Special Tribunal lacks jurisdiction to compound building deviations: HC

Srinagar, Jan 30: The High Court of J&K and Ladakh has ruled that the Special Tribunal (appellate authority) has no power to compound deviations in keeping with Jammu and Kashmir Municipal Corporation Act, 2000, saying the power vests with the commissioner of Municipal Corporation.

Disposing of two writ petitions-one by Srinagar Municipal Corporation, a bench of Justice Sanjay Dhar set aside the Special Tribunal’s order wherein it had termed the building of three persons (private respondents) at Hari Singh High Street here as authorized and thereafter set aside the sealing order by the SMC.

While court observed that in terms of Section 254(5) of the Act of 2000, it is clear that in relation to deviations of minor nature the Commissioner of Municipal Corporation is authorized to compound the same, it said: “As against this, in terms of Regulation 9 of J&K Control of Building Operations (Revised) Regulations, 2001 the appellate officer has been conferred with power to compound an offence of minor nature”.

In the instant case, the Court said, the Corporation has proceeded against the private respondents in accordance with the provisions contained in the Act of 2000 and not in accordance with Control of Building Operations Act, 1988 and the Regulations of 2001.

“Therefore, an order of demolition passed by the Corporation in terms of Section 253(1) of the Act of 2000 is appealable before the Special Tribunal as provided under Section 253(2) of the said Act and not in terms of Regulation 9 of the Regulations of 2001”.

The Court said: “The Appellate Authority does not have power to compound the deviation under the Act of 2000 and the said power has been vested with the Commissioner of Municipal Corporation”.

The Court disagreed with the argument that because the Commissioner is vested with power to compound the deviations, the Tribunal which is an appellate authority against an order of the Commissioner, is deemed to be vested with power to compound the minor deviations.

“…the appellate authority, in the instant case being a creature of statute viz. Act of 2000, as such, its powers and jurisdiction are defined and circumscribed by the provisions contained in the Act of 2000”.

The Court underlines that the statute nowhere provides or vests power of compounding of deviations upon the appellate authority, instead, it says, the power has been specifically vested with the Commissioner of Municipal Corporation. “As against this, under Regulations of 2001, the appellate authority i.e the Tribunal has been
specifically vested with the power to compound the minor deviations”.

While the court held that the Special Tribunal in the instant case had no power to compound the deviations, it said: “It was only the Commissioner of Municipal
Corporation who, being vested with the requisite power, could consider the matter regarding compounding of deviations and pass appropriate orders in terms of Section 254(5) of the Act of 2000”.

As regards the jurisdiction of the Tribunal to entertain the revision petition against the order of sealing passed by the SMC, the Court said that the Government, in exercise of its powers under Section 255 of the Act by incorporating byelaw 5.2.8 in the building bye-laws of 2011 has given policy directions relating to compounding of cases involving deviations from the sanctioned plan.

“Thus, the entire exercise for compounding of offences in terms of By-laws of 2011 owes its origin to the provisions contained in the Act of 2000,” the Court said, adding, “It can, therefore, be safely stated that the order of sealing which was subject matter of challenge before the Tribunal owes its genesis and origin to the provisions contained in the Act of 2000 and the said order is revisable in terms of Section 403 of the said Act”.

With regard to the question whether the Tribunal was right in holding that the order of sealing dated 23.07.2020 was bad in law, the court said: “Any deviation from the building permission would always constitute an unauthorised construction”. The Tribunal, it said, by adopting flawed reasoning which is against logic and common sense has termed the unauthorised construction of the private respondents as authorized one and thereafter set aside the sealing order”.

While disposing of the writ petitions, the court set aside the order passed by the Special Tribunal.

The Court put private respondents at liberty to approach the Commissioner, SMC with a petition for compounding of the deviations in the light of the building permission granted and other pre-requisites.

It asked the Corporation to seal the offending portion of the building constructed by the private respondents till a decision is taken by the Commissioner, SMC with regard to compounding of deviations.

“In case the deviations are not compounded/regularised by the Commissioner, the private respondents shall ensure that the offending portion of the building is demolished or, in the alternative, the Corporation shall undertake demolition of the offending portion in accordance with law”, the court said.