V.K. Jhanji, A.C.J.

This shall dispose of LPA(OW) Nos. 252/2001 & 77/2002.

1. Both the Letters Patent Appeals are directed against the judgment of learned Single Judge dated 29.11.2001, whereby the learned Single Judge has upheld order dated 27-2-1998 of The J&K Special Tribunal, directing the Municipality Jammu to demolish the offending structure at the earliest.

2. In brief the facts are that the plot of land measuring 2872 sq. ft. comprising in Khasra No. 119, Plot No. 121, situated at Rehari, Jammu, on which the offending structure has been raised, is a Nazool land. Initially this plot was leased out to one Pt. Hira Nand Raina (deceased). Vide order dated 28.9.1989 sanction was accorded by the Revenue Department, Govt. of J&K for renewal of the lease hold rights of the plot in favour of sons, daughters, grand sons and daughter-in-law of Pt. Hira Nand Raina for a period of 40 years with effect from 12.7.1984 for residential purposes at a concessional ground rent. Bansi Lal Raina and others applied to the Municipal Authorities for sanction of a residential building, and in this regard submitted the plan showing the construction which was sought to be raised. The Executive officer, Municipality vide order dated 20.3.1997 accorded sanction for raising structure of residential house with the following conditions:

"1. Plinth of the proposed house should be kept 2"-8" above from the road level.

2. Construction should be get supervised through structural Engineer.

3. Set backs and built up area indicated in the plan shall be maintained.

4. Septic tank and soakage pit provided in his own premises.

5. This permission shall not confer any title of the land over which the construction is to be raised.

6. The building line of the proposed construction should be kept 35 ft. away from the centre level of the road."

3. While the construction was being raised by the appellant, it came to the notice of Municipal Authorities that no provision had been made by the appellant for the disposal of domestic/rain water. In order to seek explanation in this regard from the appellant, Chief Khilafwarzi officer issued notice to the appellant on 17.4.1997 asking the appellant to explain as to what suitable arrangements have been made for domestic/rain water. The appellant was also told that in case explanation is not given, the building permission granted would be reviewed and cancelled. The notice issued by the Chief Khilafwarzi officer came to be challenged by the appellant before the Special Tribunal, Jammu and the Special Tribunal vide order dated 5.11.1997 quashed the notice solely on the ground that Chief Khilafwarzi officer was not empowered by the Executive officer to issue such notice.

4. Subsequently it came to the notice of Municipal Authorities that the appellant was deviating from the sanctioned/approved plan and was raising unauthorized construction. In order to stop the appellant from doing so, the Chief Khilafwarzi officer, Municipality, Jammu served a notice dated 31.10.1997 stating therein that the construction is being raised against the approved plan by covering of set backs of rear and front side below the ground level and converting the residential area into commercial by making additions and alterations in the sanctioned plan. It appears that the appellant did not take any notice and continued with the unauthorized construction. Another notice dated 31.10.1997 was served asking the appellant to demolish the unauthorized construction as per the details given in the notice, failing which action would be taken in accordance with law. This notice too did not make any difference and the appellant continued with the unauthorized construction. This led to the serving of notice dated 8.11.1997 bringing into the notice of appellant that despite the service of earlier notices, unauthorized construction has not been removed. So under the provisions of Section 229(3) of Municipal Act, 2008 the appellant was asked to demolish the unauthorized construction within seven days, failing which the same would be demolished at the risk and costs of the appellant.

5. The appellant did not demolish the unauthorized construction, and before the Municipal Authorities could take any action for demolishing the unauthorized construction, appellant filed appeal before the J&K Special Tribunal for setting aside notice dated 8.11.1997. In the grounds of appeal appellant stated that the construction of the building has been raised as per the sanctioned/approved plan except the internal partition walls. The J&K Special Tribunal while admitting the appeal called for the report from the Municipal Authorities in regard to the nature and extent of violation showing set back, road, lanes etc. and distance thereof from the offending structure, map to scale and whether there was any violation of Municipal Bye Laws, Town Planning Act, Master Plan, Ribbon Development Act and Zoning Regulations applicable to that area. The Tribunal also stayed the implementation of notice dated 8.11.1997 till further orders. The appellant at the time of filing of appeal had filed two coloured photographs of one side of the building. The Special Tribunal directed the appellant to file four coloured photographs of all four directions of the building.

6. Subsequently in order to ensure that the construction raised by the appellant is unauthorized, the Tribunal appointed Abdul Gani, Commissioner to inspect the spot and submit his report after recording the measurements. Sewa Singh, Clerk of the Tribunal was directed to accompany the Commissioner. The spot was inspected by the Local Commissioner on 14.2.1998. At the time of Inspection, Sat Pal Karloopia, Chief Khilafwarzi officer, Jammu Municipality and one Lakshmi on behalf of appellant was present at the spot. The measurements, which had been earlier recorded and reported by the Executive officer, Jammu Municipality in regard to the unauthorized construction were found to be correct. The Commissioner found that the built up area as per the sanctioned plan for residential use was 3660 sq. ft., whereas the actual built up area at site for commercial use was 5092 sq. ft. In addition thereof, balcony projection measuring 217 sq. ft. too was found, which was not in the sanctioned plan. The Commissioner further found that the appellant has raised construction 20 sq. ft. away from the centre of road instead of 35 ft. as per the sanctioned plan. The appellant was to keep 15 ft. front set back, but while constructing the low level floor (below the road level), the space earmarked for set back had been totally covered with construction, which too was unauthorized. At the time of inspection three shops and one office were running within the premises, meaning thereby that the land used was changed from residential to commercial purposes. In fact the Commissioner found that the entire building, which had been constructed, was being used for commercial purposes.

