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CASE NO.: Appeal (civil)  2592 of 2004

PETITIONER: Kewal Kishan Gupta

RESPONDENT: J. & K. Special Tribunal & Ors.

DATE OF JUDGMENT: 11/05/2005

BENCH: D.M. Dharmadhikari & B.N. Srikrishna

JUDGMENT: J U D G M E N T

with

Civil Appeal Nos. 2593/2004 and 2595/2004

Srikrishna, J.

       These three appeals arise out of connected proceedings and, therefore,  can be disposed of by a common judgment.

Facts:

Civil Appeal No. 2592 of 2004

       Kewal Kishan Gupta-appellant applied to the State Government of  Jammu & Kashmir in the Revenue Department seeking sanction of transfer  of leasehold rights over certain Nazool land situated at  B.C. Road Rehari,  Jammu, from the previous leaseholders, Dileep Kumar and Dhani Ram. By  an order made on 13.9.1990, the State Government in the Revenue  Department sanctioned the transfer of leasehold rights from the previous  leaseholders to the appellant "on the existing terms and conditions".

       A lease deed was executed on 24.10.1990 between the Governor of  Jammu & Kashmir and Kewal Kishan Gupta. Clause 2(1) of the lease deed  stipulated as under: "2.     the lessee hereby covenants with the lessor as           follows:-

       1.      The land shall be used solely and  exclusively as residential purposes, and the lessee shall  within three years of the execution of the lease deed erect  thereon buildings according to the plan and elevation  approved by the Collector and attached hereto or as it  may be subsequently altered or varied with the written  consent of the Collector Jammu on behalf of the lessor."

       It is the case of the appellant that although B.C. Road was shown as  residential zone in the Master Plan, factually and predominantly, most of the  properties situated at B.C. Road were being used for commercial purposes.   The buildings on the said road used for commercial purposes belonged not  only to private parties, but also consisted of several Government offices as  well as banks and  public sector undertakings. In the appeal memo, the  appellant has named a large number such commercial entities, which were  using the buildings along the B.C. Road at the time the lease deed was  entered into.

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       It is also the case of the appellant that his predecessor-in-title had put  up an old construction on the said leased land which was in dilapidated state.   The appellant applied to the Jammu Municipality (Respondents Nos. 2 and  3) to grant permission to put up a new construction on the leased land.  On  22.11.1992 such permission was granted to the appellant to raise  construction of 2,274 sq. ft. on the ground floor and 1,390 sq. ft. on the first  floor.  The appellant commenced the construction, but could not complete  the same before the validity of the permission ran out. The appellant applied  to the Jammu Municipality, which by Order No. 28 dated 29.4.1997  revalidated the permission for the construction. On 2.6.1997, the appellant  was served with a notice from the Executive Officer of the Jammu  Municipality calling upon him to refrain from cutting and digging of earth  for construction of basement on the leased land.  There was certain  correspondence between the Jammu Municipality and the appellant on the  subject, which finally resulted in a letter dated 17.7.1997 from the Executive  Officer of the Jammu Municipality informing the appellant that he was  permitted to go ahead with the construction and that, in addition to the  ground floor, he would be permitted to raise one more storey above it.  On  4.10.1997, the appellant was served with a communication from the  concerned officer of the Municipality alleging certain violations of the  applicable laws and called upon to show cause within three days.  On  14.10.1997, the appellant was served with an order calling upon him to  demolish the construction which was alleged to be  unauthorized.  The  appellant filed an appeal against such order before the J&K Special Tribunal  (hereinafter referred to as ’the Tribunal’). The Tribunal made an order dated  6.3.1998 holding that the appellant had blatantly violated the SRO of  14.1.1997 inasmuch as after taking the sanctioned plan to construct an area  of 3,664 sq. ft. for residential purpose, the appellant had constructed a  commercial complex of 11,470 sq. ft.. The Tribunal felt that it was a major  offence which could not be compounded and, therefore, granted the  Municipality the liberty to demolish this offending structure. However, the  Tribunal said in the Order:  "However the Municipality cannot be allowed to hold  the threat of demolition over the head of the appellant for  an indefinite period like a sword of Damocles. This will  keep the appellant in a state of perpetual anxiety and fear.  The Municipality should be able to demolish the  structure within three weeks from today i.e. by 27th  March, 1998.  In case the Municipality is unable to  demolish the structure by 27th March it can be presumed  that the Jammu Municipality has neither the will nor the  inclination to take action against the law breaker.  In such  a situation after 27th March, they should compound the  offence after admitting their inability to demolish the  structure.  In such circumstances the Municipality should  realize the compounding fee for the entire area of 11,470  sq. ft. @ Rs.80/- (Rs. Eighty only) per sq. ft. The fees  should be paid by the appellant to the Jammu  Municipality by 27th June, 1998 failing which the appeal  shall be deemed to have been dismissed."

