Patna High Court - Orders
Nishant Engicon Pvt. Ltd. vs Patna Municipal Corporation And Ors on 15 April, 2019
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10059 of 2015
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Nishant Engicon Pvt. Ltd. Through Managing Director Krishna Lall, son of
late R.P. Lall, Resident of Arya Kumar Road, Rajendra Nagar, P.S. Kadam
Kuan, District Patna.
... ... Petitioner/s
Versus
1. Patna Municipal Corporation, Patna through its Municipal Commissioner,
Mourya Lok, Patna.
2. Municipal Commissioner, Patna Municipal Corporation, Mourya Lok Patna.
3. Municipal Building Tribunal, Behind Patna High Court, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Ray Saurabh Nath, Adv.
For the Respondent/s : Mr.Prasoon Sinha, Adv.
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL ORDER
3 15-04-2019Heard learned counsel for the parties and perused the records.
This writ application has been preferred seeking a writ of certiorari for setting aside the order dated 26.11.2014 passed in Vigilance Case No.63A of 2013 by the Municipal Commissioner, Patna Municipal Corporation as also for setting aside the order dated 20.05.2015 passed by the Municipal Building Tribunal which has upheld the part of the order of the Municipal Commissioner.
Mr. Ray Sarabh Nath, learned counsel representing the petitioner has drawn the attention of this Court towards operative part of the impugned order passed by the learned Patna High Court CWJC No.10059 of 2015(3) dt.15-04-2019 2/9 Tribunal wherein various aspects of the challenge to the order of the Municipal Commissioner has been dealt with. Learned counsel submits that in the present writ application he would be agitating his pleas only with respect to that part of the order of the Tribunal by which it has upheld the order passed by the Municipal Commissioner regarding car parking area and road widening of the front set back.
Learned counsel has, thus, confined his argument to the aforesaid two aspects of the matter.
It is submitted in course of hearing that both the authorities below could not appreciate that the petitioner had a valid sanction map and the constructions were being made in accordance with the sanction map. It is also submitted that at various places in the counter affidavit the Corporation has referred the map as sanction map, meaning thereby that the parking area is not in question and if it is a sanction map then construction made thereunder cannot be said to be illegal or not authorized by bye-laws.
Learned counsel further submits that both the authorities below also failed to appreciate that the front set back of the building in the present case was two meters and that portion of the front set back if included in the open parking area, Patna High Court CWJC No.10059 of 2015(3) dt.15-04-2019 3/9 the shortfall would not be there.
On the other hand, Mr. Prasoon Sinha, learned counsel for the Patna Municipal Corporation has drawn the attention of this Court towards specific stand taken in paragraph 10 of the counter affidavit wherein it is specifically stated that the architect of the plan as well as the developer of the building is the same person. It is stated that the map in question has been drawn/design/prepared by the Managing Director of M/S Nishant Engicon Private Limited. Referring to Section 318 of the Bihar Municipal Act, 2007 which provides inter-alia that every registered architect who has approved building construction plan shall periodically inspect construction of such building or structure of permanent nature approved by him and if he is satisfied that construction of building is in breach or violation of building construction plan approved by him he shall immediately report to the Chief Municipal Officer of such violation, learned counsel submits that in this case this provision was not followed by the registered architect which resulted into unauthorized construction by the petitioner in utter violation of the building bye-laws and in breach of the violation of the sanctioned plan. Extending his argument, learned counsel has further submitted that so far as parking space is concerned, the Patna High Court CWJC No.10059 of 2015(3) dt.15-04-2019 4/9 same has been dealt with in the counter affidavit. The petitioner in the present case has not left the required parking space for motor vehicles for the six flats of the apartment and got the initial map sanctioned without providing sufficient parking space as per the provisions of Building bye-laws in this regard. It is submitted that even the revised parking plan filed as an Annexure with the memo of appeal at the appellate stage is simply an eye wash and does not fulfill the criteria of parking space provided by the Building bye-laws.
