HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

OWP No. 747/2005

Reserved on: 04.04.2025

Pronounced on: 17.07.2025

Jammu Municipal Corporation

and another

…. Petitioner/Appellant(s)

Through:- Mr. S.S. Nanda, Sr. AAG

V/s

Apurab Mahajan and others …..Respondent(s)

Through:- Mr. Gagan Oswal, Advocate

CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

JUDGMENT

1. This petition has been preferred under Article 226 of the

Constitution of India by the Jammu Municipal Corporation, seeking

quashing of order dated 08.09.2005, passed by the J&K Special

Tribunal in appeal titled “Sanjay Mahajan (deceased through LRs)

and another v. Jammu Municipality and others”.

2. The respondents sought permission for construction of commercial

complex at Samdian Land, below Gumat Jammu, comprising of

ground floor, first floor and second floor, with a built-up area of

1080 sft., which was granted vide permission No. No. 271 dated

25.10.1998. It is submitted that the construction was raised in

violation of the sanctioned plan, resulting in proceeding against the

respondents for violation under Section 7(1) of Control of Building

Operations Act for unauthorisedly construction against the

approved plan. Thereafter, notice under Section 7(3) was issued to 2025:JKLHC-JMU:1892

OWP No. 747/2005______ Page 2 of 8

the respondents directing to demolish the unauthorized construction

within a period of five days from the date of the service of notice.

3. The respondents filed an appeal against the demolition notice dated

30.10.2000.

4. The Tribunal vide order dated 08.12.2000, issued a notice and

called for the record and sought the report from the Jammu

Municipality on the following grounds: -

i. Nature and extent of violation showing setback, roads,

lanes etc and distance thereof from the allegedly

offending structure;

ii. Map to scale;

iii. Whether there is any violation of Municipal Bye-laws,

prevention of Ribbon Development Act, Town Planning

Act or Zoning Regulations applicable to that area.

5. The contention of the respondents in the appeal was that they are in

possession of a banquet hall and they have raised construction

strictly as per duly approved sanctioned plan issued by the JMC.

There is no violation of Municipal Bye-laws and respondent No. 3

was well within her right to raise the construction as per her choice.

6. In the objections before the Tribunal, the petitioners (hereinafter

referred as JMC) submitted that the construction has been raised

against the sanctioned plan. There are major violations as instead of

built up area of 1080 sq. feet in each floor, he has raised

construction of 4720 sq. feet in ground floor and first floor. The

respondents have failed to keep 15 feet set back at front and back

and 10 feet rear, but no set backs have been kept which is a major 2025:JKLHC-JMU:1892

OWP No. 747/2005______ Page 3 of 8

violation of the sanctioned plan. The respondents have also

constructed over hanging balcony and basement floor of

dimensions of 19x06x25 against the sanctioned plan.

7. The JMC in their report submitted that the construction raised

against sanctioned plan and violation chart was as under: -

S. No. Type of floor Built up area

as per the

sanctioned

plan

Built up area

as per actual

construction

raised at site

Excess over

the sanctioned

plan

1 Basement floor __ 543 sft 543 sft

2 Ground floor 1080 sft 4720 sft 3640 sft

3 First floor 1080 sft 4720 sft 3640 sft

4 Balcony projection __ 236 sft 236 sft

8. The respondent has constructed basement floor without any

permission and did not keep setback of 15 feet front, 10 feet on

both sides and 10 feet rear setbacks as per the sanctioned plan,

which constituted major violation. Besides this, there is also

balcony projection overhanging over the road.

