Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
WP(C) No. 1152/2021
CM Nos. 4699/2021 & 1610/2022
Reserved on: 02.03.2023
Pronounced on:03.04.2023
Bal Krishen .....Petitioner(s)
Through :- M/S Z A Shah & Sunil Sethi, Sr. Advs. with
M/S Javed Iqbal Balwan, Najmus Saquib
Suharwardy & Mohsin Butt, Advocates
v/s
J&K Special Tribunal Jammu & Ors. .....Respondent(s)
Through :- Mr.Sachin Dogra, Advocate
OWP No. 376/2016
IA No. 1/2016
CM No. 1609/2022
Bal Krishan ....Petitioner(s)
Through:- Mr. Z A Shah, Sr. Advocate with
Mr. Javed Iqbal, Advocate
v/s
State of J&K & Ors .....Respondent(s)
Through:- Mr. Sachin Dogra, Advocate for R-2 to 4
OWP No. 340/2018
IA No. 1/2018
CM No. 8898/2021
Bal Krishen ....Petitioner(s)
Through:- Mr. Z A Shah, Sr. Advocate with
Mr. Javed Iqbal, Advocate
v/s
JDA &Anr ....Respondent(s)
Through:- Mr. Sachin Dogra, Advocate
2 WP(C) 1152/2021
CORAM: HON'BLE MR. JUSTICE TASHI TABSTAN, JUDGE
HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
Per Chowdhary J
1. Petitioner in all the petitions claims to have acquired 29 kanal 05 marlas of land comprising of Survey Nos. 49, 50, 51, 52 and 41, situate at village Sunjwan, Tehsil Bahu District Jammu along with one Mohd Ashraf; that both of them applied to the Jammu Development Authority (JDA), which has the jurisdiction over the area for grant of permission for Group Housing Project; that the JDA after seeking and obtaining „No Objection Certificates‟ from all the line departments and after examining the building plans approved the project vide Order No. CTP/JDA/BPC/646-47 dated 12.02.2015, after receipt of building fee of the project in the sum of Rs.1,06,03,650/- before accord of approval, which the petitioner deposited on 20.01.2015; that after grant of permission, Mohd. Ashraf withdrew himself from the project and transferred his interest in the land in favour of the petitioner and this fact was duly communicated to the JDA vide communication dated 20.07.2015; that the permission had been granted by the JDA for 07 blocks each comprising of 13 floors. Out of 07 blocks („A‟,‟B‟,‟C‟,‟D‟,‟E‟,‟F‟ and „G‟), block „D‟ was to be constructed for Economically Weaker Sections (EWS) of the society and the petitioner commenced the construction on 07.04.2015; that as per the advice of Architect and Structural Engineer and having regard to the topography of the area, the construction work was first started in Block „G‟ and „F‟; that the petitioner was required to create space at the depth of 22 feet to lay raft foundation and to ensure that the proposed construction is stable which can 3 WP(C) 1152/2021 withstand the earthquake as per the National Building Code (NBC); that due to creating a depth of 22 feet and availability of sufficient space, the petitioner felt that the permission could be obtained from the JDA to use the said space for car parking; that the petitioner had been allowed to construct ground floor as a „stilt floor‟ for car parking in terms of condition No.6 of the order dated 12.02.2015 and to start first floor over „stilt floor‟ and the petitioner was required to seek further permission after construction of first floor in block „G‟ and „F‟.
2. The petitioner further claims to have applied to JDA on 14.01.2016 for release of permission of floors over the first floor which was required to be cleared by the JDA within seven days from the date of request. However, till 21.01.2016 no permission was released by the JDA despite approval of the whole project and on 04.02.2016, the petitioner was served with a notice under section 7(1) of the Control of Building Operations Act (COBA) to show cause within 48 hours, to which the petitioner responded on 05.02.2016. There being no response from JDA within seven days, the petitioner filed OWP No. 165/2016 in this Court which was disposed of on 16.02.2016. The petitioner on 20.02.2016 was informed by the JDA that the BOCA (Building Operations Controlling Authority) in its meeting held on 11.02.2016 had considered the matter and declined to accept the request on the ground that the petitioner had committed violation and he was directed not to raise any construction. The petitioner on 02.03.2016 again applied for release of permission, however, there was no response. The petitioner on 14.03.2016 filed OWP No. 376/2016 questioning the legal validity of clause 6 of the approval as also the communication dated 4 WP(C) 1152/2021 20.02.2016. The petitioner also filed a civil suit on 11.04.2016 wherein the civil court passed the order on 11.04.2016 that the respondents can proceed against the petitioner in accordance with law and not otherwise. The petitioner was served with the order dated 06.05.2016 restraining him from raising any further construction and the petitioner challenged that order in another suit and the civil court on 19.05.2016 ordered to keep the restraint order in abeyance. The petitioner in the year 2018 filed OWP No. 340/2018 claiming various reliefs including for consideration of revised plans and the court passed the order dated 26.02.2018. In the backdrop of the aforesaid factual matrix of all the petitions, which had been clubbed together, are proposed to be disposed of by this common judgment.