After having heard learned counsel for the parties and on perusal of the records, this Court finds that in this case the Court is virtually exercising its power of supervision inasmuch as the petitioner has come to this Court after exhausting his remedy at least before two forums namely the Municipal Commissioner and then the Tribunal. The findings recorded by the Municipal Commissioner in the impugned order as contained in Annexure-1 are based on reasons. The operative part of the order of the Municipal Commissioner wherein the finding has been recorded on the issues raised by the petitioner reads as under:-
"okn vfHkys[k esa layXu tkap ny ds }kjk fn;s x;s tkap izfrosnu] ekih Ldsp rFkk izfroknh fcYMj dh vksj ls fn;s x;s fodkl ,djkjukek ,oa fcØ; i= rFkk Lohd`r uD"ks dh izfr dk voyksdu ls Li'V gqvk fd iz"uxr LFky ij izfroknh }kjk o'kZ 2010 esa 10-95 eh- dh ÅpkbZ esa th++$3 Patna High Court CWJC No.10059 of 2015(3) dt.15-04-2019 5/9 rYys dk uD"kk fucaf/kr okLrqfon punz"ks[kj flUgk fuca/ku la0&16@09 ls fnukad&28-07-2010 dks izkIr fd;k x;k gSA bl uD"ks esa Hkw[k.M ds lkeus dh lM+d 5-40eh- ls 4-90eh- ds fy, Øe"k% 035eh- ls 0-60eh- lM+d pkSM+hdj.k dk micU/k gS rFkk ihNs fLFkr lM+d ftldh pkSM+kbZ 3-39eh- ls 3-36eh- gS ds pkSM+hdj.k dk mica/k uD"ks ij ugha gS rFkk ikfdZax dk x.kuk nks ¶ySV ij ,d dkj ikfdZax ds vk/kkj ij fd;k x;k gS rFkk uD"ks ij Hkou dh ÅpkbZ esa jksM ls IyhaFk 0-45eh- rFkk IyhaFk ls th$3 dh ÅpkbZ 10-95eh- fn[kk;h x;h gSA tkap ny ds }kjk LFky tkap ds mijkUr lefiZr fd; x;s ekih Ldsp ds vuqlkj izfroknh ds Hkw[k.M dh yEckbZ 18- 59eh- mrjh Hkqtk vkSj 19-92eh- nf{k.kh Hkqtk ik;h x;h gSA ftlls ;g Li'V :i ls ifjyf{kr gksrk gS fd izfroknh ds }kjk lkeus dh lM+d esa pkSM+hdj.k dh HkwiV~Vh ugha NksM+h x;h gS D;ksafd Lohd`r uD"ks ds vuqlkj Hkw[k.M dh mrjh Hkqtk 18-44eh- rFkk nf{k.kh Hkqtk 20-12eh- gSA lkFk gh Lohd`r uD"ks esa Hkou dh eq[; lajpuk esa dksbZ mi;ksxh izkstsD"ku dh Lohdqrh ugha izkIr dh x;h gS tcfd fuekZ.k esa lkeus] ihNs ,oa nksuksa fdukjs dh vksj mi;ksxh izkstsD"ku Hkh fufeZr fd;k x;k gSA tkap ny ds }kjk vius izfrosnu esa ihNs dh lM+d ds pkSM+hdj.k gsrq 1-44eh- ls 1-41eh- pkSM+h HkwiV~Vh lM+d ds fy, NksM+ tkuk vko";d mYys[k fd;k x;k gSA ;gka mYys[kuh; gS fd tkap izfrosnu ds vuqlkj ihNs dh vksj miyC/k lsV cSd 1-50eh- ik;k x;k gS] ftlesa ls lM+d pkSM+hdj.k dh 1-44eh- ls 1-41eh- dh HkwiV~Vh dks NksM+us ds mijkUr izfroknh ds Hkou dk ihNyk fgLlk dkQh fopyu esa gks tkrk gS ftls fcuk vilkfjr fd;s lsV cSd miYkC/k ugha gks ldrk gSA Hkou mi fof/k ds vualkj okLrqfon ds }kjk ikfdZax dh x.kuk ugha dh x;h gSA D;ksafd uD"kk Lohd`fr dh frfFk ds iwoZ ls gh ikfdZax dh x.kuk ds fy, Hkou mi fof/k dh dafMdk&23-2 ds Vscy&7 esa rRdkyhu i-{ks-fo-izk- }kjk