       On 18.5.1998 the Executive Officer, Jammu Municipality called upon  the appellant to deposit the compounding fee of Rs. 9,17,600/-, as directed in  the Order of the Tribunal dated 6.3.1998. The appellant filed writ petition  OWP No. 458/98 impugning the order of the Tribunal and on 10.6.1998 the  learned Single Judge of the High Court granted an interim stay of the  impugned order of the Tribunal dated 6.3.1998.  On 30.5.2000, the lear’ned  Single Judge of the High Court dismissed the writ petition by holding that  the order of the Tribunal to the extent of demolition of unauthorized  construction was justified.

       The appellant impugned the judgment and order of the learned Single  Judge by Letters Patent Appeal No. 214/2000. The Division Bench agreed  with the learned Single Judge’s finding and held that the appellant had failed

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to produce his title deed and also raised the construction far in excess of the  sanctioned plan. It further held that the appellant had no regard for the law  and, therefore, deserved no consideration from the court.  In this view of the  matter, the Division Bench went on to direct the Jammu Municipality (which  had since then become a ’Corporation’) to take immediate action for  demolition of the unauthorized construction and make a compliance report  to the High Court.

       While the writ petition of the appellant was pending before the High  Court, the appellant sought for transfer of leasehold rights over the said plot  of land to Bhim Sain, Swatantra Kumar and Smt. Rita Rani  "for commercial  purposes." By an Order made on 9.6.1999, sanction was accorded by the  State Government for transfer of the leasehold rights  to the said three  persons "on the existing terms and conditions of lease" on payment of  ground rent on enhanced rate of  150% as admissible under Rules without  payment of premium.  On 20.8.2001, the State Government executed such a  lease deed in favour of the said three persons. Bhim Sain, Swatantra Kumar  and Smt. Rita Rani, who were the transferees of the leasehold rights in the  plot in question, filed Writ Petition OWP No. 1102/03 before the High Court  seeking a mandamus against the authorities from interfering with their rights  as transferees of the leasehold rights and sought a declaration that the  judgment and order dated 12.11.2003 made by the Division Bench of the  High Court in LPA No. 214/2000 did not, in any way, interfere with or  prejudice their rights in the property.  

        In the meanwhile, the appellant also filed a Review Petition  Rev.(LPAOW) No. 44/03 seeking review of the judgment and order of the  Division Bench in his case. The Division Bench of the High Court clubbed  the Review Petition along with Writ Petition OWP No. 1102/03 and by its  judgment dated 4.12.2003 dismissed both of them.          Civil Appeal No. 2593 of 2004         This appeal has been brought by the said transferees-Bhim Sain,  Swatantra Kumar and Smt. Rita Rani impugning the aforesaid judgment of  the Division Bench dismissing their writ petition OWP No. 1102/2003. Civil Appeal No. 2595/2004         This appeal has been brought by the appellant-Kewal Kishan Gupta  impugning the dismissal of his Review Petition Rev. (LPAOW) No. 44 of  2003 in LPA No. 214 of 2003 decided on 12.11.2003.         The first thing that strikes us as very strange in this matter is that the  Jammu Municipality (Respondents Nos. 2 and 3 in C.A. No. 2592/04),  which appears through their officers, was not at all aggrieved by the Order  dated 6.3.1998 made by the Tribunal.  In fact, their action of demanding the  compounding fee by notice dated 18.5.1998 suggests that the Municipality  was satisfied that there was no need to demolish the offending structure in  question and that the matter could be compounded by payment of  compounding fee as directed by the Tribunal.  It is also strange that, despite  the pending litigation, the State Government granted sanction for transfer of  the leasehold rights to the three transferees.  The Minutes of the meeting  held in the Office of the Vice Chairman, Jammu Development Authority on  6.1.1998, which was attended by the Administrator, Jammu Municipality;  Vice Chairman, J.D.A.; M.D., Housing, J&K State, Jammu; Chief Town  Planner, J.D.A., Jammu; Executive Officer, Jammu Municipality, show that  it was decided that in view of the non-implementation of planning proposals  envisaged in Master Plan it was felt that commercial activities at selected  points along main roads and roads within some colonies developed by  Housing Board/J.D.A. may be allowed to come up to meet the ever-rising  needs of commercial land users within the city. B.C. Road was one such  road specifically referred to in the said minutes.

