BUILDING OPERATION CONTROL Vs. NAVEEN CHANDER NARANG

JUDGEMENT

(1.) Challenge in this writ petition has been thrown to order dtd. 18/5/2012 passed by respondent no. 2-J&K Special Tribunal (for short 'the Tribunal'), vide which, unauthorized structure of 78 sq ft. alleged to be raised by respondent no. 1, has been compounded @ Rs.50.00 per sq. ft. in terms of Rule 11 of the J&K Control of Building Operations Act 1988, (for short 'the Act").

(2.) Some uncontroverted facts of the case are that respondent no. 1 claims to be owner in possession of Plot measuring 5118 Sq. ft. situate at Main Road, Gangyal, Kunjwani National Highway, Jammu. He initiated construction of six numbers of RCC Pillars at the ground floor without building permission of the petitioner authority. The construction work came to be halted by the petitioner by invoking provisions of the Act. As a result, respondent no. 1 submitted the building plan, which came to be approved vide Order No. 2764/BS-09 dtd. 26/3/2010, for raising commercial construction comprising of two halls measuring 1349 sq. ft. However, while raising construction, respondent no. 1 breached the sanctioned plan. He was served upon a show cause notice dtd. 19/9/2009 in terms of Sec. 7 (1) of the Act, followed by final notice dtd. 28/9/2011 envisaged under Sec. 7 (3) of the Act, calling upon him to demolish the unauthorised construction within 05 days from the service of notice. This notice came to be assailed by respondent no. 1 before the Tribunal on the conventional grounds that no show cause notice contemplated under Sec. 7(1) of the Act was served upon him and he was not granted reasonable opportunity of being heard before issuance of the impugned notice. The petitioner authority filed status report in the Tribunal reflecting violations committed by respondent no. 1. However, learned Tribunal vide impugned order dtd. 8/5/2012, allowed the appeal preferred by respondent no. 1 and compounded the unauthorised structure as mentioned at the outset.

(3.) The petitioner authority has assailed the impugned order on the predominant premise that learned Tribunal has fallen in error of law to compound major violations as violation of setback committed by respondent no. 1 is not compoundable as per Regulation 11 of the J&K Control of Building Operation