KALI DASS Vs. EXECUTIVE OFFICER, MUNICIPALITY

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against order dated 29th April, 1999 passed by the learned Single Judge in writ petition, OWP No. 853/93, dismissing the writ petition, being without any merit.

(2.) THE Jammu Municipal Authorities served notice dated 19th February, 1992 under Section 229 of the Municipal Act upon the appellant calling upon him to demolish within three days from the date of service of the notice the unauthorized construction of a shop situated at the main road at Talab Tilo, Jammu. Second notice dated 27th February, 1992 was served on him to demolish the construction within seven days failing which the same would be demolished at his risk and cost. Aggrieved by the notices, the appellant preferred an appeal before the Jammu and Kashmir Special Tribunal (hereinafter referred to as 'the Tribunal'). The Tribunal dismissed the appeal by order dated 21st April, 1992. The appellant filed a Review Petition, seeking review of the above order passed by the Tribunal. The Review Petition was also dismissed. The Tribunal recorded a firm finding of fact that the appellant had raised unauthorized construction, in violation of the provisions of the Municipal Act, Master Plan and Town Planning Act and that the construction, which comes within the road alignment, will have adverse affect on the planned development of the area. The appellant was also not able to prove his ownership over the land on which the unauthorized construction had been raised. The Tribunal also did not find any merit in the appellant's contention that he had only effected minor repairs/additions and alterations in the shop. The appellant, being aggrieved of the orders of the Tribunal, filed writ petition, OWP No. 883/93.

(3.) ON the basis of the report submitted by the Commissioner, the learned counsel for appellant argued before the learned Single Judge that the other shops in the vicinity being in the same alignment as that of the petitioner, the same did not warrant demolition. The learned Single Judge, however, did not find any merit in the submission made by learned counsel for the appellant, as, in the opinion of the learned Single Judge, the construction raised by the appellant was recent in origin whereas the other shops were old and that the entire construction raised by the appellant was without permission of the competent authority. The learned Single Judge also found that the concept of set -back was totally ignored and the provisions of Prevention of Ribbon Development Act, which were mandatory in nature, had been violated. The learned Single Judge on finding that the construction was in breach of the provisions of the Municipal Act, Prevention of Ribbon Development Act and other laws on the subject, observed that the same could not be permitted to remain. Accordingly, the writ petition was dismissed. The appellant has come in appeal against that order of the learned Single Judge.