BDO’s NOC meaningless holds HC

DB dismisses petition of Ex-Minister, judgment of Spl. Tribunal set aside

06/04/2022

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
CJ Court

Case: WP(C) No. 2689 of 2019
Vice Chairman, JDA and Others
.....Appellant/Petitioner(s)

Through :- Sh. Sachin Dogra, Advocate

v/s
Zulfikar Ali and Others .....Respondent(s)

Through :- Sh. P.N.Raina, Senior Advocate with
Sh. J.A.Hamal, Advocate
Sh. S.S.Ahmed, Advocate
Sh. Rahul Raina, Advocate
Ms. Supriya Chouhan, Advocate

HON’BLE THE CHIEF JUSTICE
MRS. JUSTICE SINDHU SHARMA, JUDGE

ORDER
08.03.2022

01. Heard learned counsel for the parties.
02. The Jammu Development Authority and the Building Operation Controlling Authority, Jammu through their respective officers have preferred this writ petition under Article 226 of the Constitution of India so as to challenge the judgment and order dated 09.10.2018 passed by the Jammu and Kashmir Special Tribunal, Jammu in an appeal preferred by respondent No. 1, Zulfikar Ali under Section 13 of the Control of Building Operation Act,1988 (for short ‘the COBO Act’).
03. The petitioners initiated proceedings for the demolition of the unauthorized constructions alleged to have been raised by respondent No.1. Accordingly, an order of demolition dated 27.04.2017 came to be passed under Section 7 (3) of the COBO Act requiring the respondent No. 1 to demolish the alleged unauthorized constrictions, failing which the same were to be removed by the JDA at the cost of respondent No. 1.
04. The aforesaid order of demolition was preceded by a notice under Section 7 (1) of the COBO Act dated 21.10.2016, as also a notice in terms of Section 12 (1) of the COBOAct dated 31.03.2017directing for stopping illegal constriction of a commercial building which was being illegally raised without permission of the JDA as required under the COBO Act.
05. It was only after respondent No. 1 was given a show cause notice and a notice directing to stop the construction work and when the constructions were not stopped that the final order for the demolition of the Banquet Hall allegedly constructed on a plot of land comprising Khasra Nos. 1084, 1180, 1181, 1089 and 1090 situate at village ChanniChawadhi, Jammu, was passed.
06. Respondent No. 1 challenged the order of demolition by filing an appeal before the Jammu and Kashmir Special Tribunal, Jammu. The appeal has been allowed on the ground that there is no violation of the land use and that respondent No. 1 has raised construction on the basis of the ‘NOC’ granted by respondent No. 4, Block Development Officer (BDO).Since the permission granted by the BDO was not challenged by the petitioners, the demolition order dated 27.04.2017 is without jurisdiction and liable to be quashed.Accordingly, the demolition order was quashed and respondent No. 1 was directed to pay building permission fee as prescribed for the construction of a Banquet Hall within a period of two months failing which the petitioners would be at liberty to remove the constructions.
07. The above order has been impugned in the writ petition and the first and foremost argument of Sh. Sachin Dogra, learned counsel appearing for the petitioners, is that admittedly, respondent No. 1 has not taken any building permission from the JDA to construct the above Hall and, as such, the Tribunal could not have allowed the appeal on the basis of the ‘No Objection Certificate’ alleged to have been granted by the BDO treating it to be a building permission.
08. Sh. P.N.Raina, Senior counsel, on the other hand, contends that at the relevant time, the Master Plan of 2021 was in existence whereas the petitioners initiated action against respondent No. 1as per the Master Plan 2032. The BDO had rightly granted ‘No Objection Certificate’ and the constructions raised are not in violation of any law. The land use of the aforesaid land had no longer remained to be the forest area but stood changed to commercial vide order dated 12.01.2017 of the Revenue Department.
09. There is no dispute to the fact that respondent No. 1 has constructed the Banquet Hall and that he does not possess any building permission of the JDA to construct it. The constructions have been raised only on the strength of the certificate of the BDO and the Sarpanch Panchayat Halqa Chowadhi, Jammu. The said certificate is part of the record and reads as under:-
“It is certified that office of the Block Development Satwari and Panchayat HalqaChowadhi has no objection if Zulfikar Ali S/o Ch. Mohd Hussain has construct proposed Banquet hall at Chowadhi Jammu by laws under Khasra Nos 104, 1180, 1181, 1089 & 1090.
Sd/ Sd/-
Pyt Secretary Sarpanch
Panchyayat Halqa Chowadhi
Jammu (J&K)
NOC is subject to construction bye laws and permission from any other department if pending. “APPROVED”
Sd/
Block Development Officer,
Satwari.”
10. A glance at the copy of the above certificate would indicate that it is an undated document and even no one singing it has mentioned any date. It appears to have been granted after the construction of the Banquet Hall.