3. Learned counsel for the petitioner, would submit that based on the rival pleadings in all the petitions, the following issues crop up for the disposal of the petitions:
i) That JDA took a view that the petitioner violated norms of construction in block „G‟ and „F‟ when he constructed ground floor and the first floor.Though violation is not mentioned anywhere by JDA in their communications, but the petitioner has reasons to believe that the alleged violation was on account of construction of alleged basement in blocks „G‟ and „F‟. The JDA on that basis had declined to grant further permission in terms of clause 6 of the sanctioned order.
ii) That JDA had issued notice under Section 7(1) of COBA.
This was duly responded to by the petitioner. No further action was taken by JDA against the petitioner under the provisions of COBA. In fact, the petitioner in his writ petition OWP No. 340/2018 had sought a command from 5 WP(C) 1152/2021 this Hon‟ble Court against the respondents that they should take action in accordance with law, if there was any violation, to enable the petitioner to work out his remedies before the Tribunal constituted for the purpose of dealing with contraventions.
iii) The JDA had issued restraint order against which civil proceedings have been initiated and civil court had kept the restraint order in abeyance.
iv) That since there was no action taken by the JDA and the entire project having been approved and requisite fee paid, the petitioner continued with the construction on spot in accordance with the sanctioned plans.
v) That during the course of construction, few changes occurred:-
a) That the petitioner instead of constructing 13 floors above „stilt floor‟ had constructed only 12 floors;
b) That during the course of construction, while maintaining compliance with the sanctioned plans, few changes were made within the towers without altering the sanctioned designs or layout of the buildings.
c) That though the permission was to construct 07 towers/blocks, the petitioner did not, on spot construct Block „C‟ thus reducing number of blocks from 07 to
06.
d) The petitioner instead of making block „C‟ had made „club house‟.
vi) That in order to seek regularization of these changes, which were not of substantial nature, the petitioner submitted revised plans and this Hon‟ble court vide order dated 26.02.2018 directed the respondents to accord consideration of the revised plans.
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vii) That the petitioner was also required to construct EWS flats as per the sanctioned order. Admittedly, the petitioner did not construct EWS flats. The petitioner did so on the basis of public notice dated 18.12.2017 issued by the respondents asking the builders to pay shelter fee in lieu of the construction of EWS flats. The petitioner responded to the said notice on 21.12.2017 and requested the JDA to intimate to him the shelter fee required to be deposited by the petitioner. This request remained pending till date. As a result of the notice dated 18.12.2017 the petitioner was prevented by the respondents from constructing EWS flats as alternative was provided to the builders to pay shelter fee in lieu thereof.
4. In the year 2015, the „Master Plan 2021‟, duly notified under the Development Act besides the „Bye Laws, 2021‟ which had been framed by the Jammu Municipal Corporation and sanctioned by the Government which stood adopted by the JDA, were in operation. Subsequent events, after the approval/permission was granted to the petitioner for the Group Housing Project on 12.02.2015 are required to be taken note of.
(i) Vide SRO 90 of 2017 dated 03.03.2017, a new Master Plan was sanctioned and made applicable. Clause 6.4.1 of the other Master Plan provided for EWS flats in the following terms:
"It is enunciated to provide 20% allocation of dwelling units in the flatted group housing projects for Economically Weaker Section (EWS) and Low Income Group (LIG) preferably at cross-subsidized rates. In case of plotted housing projects, 20% of plots shall be reserved for the urban poor along with all requisite facilities as per prescribed norms. However, the promoter will have the 7 WP(C) 1152/2021 option of either providing the housing to EWS/LIG in the same block/housing unit or other alternative place within the jurisdiction of the Authority. The promoter shall provide housing to the EWS at subsidized rates through cross-
subsidies. In case the Developer fails to provide housing to the EWS in the same housing unit/complex, a shelter fee shall be paid as per the policy framed by the government."