Kkikad &910@i-{ks-fo-izks-] fnukad & 09-05-2005 ls la"kksf/kr fd;k tk pqdk gS rFkk Hkou dh ÅpkbZ Hkou mi fof/k dh dafMdk&2-12 ls ifjHkkf'kr gSA Hkou dh ÅpkbZ dh ekih ds lanHkZ esa Hkou fofu;eu dh dafMdk&2-12 fuEuizdkj m)`r gS%& 2.12 "Building Height of - The vertical distance measured, in the case of flat roofs, from the average of level of the centre line of the adjoining street to the highest point of building adjacent to the street wall and in the case of pitched roofs, up to the point where the external surface of the outer wall intersects the finished surface of the sloping roofs, and in the case of gables facing the road, the mid point between Patna High Court CWJC No.10059 of 2015(3) dt.15-04-2019 6/9 the caves level and the ridge. Architectural features serving no other function except that of decoration shall be excluded for the purpose of taking heights of the building does not abut on a street, the heights shall be measured above the average level of the ground around and continuous to the building.
okLrqfon ds }kjk ikfdZax dh x.kuk esa Hkwry ij 93-16 oxZ eh- rFkk [kqys Hkw&Hkkx esa ¼lkeus dk lsV cSd½ 69-00 oxZ dqy 162-16 oxZ eh- ikfdZax izko/kkfur vafdr fd;k x;k gS] tcfd lkeus dk lsV cSd ek= 2-69 eh- ls 4-37eh- dh gS ftlesa dkj bR;kfn okguksa dh ikfdZax laHko ugha gS rFkk Hkwry ij fn[kk;k x;k ikfdZax Hkh =qfViw.kZ gS D;ksafd fcYVvkWi x.kuk esa Hkwry ij fufeZr {ks= 86-84 oxZ eh- gS rFkk izFke ry dk fufeZr {ks= 175-31 oxZ eh- gS ftlds vuqlkj Hkwry ij 88-47 oxZ eh- gh miyC/k cprk gSA tkap ny ds izfrosnu&lg&ekih Ldsp ds voyksdu ls ;g n`f'Vxkspj gksrk gS fd izfroknh ds }kjk Hkwry ij 13-07 x 5-80¾75-80 oxZ eh- ikfdZax ds fy, [kqyk NksM+k x;k gS] tks Lohd`r uD"ks ds Hkwry ij izko/kkfur ikfdZax {ks= ls de gSA tks fuekZ.k esa ikfdZax dh vko";drk dks utjvankt djuk ifjYkf{kr djrk gSA Lohd`r uD"ks ds vuqlkj dqy ¶ySVksa dh la[;k&6 ds fy, 120 oxZ eh- ikfdZax {ks= orZeku ykxw Hkou mi fof/k ds rgr vko";d gS] ftlds rgr 120- 00&75-80¾44-20 oxZ eh- ifdZax {ks= Hkwry ij miyC/k djkuk vko";d gSA"
The Tribunal has having considered the submissions of the petitioner recorded its findings in the following terms:-
"We have considered the rival contentions of both the parties and perused the lower court record from perusal of LCR it transpires that the said vigilance case no.63A/2013 was initiated on the basis of measurement report submitted by the inspection team of the PMC finding shortfall of car parking, not leaving land for road widening and deviations on each setbacks. Show cause notice was issued against the appellant who appeared and filed show cause. After hearing of both the parties the learned commissioner passed the impugned order.
