J&K Control Of Building Operations Act | Unauthorised Constructions Compounded By Municipal Authorities Deemed Authorised: High Court

Justice Wasim Sadiq Nargal was hearing a petition filed by the Building Operation Controlling Authority seeking to quash an order passed by the J&K Special Tribunal in November 2017 through which it had compounded an unauthorized construction.

“Thus, unauthorized construction once compounded by the Municipal Authorities has the status of authorized construction and no proceedings in respect thereof can be initiated on the premise that the same is illegal and unauthorized by resorting to filing of writ petition under Article 226 of the Constitution of India.” 

As per the petitioner, the respondent had violated permissible coverage area, height, and setbacks during the construction of a residential property and hence the impugned order suffers from serious infirmities as the core issue of the controversy had not been dealt with by the Tribunal. Petitioners further contended that since the violations were major violations and hence the same could not be compounded in terms of Regulation 11 of the J&K Control of Building Operation Regulations 1998.

Conversely, the respondents contended that the High Court's jurisdiction is confined to correcting jurisdictional errors or unjustified refusals of jurisdiction by judicial bodies. Writ petitions cannot challenge Appellate Tribunal rulings. They further argued that the Appellate Tribunal's order does not exhibit jurisdictional errors or major legal flaws leading to miscarriage of justice.

Responding to allegations of residential construction violations, the counsel asserts that the construction adhered to approved plans and dismisses the claims of violations and denied respondent's involvement in major violations as claimed by the petitioner.

While dealing with the matter at hand the bench at its very outset noted that the present writ petition raises disputed questions of fact which cannot be gone into while exercising the writ jurisdiction under Article 226 of the Constitution.

“The issue whether this court while exercising the power as a writ court can go into the questions of fact is no more res integra and can’t assume the role of an appellate authority by re-appreciating the evidence to ponder as to what sort of violation has been committed in raising of construction, whether it was minor or major in nature, whether it was pre-sanctioned plan or revised plan. All these things can well be considered and appreciated by the Tribunal which can go into questions of fact after thorough enquiry”, Justice Nargal explained.

Observing that the Tribunal, after a thorough enquiry, had drawn the conclusions on a question of fact and recorded the finding and regularised it under law by compounding the same, the bench held that the Tribunal was fully competent to compound the violation keeping in view its nature and hence the court while exercising the writ jurisdiction cannot upset the findings of the Tribunal.

“As a matter of fact, strictly speaking, the writ jurisdiction of the court cannot be invoked in such like matters as the dispute in question relates to a question of fact i.e whether the violation is minor or major and according to my view, the Tribunal is a final arbiter in such like matters”, the bench underscored.

Citing Several sections of the J&K Control of Building Operations Act 1988, Justice Nargal expounded that once the Appellate Authority delivers a final verdict in an appeal, Section 15 of the Act bars any further avenues for the aggrieved party. This finality is ironclad, preventing challenges through lawsuits, applications, or execution proceedings and utilizing Article 226 to contest the order based on disputed facts runs counter to the Act's intent and would dilute its purpose, it underscored.

“The law makers have deliberately not provided any further remedy against the order of the appellate authority with the sole object that the proceedings should culminate finally before the Tribunal and the sword should not keep hanging on the person who has allegedly violated the provisions of the Act and he/she should have a sigh of relief. In case, if such writ petitions are allowed to be entertained under Article 226 on disputed questions of fact, then the very object of the scheme of the Act not to provide further remedy will be forfeited”, the court reasoned.

Emphasising that once an unauthorized construction is compounded and regularized, it obtains the status of an authorized construction the bench said that any subsequent legal challenge under Article 226 of the Constitution of India, which deals with the writ jurisdiction of the High Courts, cannot be entertained.

Spotlighting the law that disputed questions of fact, such as whether a violation is major or minor, cannot be re-adjudicated by the court in its writ jurisdiction, the bench said,

“This Court can’t assume the power/role of Commissioner to go on spot to verify whether it is major or minor violation, which falls within the realm of disputed question of facts and the Tribunal being the arbiter in such like matters has the final authority and the finding recorded by the Tribunal can’t be upset in writ jurisdiction”.

In view of the said observations the bench found the petition meritless and accordingly dismissed the same.

Case Title: BOCA Jammu Vs Nageen Ara

Citation: 2023 LiveLaw (JKL) 235

Click Here To Read/Download Judgment