(ii) The Government of Jammu & Kashmir vide Government Order No. 164-JK(HUD) of 2020 dated 08.09.2020 notified J&K Housing, Affordable Housing, Slum Re-development and Rehabilitation and Township Policy, 2020, which amongst other matters dealt with the issue relating to construction of EWS dwelling units in Group Housing Projects by the private developers. The relaxation was granted to the private developers under clause 4.1.1.5 in the following terms:
4.1.1.5. "in the event of any problem in accommodating EWS dwelling units in the project in question, private developers may be allowed to provide the same requirement of EWS housing at another location not beyond 5 km from the project. Provided further that if the upcoming project is within development area of Development Authority, then the location of the construction of EWS/LIG units shall also be within Development Area of same Development Authority."
(iii) Apart from the sanctioned new Master Plan and notified new Policy as regards EWS, these subsequent developments also made changes with regard to the provisions relating to „car parking‟. Housing Policy of 2020 notified by the Government is applicable 8 WP(C) 1152/2021 to the JDA as governed by Section 37 of the Development Act. Under Section 18(A) of the Act, the provisions has been made for construction of EWS flats, but the Policy of 2020, Master Plan 2032 which have the statutory sanction, and are read to be as supplementary to Section 18(A)of the Act, alter the previous position. It is on the altered position that the petitioner made a statement before this Court as is evident from the order dated 29.03.2022 that the petitioner is willing to construct EWS flats within 5 km from the site of project to the extent of 20% of the dwelling units. The petitioner submits that he has constructed only 348 dwelling units and is obligated to construct 20% of these dwelling units which is approximately 70 dwelling units for EWS/LIG, within 5 km from the site of the project.
5. The petitioner claims that as a consequences of the aforesaid subsequent events, the rights and obligations of the parties have directly been effected and the Court in its writ jurisdiction is required to take notice of these subsequent events, in view of the law laid down by the Apex Court in several judgments like (i) (2002) 2 SCC 256, (ii) Civil Appeal No. 2336 of 1999 dated 04.12.2002, (iii) Civil Appeal No. 2004 of 2020 dated 19.03.2020.
6. As per sanctioned plan, the petitioner was required to provide 1.5 Equivalent Car Space (ECS) for flats more than 1000 sft and 01 ECS for flats which are less than 1000 sft. The petitioner‟s admitted case is that he had constructed only 60 flats which are more than 1000 sft and for that he 9 WP(C) 1152/2021 had to provide 90 ECS and for the remaining 288 dwelling units, he is required to provide equal ECS in terms of the sanctioned plan totalling to all 378 ECS. Under the Bye-Laws, 2011, the minimum ECS per dwelling units is one as per zoning regulations/Bye-Laws 1(b) which provides as under: „minimum one ECS per dwelling unit shall be provided for MIG and HIG units‟. The petitioner has constructed 348 MIG/HIG dwelling units, therefore, by this standard, he was required to provide ECS for 348 vehicles. As per Bye-Laws for residential group housing, 1.5 ECS for each dwelling unit for MIG and HIG having covered area above 800 sft had been provided, however, the JDA in sanctioned plan fixed the value of ECS for 1.5 ECS for dwelling units above 1000 sft. In view of the flexibility granted to the building authority concerned, the petitioner submits that he was required to provide ECS for 348 flats in accordance with the sanctioned plan and that the petitioner had done so.
7. The petitioner claims to have provided space for car parking for 401 vehicles which is far more than 378 ECS required for 348 dwelling units. The JDA in its report dated 11.05.2018, which has been placed on record in OWP No. 340/2018 has admitted that the petitioner has provided car parking space to 382 ECS.
8. Learned counsel for the JDA during the course of submissions has submitted that non-construction of EWS at the site, the number of car parking space required has got reduced and that the existing car parking space provided by the petitioner satisfies the requirement and no issue was joined on this score.