Regarding short fall in parking area is concerned, it has been submitted on behalf of the Patna High Court CWJC No.10059 of 2015(3) dt.15-04-2019 7/9 appellant that appellant submits car parking plan vide Annexure-2 which shows 74.11 Sqm. + 15.32 Sqm. Covered car parking area and 45.30 sqm. Open car parking total car parking area is 134.73 sqm. The provision of car parking as per clause 23.2 Table -7 of the Bye laws, is one car parking at the rate of 20 sqm. including drive way for every two dwelling units above 30 sqm. carpet area and thus total car parking is required 60 sqm. which is fully met. The amendment regarding car parking by PRDA on 9th may 2005 is not mentioned in the Table no.-7 of the Bye laws, nor the same was supplied to the certified architect/Engineer. In this regard, the learned counsel for the PMC replied that the then PRDA has amended about the car parking area vide authority sankalp no.13/05 dated 27.04.05 proceeding no.11/05 by which one car parking of 20 sqm. (including drive way) shall be provided for every one dwelling each or more than 30 sqm. carpet area and thus 120 sqm. car parking area is required for 6 dwelling units. From perusal of said amendment in the provision of clause no.23 of the Bye laws by the PRDA, it reveals that 20 sqm. car parking including drive way is required for each flat (dwelling) and in the alleged building there are 6 flats hence total car parking is required 120 sqm. including drive way. In the said amendment, it has also be mentioned in note
(ii) that parking layout with sufficient drive way should be mentioned with the parking plan. And the copy of the said amendment was sent to (i) secretary/Estate officer/vigilance officer/public relation officer (2) all Executive Engineer (3) All Asst. Engineer/Asstt. Director, map section. As such, the copy of the amended clause 23 of Bye laws has been supplied to the concerned authority and this amendment has come to enforce sine 2005 and the map of the appellant was sanctioned after the said amendment which has already been enforced and the appellant could not be said that or he his architect engineer had no knowledge of the same and moreover, no Patna High Court CWJC No.10059 of 2015(3) dt.15-04-2019 8/9 knowledge of law is not excusable. So far Annexure-2 of memo of appeal is concerned the covered car parking has been shown A & B (74.11+15.32)= 89.43 sqm., but open car parking area 45.30 sqm. has shown in the front set back area which is not acceptable. As per sanctioned map, buildup area in ground floor-86.84 sqm. and in first floor-175.31 sqm. is shown as such the area (175.31-86.47) 88.47 sqm. remains. Whereas in the site inspection map, car parking area was found at the site 13.07x5.80=75.806 sqr. m. If we accept the annexure-2 for covered car parking area 89.43 sqm (A+B), in spite of that, there is short fall of car parking area because 120 sqm.
car parking area is required for 6 flats as per said amendment hence the learned court below has rightly held the finding regarding car parking area.
So far the leaving of strip of land in front set back is concerned it has been submitted on behalf of the appellant that front set back has been left more than the required area as per Building Bye laws and after reducing the leaving land, the front set back is remained sufficient as required and he is ready to leave. From the perusal of sanctioned map, it reveals that area left for road widening measuring 7.381 sqm. has been mentioned. The building-in-question is situated in front of existing road 4.90 to 5.40 m wide which is less than 6 m. wide for which 0.60 m to 0.35 m land is required to make the road 6m wide hence the said strip of land will have to be left by the appellant for road widening. The front set back as per measurement report is 3.15m to 4.44m and after leaving the strip of land it remains 2.95 to 4.09 m which is more than minimum required set back as per Building Bye laws in the depth of plot 18.59m (minimum required front set back is 2m) Moreover, the appellant is ready leave the same." At this stage, learned counsel for the petitioner submits that this Court may direct for one more inspection of Patna High Court CWJC No.10059 of 2015(3) dt.15-04-2019 9/9 the premises in order to get verified the correctness of the inspection report.
This Court, is, however, not willing to reopen the whole issue at this stage. The concurrent findings of the authorities below are there and no perversity has been shown in the findings. This Court would, thus, refrain from interfering with the impugned orders.
The writ application has no merit. It is dismissed accordingly.
(Rajeev Ranjan Prasad, J) arvind/-
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