HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR OWP No.83/2009 Pronounced on 09.05.2025 B.O.C.A and others …. Petitioner/Appellant(s) Through:- Mr.Moomin Khan, Advocate V/s Aijaz Ahmd Khan and another …..Respondent(s) Through:- Mr. M. Tufail, Advocate. CORAM : HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT 01. The petitioner No.1, a statutory authority constituted by the Government under Control of Building Operation Act to regulate building activities within the limits of Srinagar Municipal Corporation and petitioners 2 to 4 are subordinate officers of the Corporation. The petitioners, in this petition, have called in question the order dated 06-11-2007 passed by respondent-2 in exercise of its appellate jurisdiction under the provisions of Control of Building Operation Act, 1988. The instant petition is filed by the petitioners under Section 103 of the Constitution of Jammu and Kashmir read with Article 226 of the Constitution of India for quashing the impugned order dated 06-11-2007. 02. Briefly stating the facts of the case are that respondent No.1 sought building permission from the Competent Authority i.e. Building Operation Controlling Authority (BOCA) for construction of a two storied residential house situated at Rawalpora Wanabal, Alamdar Colony(D). BOCA after OWP No.83/2009 complying with the procedure as prescribed for the same, granted the requisite building permission in favor of the respondent-1 for construction of a residential house, however, subject to some set-backs. It is stated that as per the detail given in the deviation report of the building case of respondent No.1, he raised the proposed construction in flagrant violation of the terms and conditions of the building permission by making serious deviations. After noticing the deviations, the petitioners initiated proceedings against the respondent No.1 under the provisions of Control of Building Operations Act, and, accordingly, issued notice of demolition dated 15-06- 2007 under Section 7(3) of the Act, whereby directing the respondent No.1 to demolish/pull down the construction so far as it deviated the sanctioned plan within a period of 5 (five) days from the service of said notice. 03. Thereafter, respondent No. 1 filed a statutory appeal against the aforesaid demolition notice before the Appellate Authority, that is, J & K Special Tribunal Srinagar and the Tribunal vide its order dated 06-11-2007 allowed the appeal of respondent No.1 and the minor deviations alleged to have been committed by him were compounded, subject to payment of composition fee at the rate of Rs.13 x 508 sqft = Rs.6604. 04. The plea of respondent No.1 before the Tribunal was that he applied for permission to the Building Operations Controlling Authority, Srinagar for construction of two storied residential house in a parcel of land owned and possessed by him. The petitioner, that is, BOCA after considering his case granted permission in his favour for raising of a two storied residential house vide Building permission order No.1159 of 2007 dated 15-03-2007. Thereafter the construction was started by him as per the sanctioned plan. During the course of construction, some minor structural changes had to be OWP No.83/2009 effected at the last moment on the advice of the Architect and the Engineers and the authorities were informed of the same. It was submitted that after visiting the site and also after appreciating the ground reality, the BOCA official did not raise any objection to the alleged deviations in respect of the construction. The Tribunal after considering the factual position, held that deviations to the extent of 112 sqft for raising two storied residential house constructed by the respondent No.1 and in addition to this he has also constructed cantilever for which deviation was worked out of 100 sqft, whereas car porch of the dimensions 14‟ x 10‟ 6” and its deviation worked out to be 148 sqft, also a room of the same dimensions whose deviation is worked out to be 148 sqft. Thus, the total deviations committed by respondent No.1 as per the Tribunal were 508 sqft. Accordingly, it was held by the Tribunal that the deviations committed by respondent No.1 was minors in nature and the same were compounded, however, subject to payment of composition fee at the rate of Rs.13/- per sqft. 05. The contention of the petitioners is that they had initiated proceedings against respondent No.1 under the provisions of Control of Building Operations Act only after noticing the deviations against sanctioned plan and the said deviations have resulted in violation of order dated 15-03- 2007. It is urged on behalf of the petitioners that the Tribunal has not considered the fact that the deviations committed by respondent no.1 are major in nature and the same do not fall in the minor nature, therefore, the Tribunal could not have compounded the deviations committed by the respondent No.1. It is also submitted that the requisite permission for construction of two storied residential house was subject to payment of composition fee. OWP No.83/2009 06. Heard learned counsel for the parties and considered the matter at length. 07. The respondent No.1 on the other hand submits that some minor structural changes had to be effected at the last moment in view of the advise of the Architect and the Engineers. 08. This Court in case reported as 2006(3) JKJ[HC] 526, Building Operation vs. Jyoti Singh Anr., has held in paragraph-12 as under; “under the aforesaid Regulation a construction will be deemed to be a minor construction if it does not violate the approved land use, permissible front, rear or side set backs more than 10% of the permissible ground coverage and permissible height. In view of the new Master Plan as notified vide SRO 263 dated 9-8- 2004 a professional establishment/Nursing Home can be established in residential area under clause 8.2 (a) of the Master Plan. Though commercial activity is permissible in this area in terms of clause 6.9.11 of the aforesaid Master Plan, as noticed above, there is no violation of land use. The permission have been granted for construction at the first floor, the violation of front or rear set back or 10% of the ground coverage is irrelevant. It is not the case of the respondents that there is any violation of permissible height”. 09. This court in the aforesaid case upheld the order of the learned Tribunal, except the compounding of Balcony projection over the road while holding that there does not seem to be any violation of the Regulation in so far as the land use, height and ground coverage and the front and rear set back is concerned, the construction being at the first and second floor. OWP No.83/2009 10. The instant case is also of similar nature to that of Jyoti Singh’s case (supra) as BOCA alleged minor deviations committed by the respondent No.1 in construction of his two storied residential house to which he has constructed it in the year 2007 and the Tribunal has allowed the same to be compounded, subject to payment of composition fee. 11. Keeping in view the facts and circumstances of the case and also taking support from the judgment of the aforesaid case „Building Operation vs. Jyoti Singh Anr.‟ of this court, the impugned judgment dated 06-11-2007 of the Tribunal is well reasoned one and same requires no interference by this court. Accordingly, this petition is dismissed. (Sindhu Sharma) Judge JAMMU Ved-Secy. 09.05.2025 Whether the order is speaking : Yes Whether the order is reportable : Yes/No