Jammu, December 08: An appeal of BOCA filed against compounding by a special tribunal has been dismissed by High court judge Tashi Rabstan. The judge also passed an observation that the since the authorities at the helm of affairs are aware of these violations of law by those raising construction and by officials of municipal authority who are responsible to check the violations, they should take necessary action against the violators.
The judge in his observation directed the authorities to not wait for the construction to come up and immediately check the violations. He also ordered to initiate appropriate disciplinary proceedings against the erring officials who are found to be involved with the law-breakers.
The J&K High Court made this decision in view of a petition filed by BOCA, challenging the August 29, 2005 order of the J&K Special Tribunal, Jammu, whereby it had directed compounding of violation of construction committed.
Pertinently, as per the petitioner’s case, On August 3, 2002, Chain Singh started construction of three rooms, kitchen, bathroom without obtaining permission from the authority. He was served with a notice under Section 7(1) to show cause and another notice under Section 12(1) of the J&K Control of Building Act, 1988 to discontinue the construction but he did not stop the construction. Another notice was issued to him on Sept 3, 2002 for demolition of the construction so raised.
The authorities in the petition said that the Chain Singh had raised the construction without obtaining any building permission and without keeping rear setbacks and both side setbacks. There are also not front setbacks maintained as per the prescribed norms of minimum 10 ft. It was also contended that committing of violation of the setbacks was a major violation as per the prescribed Building bylaws and J&K Control of Building Regulations 1998.
The petition also stated that Chain Singh has covered 70 pc of the plot area whereas the permissible limits as per the prescribed Building Bye Laws is 60 pc which
“The order impugned was against law and facts as Chain Singh had covered 70 pc of the plot area whereas the permissible limits as per the prescribed Building Bye Laws is 60 pc and respondent No 2, it tribunal, could have at the most compounded the violation upto 5 pc beyond the permissible limit at the rate of Rs 50 per sq ft and beyond 5 pc to 10 pc at the rate of Rs 100 per sq ft, but, only in case of residential building as per Rule 5(iv) of Jammu and Kashmir Municipal (Unauthorized Construction) Rules 1977,” stated the petition.
It further stated that for commercial and industrial building, the penalty shall be two times the rates for residential buildings. Also, Chain Singh was raising apartments, which was a commercial activity, but, the tribunal, without going into the merits of the case, compounded the violation, which was major.
It was contended that instead of maintaining proper set-backs, he deviated from the prescribed building bylaws, violating the provisions of J&K Control of Building Operation Act, 1988 and J&K Control of Building Operations Regulations, 1998. Accordingly, the petitioner-authority issued him the show cause notices under Sections 7(1) and 12(1) of the Act to discontinue the operation of unauthorised construction. It was pleaded that against these notices, he preferred an appeal before tribunal which vide its August 29, 2005 order, impugned herein, directed compounding of the violation committed by him. It is this order, which is under challenge in the present petition.
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