Jharkhand High Court
Aashirbad Construction Private Ltd. vs Jamshedpur Notified Area Committee And ... on 8 August, 2007
Equivalent citations: [2007(4)JCR124(JHR)]
Author: D.G.R. Patnaik
Bench: M.Y. Eqbal, D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
1. This appeal is directed against the order dated 15.3.2007 passed by the learned single Judge of this Court in WP(C) No. 1335 of 2007, whereby the petition of the petitioner was dismissed.
2. The appellant herein, are building contractors. For the purpose of constructing multi storied building complex, on a portion of plot No. 1291 under khata No. 40 in Mauza Ulliyan, petitioner submitted a proposed building plan to the Special Officer, Jamshedpur Notified Area Committee, Jamshedpur (respondent No. 3). The proposed building plan as submitted by the petitioner, was approved and communicated to the petitioner by the respondent No. 3 by his order dated 29.12.2004. On obtaining the approval, petitioner commenced construction work. While construction was in progress, petitioner received a letter bearing No. 37 dated 6.1.2006 issued under the signature of the respondent No. 3, directing him to stop further construction and to demolish certain unauthorised construction which was constructed on R.C.C. columns beyond the approved area for construction. Consequent upon the failure on the part of the petitioner to raise objection against the aforesaid notice, a further notice No. 72 under Section 193 read with Section 359 of Bihar and Orissa Municipal Act dated 20.1.2006 was served upon the petitioner by the respondent No. 3 informing him that an authorized agent of the respondent No. 3 will go to the premises and perform all acts of execution and demolition of the unauthorized construction. Meanwhile, one Anil Kumar preferred a writ application before this Court vide W.P.(C) No. 649 of 2006 with a prayer for restraining the present petitioner from making any construction of the multi storied building. By order dated 26.4.2006 passed in the aforesaid WP(C) No. 649 of 2006, further construction of the building was stayed. The aforesaid writ application was disposed of by order dated 25.9.2006 (annexure-4) directing the respondent No. 1, namely, Jamshedpur Notified Area Committee, Jamshedpur to take final decision in the matter within two weeks' from the date of receipt/production of a copy of the order and thereafter, petitioner was to proceed in accordance with the final decision of the respondent No. 1 in the matter of construction of the building. The petitioner thereafter, filed, his letter of request dated 11.10.2006 before the Deputy Commissioner, Jamshedpur with a copy thereof to the respondent No. 2 to take final decision in the matter in the light of the aforesaid order passed by this Court. On being called upon along with all the documents of the land and the copy of the approved building plan by the respondent No. 3, petitioner submitted all relevant documents and was told by the respondent No. 3 that there were certain minor deviations and, therefore, petitioner should file an application for correction of the same. In response, petitioner filed their letter dated 12.1.2007 requesting the respondent No. 3 for regularisation of the construction if there were any deviation. Further, by order dated 421 dated 9.2.2007 (Annexture-7), respondent No. 3 directed the petitioner to demolish such portion of the construction as was purportedly made in deviation of the sanctioned plan without leaving appropriate vacant area. It was pointed out in the order (Annexure-7) that pursuant to the order passed by this Court in WP((C) No. 649 of 2006, an inquiry was conducted by Assistant Engineer and Junior Engineer by making spot inspection of the construction carried out by the petitioner and it was found in the inquiry that whereas, according to the approved plan, out of total land measuring 70 ft. in length and 41 ft in width, length of 10 ft. in front and 10 ft. in back was to be left vacant and similarly, on each side of the building, vacant space of 5 ft. was to be left, but unauthorised construction was made extending 31 ft. in front and 4 ft. in back and space left on between both sides was 1 to 4 ft. only and since the extended deviation cannot possibly be regularized, even by payment of regularisation fee, petitioner was directed to demolish the extended construction.
3. Against the aforesaid order dated 9.2.2007, petitioner had preferred writ application vide WP(C) No. 1335 of 2007. By the impugned order, the learned single Judge dismissed the writ application with following observations:
In this writ petition, the petitioner has prayed for quashing Letter No. 421 dated 9th February 2007, contained in Annexure-5, whereby the petitioner's application for regularising the deviation of the construction has been rejected and he has been asked to remove the construction, which has been made deviating from the sanctioned plan.
After hearing learned Counsel for the parties and going through the records, I find that the petitioner has applied for regularisation of the deviation of the construction, which was not made in accordance with the sanctioned plan. His application was considered and the help of technical experts and legal experts was also taken and after due consideration, the prayer of the petitioner has been refused.