10 WP(C) 1152/2021
9. In WP(C) No.1152/2021, the petitioner has questioned the order dated 20.05.2021 passed by the J&K Special Tribunal Jammu in terms of which the appeal filed by the petitioner had been dismissed on the ground that the same was barred by limitation. The petitioner had filed the appeal against the order purported to be issued under section 7(3) of COBA dated 08.08.2017. The petitioner‟s case was that the said order was not communicated to the petitioner and therefore, the petitioner had no knowledge with a further plea that he acquired the knowledge after FIR No. 08/2021 was registered with J&K Anti-Corruption Bureau (ACB) on 22.02.2021 as it was stated in that FIR that the order under section 7(3) of COBA had been made. The petitioner claims to have obtained copy of the FIR from the Court of Special Judge Anti-Corruption Jammu on 15.04.2021 and thereafter addressed a communication to BOCA of JDA for providing him a copy of order dated 08.08.2017. The petitioner on receipt of the copy immediately filed an appeal within seven days from the date of knowledge. The Tribunal considered the provision relating to appeal and declined to condon the delay and rejected the appeal as being barred by limitation.
10. Learned counsel for the petitioner submit that objections filed to this writ petition, a certificate has been placed on record to show that after the order was issued under section 7(3), the same was sent through process server to the petitioner on 25.08.2017 and the petitioner declined to acknowledge the order and thereafter it was pasted on the outer gate. The certificate is shown to be dated 28.08.2018 and that the petitioner had refuted the statement by way of supplementary affidavit. It is the case of the petitioner 11 WP(C) 1152/2021 that he had no knowledge of the order, therefore, question of petitioner‟s acknowledging the same is false and in support of his claim the petitioner has placed on record immigration dates when he left India which is shown to be 17.08.2017 and returned to India on 18.09.2017 with necessary evidence of the immigration seals. Learned counsel for the petitioner submits that the period of seven days, therefore, has to be counted from the date of knowledge and not from the date of the order. He has further submitted that no person was cited as witness to the alleged pasting of the order on the outside gate of the building as alleged by the respondent and on this basis the petitioner claims that his appeal before the Tribunal was within time. In support of his contention, he has relied upon a judgment of a Coordinate Bench of this Court passed in OWP No. 1863/2017 dated 15.11.2021 titled „BOCA vs Koushala Devi & Ors‟.
11. Learned counsel for the respondents after making a feeble attempt of justifying the service of notice by way of pasting the notice at the outer gate of the concerned project, has during the course of hearing submitted that there is no harm, in case, the matter is heard by the Tribunal on its merits without going into the technicality of the limitation.
12. It appears that the JDA in view of some misconception that the petitioner was in the process of constructing basement which was contrary to the sanctioned plan had proceeded with the said assumption and declined to grant permission for the second phase. The construction admittedly has been completed in the month of June 2018, the petitioner‟s plea all along was that he had „substantially‟ complied with the sanctioned order/plan and if at all there is any irregularity or alleged contravention of the 12 WP(C) 1152/2021 sanctioned plan, the same be regularized by granting approval to the revised plans which has also been submitted to the JDA. The petitioner craves for issuance of „completion certificate‟ to be granted by JDA in terms of Bye-Laws of 2011, as the project had been completed in the year 2018. The notice by the petitioner for completion was required to be served on JDA to be accompanied by:
(a) Clearance from Chief Fire Officer, wherever required;
(b) Clearance from Chief Controller of Explosives wherever required;
(c) Structural stability certificate duly signed by the Structural Engineer, wherever required.
The petitioner claims to have provided the clearance certificates, however, respondents till date have not granted completion certificate to the petitioner despite his request.
13. After giving thoughtful consideration to the rival submissions and on perusal of the record available on files, the following issues raised for consideration by this Court:
(i) Whether condition No.6 of the sanctioned order dated 12.02.2015 is valid or invalid. For this purpose reliance is placed by the petitioner on section 5 of COBA. Sub section 3 of section 5 of COBA enables the authority to grant permission for construction keeping in view the area and the laws, rules and regulations applicable therein or to refuse the permission under State Town Planning Act or Master Plan. The expression „subject to such conditions‟ does not include arbitrary or unreasonable conditions and can only be those conditions which are provided under any law, rule or regulation. The petitioner‟s case is that condition No.6 can be contemplated neither under COBA nor Bye-Laws of 2011 to empower the JDA to impose 13 WP(C) 1152/2021 such a condition and that such condition is unenforceable and without jurisdiction. Sufficient provisions contained in COBA like section 7 in terms of which unauthorized construction can be demolished, section 8 which empowers the authority to seal the unauthorized construction, section 9 which provides for penalties, section 12 which provides for stopping building permission, for taking action against construction. Once the JDA has approved the entire project and amount received as building fee for the entire project, the JDA in the considered opinion of this Court is neither empowered to impose condition No.6 nor can enforce such condition against the petitioner, moreso, when the project has already been completed in the year 2018 and it is too late in the day for the JDA to depend upon clause 6 of the sanction order.