7. Admittedly the plan approved for construction by the Municipal Authority was purely meant for residential purposes. The lease hold rights of the Nazool land have been granted on concessional rates for residential purposes, whereas the Commissioner in his report specifically found that the building was being used for commercial purposes. The photographs which had been placed on the record of the Special Tribunal not only reveal that number of shops are being run in the building, but the building has been converted for the use of hotel under the name and style of Hotel Jammu Palace. The Tribunal on consideration of the material on record including the report of Commissioner found that unauthorized construction was raised in October 1997. In January 1997 the Housing & Urban Development Department, Government of J&K had issued a SRO which made major offences non-compoundable. Since the construction raised was totally unauthorized and was non-compoundable, the Tribunal did not find any merit in the appeal and dismissed the same vide order dated 27.2.1998. As a matter of fact the Tribunal observed that the appellant had shown little respect for law and has given a false affidavit by saying that the construction raised by him was in accordance with the sanctioned/approved plan.

8. Later a review petition was filed by the appellant before J&K Special Tribunal for review of order dated 27.2.1998. In the review petition the appellant stated that the measurements given in the report of Executive officer are wrong. It was submitted that the construction had not been raised from the boundary of the National Highway as had been highlighted by the Executive officer in his report. This argument was not accepted by the Tribunal by stating that the Executive officers report was found to be correct by the Commissioner, who was appointed to check the measurements. The counsel appearing on behalf of the appellant requested the Tribunal to visit the spot and check for itself the veracity of the reports of the Executive officer as well as that of the Commissioner. Mr. Amit Kushari, Chairman, J&K Special Tribunal at the request of counsel for the appellant inspected the spot and found that the reports of the Commissioner as well as that of the Executive officer were correct. He further found that the appellant had raised commercial building right from the edge of the National Highway and had not kept any set back as required under the provisions of Ribbon Development Act and Municipal Act. The entire building complex was found for the use of commercial purposes. The Tribunal thus found no merit in the review petition and dismissed the same.

9. Appellant Bansi Lal Raina being aggrieved of the order of Tribunal, filed OWP No. 226/98. Before the learned Single Judge it was again submitted on behalf of the appellant that no unauthorized construction had been raised by him and the finding of the Tribunal in this regard is erroneous. The learned Single Judge in order to test the correctness of the statement made on behalf of the appellant, passed an order dated 19.11.2001 directing the appellant to file an affidavit to the effect:

i. That he has raised the construction strictly in accordance with plan.

ii. That the premises are being used for residential purposes.

iii. That the concept of set back has been kept in view.

iv. That there is no infringement of Ribbon Development Act.

Learned Single Judge also observed in his order that in case no affidavit is filed, then presumption as may be deemed proper would be drawn.

In terms of order dated 19.11.2001 no affidavit was filed by the appellant. Learned Single Judge after perusal of the record and hearing the counsel for the parties, vide order dated 29.11.2001 dismissed the writ petition.

Two Letters Patent Appeals being LPA(OW) Nos. 252/2001 & 77/2002 have been filed against the order of learned Single Judge. One appeal has been filed by appellant Bansi Lal Raina and the second by other co-sharers.

10. Before us the submission of learned counsel for the appellant again is that the measurements taken by the Executive officer of Jammu Municipality, the report of Commissioner and also the observations made by the Tribunal after the spot inspection, are not correct. The precise submission of learned counsel for the appellant is that no unauthorized construction has been raised by the appellant. We asked the learned counsel for the appellant that in case what he is saying is correct, then what prevented the appellant to file an affidavit in terms of order dated 19.11.2001 passed by the learned Single Judge. We put it to the counsel that if he wants, we can appoint a Local Commissioner to ascertain the correctness of his statement. The learned counsel appearing for the appellant did not accept our suggestion.

11. On perusal of the record, we are of the view that the finding of the Tribunal being based on the material on record, calls for no interference in Letters Patent Appeal (OW) No. 252/2001.

12. We also do not find any merit in the submission of learned counsel for the appellants in LPA(OW) No. 77/2002 that the order passed by the Tribunal is not binding upon the appellants because they are also the co-sharers in the building but no notice was served upon them by the Jammu Municipality. Appellant Bansi Lal Raina in LPA(OW) No. 252/2001 had been pursuing the matter right from the date of filing of the appeal before the J&K Special Tribunal upto the time of passing of order by the learned Single Judge. The filing of Letters Patent Appeal by the other co-sharers, who are none else but brothers, sisters and other relatives of Bansi Lal Raina, is another attempt to stall the proceedings. They have also not been able to point out that the findings recorded by the Tribunal are incorrect or based on no material. In our considered view the appeal filed by them is nothing but an abuse of the process of Court.

13. Resultantly, we do not find any merit in both the appeals and the same are, accordingly, dismissed.

14. Further, having regard to the past conduct of the Jammu Municipality (now Corporation) that it has no will or inclination to take action against law breakers, we direct the Jammu Municipality (now Corporation) to take immediate action for demolishing the unauthorized construction, and report in this regard shall be placed before the Registrar (Judicial) within three months from today, failing which this Court would be constrained to take action against the concerned official, who may be found to be lacking in will in carrying out the direction given herein. Registrar (Judicial) shall list the matter only for this limited purpose on the expiry of three months.