Jammu & Kashmir High Court
Som Nath vs State Of Jammu And Kashmir on 12 March, 2025
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 01.03.2025
Pronounced on: 12.03.2025
OWP No. 1521/2015
Som Nath, aged 70 years .....Petitioner(s)
S/O Sh. Amar Nath
R/O Ward No. 10,
Municipal Committee Sunderbani
Tehsil Sunderbani District Rajouri.
Through: Mr. Vilakshana Singh, Advocate.
Vs
1. State of Jammu and Kashmir
Through Commissioner/Secretary
Housing and Urban Development Department,
Civil Secretariat, Srinagar.
2. Executive Officer,
Municipal Committee, Sunderbani
Tehsil Sunderbani District Rajouri.
3. Thoru Ram
S/O Sh. Durga Dass
R/O Ward No. 10
Falwari Bhajwal Sunderbani
Tehsil Sunderbani District Rajouri.
..... Respondent(s)
Through: Mr. S.S. Nanda, Sr. AAG
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
01. The petitioner has filed this petition under Article 226 of
the Constitution of India, seeking writ of certiorari,
quashing the order/office note passed by the respondent
2 OWP No. 1521/2015
No. 2, whereby, the building violations committed by the
respondent No. 3 in utter violation of the provisions of
Control of Building Operations Act, 1988 and the Control
of Building Operation Regulations, 1998 have been
compounded and also seeking a writ of mandamus,
commanding the official respondents to demolish the
illegal construction raised by the respondent No. 3 in
violation of the approved building plan.
02. The petitioner in his petition asserts that the petitioner is
the owner of a piece of land measuring 3½ marlas
comprising of khasra No. 2789, khata No. 2552/1998
and khewat No. 192/189 situated at ward No. 10
Bhajwal (erstwhile Ward No. 2), within Municipal
Committee, Sunderbani, tehsil Sunderbani district
Rajouri; that the respondent No. 3 has also a piece of
land measuring 4 marlas (1088 sq. ft.) comprised in
khasra No. 2789 situated just adjacent to the above
mentioned land of the petitioner; that the respondent No.
3 had already existing building over his above mentioned
land and the area of the said already existing
construction was 384 square feet and he got building
plan approved for another 560 sq. feet; that the
respondent No. 3 instead of adhering to the approved
building plan, raised construction in utter violation of the
3 OWP No. 1521/2015
said approved building plan; that the respondent No. 3,
as per the approved building plan, could construct over
560 sq. ft. of his land but he raised construction over
1064 square feet of land and in doing so, he has also
encroached upon a portion of the above mentioned land
of the petitioner by keeping a gallery towards the land of
the petitioner.
03. It is further asserted in the petition that as per the
approved building plan, the respondent No. 3 was
required to keep front set back of 56 feet and rear set
back of 3 feet towards the land of the petitioner but the
respondent No. 3 did not keep any set back on any of the
side, thereby committing major violation of the approved
building plan; that he also installed shutters of the newly
constructed shops towards the above mentioned plot of
the petitioner; that when the respondent No. 3 violated
the approved building plan, the petitioner approached the
respondent No. 2 requesting him to take legal action
against the respondent No. 3, who told the petitioner that
he had issued notice and further assured that he shall
take strict action against the respondent No. 3, but when
inspite of the repeated requests of the petitioner, the
respondent No. 2 did not take any action against the
respondent No. 3, the petitioner’s son filed an application
4 OWP No. 1521/2015
under section 6 of the J&K RTI Act, 2009 seeking
information about the above mentioned construction
raised by the respondent No. 3.
04. It is also pleaded in the petition that from the information
supplied by the respondent No. 2, the petitioner came to
know that total plot area of the respondent No. 3 was
1088 sq. ft. and the total construction existed on the said
land of the respondent No. 3 was 384 sq. ft; that site plan
in the year 2013-14 was sanctioned for the construction
of 560 sq. ft. but the construction raised on the spot by
the respondent No. 3 was shown to be 1064 sq. ft; that
the said letter further stated that excess area constructed
by respondent No. 3 without sanction was 504 sq. ft. and
that the violation of site plan committed by respondent
No. 3 was compounded by imposing a fine of Rs. 2000/-
on the respondent No. 3, without mentioning of any
provision under which the above mentioned violations
had been compounded; that the respondent No. 2 had
failed to supply copy of order whereby building violation
committed by the respondent No. 3 was compounded
which constrained the petitioner’s son to file an appeal
under section 16 (1) of the J&K RTI Act, 2009 whereby
petitioner received further information vide letter No.