On perusal of the impugned order, I find that the grievance of the petitioner has been duly considered and that reasoned order has been passed for not accepting the prayer for regularisation of the deviation of the construction made by the petitioner. I find no arbitrariness in the impugned order. This writ petition is, accordingly, dismissed.
Against this order, the instant L.P.A has been filed by the petitioner. When present appeal was taken up for hearing, learned Counsel for the appellant sought a short adjournment for seeking instruction regarding the deviation made in the front side of the building. While granting adjournment vide order dated 10.5.2007, this Court had observed that if the appellant demolishes the front portion, if already constructed and/or rectifies the deviation, if under construction, then this Court may consider the deviation made by him so far both sides of the building is concerned.
4. Pursuant to the above order, the petitioner filed supplementary affidavit expressing his willingness to demolish the front portion which, is under construction. It was explained that Balcony was constructed over the R.C.C. pillars of the building and the same would be demolished.
5. In course of hearing of this appeal, learned Counsel for the appellant while explaining the extent of deviation made in the construction, has invited attention to some photographs of the construction and has tried to explain that there is in fact no deviation at all made in the construction. Rather, the building of the appellant is within the allotted area and the same would be apparent when compared with the building next door. Learned Counsel explains that after approval of the building plan, construction of the building has commenced and the purported deviation was already complete by the end of December 2004 and the extent of construction already made within the knowledge of the respondent No. 1 and its officers. The impugned notice under Section 193 of Bihar and Orissa Municipal Act, 1922 was admittedly much beyond the stipulated period of fifteen days from the completion of the purported deviated construction and, therefore, the impugned notice is vitiated. It is further argued that the provisions of Section 353 of the Act has no application in the present case at all and as such, the impugned notice purportedly issued under Section 359 of the Act, is illegal. It is also argued that prior to the passing of the impugned order dated 9.2.2007, it was mandatory on the part of the respondents to proceed in accordance with the provisions of Section 362 of the Act which, in the instant case, respondents have failed to do. Learned Counsel submits further that even otherwise, petitioner had invested huge amount in carrying out the construction of the building after obtaining loan from the bank and other people have also booked flats within the building and if the building is now demolished, it would cause irreparable loss and injury to the people who had booked flats in the building. It is further submitted that the respondent No. 3 had assured that minor deviations would be regularized, but when the petitioner had sought permission for regularisation, respondent No. 3 has refused to do so without assigning any reason as to why the deviation, if any, cannot be regularised. Learned Counsel submits that the aforesaid facts ought to have been considered by the learned single Judge in proper perspective.
6. A counter-affidavit has been filed on behalf of the respondent No. 3 claiming that the appellant has made construction on the land in question in deviation of the sanctioned building plan and, therefore, the appellant was ordered to remove the same vide direction contained in Annexure-7. Learned Counsel for the respondent No. 3 would explain that the total area of land in question is 70 ft. in length and 41 ft. in width, out of which, 10 ft. in front, 10 ft. in back and 5 ft. on each side was to be left, but instead of making construction as per the sanctioned plan, the appellant has made construction in deviation "over 31 ft. in front side and 4 ft. in back side and 1 to 4 ft. in both sides." Such construction has been made over 12 R.C.C. pillars including construction made over 9 pillars on the front side and three pillars in the back side. The deviation on the back portion by way of extended construction over 4 ft. beyond the permitted area was made on three pillars each at a distance of 10 ft. in width.
7. The counter-affidavit of the respondent No. 3 does not address the questions raised by the petitioner relating to legality of the notice issued under Section 193 read with Section 359 of the Bihar and Orissa Municipal Act, nor to the claim of the petitioner that the mandatory provisions of Section 362 of the Act was not complied with prior to issuance of notice purportedly under Section 193 read with Section 359 of the Act. The counter-affidavit does not also advert to the claim of the petitioner that an assurance was given by the respondent No. 3 that on proper application made by the petitioner, minor deviation could be regularized on the payment of stipulated fee. Counter-affidavit though claims that certain deviations in the construction made by the petitioner were found in course of spot inquiry, but no reason has been explained as to why the purported deviations cannot be regularized.