(ii) The petitioner has claimed that the respondents must grant certificate in terms of Bye-Laws for which formalities have been completed by him. The petitioner claims that he has raised construction in accordance with the sanctioned plan. The omission to raise complete construction does not violate sanctioned plan. At the most sanctioned plan get lapsed with regard to the construction which is not raised by the developers. The petitioner who was required to construct EWS flats which he could not and has taken a stand that he did not do it because of the notice given by the JDA on 17.12.2017 for construction of EWS flats not only at the project site but within 5 km from the project within the development area of the Development Authority.
(iii) By not constructing EWS at site nothing can be demolished nor can any action be taken against the petitioner under the provisions of COBA. However, this issue pales into insignificance as the petitioner undertakes, as required under Master Plan-2032 and notified Policy of 2020 that he will construct 70 dwelling units within the radius of 5 km from the site of construction.
(iv) During the pendency of all the petitions and after taking a holistic view of the matter, this Court vide order dated 29.03.2022 identified 14 WP(C) 1152/2021 two issues: One relating to the revised plans and other to the construction of low-income group houses/flats. The Court directed the respondents to consider the revised plan submitted by the petitioner. The Court also recorded that the petitioner was ready and willing to construct EWS/low income group flats provided that the request is considered "as per policy in vogue". This Hon‟ble Court after having noticed above, directed the respondents to consider sanctioning of revised plan and also construction of EWS flats as per " policy in vogue" and pass speaking order strictly in accordance with law. In response thereto the respondents passed order No. 38- JDA of 2022 dated 25.06.2022.
(v) The said order crystallizes the entire controversy between the parties.
Respondents have placed reliance on section 18(A) of the Act. In the facts and circumstances of the case and having regard to the subsequent developments, identified above, the petitioner is willing to satisfy the requirement of the policy as is in vogue. In fact, the respondents have not understood the order of the Court dated 29.03.2022 in which this Court clearly directed the respondents to consider the issues in the light of the "Policy in vogue". Further the petitioner submits that section 18(A) has to be read along with section 37 of the Act which empowers the Government to issue directions for the implementation of the Act. The Government has issued the directions holding that EWS flats need not to be constructed in the project but can be constructed within 5 km away from the project. The Government has also directed that EWS flats can be constructed only to the extent of 20% of the dwelling units. Having regard to the said Policy as also Master Plan 2032 the petitioner submits that he has already agreed to construct 70 dwelling units within the range of 5 km from the site of the project.
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(vi) The petitioner in the petition has already dealt with the reasons recorded by the JDA in the order. The same are reiterated by the petitioner herein. In Para 9 of the order the respondents have analyzed the alleged violation vis-à-vis the approved plan. The petitioner submits that so far as the alleged violations are concerned, the same are baseless. The petitioner does not hold 12 Marlas of land in Khasra No. 117. The petitioner has already stated that in terms of the Master Plan he will construct 70 EWS flats, therefore, the question of violation does not arise in view of the subsequent position. So far as toilet blocks is concerned, the petitioner submits before the Court that he is willing to remove the toilet block which had previously be constructed for the labourers who had been working at the site. So far as parking is concerned the petitioner has already furnished details and submits that there is no violation of the parking.
So far as convertion of „stilt floor‟ into ground floor is concerned, attention of the court is invited to the previous reports submitted by the JDA dated 11.05.2018 which is an annexure to objections to OWP No. 340/2018. In the said report, no mention has been made with regard to the conversion of stilt floor into ground floor, It is incorrect statement made by the JDA which is verifiable on spot.
The JDA has refused to take into consideration subsequent events like Policy of 2020, Master Plan, 2032, Unified By-Laws etc. it is submitted that earlier position which existed in the year 2015 when the plan was sanctioned, has undergone considerable change both factually and legally. Such change is required to be noticed and acted upon. The change of law directly effects the interests of the parties and also the reliefs claimed.
View taken by JDA that Policy has prospective effect is a misconceived issue. The Jammu Municipal Corporation, a sister concern of JDA, has applied the Policy not only to the existing 16 WP(C) 1152/2021 projects but to the projects which have been completed but the developers had violated the conditions required with regard to construction of EWS. The Jammu Municipal Corporation has obtained requisite affidavits from the developers concerned who have undertaken to do the needful or to pay shelter fee. In the instant case the petitioner has volunteered to construct EWS flats as per the Policy in vogue. There is no question of policy being retrospective or prospective. The view taken by the JDA is clearly unsustainable. The Hon‟ble court is requested to apply law as is in vogue at the time of delivery of judgment.