MC/SB/015/535 dated 15.06.2015 informing him that
5 OWP No. 1521/2015
the building violations committed by the respondent No.
3 were compounded vide impugned office note/order;
that the respondent No. 3 is in the process of raising
construction over his first floor wherein he has already
raised walls over the first floor without any approval, so
much so no notice has been issued by respondent No. 2
to respondent No. 3 in respect of the above said
construction; that being aggrieved of the aforesaid
encroachment, the petitioner filed a civil suit against the
respondent No. 3, which is pending before the court of
learned Additional District Judge, Rajouri. Lastly, it is
asserted that the petition be allowed and the illegal
construction raised by the respondent No. 3 be
demolished.
05. The petitioner has challenged the impugned order on the
grounds that the respondent No. 2 did not have any
authority to compound the building violations committed
by the respondent No. 3 under the provisions of Control
of Building Operations Act, 1988; that even after issuing
notice under section 7(3) of Control of Building
Operations Act, 1988, the respondent No. 2 could not
compound building violations committed by the
respondent No. 2; that by compounding the major
building violations committed by the respondent No. 3,
6 OWP No. 1521/2015
the respondent No. 2 has not only usurped power of
Appellate Authority but also has passed an order which
even the Appellate Authority was not competent to pass;
that the building violations whereby the violator has
raised construction over the land not owned by him
cannot be compounded; that the building violations
committed by the respondent No. 3 have been
compounded by the respondent No. 2 under the
provisions of Control of Building Operations Act, 1988
and not under section 211 of Municipal Act, 2000; that
the building violations have not been dealt with under
section 211 of the Municipal Act, 2000, which renders
the impugned composition illegal.
06. Pursuant to notice, the respondent No. 3 has filed his
objections stating therein that no major violation has
been committed by the respondent No. 3 and the
deviation in construction raised is only a minor deviation
which is a violation only under the Municipal Act, 2000
not under any other Act; that even otherwise the said
minor deviation can be even compounded under the
Control of Building Operations Act, 1988 and the Control
of Building Operations Regulations, 1998; that neither
any notice under the said Act or regulations or for that
matter under any other Act has ever been served upon
7 OWP No. 1521/2015
the respondent No. 3 nor he has committed any violation
of any Master Plan or Town Planning Scheme or any Bye
laws; that the petitioner, having nothing to do with the
land in question or the construction of the answering
respondent, has no locus standi in filing the present
petition; that the petitioner has suppressed the material
fact of the pendency of a civil suit of the respondent No. 3
which is pending before the court of learned Additional
District Judge, Rajouri, wherein the sale deed in favour of
the petitioner has been challenged by the respondent No.
3.
07. It is further stated in the objections that the petitioner is
neither the owner nor in possession of even an inch of
land from survey No. 2789 situated at ward No. 10,
Bhajwal Sunderbani; that the petitioner has illegally and
fraudulently got the sale deed; that the respondent has
neither raised the new construction by covering 1064 sq
ft nor any gallery has been kept towards the land of the
petitioner; that no notice whatsoever under any Act was
ever served upon the answering respondent who himself
applied for compounding the minor violations under the
provisions of the Municipal Act, 2000, which were as
such compounded under Section 211 of the said Act.
8 OWP No. 1521/2015
Lastly, it is prayed that the petition filed by the petitioner
be dismissed.
08. Heard learned counsel for the parties and perused the
record.
09. A Coordinate Bench of this Court vide order dated
10.11.2017, holding that the petitioner lacks locus to call
in question the impugned note dismissed the instant
petition with the observation that the violations
committed by the respondent No. 3 while raising
construction contrary to the sanctioned building plan
shall not affect the rights of the petitioners, to be
adjudicated upon by the Civil Court.
10. Aggrieved of the dismissal of the petition, the petitioner
assailed the order dated 10.11.2017 in an intra-court
appeal before the Division Bench of this Court which vide
order dated 16.09.2021 holding that the petitioner, being
an aggrieved person, would have the locus to maintain
the petition, relegated the matter back to the writ court
for consideration on all the issues before the writ court.
The Division Bench had relied upon the law laid down in
this behalf by the Apex Court in cases titled as
“K. Ramadas Shenoy Vs. The Chief Officers, Town
Municipal Council, UDIPI & Ors” reported as 1974 (2)
9 OWP No. 1521/2015
SCC 506 and “Jasbhai Motibhai Desai Vs. Roshan
Kumar” reported as AIR 1976 SC 578 on the subject.
