Sr. No.08 Regular List IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR OWP No. 277/2007 Building Operations Controlling Authority …Petitioner(s)/appellant(s) Through: Mr. Bikdramdeep Singh, Dy. AG with Ms. Nadiya, Assisting Counsel Vs. Riyaz Ahmad &Ors. ...Respondent(s) Through: Mr. Umar, Adv. vice Mr. M.M. Dar, Advocate CORAM: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE O R D E R 10.02.2025 1. A building permission No. 987 of 2005 dated 20.12.2005 was granted by the Building Operations Controlling Authority (BOCA) (SMC) with respect to premises situated at Jawahar Nagar, Srinagar. 2. Purportedly acting upon the fact that in the course of the construction of the sanctioned building construction three side setbacks have been compromised from the originally prescribed width of setbacks to lesser side, a course of action under section 7 (1) and 7 (3) of the Control of Building Operations Act 1988 came to be undertaken which resulted in an order No. SMC/Kh/732-35 dated 22.06.2006 passed for demolition of the unauthorized construction/violation. 3. The noticees i.e. four brothers and their mother were constrained to approach the Jammu & Kashmir Special Arif Hameed I attest to the accuracy and authenticity of this document 17.02.2025 Tribunal with a statutory appeal under section 13 of the Control of Building Operations Act 1988 before the Jammu & Kashmir Special Tribunal on its file No. STS/1764/06 which resulted in the appeal being allowed and the alleged violations ordered to be compounded @ 13 per sq. ft. for 286 sq. fts. each for Ist and 2nd setback, thereby rendering the Building Operations Controlling Authority (SMC) aggrieved to come up with present writ petition to assail said outcome. 4. In the writ petition, it is being vehemently contended that compromising setbacks is against the valid plan aspect of building construction in any given locality and, therefore, any person/owner undertakes a construction of a building being residential or commercial by compromising the prescribed setbacks is actually comprising with the planned development of the given locality and, as such, the Tribunal ought to have viewed the violations very seriously to dismiss the appeal and to order the demolition to take place of the residential building so constructed by reducing the setbacks. 5. This Court, when examines the judgment dated 06.10.2006 of the Jammu & Kashmir Special Tribunal, finds that actually the Tribunal has found the enforcement establishment of the SMC or for that matter of Building Operations Controlling Authority (BOCA) (SMC) off guard in checking the violation at its very Arif Hameed I attest to the accuracy and authenticity of this document 17.02.2025 inception, for which a full authority always vested under section 12 of the Control of Building Operation Act 1988. 6. 6. The Legislature has thoughtfully provided a mechanism of section 12 at the disposal of a given Building Operations Controlling Authority so as to ensure that before an unauthorized construction takes flight or is undertaken at the site then the same is arrested at its very inception and infancy leaving no scope whatsoever for a prospective offender to build upon violation or unauthorized construction venture Section 12 of the Control of Building Operations Act 1988 has been more abandoned the used by the enforcement establishment of Building Operation Controlling Authority/ies constituted under the Jammu & Kashmir Control of Building Operations Act 1988 and that is the reason that it is always when a construction has already been completed reporting major violations that a course of action under section 7 (1) of the Control of Building Operations Act 1988 is set into effect by the Authority more to justify its file process rather than coming up with an explanation as to how at first instance the enforcement section of the Authority was caught found sleeping in a day light manner in allowing an unauthorized construction process not only to be concealed but of getting carried out. 7. Mr. Bikramdeep Singh, learned Dy. AG, submits that even if there was or is any lapse on the part of the Enforcement Wing Arif Hameed I attest to the accuracy and authenticity of this document 17.02.2025 of the Building Operations Controlling Authority (SMC) that can hardly be any ground for the Jammu & Kashmir Special Tribunal to compound non-compoundable violation. 8. Agreeing to this plea of Mr. Bikramdeep Singh, learned Dy. AG, would be to grant premium to the acts of dereliction of the BOCA (SMC) and, therefore, this Court in the facts and circumstances of case is not inclined to lend acknowledgement to the plea of the petitioner in this case, the Jammu & Kashmir Special Tribunal ought to have rejected the appeal and let the alleged violations suffered damaged which in would have been to the building structure itself. 9. In the light of the aforesaid, this Court finds no illegality in order of the Jammu & Kashmir Special Tribunal and, as such, dismisses the writ petition. (RAHUL BHARTI) JUDGE SRINAGAR 10.02.2025 ARIF Arif Hameed I attest to the accuracy and authenticity of this document 17.02.2025