OM PARKASH Vs. ADMINISTRATOR JAMMU MUNICIPALITY

JUDGEMENT

(1.) This appeal has arisen out of the judgment and order dated December 17, 1999, whereby learned Single Judge has allowed the writ petition (OWP No. 620/96) and directed the demolition of the unauthorised construction raised by the appellant in violation of the municipal laws.

(2.) A brief resume of the facts is that respondent No. 1 (hereafter called the respondent) noticed that the appellant was taking steps to lay concrete slab on the second floor of the building situate in Raghunath Bazar. Jammu, without seeking sanction of the site plan. The respondent issued notice under Sec. 229 of the Municipal Act on December 14, 1993 asking the appellant to stop the unauthorised construction and demolish it within three days. Despite that the appellant continued to raise the construction. The respondent on January 3, 1994, issued notice under Sec. 225 of the Municipal Act, directing the appellant to stop the construction forthwith. Thereafter again, on February 28, 1994, the respondent issued another notice asking the appellant to desist from continuing with the construction work. The appellant did not pay any heed to the notices and continued to raise the construction. Ultimately, final notice under Sec. 229 (3) of the Act was issued to the appellant asking him to demolish the construction. By that time, the appellant had raised the construction up to 4th floor. At this stage of the construction, the appellant approached the JandK Special Tribunal challenging the notices in appeal. During the pendency of the appeal, appellant did not refrain from raising further construction and completed 5th floor also in utter disregard of the municipal laws. The Tribunal on February 01, 1995, appointed a Commissioner, Shri J. N. Dar, Assistant Registrar, to visit on the spot and report about the factual unauthorised construction raised by the appellant. The Commissioner vide his report dated February 6, 1995, reported the unauthorised construction to the extent of 3rd floor (408 sq. ft.), 4th floor (408 sq. ft.), 5th floor (302 sq. ft.) and Balcony (27 sq.ft.) - total 1145 Sq. ft. and height of the building up to 70 ft. against the prescribed limit of 35 ft. and also left the set back line from the centre of the road only 16 ft. against the prescribed limit of 25 ft. The appellant increased area of the ground floor by raising 2 ft. wide Balcony projection towards the road, and the construction thereon up to 4th floor has been raised. The Tribunal after hearing learned counsel for the parties, vide its order dated April 25, 1996, compounded the unauthorised construction treating it as minor offence in terms of Rule 3 of the J and K Municipal (Unauthorised Construction) Rules, 1977 (hereinafter, Rules 1977) on payment of compounding fee at the rate of Rs. 15 per sq. ft. and construction of balcony projection of 27 sq. ft. at the rate of Rs. 30/- per sq. ft. Aggrieved of the order of the Tribunal, the respondent preferred a writ petition (OWP No. 620/96) before this Court. The learned Single Judge, after hearing learned counsel for the parties, allowed the petition and set aside the order of the Tribunal and directed the respondent to demolish the unauthorised construction within four weeks and to submit the compliance report.

(3.) The appellant has challenged the correctness and legality of the order, under appeal, on the grounds that the learned single Judge has decided the matter without examining the record of the respondent. The other ground taken is that the Master Plan sanctioned under the Development Act, 1970, was in vogue and operative at the relevant time, therefore, the Municipal Act has no application in the area in view of the operation of the Master Plan. The last ground set out in the memorandum of appeal and canvassed is that other similarly situated persons, who have raised unauthorised constructions in earlier years, their constructions have not been demolished though the same were challenged by the respondent-Municipality before the Court of law and their cases stood compounded but the appellant has not been dealt with the same standard.