Patna High Court - Orders
M/S Asterisk Home Pvt. Ltd & Anr vs The State Of Bihar & Ors on 29 January, 2018
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18211 of 2017
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1. M/s Asterisk Home Pvt. Ltd through it's one of the Directors namely Sri
Santosh Kumar Sinha having its registered office at A/338, A.G.
Colony, P.O. - Ashiana Nagar, P.S. - Shastri Nagar, Patna - 800025,
Bihar.
2. Santosh Kumar Sinha, son of Late Kaushal Kishore Prasad residing at
A/338, A.G. Colony, P.O. - Ashiana Nagar, P.S. - Shastri Nagar, Patna -
800025, Bihar.
.... .... Petitioners
Versus
1. The State of Bihar through the Principal Secretary, Department of Town
Planning and Urban Development, Government of Bihar, Patna.
2. The Patna Municipal Corporation through it's Commissioner cum Chief
Executive Officer, Maurya Lok Building, Frazer Road , Patna.
3. The Municipal Commissioner, Patna Municipal Corporation, Maurya
Lok, Patna.
.... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Gajendra Pratap Singh, Advocate
For the State : Mr. Abbas Haider -SC-6
For PMC : Mr. Bindhyachal Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL ORDER
5 29-01-2018The petitioner no. 1 is a private limited company in the Indian Companies Act, 1956 and the petitioner no. 2 is one of its directors. The petitioner company is engaged in development of property and construction of multi-storeyed building. It entered into an agreement with the land owner for Patna High Court CWJC No.18211 of 2017 (5) dt.29-01-2018 2/5 construction of a multi-storeyed building over a piece of land measuring 3 katha, 6 dhur in the vicinity of Jhunjhun Mahal, Yarpur, Patna.
In the present writ petition, the petitioner has challenged the order dated 12.04.2014 passed in Vigilance Case No. 219(A)/2013 by the Municipal Commissioner, Patna by which the petitioner has been directed not to construct over and above the second floor.
Mr. G. P. Singh, learned counsel for the petitioners submitted that admittedly, the respondents had sanctioned for construction of building consisting of Ground + 3 floors upto a height of 10.99 metres vide Plan Case No.19721/35/R-04-25/9- 11-11/PMC under Section 314 of the Municipal Act, 2007 on 09.11.2011. He submitted that a deviation of 0.41 metre in height of the first floor of the building recorded in the spot verification report conducted by the respondents on 21.12.2013 is because the measurement was taken from the ground floor of the road, even though the plinth level is lower by more than 0.41 metre. He submitted that if measurement is taken from plinth level, there would be no difference of height in the first floor of the building.
Mr. Singh further submitted that a height cannot be Patna High Court CWJC No.18211 of 2017 (5) dt.29-01-2018 3/5 dependent on the circumstances over which the builder has no control. He submitted that in an identical case, in CWJC No.2686 of 2003 (Anup Kumar vs. PRDA & Ors), a Bench of this Court held as under :-
"... the height of the building would reduce each time, the road is constructed on top of the road. The height between plinth and the road level reducing with every new layer of the road if height of building is to be determined from road level and not from plinth level. Each time the height of the building would reduce. Height of building cannot be a fluctuating concept but a fixed concept and therefore, the correct measurement would be form the plinth and if that is taken into account, there does not appear to be any deviation muchless a deviation of which cognizance can be taken.
It is well established that law does not take notice of minimal deviations on the principle of "de minimis". Here the deviation was, in fact, of only 0.80 metre in height and that too because the height was measured from ground level and not plinth level."
Mr. Singh further submitted that even according to the case of the respondents, the height of the first floor, if Patna High Court CWJC No.18211 of 2017 (5) dt.29-01-2018 4/5 measurement is taken from road level, is only 0.41 metre in excess, which would come to be minimal deviation on the principle of "de minimis". He submitted that even otherwise, the deviation would come within condonable limit in view of Order No. 171 dated 25.08.2000, which provides for condonation of the height of the building to the extent of 20 %, subject to fulfillment of other para meters of the Bye-laws. Lastly, he submitted that measurement was never taken in presence of the representatives of the company.
In reply, Mr. Bindhyachal Singh, learned counsel appearing for the Patna Municipal Corporation submitted that in order to settle the dispute regarding measurement having been taken behind the back of the petitioner, the Patna Municipal Corporation would have no objection in taking measurement of the height of the building once again in presence of petitioner no. 2 or his representative if the Court so directs.
Having regard to the submissions made above, respondent nos. 2 and 3 are directed to ensure that measurement of the height of the first floor as also the height of the existing structure of the building in question is taken on 6th February, 2018 between 10.30 am and 12.30 pm in presence of the petitioner no. 2 or the representative of the company. The Patna High Court CWJC No.18211 of 2017 (5) dt.29-01-2018 5/5 petitioner no. 2 or his authorized representative shall be required to be present on that date during the time stipulated hereinabove. The respondent nos. 2 and 3 shall also be required to file an affidavit in this regard with regard to measurement taken on 6th February, 2018 before this Court.
Put up this case under the same heading on 13th February, 2018 for further consideration.
Let a copy of this order be handed over to Mr. Bindhyachal Singh, learned counsel appearing for Patna Municipal Corporation.
(Ashwani Kumar Singh, J.) Kanchan/-
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