Contentions:         While the learned counsel for the respondents has attempted to  support the impugned judgment of the High Court on the basis of the  reasoning contained therein, Shri G.L. Sanghi, learned counsel for the  appellant contended that the impugned judgments of the High Court are

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contrary to law and made without noticing the provisions of the Jammu and  Kashmir Municipal Act, 2008 (1951 A.D.) (Act No. VIII of 2008)  (hereinafter referred to as ’the Act).  He drew our attention to the provisions  of Section 229 of the Act, which prescribes penalty for disobedience. Clause  (d) of sub-section (1) of Section 229 provides that where a building has been  erected or re-erected in contravention of the terms of any sanction granted,  the Executive Officer of the Municipality shall issue a show cause notice to  the offender, and after taking his explanation in the matter, if not satisfied  with the explanation, shall have the power under sub-section (3) to demolish  the portion of the building in contravention of the terms of the sanctioned  plan.  Sub-section (4) of Section 229 provides that any person aggrieved by  the order of the Executive Officer made under sub-section (3) may prefer an  appeal to the Minister Incharge Local Self Government or the authority  appointed by him. The Minister Incharge Local Self Government or the  authority appointed by him is empowered to decide the appeal. The second  proviso to sub-section (4) of Section 229 is important and reads as under: "Provided further that the Minister Incharge Local Self  Government or the authority appointed by him in this  behalf may, either before or after the filing of the appeal,  compound the offence and accept by way of  compensation such sum as he or it may deem reasonable  subject to such rules, regulations and orders as may be  prescribed. Where an offence has been compounded no  further action shall be taken against the aggrieved person  in respect of the offence so compounded."

       We are informed by counsel on both sides that the Special Tribunal is  the "authority appointed" in this behalf to  hear appeals under Section 229(4)  of the Act.     The order passed by the Tribunal also suggests that it was  hearing the appeal against an order passed under sub-section (3) of Section  229 of the Act. A careful reading of the second proviso to sub-section(4) of  Section 229 of the Act suggests that the Minister Incharge Local Self  Government or the authority appointed by him (the Special Tribunal, in our  case) is fully empowered to pass an order for compounding the offence,  either before or after filing of the appeal. Obviously, such order could be  made upon hearing of the appeal also.  The Order dated 6.3.1998 made by  the Tribunal also appears to have been made without noticing the specific  provision of the second proviso to sub-section (4) of Section 229 of the Act.   Consequently, the order states that the Municipality was given the liberty to  demolish the offending structure, or if not, to accept a compounding fee for  the entire area of 11,470 sq. ft. @ Rs. 80/- per sq. ft. In other words, the  order of the Tribunal gave an option to the appellant before it of saving the  construction from demolition upon payment of the compounding fee. The  order of the Tribunal, though passed in ignorantia of the second proviso of  sub-section (4) of Section 229 of the Act, was perfectly within its  jurisdiction as it was exercising the power exercisable  by a Minister  Incharge or  his appointee thereunder.  Consequently, the learned Single  Judge was justified in expunging the unnecessary remarks made by the  Tribunal as to the absence of will for demolition on the part of the  Municipality and quashing the said remarks. It was not open to the learned  Single Judge to substitute his discretion in the matter and uphold the order of  the Tribunal only to the extent of demolition of the unauthorized  construction. Though, the learned Single Judge does not in express words set  aside the finding with regard to the compoundability  of the offence, we  presume it to be the consequence of the order.           Turning next to the impuged judgment made in the Letters Patent  Appeal, we find that the judgment flies off at a tangent.  The reasons which  seem to have impelled the Division Bench to dismiss the Letters Patent  Appeal are: (1) the appellant’s failure to produce his title deed, (2) the fact  that the construction was far in excess of the sanctioned plan and (3) the  appellant converted the land use from residential to commercial purpose.  In  our view, the Division Bench erred on all the three counts.  In the first place,  the title of the appellant to the land in question was never in dispute, nor put  in issue either before the Tribunal or before the learned Single Judge.  In  fact, the orders of sanction which we have referred to earlier indicate that the

