HC directs BOCA to seal buildings raised in violation of permission

‘Conduct inquiry into role of JMC officers’

Excelsior Correspondent

JAMMU, Oct 1: High Court has issued directions to the Building Operation Control Authority (BOCA) to seal three buildings including Garden Estate banquet hall.
The direction has been issued by Justice Rajesh Bindal while deciding three different petitions filed by Building Operation Controlling Authority, which submitted that respondents had constructed a banquet hall at Channi Himmat in violation of laws.
It was submitted before the High Court that the respondents applied for permission to raise further construction. The same was granted vide order dated 08.07.2017, by the Jammu Municipal Corporation. Two important conditions in the permission were that the earlier violations made at the site had to be removed within one month and further that the applicant shall furnish affidavit that two level basements for parking shall be constructed on the rear side as per the norms required for proposed construction.
During the pendency of matter before the Tribunal in an appeal filed by respondents, a local commissioner was appointed who reported that the earlier violations had not been removed and further two level basements parking had not been constructed.
Despite all these violations, the Tribunal vide impugned order dated 24.06.2020, directed compounding of the violation on payment of compounding fee at the rate of Rs 100 per square feet. While doing so, the Tribunal failed to notice the fact that the respondents had failed to remove the earlier violations, the condition precedent for grant of further permission and they had failed to construct the two level basements parking.
The Tribunal has failed to find difference between illegality and irregularity. In fact in all cases being decided by the Tribunal compounding is being ordered without appreciating the master plan of the city and also the level of illegalities being committed by the persons raising construction.
After hearing Advocate Rajneesh Raina for the BOCA, Justice Rajesh Bindal observed, “the conduct of the officer who had granted the permission knowing well that there was earlier violations made by the respondents needs to be inquired into by the competent authority and a report produced before the court on the next date of hearing”, adding “the respondents have committed violations after violations and are trying to get away with those as such the building in question is directed to be sealed immediately”.
In another petition filed by BOCA against Jagdish Raj Pahalwan and another in which respondent is owner of plot measuring 1,211 square feet located at Pacca Talab, Sarwal, Jammu. Without any permission from the competent authority he raised construction of residential house.
“To give a message to the violators of law, it is directed that the any one floor of the building in question shall be sealed and a report thereof be submitted to the Registrar Judicial on or before the next date of hearing”, Justice Bindal directed, adding “Khilaf Warzi officer of the area concerned is also accountable as either he kept his eyes shut when the construction was being raised without any sanctioned plan or was made to do so”.
Justice Bindal further directed the concerned authority to take strict action against such Khilaf Warzi officer and report to this court.
In the third petition filed by BOCA against Naseema Rashid Wani the order dated 09.07.2020 passed by the J&K Special Tribunal Jammu was challenged. The order was passed in an appeal filed by the respondents challenging order dated 21.01.2020 passed by the Building Operations and Control Authority under Section 7(3) of the Building Operations Act 1988.
Assailing the order passed by the Tribunal, counsel for the petitioners submitted that the order is nothing else but absolute misuse of power by the Tribunal, whereby it has gone beyond its jurisdiction to examine the issues raised therein and record a finding thereon.
“It is a case of blatant violation of law. The respondents were permitted to raise construction to the extent of 31,844 sq. ft with basement, ground plus three floors. However, the construction has been raised up to six floors with total area running into 1,41,165 sq.ft. The construction raised without permission was to the extent of 1,09,321 sq.ft. Out of the aforesaid area without there being any jurisdiction or authority vested in the Tribunal, it had considered the area to the extent of 64,238 sq.ft. as validly constructed. Violation was found only to the extent 45,083 sq.ft., for which the respondents were directed to pay penalty at the rate of Rs.100 per sq. ft. As the respondents were happy with the substantial, extra-ordinary and illegal relief granted to them, they immediately deposited the same.
Justice Bindal observed, “the respondents are not law abiding citizens. They were granted permission to raise construction to the extent of 31,844 sq. ft. as against that they raised construction of 1,41,165 sq ft. Additional to the tune of 1,09,321 sq. ft. In earlier round of litigation they got some area compounded on payment of Rs 50 per per sq. ft. as compounding fee”. Accordingly, High Court directed that operation of impugned order passed by the Tribunal shall remain stayed and the petitioner was directed to seal the additional unauthorized construction raised by the respondents.
“To put the record straight and also to fix responsibility of the persons, who are entrusted the duty to oversee the construction being raised but keep their eyes closed, the competent authority shall get the matter enquired into and fix responsibility”, High Court directed, adding “the role of structural engineer, who is to oversee the construction also needs to be examined, as to why he did not report the matter to the authorities that construction is being raised beyond the sanctioned plans”.