Libertatem Magazine

Jammu and Kashmir High Court Partially Allows Appeal and Modifies Order Passed by Single Judge Bench in a Construction Case

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On 7th October 2020, Justices Ali Mohammad Magrey and Rajnesh Oswal heard the case of Pinky Gupta & Anr. vs Building Operation Controlling Authority & Anr., via video-conferencing. The Court partly allowed the appeal and directed the Single Judge Bench to take up the matter of sealing of a building.

Facts of the Case

The appellants have been running a Banquet Hall under the name and style of ‘Garden Estate’ from more than two and a half decades. However, with the passage of time, the operations of the Banquet Hall expanded.

Thus, the appellants felt the need for further construction. The respondents granted permission for the same to the appellants. However, during the construction slight deviations from the permission occurred. Therefore, under Section 7(3) of the J&K Control of Building Operations Act, 1988, the respondents issued a notice calling upon the appellants to demolish the violations.

Thereafter, the appellants appeared before the J&K Special Tribunal that passed an order dated 24th June 2020 which stated that the occurred violations are subject to payment of a fee by the appellants.

After this, the respondents filed a Writ Petition before the learned Single Bench seeking quashing of the order passed by the Tribunal. On 25th September 2020, the learned Single Bench directed the sealing of the whole building in question. Therefore, a Letters Patent Appeal is filed by the appellants against the order dated 25th September 2020 of the learned Single Bench. 

Appellant’s Arguments

The learned counsel for the appellants argued that the order passed by the learned Single Bench seriously affected the rights and interests of the appellants. Further, it was passed even without hearing the appellants.

The violation that occurred during the construction was only with respect to some portion of the building already existing at the time of grant of permission for raising construction of the second floor over the existing construction. Therefore, there was no occasion for the learned Single Judge to direct for sealing the whole building constructed which included the ‘Banquet Hall’ used for organizing marriage and other social functions.

Respondent’s Arguments

The learned counsel for the respondents argued that the deviations that occurred during the construction are not only contrary to the law governing the field but are also not in public interest. If the said deviations are allowed, the same would cause irreparable harm/ damage to the area concerned and tremendous hardship to its residents.

If the appellants were permitted to arbitrarily raise constructions in violation of the said Master Plan, the whole purpose of having a Master Plan would be defeated. Further, he argued that unauthorised constructions of buildings not only violate the relevant Municipal laws in vogue but also affects various fundamental and constitutional rights of other persons.

Court’s Analysis

It was clear from the perusal of the pleadings on record that the allegation of deviation from permission was only some specific portion of the construction raised by the appellants as identified and marked by the Corporation in the building plan submitted by the appellants.

However, the learned Single Bench directed the sealing of the entire building in question at the motion stage without hearing the appellants. Therefore, the learned Single Bench’s order is required to be modified to the said extent only.

Court’s Decision 

The Court allowed the appeal partly. Further, the Court gave the following directives –

  1. The learned Single Bench’s order dated 25th September 2020 is modified by providing that only the portion of the building which violated the permission shall remain sealed. 
  2. The learned Single Bench is requested to take up the matter on 23rd of October, 2020 for consideration on its own merits, after hearing the parties.
  3. Parties shall complete the pleadings in the writ petition by the next date so fixed without any fail.
  4. This order shall remain in operation till the writ petition filed by the petitioners/ respondents herein is finally decided by the learned Single Bench.

The Court, thus, disposed of the Letters Patent Appeal.

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