11. The Jammu and Kashmir Development Act, 1970 (for short ‘the Act’) provides for the constitution of development authorities for any local area as a body corporate and provides for the preparation of Master Plans and Zonal Plans,the development of the area is supposed to take place in accordance with the said plans. The said Act vide Section 13 clearly provides that no person including the department of the Government shall undertake or carry out development of any land or building in anyzone unless permission for such development has been obtained in writing from the authority in accordance with the provisions of the Act.
12. In view of the above provisions contained under Section 13 of the Act, no one is authorized to construct any building under the development area without the permission in writing of the authority.
13. The Jammu Development Authority is a creation of the aforesaid Act and the law relating to building is controlled and governed by the COBO Act. It, vide Section 4 provides that no person shall undertake or carry out development of any site or erect or re-erect any building in the Municipal area or any other local area except with the previous permission of the Authority concerned in writing.
14. Therefore, in view of Sections 13 of the Act read with Section 4 of the COBO Act, prior permission of the Authority concerned in writing is sine qua nonfor raising a building.No one is allowed to undertake any construction work in the development area without such permission in writing.
15. The COBO Act further provides for the order of demolition under Section 7 (3) if the authority is satisfied that any building has been erected in contravention of the provisions of the Act.
16. In the case at hand, the only thing which requires to be seen is whether respondent No. 1 has raised the construction of the Banquet Hall in contravention of the COBO Act, i.e., without obtaining prior permission in writing of the Authority.
17. The land in question is within the Municipal limits or the development area and is within jurisdiction of the JDA. This fact stands established vide SRO 263 dated 9.08.2004 wherein the area Channi Chowadhi finds mention at S. No. 60 which extends the area and adds it to the local area of Jammu.
18. A simple reading of the provisions of the Act and the COBO Act reveal that a permission in writing of the authority is necessary for raising any construction and that the BDO or the Sarpanch has no role to play in grant of such permission.The ‘NOC’ issued by them that they have no objection, if the Banquet Hall is constructed is not a permission to construct and notwithstanding the said NOC, it was incumbent upon the respondent No. 1 to have obtained permission in writing of the Authority before initiating the construction work which, admittedly, was not taken.
19. In view of the aforesaid facts and circumstances, it is as clear as crystal that the construction of the Banquet Hall by respondent No. 1 is in contravention of the provisions of the COBO Act and, as such, the Authority was within its domain to direct for its demolition. The Special Tribunal manifestly erred in holding the constructions to be legal on the basis of the ‘NOC’ of the BDO which in no way is relevant and material to enable construction within the local area. The said NOC only states that BDO and others have no objection if the Banquet Hall is constructed subject to construction Bye Laws and permission from the relevant department.
20. The aforesaid ‘NOC’ is not a permission to construct as envisaged in law and, as such, is a meaningless document and it was not necessary for the petitioners or anyone to challenge it. It was not even in public domain before the initiation of the present proceedings. There was no question of assailing it.
21. The Special Tribunal itself has mentioned and directed the respondent No. 1 to deposit building permission fee prescribed by the Government with the BOCA/JDA for the purposes of construction of Banquet Hall within a period of two months which clearly reflects that the Tribunal was conscious of the fact that there was no building permission and that no such permission could be granted without submitting an application and depositing the requisite fee for the purposes.
22. In short, since no building within the development area could have been raised without the prior permission of the Authority, the construction of the Banquet Hall is per se in contravention of law and is unauthorized which could not have been saved by the Tribunal on the strength of ‘NOC’ issued by the BDO/Sarpanch, firstly, for the reason that they had no authority of law under the two Acts to issue any such certificate and, secondly, the said certificate only states that they have no objection if the Banquet Hall is constructed which does not amount to granting of building permission.
23. In view of the aforesaid facts and circumstances, the impugned judgment and order of the Tribunal dated 09.10.2018 is unsustainable in law and deserves to be quashed. It is accordingly quashed.
24. The writ petition stands allowed.

(SINDHU SHARMA) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
JAMMU
08.03.2022
Tilak

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