“Setback Violations are Non-Compoundable”
Commentary on the Division Bench Judgment of the High Court of Jammu & Kashmir and Ladakh in Mohammad Rafiq Sheikh & Ors. v. Deputy Director Enforcement, SDA & Ors. (LPA 154/2023, decided 25 July 2025)

1. Introduction

In a sweeping decision aimed at curbing the rampant growth of illegal constructions in Srinagar, the Division Bench consisting of Sanjeev Kumar J. and Sanjay Parihar J. has ruled that:

The case emerges from three brothers who, after obtaining separate permissions for three four-storey hostels/guest houses, merged the plots into a single large commercial block by building over the mandatory 30-ft gaps between them. The Srinagar Development Authority (SDA) issued demolition notices; the J&K Special Tribunal, however, compounded the violation on payment of ₹21.48 lakh. The Single-Judge (writ) court quashed this compounding; the aggrieved owners filed an intra-court appeal (LPA) before the Division Bench.

2. Summary of the Judgment

• The Division Bench dismissed the appeal and upheld the Single-Judge decision which had set aside the Tribunal’s compounding order.
• Setback infractions are “major” and therefore fall outside the Tribunal’s power to compound minor offences under Regulation 11 (1998) or Regulation 9 (2001).
• Deposit of compounding fee without acceptance by SDA does not create estoppel against the Authority.
• Submission of a “revised plan” after unauthorised construction cannot confer “deemed permission”. The doctrine of deemed approval in Regulation 7 applies only to bona fide fresh proposals, not to regularise violations.
• The appellants, having earlier accepted the Tribunal’s order, cannot now “approbate and reprobate”.
• The Court directed SDA to demolish the offending structure within two months and to file a compliance report.
• Observations stressing the need to fix responsibility on officials who allow illegal constructions and a call for stronger regulatory measures.

3. Detailed Analysis

3.1 Precedents and Authorities Cited

• Doctrine of Approbate and Reprobate: While no specific citation is named, the Bench reiterates the principle accepted in cases such as R.N. Gosain v. Yashpal Dhir (1992) and Joint Action Committee v. Director of Education (2013) – a party cannot accept a benefit under an order and simultaneously challenge its validity.
• Statutory Framework:
  • J&K Development Act, 1970
  • J&K Control of Building Operations Act, 1988 (the “1988 Act”)
  • Control of Building Operations Regulations, 1998 (“1998 Regulations”)
  • Control of Building Operations (Revised) Regulations, 2001 (“2001 Regulations”)
• Delegation Principle: Reliance on Section 16 of the 1988 Act permitting the Authority (here, SDA) to delegate powers, justifying issuance of notices by the Deputy Director Enforcement.

3.2 The Court’s Legal Reasoning

1. Nature of Violation: By constructing over mandatory 30-ft setbacks, appellants increased built-up area by ~43,000 sq ft (≈200% of sanctioned). Under both Regulation 11(2)(ii) (1998) and the proviso to Regulation 9 (2001), setback violations are expressly excluded from compounding.
2. Tribunal’s Lack of Jurisdiction: The Tribunal’s order to compound was ultra vires because its statutory power is confined to “offences of minor nature”.
3. Revised Plan & Deemed Permission: The Bench clarified that the deemed-approval clause (60 days in 1998, 90 days in 2001) presupposes a legitimate application before construction begins. A “revised plan” after illegal construction cannot be smuggled in under that clause.
4. Estoppel Argument Rejected: Payment made unilaterally into SDA’s bank account could not amount to acceptance or bar the Authority from litigating.
5. Equity Yields to Statute: Even large investments cannot override the statutory mandate. Courts cannot exercise equitable powers to legitimise illegality. The Bench cites public interest in planned urban development.

3.3 Impact Assessment

This judgment sets a clear precedent for the Union Territory of J&K (and persuasive value elsewhere):

• Zero-tolerance approach toward setback encroachments; developers can no longer rely on post-facto “compounding”.
• Restricted role of the Special Tribunal – may compound only when all statutory pre-conditions exist; not a default regularisation forum.
• Administrative Accountability: Explicit call to penalise officials who allow or overlook violations is likely to prompt departmental inquiries and regulatory reform.
• Urban Planning: May trigger widescale demolition or regularisation drives, encourage developers to seek realistic permissions, and deter speculative construction.
• Litigation Strategy: Parties must choose carefully—acceptance of benefits from an order will preclude future challenges. Authorities can rely on this case to rebut estoppel pleas based on unilateral fee deposits.

4. Complex Concepts Simplified

• Setback: The mandatory open space to be left between a building and plot boundaries (front, rear, side). Ensures light, ventilation, safety, access, and future road widening.
• Compounding: A statutory mechanism allowing an authority to regularise minor deviations on payment of a fee instead of demolishing the structure.
• Minor vs. Major Violation:
  • Minor – breaches not affecting land-use, setbacks, height, or exceeding floor-space norms by more than 10%.
  • Major – any infringement of land-use, mandatory setbacks, road alignment, or large excess of built-up area.
• Deemed Permission: If the Authority does not decide an application within 60/90 days (depending on regulations), approval is presumed, subject to the proposal not violating core planning parameters.
• Doctrine of Approbate and Reprobate: One cannot accept and reject the same instrument; a litigant who enjoys advantages under an order is barred from attacking it.

5. Conclusion

The Division Bench’s ruling crystallises the principle that setbacks are sacrosanct in urban planning. Any construction that eats into these spaces is a “major” infringement beyond the purview of compounding powers. The judgment simultaneously strengthens the hands of enforcement bodies and underscores judicial unwillingness to sanitise illegality under the guise of equity.

Going forward, planners, developers, municipal officers, and adjudicatory bodies like the J&K Special Tribunal must align their decisions with this precedent. The ruling signals that the High Court will lend robust support to lawful demolition drives and will expect administrative agencies to hold their own officials accountable.

Ultimately, the case reaffirms that sustainable urban development depends as much on judicial resolve as on legislative frameworks—and that neither private profit nor administrative compromise can trump the rule of law.