Orders Demolition of Same If Deviation Not Compounded By Commissioner SMC
Srinagar: The High Court of J&K and Ladakh on Monday held that J&K Special Tribunal lacks power of compounding deviations in a building construction and that such authority was specifically vested with the Commissioner of Municipal Corporation.
Allowing an appeal filed Commissioner Srinagar Municipal Corporation and others against the 10 September 2020 order by the J&K Special Tribunal regarding a huge building at Hari Singh High Streets, a bench of Justice Sanjay Dhar gave liberty to the building owners to approach the Commissioner, Srinagar Municipal Corporation with a petition for compounding of the deviations. “If and when such a petition is made by the private respondents (before the Commissioner), the same shall be considered by the said authority in the light of the building permission granted in favour of the private respondents, the relevant building byelaws, the zonal plan and all other relevant statutes and guidelines on the subject,” the court said, adding, “The offending portion of the building constructed by the private respondents shall be sealed by the petitioner corporation (SMC) till such time a decision is taken by the Commissioner, Srinagar Municipal Corporation with regard to the question of compounding of deviations.”
In case the deviations are not compounded or regularized by the Commissioner, the court said, the private respondents shall ensure that the offending portion of the building is demolished or, in the alternative, the SMC shall undertake demolition of the offending portion in accordance with law.
Earlier the court rejected contention by the owners of the building, a famous business family of Srinagar, that while Commissioner is vested with power to compound the deviations, the Tribunal which is an appellate authority against an order of the Commissioner and deemed to be vested with power to compound the minor deviations.
“I am afraid the argument of learned Senior Counsel (representing the owners) cannot be accepted for the reason that the appellate authority, in the instant case being a creature of statute viz. Act of 2000 (Jammu and Kashmir Municipal Corporation Act, 2000), as such, its powers and jurisdiction are defined and circumscribed by the provisions contained in the Act of 2000,” the court said, adding, “an appellate Authority created by a statute cannot go beyond what is provided in that statute.
While setting aside the order by the Special Tribunal which had held once a building permission has been issued and is valid even if the building is raised in contravention of the building permission, the same would not qualify to be an unauthorized building. The High court termed the reasoning by the Tribunal.
“If we have a look at Byelaw No. 2.1.1, it defines “unauthorised building” as a building undertaken after a building permit has lapsed or after a building permit has been revoked,” the court said, adding, “What byelaw No. 2.1.1 conveys is that unauthorized building is a building which is undertaken without grant of permission, meaning thereby if a building activity is undertaken regarding which there is no permission, it would constitute an unauthorized building.”
Elucidating the point, the court quoted an example, saying if there is a building permission for raising a three storeyed building and the person concerned constructs an additional fourth floor, the additional 4th floor would constitute “unauthorized building”.
“Any deviation from the building permission would always constitute an unauthorized construction,” the court said, adding, “The Tribunal by adopting flawed reasoning which is against the logic and common sense has termed the “unauthorized construction” of the private respondents (owners of the building at HSHS) as authorized one and thereafter set aside the sealing order (by SMC).”
The ground on which the Tribunal has quashed the order of sealing is absolutely “perverse and liable to be set aside.”