner who had been appointed by the Court during the pendency of the writ petition and the order of the Special Tribunal. While dealing with petitioner’s appeal, the Tribunal had rejected her case observing as follows:- “I have considered the arguments of both the parties and perused the record available before me. The main plea taken by the appellant is that she has not raised any fresh 4 construction on site but has affected repairs to the already existing house which was constructed by the Govt. itself in the year 1962. It has been asserted that the said house was allotted to the appellant’s father under the 1947 Refugee’s Rehabilitation Scheme. However, it has been admitted that she has raised construction of stair case. As per report of Executive Officer JMC the appellant has covered 100% of the plot area. The appellant however claims that whole construction was raised by the Govt. and the house was allotted to father of appellant as displaced person of 1947 but the appellant has not come with any documentary evidence to prove that the Govt. had raised construction covering the area of the plot by 100%. Since the alleged construction is in utter violation of building bye laws of JMC as the 100% of the plot area has been brought under construction whereas only 60% is the permissible area allowed for coverage for construction. The appeal is accordingly rejected.” Petitioner’s plea that she had replaced only the old wooden roof of her house and not raised any new construction is not supported by the objections which she had filed in answer to respondents’ notice wherein she had stated that she had raised small construction of a kitchen in her own land and could not inadvertently seek prior permission for which she wanted to be excused. She had not made any such submission in her mercy petition which she had filed before the Municipal Authorities in answer to the notices served upon her regarding her having raised unauthorized construction and in that view of the matter petitioner’s submission 5 that she had removed only wooden roof of one of the rooms of her house cannot be believed. The records further bear testimony to the fact that petitioner had raised construction covering whole of the front and rear set backs and the rooms constructed by her in the front set back which abuts on the road had been constructed in such a fashion that there was every possibility of its being used as a shop as there was no provision for any ventilation/window in the room. Records further indicate that petitioner had unauthorisedly built up area covering 383 Sq.ft. and had raised balcony projection of 53 Sq.ft. over the road. Clause 11 of the Control of Building Operations Regulations provide that an offence of a minor nature shall include any erection or re-erection of the building which has taken place in violation of permission referred in section 4 of the Control of Building Operations Act, 1988 or deemed permission as referred in Sub-clause (2) of clause (7) of these Regulations provided that such erection or re-erection did not- (i) violate the approved land-use of area as notified in the Master Plan or Town Planning Scheme; (ii) violate the permissible front, rear or side set backs prescribed in the bye-laws; 6 (iii) violate by more than 10% of the permissible ground coverage as prescribed in the bye- laws; and (iv) violate the permissible height of the building as prescribed in the bye-laws. Petitioner having covered whole of the front and rear set back area by raising construction thereon has committed such violation which amounts to “major violation” which would not permit its compounding. In view of the provisions of clause 11 of the Regulations, the construction raised by the petitioner in front and rear set back cannot by any stretch of reasoning be termed as minor violation. Petitioner’s construction being a “major violation” is thus required to be demolished as no case for compounding the violation, in the facts and circumstances of the case is found to have been made out by the petitioner. Submissions made by the petitioner before the Special Tribunal have been appropriately dealt with by the Tribunal and I do not find any ground to interfere in the order passed by the Tribunal rejecting petitioner’s appeal against the orders issued by the Municipal Authorities directing demolition of the illegal construction raised by her which violates not only the 7 Master Plan but also the provisions of the Prevention of Ribbon Development Act as well. Petitioner’s writ petition is, therefore, devoid of merit. It is, accordingly, dismissed. (J.P.Singh) Judge Jammu 21.10.2008 Pawan Chopra