11. Learned counsel for the petitioner has restricted his
arguments to the sole question of the jurisdiction of the
respondent No. 2 to compound the building violation
committed by the respondent No. 3 as against the
building plan in contravention of the provisions of the
Jammu and Kashmir Control of Building Operations Act,
1988 and Jammu and Kashmir Control of Building
Operations Regulations, 1998 and it was prayed that
since the respondent No. 2, as an Executive Officer of the
Municipal Committee, Sunderbani, had no jurisdiction to
compound the deviation/violation committed by the
respondent No. 3, therefore, the impugned note is liable
to be quashed on the jurisdiction part only.
12. Learned counsel for the respondents No. 1 and 2,
however, argued that the Act and the Regulations (supra)
referred by the learned counsel for the petitioner were not
applicable to the area of Municipal Committee,
Sunderbani as there was neither any Master Plan nor any
bye-laws constituted or adopted for that area. He has
vehemently argued that the action in compounding the
deviation/violation of the building plan had been rightly
taken by the respondent No. 2-Executive Officer,
10 OWP No. 1521/2015
Municipal Committee, Sunderbani, in terms of Section
211 of the Municipal Act and prayed the petition be
dismissed.
13. Section 211 of the Jammu and Kashmir Municipal Act,
2000 provides for penalty for disobedience with regard to
erection or re-erection of a building without sanction and
in contravention of the terms of any sanction granted or
in terms of any contravention of any bye-law made under
Section 204 or in the case of a building of which the
erection has been deemed to be sanctioned under sub
section(5) of Section 208, if it contravenes any scheme
sanctioned under Section 205.
14. The third proviso to Section 211 of the Jammu and
Kashmir Municipal Act, 2000 provides that if any notice
is issued by the Executive Officer or Secretary, as the
case may be, under this Section on the ground that a
building has been begun or has been erected in
contravention of the terms of any sanction granted or in
contravention of any bye-law made under Section 204,
the person to whom the notice is issued may, within
fifteen days from the date of service of such notice,
appeal to the municipality and subject to the provisions
of sections, 212, 264 and 269, the decision of the
municipality shall be final.
11 OWP No. 1521/2015
15. Sub-Section (2) of Section 211 of the Jammu and
Kashmir Municipal Act, 2000 further provides that where
the owner of the building submits the revised plan, after
the work has been stopped by him or the work is
completed by him and deviation from the sanctioned plan
are minor in nature, the municipality may, subject to the
special or general directions of the Government under
sub-section (3), compound the cases of deviation and the
expression ‘minor’ with regard to deviation has also been
explained. Therefore, the actions required to be taken by
the municipality are to be taken either by the elected
Municipal Committee or in its absence by a duly
appointed Administrator and certainly not by the
Executive Officer of the Committee who holds a
ministerial post.
16. Since the impugned note prepared by the Khilafwarzi
Officer whereby the deviation/violation for an area of 320
sq. ft. had been compounded by the Executive Officer for
a composition fee of Rs. 2,000/- under the Jammu and
Kashmir Control of Building Operations Act, 1988 is an
order/note passed without jurisdiction by the respondent
No. 2. The impugned note/order has, thus, been passed
by the respondent No. 2 without having any authority of
law and is not sustainable.
12 OWP No. 1521/2015
17. Viewed thus, the impugned note/order is quashed. The
Municipal Committee, Sunderbani is directed to consider
the matter afresh after affording an opportunity of being
heard to the petitioner, who is an aggrieved person and
also to the respondent No. 3 as well, who is stated to be
the violator in the case, expeditiously, preferably within a
period of six weeks from the date a copy of this order is
served upon the Municipal Committee, Sunderbani.
18. Needless to mention that the civil litigation pending
between the petitioner and the respondent No. 3 in civil
court(s) shall be taken to its logical end without being
influenced by any decision taken by the Municipal
Committee, Sunderbani with regard to deviation/violation
and the civil court(s) shall determine the rights between
the parties.
19. The writ petition along with connected interim
application(s) is, thus, disposed of as allowed, however,
without any order as to costs.
(M A CHOWDHARY)
JUDGE
JAMMU
12.03.2025
Naresh/Secy
Whether the order is speaking: Yes
Whether the order is reportable: Yes
Naresh Kumar
2025.03.12 15:35
I attest to the accuracy and
integrity of this document
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