The refusal of JDA to sanction revised plan is, therefore, without any merit, contrary to law and deserves to be set aside.
14. On a consideration of rival submissions made on both the sides and the material available on record, particularly, having regard to the sanctioned plan with respect to the petitioner‟s Group Housing Project, Clause 6 of the approval Order dated 12.02.2015 is to be evaluated. Vide Order No. CTP/JDA/BPC/646-47 dated 12.02.2015 issued by the Chief Town Planner, Jammu Development Authority BOCA (Building Operation Controlling Authority) in its meeting held on 27.11.2014 and having received building fee, accorded sanction for approval of Group Housing residential flats in favour of the petitioner Bal Krishen and one Mohd Ashraf S/O Sh. Faiz Ullah Sheikh at Sunjwan, Tehsil & District Jammu with seventeen conditions, including condition No.6 which is bone of contention before this Court. The aforesaid condition is extracted as under:
"6. This part permission is valid for stilt floor plus first floor. After completion of the construction permitted in part permission, applicant shall apply for release of permission for remaining floors 17 WP(C) 1152/2021 as phase-II of the permission which shall be granted within seven days in case there is no violation made by the applicant:
For EWS flats construction shall be simultaneously carried out along with other flats within Group Housing complex proposed by the applicant.
208 EWS flats shall have to be necessarily allotted to genuine EWS/urban poor category people which shall be identified and verified in consultation with JDA. Those flats have to be given on cross subsidy basis as affordable housing and shall not be placed for open auction/sale. In case of any violation permission approved shall be deemed to be cancelled.
Applicant shall necessarily seek completion/use certificate before allotment of flats to the beneficiaries.
Line departments shall provide service, utilities only on the production of completion certificate and BOCA permission. "
15. The aforesaid condition of the approval of the Housing Project has to be subjected to the Housing Policy issued by the Government and also to the Master Plan and the Development. The permission by the BOCA Development Authority cannot be independent of these, since all the builders including the private builders have been given an option of either constructing 20% of the plots reserved for urban poors to be allotted to the Economically Weaker Section (EWS) and the Low Income Group (LIG) in the same block/housing unit or at the alternative place within 5 km from the project within the jurisdiction of the Local Development Authority at subsidized rates as has been provided under the Master Plan 2021 and Bye-Laws 2021 notified vide SRO 90 of 2017 on 03.03.2017, which had been framed by the Jammu Municipal Corporation, sanctioned by the Government and adopted by the respondent-JDA. It was further 18 WP(C) 1152/2021 conditioned under this Master Plan that in case the developers fail to provide housing to the EWS in the same housing unit/complex, the shelter fee shall be paid as per the Policy framed by the Government.
16. The new J&K Housing, Affordable Housing, Slum Re-development and Rehabilitation and Township Policy, 2020 issued by the Government of Jammu and Kashmir vide Government Order No. 164-JK(HUD) of 2020 dated 8th September 2020 further provides in Clause 4.1.1.5 dealt with construction of EWS dwelling units in Group Housing Projects by the private developers with the condition that "in the event of any problem in accommodating EWS dwelling units in the project in question, private developer may be allowed to provide the same requirement of EWS housing at another location not beyond 5 km from the project. Provided further that if the upcoming project is within development area of Development Authority, then the location of the construction of EWS/LIG units shall also be within Development Area of same Development Authority." The petitioner‟s positive case is that he had not constructed EWS flats in view of the public notice issued by respondent- JDA on 18.12.2017 asking the builders to pay shelter fee in lieu of the construction of EWS flats. Asserting further that the petitioner had on 21.12.2017 requested the JDA to intimate to him the shelter fee required to be deposited by the petitioner, however, this request of the petitioner was allegedly not to have been responded till date. The petitioner appears to have not constructed EWS flats in view of the alternative provided to the private builders to pay shelter fee in lieu thereof.
