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Jammu High Court
High Court Of Jammu And Kashmir At … vs S. Darshan Singh & Ors on 22 February, 2011
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPAOW No. 79 OF 2010    
Jammu Municipal Corporation  
Petitioners
S. Darshan Singh & ors. 
Respondent  
!Mr. S. S. Nanda, Advocate
^Mr. K. S. Johal, Advocate

HONBLE MR. JUSTICE DR. AFTAB H. SAIKIA, CHIEF JUSTICE.         
HONBLE MR. JUSTICE MANSOOR AHMAD MIR, JUDGE             
Date: 22.02.2011 
:J U D G M E N T :

Dr. Saikia, CJ:

Heard Mr. S. S. Nanda, learned counsel for the
appellant as well as Mr. K. S. Johal, learned counsel for
the respondents.

2. This Letters Patent Appeal registers a challenge to
the judgment and order dated 16.11.2010 passed by
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the Writ Court in OWP no. 235/2010 by which the
learned Single Judge disposed of the writ petition
preferred by the appellant as the writ petitioner
upholding the order of Jammu and Kashmir Special
Tribunal, Jammu (for short the Tribunal), whereby
respondent Nos. 1 & 2 herein (hereinafter referred to
as the respondents) were given liberty to use their
houses for commercial purposes.

3. The factual matrix of the case, in brief, is that the
respondents, being husband and wife respectively, are
the owners of plot of land being No. 69 adjoining to B.
C. Road, Jammu, which is bifurcated in two parts, one
part is 2915 sq. ft. in area, when the other part covers
an area of 2773 sq. ft. In the year 2003, the
respondents, with an object to construct the residential
houses, applied for grant of building permission from
the appellant, for which sanction was accorded vide
two orders dated 16.8.2003 and 28.7.2004
respectively.

4. The respondents raised the construction in
respective portions in the year 2003 and 2004 strictly
in accordance with the building permission.

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5. Master Plan 2021 has been brought into force by
the Government vide Order No. 263 dated 9.8.2004,
which permits the use of land at B. C. Road both for
residential and commercial purposes.

6. In pursuance of Master Plan 2021, with a view to
run the commercial activities in their respective houses,
the respondents submitted an application to the
appellant on 7.4.2006 for grant of permission. When
appellant did not respond for three years to the said
application, the respondents initiated a writ proceeding,
being OWP no. 560/2009 along with CMP no. 741/2001
in this Court wherein directions to the appellant were
sought to grant permission to the respondents for using
their residential houses for commercial purposes in
terms of new Master Plan.

7. The learned Single Judge by its order dated
21.5.2009, passed in the CMP above mentioned,
directed the appellant to take a decision on the said
application filed by the respondents within a timeframe
of four weeks.

8. For facility of reference, interim order dated
21.5.2009 is quoted hereunder:-

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Notice and appearance as
above.

It seems that the petitioners
have under No: 263 dated 9.8.2004
filed an application before the
Commissioner, Municipal Corporation,
Jammu for grant of
permission for using raised
construction for commercial
purposes. No decision thereon has
been taken till date. The
respondent, Municipal Corporation
shall take decision on the said
application within four weeks. Result
be communicated to the petitioner.
Further completion of the
construction in terms of the earlier
approved site plan is not opposed
but shall be raised strictly in
accordance with the approved plan,
if not otherwise barred and shall be
under the close supervision of the
Municipal Officers so that no
deviation from the actual plan is
made by the petitioner. Objections,
if any, within the notice period.

9. In compliance of the said direction, while taking
decision on the application of the respondents, the
appellant by its order dated 15.7.2009 rejected the
prayer of the respondents, who sought permission for
use of their residential premises for commercial
activities and in rejecting such prayer, the appellant
recorded the reasoning as under:-

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Whereas the application of S.

Darshan Singh and Smt. Manjeet
Kour for raising construction for
commercial purpose has been
considered in terms of directions of
the Honble High Court and the
same has been found as, without
merits due to the reason that the
building raised for commercial
purposes necessarily should
have adequate space for parking
of vehicles which in the instant
case does not exist, as the said
applicants have not kept
provisions of parking of the
vehicles required in the
proposed Building.(emphasis
supplied) More so the cases of
Building Permissions for commercial
purposes which are bound to
generate additional, traffic as per
the existing rules need to be
referred to UTEIC for ensuring that
such of the areas which are already
overcrowded do not further hamper
the traffic movement and effect the
convenience of general public
adversely. The instant case of
building permission is located at
B. C. Road Highway near Rehari
Crossing which is already
congested and overcrowded,
(emphasis supplied) as such, the
permission for converting residential
building to commercial use cannot
be considered without sufficient
provision of parking in the proposed
construction.

10. Aggrieved by the above action of appellant, the
respondents again approached the Tribunal.

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11. The Tribunal by its order dated 31.12.2009
disposed of the appeal filed by the respondents by
passing a well reasoned order. The Tribunal exclusively
dealt with the entire factual scenario and found that the
appellant was not justified in refusing permission for the
use of plot in question for commercial purposes on the
grounds of lack of space for Car parking as well as B. C.
Road adjoining to the Plot in question being already
congested and overcrowded. Consequently, the Tribunal
observed that the respondents were at liberty to use
their houses for commercial purposes.

