Kewal Kishan
Gupta Vs. J. & K. Special Tribunal & Ors [2005] Insc 333 (11 May 2005)
D.M.
Dharmadhikari & B.N. Srikrishna
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.
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 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 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
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 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.
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