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17. Dealing with first contention, as to whether Clause 6 of the sanctioned plan dated 12.02.2015 which provides that after construction of the „stilt floor‟ and „first floor‟ further permission was required to be obtained for further construction. The Jammu Development Authority had approved the whole project after receipt of whole of the building fee in the amount of Rs.1,06,03,650/- to grant further permission after construction of the „stilt floor‟ and „first floor‟. In view of the developing provision provided for EWS flats in view of the Master Plan 2021 and Bye Laws 2021 and the Housing Policy issued by the Government of J&K in the year 2020, Clause 6 of the provision pales into insignificance, as the Model Bye Laws and the Government Housing Policy had been made retrospectively applicable. The petitioners Housing Project, as has been admitted by both the sides, has been completed and the petitioner has not only requested the respondent to either permit him to raise required flatted accommodation for EWS/LIG for urban poors or in the alternative to permit him to deposit the shelter fee in lieu thereof. However, the respondent-JDA has neither asked the petitioner to move a proposal for construction of the EWS flats within 5 km from the sanctioned project and within the Development Area of the Development Authority nor asked him to deposit the shelter fee in lieu thereof.
18. Hon‟ble the Apex Court in the judgment titled "Om Prakash Gupta v. Ranbir B. Goyal", reported as [2002] 2 SCC 256, which was reiterated in case titled "J.J Lal Pvt. Ltd & Ors v. M. K.Murali &Anr", reported as [2002] 3 SCC 98, has held that the Court in its writ jurisdiction is required to take notice of the subsequent events. The same view has been taken in Civil Appeal No. 2336 of 1999 dated 04.12.2002 and Civil Appeal No. 20 WP(C) 1152/2021 2004 of 2020 dated 19.03.2020. The relevant para for the facility of reference is reproduced as under:
"The ordinary rule of civil law is that the rights of the parties stand crystallized on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take notice of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted, (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties: and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise.
Such subsequent event may be one purely of law or founded on facts. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleading under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. "
19. In view of the subsequent events, by issuance of Master Plan 2021 and Bye Laws 2021, notified in the year 2015 and adopted by the respondent-JDA and issuance of the J&K Housing and Township Policy 2020, which this 21 WP(C) 1152/2021 Court is under an obligation to take note in view of the judgment (supra)of the Apex Court, Clause 6 of the sanction order dated 12.02.2015 for the Group Housing Project issued in favour of the petitioner by the respondent is liable to be quashed. The petition OWP No. 376/2016 is, thus, allowed and Clause 6 of the sanctioned Order No. CTP/JDA/BPC/646-47 dated 12.02.2015 through issuance of Writ of Certiorari is hereby quashed.
20. This Court vide order dated 29.03.2022 passed in these petitions had directed the respondents having regard to the Bye Laws in vogue with regard to the construction of Low Income Group flats and willingness of the petitioner to construct such flats in view of the "Policy in vogue‟ directed the respondent-JDA to consider the request of the petitioner for sanction of the revised plan and for construction of Low Income Group Housing flats as per the "Policy in vogue" and pass a speaking order strictly in accordance with law, most expeditiously, preferably within a period of six weeks of the presentation of this order along with fresh application regarding sanction of revised plan and all ancillary issues thereof including construction of the Low Income Houses/flats. The respondent-Authority vide order No. 38-JDA of 2022 dated 25.06.2022, on consideration of the matter, in terms of this Court direction dated 29.03.2022 found the petitioner involving major violation of section 18 of the Development Act 1970, as regards the provisions of EWS, set back violation, short fall of car parking and involvement of JDA land, rejected the revised plan submitted by the petitioner for the construction of Low Income Group Housing at an alternate location.
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21. In view of the detailed discussion with regard to the provisions of EWS/LIG flatted accommodation to be provided by the developers of a Housing Project and in view of the fact that the car parking facility has been found more than equivalent to the flatted accommodation as required under the Master Plan and the Government Housing Policy, the Order No. 38-JDA of 2022 dated 25.06.2022 passed by the JDA is not sustainable and is liable to be quashed. So far as the other violations pointed out in the order and regarding which notices have been issued under section 7(1) of the Controlling of Building Operation Act and section 7(3) of the Act are concerned, the same can be dealt with by the Tribunal having jurisdiction. Therefore, OWP No.340/2018 along with application(s) is disposed of in terms of the above.
22. The petitioner in WP(C) No. 1152/2021 has assailed the order passed by the J&K Special Tribunal Jammu in File No. STJ/143/2021 dated 20.05.2021 whereby the appeal filed by the petitioner under Section 7 of the COBA Act was dismissed holding the same to be barred by limitation, as the Tribunal has no jurisdiction to condon the delay in filing the appeal under section 13 of the COBA Act.