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appellant presumably had good title. In any event, that was not the issue  before any of the courts below.  The second reason for dismissing the Letters  Patent Appeal seems to be that the appellant had far exceeded the  construction beyond the sanctioned plan. That was purely begging the  question.  It was precisely because of an offence within the meaning of  clause(d) to sub-section (1) of Section 229 that the Executive Officer of the  Municipality passed an order for demolition; the appellant appealed  thereagainst under sub-section (3) and the Tribunal made an order for  compounding the offence under sub-section (4). If there was no  contravention of the sanctioned plan, there would have been no occasion for  levying a compounding fee at all.  That the Tribunal had jurisdiction to levy  a compounding fee is clear from the terms of the second proviso to sub- section (4) of Section 229 of the Act.  That the Municipality was willing to  do so is evident from the Municipality’s notice dated 18.5.1998 demanding  the compounding fee and also the fact that the Municipality at no point of  time appeared to be aggrieved by the order made by the Tribunal, as it did  not challenge the said order.  Finally, the third count on which the Division  Bench held against the appellant, namely, that there was conversion of the  land use from residential to commercial, contrary to the lease deed, also  appears to be without substance. We have already referred to the Minutes of  the meeting held on 6.1.1998 and the decision taken at the said meeting.   The meeting was headed by the  Administrator of the Jammu Municipality  as Chairman with Vice Chairman of the Jammu Development Authority,  M.D. Housing, J&K State, Jammu, Chief Town Planner, J.D.A., Jammu as  Members and Executive Officer, Municipality, JMU as Member Secretary.  This High Powered body, which was aware of the manner in which  development was taking place in the city of Jammu, took notice of the fact  that there was non-implementation of planning proposals envisaged in the  Master Plan on account of high density of commercial activities along  several roads, B.C. Road being one of them.  It was precisely for this reason  that the High Powered body took the view that commercial activities could  be permitted at selected points along the said road and opined "B.C. Road is  totally commercial at present and to thrust residential activity on the area  would be putting cart before the horse. In areas like B.C. Road whenever  there is an application for grant of B.P. the applicant submits a plan for  residential purposes where in fact he has commercial activity in mind. This  results in loss of revenue to the Jammu Municipality/J.D.A./J&K Housing  Board together with hassle of unauthorized constructions, it was, therefore,  decided in the meeting to come-up with a proposal where areas like B.C.  Road would be identified so that the same is submitted to the Government  for issuing necessary modification in the land use as envisaged in the Master  Plan approved by the Government in 1978."         Finally, apart from these three reasons for which the impugned  judgment is liable to be faulted, our attention was drawn by the learned  counsel for the appellant  to notification dated 9.8.2004, SRO 263  issued by  the Commissioner & Secretary to the Government of Jammu & Kashmir by  which the Master Plan for Jammu : 2021 has been published.  Paragraph  6.9.11 at page 81 of the said Master Plan specifically provides that B.C.  Road area is earmarked as special area to be developed as a mixed use zone  having residential, commercial, light industry, institutional and other uses.   The phase of rapid growth of industrial development also makes it  unnecessary for permitting demolition of the structure even if it be in  contravention of the provisions of the Act or  the zoning provisions in the  previous Master Plan. Considered from all angles, it appears that the High  Court need not have taken an activist role in directing demolition of the  offending structure which had been permitted to be compounded by the  competent authority, namely, the Tribunal.         We are of the view that for the same reasons, the review petition filed  by the appellant in Civil Appeal No. 2595/04 was liable to succeed and so  was the writ petition filed by the transferees in OWP No. 1102/03.   

Conclusion :         In the result, we allow the three appeals and set aside the judgment  and order of the Division Bench of the High Court in Review Petition  Rev.(LPAOW) No. 44/03 in L.P.A. No. 214/2000 dated 4.12.2003, the

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judgment of the Division Bench in Writ Petition No. 1102/03 of the same  date, and the judgment of  Division Bench of the High Court in L.P.A. No.  214/2000 dated 12.11.2003 as well as the judgment of the learned Single  Judge of the High Court dated 30.5.2000 in OWP No. 458/98.  We affirm  the order of the appointed authority/ J&K Special Tribunal in STJ/239/97  dated 6.3.1998 and leave it to the authorities of the Jammu Municipality to  deal with the matter in accordance therewith.

       In the circumstances of the case, there shall be no order as to costs.