8. It is however acknowledged by the petitioner that deviation in the construction beyond the approved plan have been made, though according to the petitioner, such deviation cannot be demolished now since notice for demolition was not served within the stipulated period under Section 193 of the Act from the date of the completion of the construction. This plea of the petitioner cannot be accepted. The petitioner has not come out with any definite statement specifying the date as to when was the construction commenced after obtaining approval of the building plan and on what date was the construction including the deviation completed. The first notice issued by the respondent No. 3 directing the petitioner to stop further construction and to demolish unauthorized construction under Section 193 of the Act which was issued on 6.1.2006, cannot therefore be assailed on the grounds pleaded. Furthermore, the petitioner was called upon to prefer his objection if any, under Section 360 of the Act within five days from the receipt of the notice and a warning was issued therein that if the petitioner failed to prefer any objection or to carry out demolition of the purported unauthorised structure within the time stipulated, the agents and servants of the respondent No. 1 would enter upon the land and cause the required works to be executed or carried out at the petitioner's expense. This is apparently in compliance with the provision of Section 362 of the Act.
9. Nevertheless, considering the fact that the provisions exist under the Rules of the respondent No. 2 for regularisation of minor deviations on payment of requisite fee, the question which would arise is, what is the actual deviation in the construction made by the petitioner and, whether the claim of the petitioner that with reasonable rectification in the deviation, the same should be regularised under the Rules of the respondent No. 1, is tenable.
10. Referring in this context to the counter-affidavit of the respondent No. 3 read with the building plan as annexed to the writ petition, it appears that out of total area of land measuring 70 ft. in length and 41 ft. in width, approval for construction was given over an area comprising 50 ft. in length and 31 ft. in width meaning thereby. That vacant space of 10 ft. in front and 10 ft. in back was to be left vacant and likewise, a vacant space of 5 ft. on each sides of the building was also to be left vacant. The contention of the respondent No. 3 as appearing in the counter-affidavit is that the petitioner has extended the construction on the back up to 4 ft. leaving 6 ft. space only in the back and that such extended construction has been made on three R.C.C. pillars. It is further contended that in the front, deviation of 31 ft. has been made in violation of the approved plan. Learned Counsel for the respondent No. 3 on being questioned, has merely reiterated that there is deviation of 31 ft. in front, but he does not clarify as to whether 31 ft. of purported deviation extends in the front beyond the total area of 50 ft. of approved construction. If the total area of the land is 70 ft. in length and 41 ft. in width and if the area permitted for construction of the building within the said land is 50 ft. in length and 31 ft. in width and if 10 ft. in front and 10 ft. in the back is to be left open, then by no stretch can it be said that the construction in the front was made by way of 31 ft. deviation. It is not the case of the respondent No. 3 that the construction has been made beyond the length of 70 ft. both in front and back inclusive. Learned Counsel for the petitioner submits that as a matter of fact, construction has been made by raising pillars within 50 ft. x 30 ft. area only according to the approved plan of the building. From the approved building plan (Annexure-1), it appears that the R.C.C. pillars could be raised on the perimeter of 50 ft. x 31 ft. area and the vertical construction could be made on the R.C.C. pillars. Learned Counsel for the petitioner submits that each of the R.C.R. pillars were constructed within the permitted area of 50 ft. x 31 ft. and not beyond. Learned Counsel however concedes that it is only the balcony and chhajjas, both in front and in the back, that had extended over the raised pillars and this is the only deviation made in the construction by the petitioner. Learned Counsel adds further that the deviation by the extended Balcony and chajjas in the front is such as could cause no harm either to the occupants of the building or to the neighbouring buildings and such extension being well within the boundary of the plot of the building, the same could be regularised. Learned Counsel adds further that if directed, the petitioner is prepared to demolish the extended Balcony and chhajjas of the front and also the extended chhajjas of both sides of the construction portion.
11. The inference which may legitimately be drawn from the facts stated is that the construction as made by the petitioner is certainly in deviation of the approved building plan. Respondent No. 3 has though claimed that a length of 4 ft. has been extended in the back portion of the building leaving vacant space of 6 ft. in place of 10 ft, the actual length of space, extended in the front has not been stated or explained, nor has it been claimed that the construction are being made beyond 70 ft. in length of the land. From the clarification offered by the learned Counsel for petitioner, it appears that the Balcony and chhqjjas constructed over R.C.C. pillars in the front have been extended beyond the limit permitted under the plan. Petitioner has offered to demolish the extended structure in the front and also to demolish the extended chhqjjas on both sides of the building. It would therefore be appropriate for the petitioner to carry out the demolition and thereafter file a fresh application before the respondents to regularize the remaining part of the deviation and proceed in accordance with the final decision that shall be taken by the respondent No. 1, for completing construction of the building.
With the aforesaid observations and directions, this, appeal is disposed of.
M.Y. Eqbal, J.
12. I agree.