23. Learned counsel for the petitioner submits that the Tribunal has not considered the plea of the petitioner that the notice was not served to him as during that period, the petitioner was not within the Country as he had gone abroad, therefore, the report that he has refused to acknowledge the receipt of the notice was not only misconceived but false also. He in support of his contention has drawn the attention of this Court towards the certificates issued by the Immigration Department with regard to leaving of 23 WP(C) 1152/2021 the Country by the petitioner and then return which proves that on the alleged date of refusal of the notice by the petitioner, the petitioner was not in India. It appears that the Tribunal has not considered the plea of the petitioner as the appellant before it to consider the plea with regard to the fact that the notice had not been duly served upon him. The petitioner as per the copy of the notice had refused to acknowledge the notice on 25.08.2017 and thereafter it was pasted on the outer gate of the Housing Project as certified on 28.08.2018, however, the petitioner had refuted the statement by way of supplementary affidavit. He has placed on record the immigration record to show that he left India on 27.08.2017 and returned on 18.09.2017 with necessary evidence of immigration seals. The Tribunal has not gone into this factual aspect to consider, whether the appeal filed before it by the petitioner herein was within time or not,by a casual order held that the appeal was barred by limitation.
24. A Coordinate Bench of this Court in the order dated 15.11.2021 passed in OWP No. 1863/2017 titled "Building Operation Controlling Authority v. Koushalya Devi &Ors", has held in paras 8, 9 and 12, which are reproduced as under:
"8. The question of preferring the appeal within seven days of the order would not arise if the order is not brought to the notice of the concerned party, therefore, in all fairness, the limitation for filing the appeal would commence/run from the date of the service of the order or the knowledge of the order.
9. the service of the order is alleged to be on 11.01.2013 on which date the order was pasted on the wall. The endorsement of pasting of the notice on the wall as per the report of the process server does not contain any independent 24 WP(C) 1152/2021 witness, in the absence of which the said pasting does not stand to be proved, more particularly, when it is disputed.
12. in view of the facts and circumstances, we are not inclined to accept the argument that the appeal was not filed within time or that there was any willful or deliberate delay on part of the respondents in filing the appeal."
25. In the present case, the notice was allegedly pasted on 25.08.2017 on the outer gate of the project when the petitioner refused to acknowledge the same, who claims to have got its knowledge on 22.02.2021, when FIR was registered by the Anti-Corruption Bureau indicating the issuance of the notice in question by the Jammu Development Authority. Since the petitioner was not available within India, on the date of alleged service of notice upon him on 25.08.2017 in view of the affidavit sworn in support of the same, besides the immigration record, there is no question of „refusal‟ to accept the notice as was reported. As such, the petitioner had no knowledge about the issuance of notice. The date has thus to be reckoned from the date he got knowledge. In this backdrop, there was no delay in filing the appeal before&K Special Tribunal.
26. For the reasons that the Tribunal has not addressed the question of limitation properly, the order impugned passed by the Tribunal is not sustainable and is hereby set aside. Appeal before the Tribunal is revived, with direction to the Tribunal to hear the appeal on merits and decide the question with regard to violations committed by the petitioner while raising project in terms of the sanctioned plan.
27. For the foregoing reasons and the discussion made hereinabove, all the writ petitions are disposed of along with applications with following directions:
25 WP(C) 1152/2021
i) Respondent-Jammu Development Authority shall consider
approval of the revised plan submitted by the petitioner with regard to either consideration of the flatted accommodation for Economically Weaker Section (EWS) within 5 km radius from the site of the sanctioned Housing Project by the petitioner of-course within the Development Area of the Development Authority or in the alternative receive shelter fee as provided under revised Master Plan and the Government Housing Policy as applicable on date.
ii) The appeal filed before the J&K Special Tribunal Jammu by the petitioner and dismissed by the Tribunal vide impugned order dated 20.05.2021 on the point of limitation, is ordered to be restored to be decided on merits.
iii) Respondent-Jammu Development Authority after disposal of the appeal by the J&K Special Tribunal, shall accord completion certificate to the petitioner in accordance with law.
28. Copies of this judgment shall be placed across the files of all the petitions.
One copy thereof shall be forwarded to the Registrar J&K Special Tribunal Jammu, for compliance, by the Tribunal.
29. The petitions alongwith pending application(s) are, thus, disposed of.
(M AChowdhary) (Tashi Rabstan)
Judge Judge
JAMMU
03.04.2023
Vijay
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
Pronounced by me in terms of Rule 138 (4) of J&K High Court Rules, 1999.
Jammu
03.04.2023 ( Tashi Rabstan)
Judge