12. The findings of the Tribunal is being assailed by
the appellant in the Writ Court by initiating the instant
writ proceedings.

13. The learned Single Judge, while affirming the
Tribunals findings, held that the appellant failed to
consider the availability of the space for parking of Cars
which was primary reason for rejecting the permission
for the purpose of commercial use of the plot in
question. Agreeing with the views expressed by the
Tribunal and having scrupulously examined the core
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issue of space requirement for car parking, the learned
Single Judge held as under:-

The learned Tribunal has correctly
appreciated the matter and while
referring to Master Plan of 2021 and
Govt. order No. 263 dated 9.8.2004, has
dealt with the objection of the petitioner
vis-`-vis lack of space for parking and
has opined that at page 97 of the Master
Plan 2021, for an area of 1999 sft, there
shall be parking area for 1 = cars. On
the said analogy learned Tribunal has
opined that as per sanction plan,
respondent No. 1 (petitioner No. 1
therein) has a total area of 2915 sft and
after covering the area under building,
the open area remains 1457.9 sft, thus
there is a space for parking 4.5 cars and
in the case of respondent No. 2
(petitioner No. 2 therein), there is an
open area of 1291 sft, so a space for
parking 4 cars. The learned Tribunal
while noticing the said details, has
observed that the petitioners have not
considered the matter in its right
perspective.

Learned counsel for the petitioner,
when confronted with the stated position,
could not convince the Court as to how
the authorities took decision about the
lack of space for car parking. Therefore,
the order passed by the learned Tribunal
impugned to the extent leaving the
respondents at liberty to use their houses
for commercial purposes as permissible
under Master Plan 2021, cannot be
interfered with.

14. Having meticulously scrutinised the material
placed before us including the impugned judgment and
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orders of the Tribunal as well as of the Writ Court, it is
seen that the appellant rejected the prayer of the
respondents for granting permission for use of the land
in question basically on two grounds: (a) there was no
adequate space for parking of vehicles as required for
using the building for commercial purpose; and (b) B.
C. Road, by the side of which building in question did
situate, was already congested and overcrowded.

15. From close scrutiny of the order of the Tribunal
dated 31.12.2009 and the impugned judgment and
order dated 16.11.2010, it is abundantly clear that the
Writ Court wholly concurred with the findings of the
Tribunal which having thoroughly examined the records
including the new Master Plan 2021, unmistakably held
that there was no space constraint as regards the
parking of vehicles taking into account the space area
of the plot in question owned and possessed by the
respondents observing further that since the B. C. Road
was declared to be a commercial area under the new
Master Plan, permission for use of the building in the
area for commercial use, could not be refused.

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16. Situated thus, we are of the firm opinion that
since, ex facie, it is a matter of concurrent finding of
facts of both the Tribunal as well as of the Writ Court,
there is no justification for this Writ Appellate Court to
interfere with the same.

17. The Supreme Court in a case of Kewal Krishan
Gupta v. Jammu and Kashmir Special Tribunal and
others
, reported in AIR 2005 SC 2578, relying on the
view taken by High Powered Body, in paragraph 15, it
was clearly held that the commercial activities could be
permitted alongside the B. C. Road. In that case, a
question arose as to whether commercial activities could
be permitted by the side of the B.C. Road which was
shown as residential zone in the Master Plan. Paragraph
4 and relevant portion of paragraph 15 of the cited case
would be necessary to be noticed:
4. It is the case of the
appellant that although B. C. Road
was shown as residential zone in the
Master Plan, factually and
predominantly, most of the
properties situated at B. C. Road
were being used for commercial
purposes. The buildings on the said
road used for commercial purposes
belonged not only to private
parties, but also consisted of several
Government offices as well as banks
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and public sector undertakings. In
the appeal memo, the appellant has
named a large number such
commercial entities, which were
using buildings along the B. C. Road
at the time of lease deed was
entered into.

15. ..It was precisely for this
reason that the High Powered body
took the view that commercial
activities could be permitted at
selected points along the said road
and opined B.C. Road is totally
commercial at present and to thrust
residential activity on the area
would be putting cart before the
horse. In areas like B. C. Road
whenever there is an application for
grant of B.P. the applicant submits a
plan for residential purposes where
in fact he has commercial activity in
mind. This results in loss of revenue
to the Jammu Municipality
/J.D.A./J&K. Housing Board together
with hassle of unauthorized
constructions, it was, therefore,
decided in the meeting to come-up
with a proposal where areas like
B.C. Road would be identified so
that the same is submitted to the
Government for issuing necessary
modification in the land use as
envisaged in the Master Plan
approved by the Government in
1978.

18. This Court in a case of Building Operation
Authority v. Smt. Jyoti Singh, (OWP no. 778/05
disposed of on 22.4.2006), relying on Kewal Krishan
Guptas case (supra), categorically held that B. C.

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Road, by the side of which the plot in question situated,
was declared to be a commercial area under the new
Master Plan.

19. Having regard to the above judicial decisions as
well as upon careful consideration of the facts and
circumstances of the case in its totality, we find no
plausible or cogent reason to demolish the concurrent
findings of the Writ Court as well of the Tribunal.

20. The appeal stands dismissed.

21. There shall be no order as to costs.
(Mansoor Ahmad Mir) (Dr. Aftab H. Saikia)
Judge Chief Justice
Jammu:

22.02.2011
Tilak, Secy.

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