Excelsior Correspondent
JAMMU, Feb 9: Division Bench of the High Court comprising Chief Justice Pankaj Mithal and Justice Sindhu Sharma has allowed the use of basement and the ground floor of a building at Gandhi Nagar for running M/s Sharp Sight Laser Centre Pvt Ltd.
The direction has been passed to the Building Operation Controlling Authority (BOCA) in a petition filed by M/s Sharp Sight Laser Centre Pvt Ltd through Senior Advocate Pranab Kohli with Advocate Farhan Mirza.
The counsels appearing for the petitioner submitted that 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. The clinic is existing on the basement and on the ground floor.
A notice under Section 8 (2) of the Jammu and Kashmir Control of Building Operations Act, 1988 was issued by the Commissioner, Municipal Corporation, Jammu directing for the sealing of the property on the ground that a commercial activity is being carried from the said premises despite the fact that permission to carry such activity has been refused to it in the past.
Senior Advocate Pranav Kolhi submitted that the refusal of the permission to open the eye clinic is also under challenge in the present writ petition. “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”, he added.
It was further submitted 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.
“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”, he further submitted.
After hearing both the sides, the DB observed, “in the 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”.
“The 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 DB said, adding “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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