Jammu & Kashmir High Court
Building Operation Controlling … vs Sh. Harjeet Singh on 4 June, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
2025:JKLHC-JMU:1443
Sr. No. 7
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No.:- OWP No. 1001/2007
IA No. 1448/2007
Building Operation Controlling Authority,
Municipal Corporation through Commissioner,
Jammu Municipal Corporation, Town Hall, Jammu.
.....Petitioner(s)
Through: Mr. S.S. Nanda, Sr. AAG.
Vs
1. Sh. Harjeet Singh
S/o Sh. Bhajan Singh,
R/o Gali No. 6 (near Bhajan Scooter Workshop)
Sector-6, Nanak Nagar, Jammu.
2. J&K Special Tribunal, Jammu.
..... Respondent(s)
Through: Mr. Abhimanyu Sharma, Advocate for R-1.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
04.06.2025
1. Building Operation Controlling Authority (BOCA), Municipal
Area, Jammu, by virtue of an Order No. 43/3/CKO/2001
dated 10.07.2001, purportedly issued under section 7(3) of
the Jammu and Kashmir Control of Building Operations Act,
1988 called upon the respondent No. 1-Sh. Harjeet Singh to
undo the unauthorized construction as identified in the said
order.
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2. The issuance of the aforesaid order dated 10.07.2001 was
preceded by a show cause notice No.
MJ/Estt/43/1/CKO/2001 dated 27.06.2001 wherein it
came to be observed that Khilafwarzi Inspector I/C area on
27.06.2001 had reported that the respondent No. 1-
Sh. Harjeet Singh has commenced/is carrying on/has raised
the height of the walls and laid slab over it in order to
construct a shop already on the ground floor at Nanak
Nagar.
3. The aforesaid notice was addressed to the respondent No. 1-
Sh. Harjeet Singh by reference to his address near Bhajan
Singh Sona Seth Workshop, Sector No. 6, Nanak Nagar,
Jammu.
4. The respondent No. 1 came to resort to his statutory remedy
of appeal under section 12 of the Control of Building
Operations Act, 1988 before the Jammu and Kashmir
Special Tribunal, Jammu.
5. The said appeal remained on the docket of Jammu and
Kashmir Special Tribunal on its file No. STJ/182/2001 from
16.07.2001 to 01.08.2007. It came to be allowed by holding
the reported unauthorized construction to be amounting to
re-erection but of minor nature involving no violation of
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Master Plan or Zonal Bye laws and, therefore, direction of
compounding the violation came to be passed.
6. During the pendency of the appeal, the Executive Officer,
Jammu Municipality, Jammu has submitted a report dated
29.10.2001 wherein it came to be pointed out that the
alleged unauthorized construction comprised of 562 sq. ft
along with a balcony space violation of 56 sq. ft, total coming
to be 618 sq. ft.
7. At the relevant point of time, minimum compounding fee for
commercial violation was 25 per sq. ft and maximum 50 per
sq. ft.
8. The institution of the present writ petition came to take
place by the Building Operation Controlling Authority
(BOCA), Municipal Corporation, Jammu, assailing the
adjudication so carried out by the Jammu and Kashmir
Special Tribunal, Jammu in terms of its order dated
01.08.2007 saying that it failed to consider the seriousness
of the violation committed by the respondent No. 1-Sh.
Harjeet Singh and that the relevant Guidelines and the
Regulations of 1998 were ignored by the Jammu and
Kashmir Special Tribunal by further making a misreading of
the report dated 29.10.2001 submitted by Executive Officer,
Jammu Municipality which, as per the petitioner-Building
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Operation Controlling Authority, Municipal Corporation,
Jammu, the respondent No. 1 was reported to have
constructed one double shutter shop and a porch
unauthorizedly at the ground floor besides the already
existing one on the front set back without obtaining the
building permission.
9. The submissions made by the petitioner in the writ petition
cannot be brushed aside to be casual or baseless but it is
the Chief Khilafwarzi Officer of the time of Jammu
Municipality who has actually let down the petitioner-
Building Operation Controlling Authority (BOCA) in terms of
the issuance of show cause notice No.
MJ/Estt/43/1/CKO/2001 dated 27.06.2001 under section
7(1) of the Control of Building Operations Act, 1988 by not
coming up with the clear situation confronted to the
respondent No. 1-Sh. Harjeet Singh as to what was the
actual state of unauthorized construction found by the Chief
Khilafwarzi Officer or for that matter the field staff of
Building Operation Controlling Authority (BOCA), Municipal
Corporation, Jammu.
10. Thus, what came to be stated by the Executive Officer,
Jammu Municipality in his report dated 29.10.2001 is far
from being imagined or stated in the show cause notice
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5 OWP No. 1001/2007
dated 27.01.2001, when the time intervening between the
two i.e. show cause notice and the report of the Executive
Officer, Jammu Municipality is just four months and during
which time, the Jammu and Kashmir Special Tribunal, by
virtue of an order dated 16.07.2001, had directed status quo
on spot to be maintained, meaning thereby the respondent
No. 1-Sh. Harjeet Singh could not have carried out any
construction activity further than what actually came to be
referred to in the show cause notice dated 27.06.2001
issued under section 7(1) of the Jammu and Kashmir
Control of Building Operation Act, 1988.
11. Thus, for the failure on the part of the Chief Khilafwarzi
Officer of Jammu Municipality, the consequences have to
fall on none else than the petitioner and that is where the
Jammu and Kashmir Special Tribunal was led to reckon the
alleged violation on the part of the respondent No. 1-Sh.
Harjeet Singh to be a minor one in carrying out the
placement of shutters with respect to already constructed
shops and ordering its compounding.
12. This Court, therefore, finds no illegality vitiating the
adjudication of the Jammu and Kashmir Special Tribunal
except the fact that the appellant/respondent No. 1-
Sh. Harjeet Singh herein came to be directed to deposit
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Rs. 1,000/- with the respondents as compounding fee which
could not have been so given the rate at which compounding
of commercial violation was prescribed to take place at the
rate as mentioned above.
13. Therefore, this Court modifies the order dated 01.08.2007 of
the Jammu and Kashmir Special Tribunal by levying
respondent No. 1 with compounding fee of Rs. 50 per sq. ft
for 618 sq. ft violation which calculates upto Rs. 30,900/- to
be deposited by the respondent No. 1-Sh. Harjeet Singh with
the Jammu Municipal Corporation, Jammu within a period
of two months from the date of passing of this judgment
failing which Jammu Municipal Corporation, Jammu shall
be entitled to seek recovery of the said amount by laying
motion to this Court for the said effect.
14. Disposed of as above.
(RAHUL BHARTI)
JUDGE
JAMMU
04.06.2025
Naresh/Secy.