Jammu, Feb 08: In the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU in WP(C) No. 185 of 2022 titled M/s. Sharp Sight Laser Centre Pvt. Ltd v/s Building Operation Controlling Authority JMC and Others a bench of HON’BLE THE CHIEF JUSTICE HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE ORDERED as:-
We have heard, Sh. Pranav Kohli, senior cousel assisted by Sh. Farhan Mirza, learned counsel for the petitioner and Sh. Rajnish Raina, learned counsel for the respondent nos. 1 to 4.
Respondent no. 5 appears to be a formal party but let notice be issued to him.
The petitioner is a tenant in a building existing on plot no. 23 A/C Gandhi Nagar, Jammu, wherein he has opened an eye clinic in the name of Style, M/s Sharp Sight Laser Private Limited.
The clinic is existing in the basement and on the ground floor.
A notice under Section 8 (2) of the Jammu and Kashmir Control of Building Operations Act, 1988 (for short ‘the Act’) has been issued by the Commissioner, Municipal Corporation, Jammu directing for the sealing of the aforesaid property on the ground that a commercial activity is being carried on from the said premises despite the fact that permission to carry such activity has been refused to it in the past.
Sh. Pranav Kolhi, Senior counsel submits that the refusal of the permission to open the eye clinic is also under challenge in the present writ petition.
His first submission is that the order under Section 8 (2) of the Act cannot be passed as the petitioner is neither erecting or re-erecting any building. No construction was going on inasmuch as the construction of the entire building had been completed years ago.
The second submission is that in the previous litigation regarding the alleged un-authorized construction of the building, the matter had gone before the J&K Special Tribunal, Jammu, wherein by an order passed on 23.10.2007, the constructions of the basement, ground floor and first floor were directed to be compounded.
The compounding fee was duly deposited and thereafter the Municipal Corporation, Jammu consciously issued an NOC on 24.05.2014 permitting the owners/occupants of the building to use the basement, ground floor and the first floor for commercial purposes subject to the outcome of the writ petition filed by the Municipal Corporation, Jammu, challenging the order of compounding passed by the J&K Special Tribunal, Jammu.
It may be pertinent to mention here that in the aforesaid writ petition so far, no effective order till date has been passed except directing for issuance of notice on the petition and the matter remains pending as such without any interim order.
Lastly, it is submitted that even the Master Plan permits commercial activity of running a nursing home or eye clinic in a residential home and, as such, there is no violation which may permit sealing of the property.
Sh. Rajnish Raina, on the other hand, contends that the above property is the property of J&K Housing Board and is essentially a residential house which cannot be used for commercial activity. There is no parking place provided in the aforesaid building and that since the permission to open the eye clinic has already been refused, the petitioner cannot be permitted to carry on any commercial activity therefrom.
He further submits that the owner of the building had also filed a writ petition, OWP No. 1012 of 2009, challenging the impugned order wherein 04.03.2022 has been fixed but no interim order has been passed.
Sh. Pranav Kohli, on this, submits that the case of the owner is quite different from that of the petitioner inasmuch as, it is the petitioner, who is running the eye clinic and is likely to suffer loss.
In the above facts and circumstances, it is clear that the use of the basement, ground floor and the first floor of the building has been compounded and that an NOC to use the said floors for commercial purposes has been granted by the Municipal Corporation, Jammu which orders are intact and have not been stayed, set-aside or revoked by any authority.
Thus, the aforesaid floors are in use for commercial purposes for the last many years. There was no erection or re-erection work in the building and, as such, balance of convenience lies in favour of the petitioner and the petitioner alone is likely to suffer irreparable loss if the work of eye clinic is stopped all of a sudden.
The respondents themselves were conscious of this and has permitted de-sealing up to 31st January 2022.
Accordingly, we direct Sh. Rajnish Raina, learned counsel to file counter affidavit in this writ petition also by the next date i.e. 04.03.2022.
List on 04.03.2022 along with the record of WP (C) No. 108 of 2022 and OWP No. 1012 of 2009. 4 WP(C) No. 185 of 2022
Till next date of listing, the respondents will allow the use of the basement and the ground floor to the petitioner for the purposes of running the eye clinic whereas the other portions of the building may remain sealed or be sealed in pursuance of the impugned order of sealing.
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