9. The Tribunal after considering the submissions decided the appeal

vide order dated 08.09.2005 and held as under: -

“As admitted by both the learned counsels for the parties, it is

fact that 90% commercial activities in the area and there are

huge commercial complexes have come up in the area, so in

my considered view, there is no violation of Master plan or

zoning regulation applicable to the area. The appellant has

made some deviations from the sanctioned plan which was

sanctioned for commercial purposes, so in my considered

view, the case can safely be compounded. I would also like to

comment that Shri Sanjay Mahajan expired during his prime

life leaving behind his widow, Smt. Anita Mahajan and two

minor children as brought to the notice of this bench by the

advocate for the appellant and this is an unfortunate affair. In

my considered view, at this stage if the respondents are

allowed to remove the alleged unauthorized structure raised

by the appellant, it will cause irreparable loss and injury to

the legal representatives of the deceased. So in fact and

circumstances of the case, it hereby, order the composition of

the unauthorized structure. The appellant has raised total

9983 sft structure out of which an area of 2160 sft is a

sanctioned one. So there is an area of 7823 sft. @ Rs. 25/- sft.

Apart for the above the appellant has also raised balcony 2025:JKLHC-JMU:1892

OWP No. 747/2005______ Page 4 of 8

projection of 236 sft., which is also regularized and for that

the appellant shall pay compounding fee @ Rs. 30/- sft. The

appellants shall deposit the compounding fee with the

respondents within a period of 30 days failing which the

appeal filed by the appellant shall be deemed to have been

dismissed.”

10. The petitioners are aggrieved of the impugned order on the ground

that the Tribunal without deciding the fact whether the violations

committed by the respondents are major or minor has compounded

the construction raised unauthorisedly. The compounding of

construction raised unauthorisedly is provided in Clause 10 and 11

of the Jammu and Kashmir Control of Building Operations

Regulations, 1998. These clauses read as under:-

10.Appeals. ––(1) An appeal against the order of the Authority

made under section 5 and 7 of the Act shall lie before the

Chairman of the J&K Special Tribunal or such other Member of

the said Tribunal as may be decided by the same Chairman.

11. Compounding of offence

(1) The appellant authority may compound the offence of minor

nature specified in sub-clause 2 of the Regulation.

Provided that the compounding fee shall be worked out on the

basis of rates to be notified by the Government.

(2) For the purpose of this regulation, an offence of a minor nature

shall include an erection or re-erection of the building, which has

taken place in violation of permission referred in Section 4 of the

Act, or deemed permission as referred to in sub-clause 2 of

clause 7 of the Regulation, provided that such erection or re-

erection: -

(i) Does not violate the approved land use of the area as

notified in the Master Plan or Town Planning

Scheme;

(ii) Does not violate permissible front, rear, or side

setbacks prescribed in the bye-laws;

(iii) Does not violate by more than 10% the permissible

ground coverage as prescribed in the bye-laws; and

(iv) Does not violate the permissible height of the

building as prescribed in the bye-laws.

11. In terms of these clauses, only minor violations can be

compounded. Major and serious violations cannot be compounded.

These regulations do not violate the approved land use of the area, 2025:JKLHC-JMU:1892

OWP No. 747/2005______ Page 5 of 8

as notified. The violations of front, rear or side setbacks and

permissible ground coverage exceeding 10% does not fall in the

category of minor offences and are non compoundable. The

respondents as per the report of the municipality were allowed to

raise construction of a built up area of 1080 sft. on each floor as per

the sanctioned plan. The respondents, however, have raised the

built up area of 4270 sft, which is a major violation and could not

be compounded. As per the sanctioned plan, the respondents have

failed to keep the requisite setbacks of 15 feet front, 10 feet both

sides and 10 feet rear, which has resulted in major violations, which

could not be compounded.

12. The respondents were also not permitted to raise balcony projection

which they have raised in unauthorized manner and have also

constructed basement which was not approved in the sanctioned

plan. Thus, the ground floor which was exclusively meant for

parking purpose is used for commercial purposes in violation of

sanctioned plan and master plan.

13. The respondents submits that Tribunal has returned a finding and

every order made by it is fine and a specific statutory bar exists

against challenging such orders, the maintainability of any petition

seeking to question the order, particularly on disputed questions of

fact is not permitted in law.

