SHAM GROVER Vs. MUNICIPAL COMMITTEE

JUDGEMENT

(1.) ADMITTED .

(2.) APPELLANT was called upon to demolish an unauthorised construction raised by him within seven days from the date of receipt of the notice dated 20th December, 1991. This was challenged before Jammu and Kashmir Special Tribunal Jammu. It was pleaded before the Tribunal that the land over which the store has been constructed by the appellant is in his possession and he is the lessee of the shop. His case was that he could raise the construction over the said land in terms of the lease deed. It was also pleaded that he was not committed breach of any of the provisions contained in the Jammu and Kashmir Municipal Act, therefore, the notice calling upon him to remove the unauthorised construction was totally uncalled for. The Tribunal in pursuance of an order passed by it on 1st January, 1992, called upon the Executive Officer, Jammu Municipality, to submit a report. The report was submitted by the concerned officer. The violations which were pointed out are as under: "1. The nature and extent of violation is that the construction of shop has been made on set back of the road and also raised l -6" wide sun shade projection on road side without permission. The L.T. line is also passing over the illegal as shown on the map enclosed. The distance of the offending structure from the centre of the road is 10 -9" whereas permitted building line from centre of the road is 25; 2. The map to scale as desired is enclosed; 3. The plot area could not be ascertained because sale -deed/revenue documents has not been adduced by the appellant;

(3.) Thereafter, the appellant was called upon to meet the report referred to above. Both the sides were heard. It is apparent from the order passed by the Tribunal that as the inspection was conducted on 7th April, 1992 in presence of the parties, it was noticed that the structure had been raised at the corner of the plot. At this corner, the roads of the two sides met at right angle. It was also found that the construction is up to the edge of the roads and the concept of set back has not been observed at all. The construction was found to be new and was made for commercial purposes. The sun shade projected on the road and the electric lines were passing over it. It was noticed that some shops already existed there and they were in the same line as the shop in question. Taking note of the above facts and the spot inspection, the Tribunal came to the conclusion: i) That no building could be constructed which is within 25 feet from the centre of the road; ii) That the building in question has been constructed in breach of what has been noted at serial No. (i) above; iii) That no doubt, there are other constructions also which have not observed the concept of set back but then, this cannot be made a ground to compound the violation. This is because: a) The building has been constructed at the junction of the two roads; b) That the area is residential and the building in question cannot be used for commercial purposes. 4. Ultimately, the Tribunal came to the conclusion that this is not a minor breach and is not compoundable under the Jammu and Kashmir Municipal (Unauthorised Construction) Rules. 1077. The appeal preferred by the appellant was dismissed. A writ petition was preferred in this court. This also came to be dismissed. The fact that the construction was on the edge of the two roads and the concept of set back was not adhered to, was taken note of. The order passed by Tribunal was upheld. Against the judgment passed in the writ petition, a review petition was also preferred. The argument put across before the learned Single Judge, who was called upon to exercise review jurisdiction, was that the electric motor of 2 HP capacity was installed in the year 1983 and this was so installed with the due permission. It was accordingly pleaded that the construction should be deemed to have been raised with the permission of the Municipality and it had no right to seek its demolition. This review petition stands dismissed. The appellant has now preferred this Appeal under clause 12 of the Letters Patent. What is sought to be urged is: i) That the Jammu Municipality having given the permission to install 2 HP electric motor in the said premises cannot turn around and seek demolition of the building on the ground that the same is being used for commercial purposes; ii) That the appellant had obtained a no objection certificate from Jammu Municipality; iii) That the violation, if any, is minor in nature; iv) That even other constructions exist in the area which are also in the same building line as the one raised by the appellant. It is urged that if others could be permitted to raise the construction, then there was no justification to call upon the appellant to demolish the building in question; v) That only a sun shade was newly constructed, otherwise, the construction is old one.