14. Reliance is placed on the judgment of this Court in “Building

Operation Controlling Authority v. Nageen Ara”, decided on

29.08.2023, whereby, this Court has held that once finding of

compounding of construction is givne by that court, then this Court 2025:JKLHC-JMU:1892

OWP No. 747/2005______ Page 6 of 8

cannot go in to fact whether violation is major or minor. The same

reads as under: -

“…Once the Tribunal has given finding by

compounding the construction, then this Court cannot

go into the questions and reasoning which lead to the

passing of the aforesaid order, which is based on

appreciation of evidence. This Court does not have any

mechanism or yardstick to go into the question of fact

by conducting enquiry with respect to the fact whether

there is any minor or major violation, as alleged by the

petitioner. This Court, while exercising the powers

under writ jurisdiction, cannot re-appreciate the

evidence by way of an appellate authority to go into

the disputed questions of facts which have been

arrived at by the Learned Tribunal after appreciating

all the material facts and record and adducing

evidence. This Court can't assume the power/role of

Commissioner to go on spot to verify whether it is

major or minor violation, which falls within the realm

of disputed question of facts, and the Tribunal being

the arbiter in such like matters has the final authority,

and the finding recorded by the Tribunal can't be upset

in writ jurisdiction. Unauthorized construction once

compounded by the Municipal Authorities...”

15. This judgment is not applicable to the facts of the case as the

petitioners had specifically submitted that the respondents had

committed major violations while raising the construction, which

could not be compounded. The respondents in their reply to the

report of the JMC has only stated that the structure raised is not

causing any obstruction to anyone, as the entire area is full of

commercial complexes and thus did not warrant satisfaction of the

authority. Therefore, the Tribunal failed to consider this aspect.

16. Perusal of report reveals that the required setbacks were completely

encroached upon and the basement was unauthorizedly constructed.

Such violations clearly fall within the category of major infractions

and are, therefore, not compoundable under the applicable law. 2025:JKLHC-JMU:1892

OWP No. 747/2005______ Page 7 of 8

17. The respondents have, thus, committed major violation which is not

permissible in terms of Section 11 of Control of Buildings Act. This

apart, learned Tribunal while passing the impugned order has relied

upon the fact that 90 % of the building existing in the vicinity have

covered up their setbacks while raising the construction and there is

parking provision in the structure as the basement floor would be

used for parking purpose. The Tribunal has totally ignored the fact

that there was no sanction plan for basement of the building. This

apart, reliance has been placed by the learned counsel for the

petitioners with regard to the finality of the orders.

18. The Tribunal while noticing the violation has failed to return a

finding whether the violation committed by the respondents was

major or minor and has in fact exceeded the jurisdiction by

compounding the offence which being in major violation could not

be compounded by this Court, regulations and by law.

19. The learned Tribunal has failed to decide whether the violation was

major or minor and whether it had the authority to compound the

same. The Tribunal without considering this aspect has decided the

same and compounded the same which is in violation of the

mandate of Act.

20. In Pratibha Coop. Housing Society Ltd. v. State of

Maharashtra, (1991) 3 SCC 341, the Hon’ble Supreme Court has

held as under: -

“Before parting with the case we would like to observe that this

case should be a pointer to all the builders that making of

unauthorised constructions never pays and is against the interest

of the society at large. The rules, regulations and bylaws and

made by the Corporations or development authorities taking in 2025:JKLHC-JMU:1892

OWP No. 747/2005______ Page 8 of 8

view the larger public interest of the society and it is the

bounden duty of the Citizens to obey and follow such rules

which are made for their own benefits.”

21. In view of the aforesaid facts and circumstances, the impugned

order passed by the learned Tribunal is illegal and unreasonable and

does not sustain in the eyes of law and is accordingly quashed. The

mater is remitted back to the Tribunal to decide the same afresh.

The Tribunal shall proceed on the basis of material before it and

pass an order expeditiously, preferably within three months.

22. Disposed of.

(SINDHU SHARMA)

JUDGE

Jammu:

17.07.2025

Vishal Khajuria

Whether approved for reporting : Yes/No

2025:JKLHC-JMU:1892