Jharkhand High Court
Narendra Kumar Neotia vs Ranchi Municipal Corporation on 28 August, 2023
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No.3789 of 2022
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Narendra Kumar Neotia .......... Petitioner.
-Versus-
1. Ranchi Municipal Corporation, Ranchi, through its Municipal Commissioner.
2. The Municipal Commissioner, Ranchi Municipal Corporation, Ranchi.
.......... Respondents.
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Rohitashya Roy, Advocate For the Respondents: Mr. L.C.N. Shahedeo, Advocate
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Order No.06 Date: 28.08.2023
1. The present writ petition has been filed for quashing the order dated 29th June, 2022 (Annexure-5 to the writ petition) passed by the Appellate Tribunal, Ranchi Regional Development Authority, Ranchi in Misc. Appeal No.34 of 2017, whereby the appeal preferred by the petitioner against the order dated 5th October, 2017 (Annexure-3 to the writ petition) passed by the Municipal Commissioner, Ranchi Municipal Corporation, Ranchi- respondent no.2 in U.C. Case no.127 of 2016 has been dismissed, affirming the said order.
2. The learned counsel for the petitioner submits that the petitioner constructed a multi-storied commercial building at Village Lalpur, P.S Lalpur District Ranchi after getting the map of the said building sanctioned by Ranchi Regional Development Authority (RRDA) vide B.C. Case No.1135 of 2003. An inspection was carried out in the building premises of the petitioner and on the basis of the report of Sub-committee constituted at the level of RRDA an unauthorized construction case being U.C Case No.127 of 2016 was lodged and finally vide order dated 05.10.2017 passed by the respondent no. 2 a penalty of Rs. 8.00 Lac was imposed upon the petitioner in exercise of the power under section 428 of the Jharkhand Municipal Act, 2011 and the said penalty was directed to be deposited in the fund of the Ranchi Municipal Corporation within 30 days. The respondent no.2 further directed the petitioner to remove the temporary shed existing in the right and rear setback of the basement as well as to restore the parking space of four-wheeler vehicle within 30 days. Aggrieved thereby, the petitioner preferred appeal before the Appellate Tribunal, RRDA, Ranchi which was registered as Misc. Appeal No.34 of 2017 and vide 2 order dated 29.06.2022 the said appeal was dismissed and the order passed by the respondent no.2 was affirmed.
3. The main submission of learned counsel for the petitioner is that though the respondent no.2 while passing the order dated 5th October, 2017 condoned the deviation with respect to the plinth covered area finding the same to the extent of 6.59% i.e. within the condonable limit of 20% and directed the petitioner to submit revised building plan, however, he arbitrarily imposed penalty of Rs.8.00 lac. The said aspect was not properly considered by the Appellate Tribunal, Ranchi Regional Development Authority, Ranchi (in short 'RRDA') while passing the impugned order dated 29th June, 2022 in Misc. Appeal No.34 of 2017.
4. Learned counsel for the petitioner further submits that as per the provision of Section 428 of the Act, 2011, the owner or occupier or any person responsible for construction of a building or structure of permanent nature or commencement of construction in contravention, breach, or deviation of building regulation is liable to pay a penalty of minimum of one lakh rupees which may extend up to ten lakhs rupees, depending upon size of the building or structure and extent of deviation. Since extent of deviation is only 6.59% of the plinth covered area, the amount of penalty should have been in that proportion.
5. On putting question to the learned counsel for the petitioner, as to what should have been the justified amount of penalty, he does not answer the said query with certainty yet submits that the penalty amount of Rs.8.00 lac is on a much higher side as the highest limit of penalty in such a situation has been fixed at Rs.10.00 lac in terms with Section 428 of the Jharkhand Municipal Act, 2011 (hereinafter to be referred as 'the Act, 2011').
6. To appreciate the contention of the learned counsel for the petitioner it would be proper to refer section 428 of the Act, 2011, which reads as under:-
"428. Construction of building in contravention of building regulation- Any building or structure of permanent nature which has been constructed or construction has commenced in contravention or breach or deviation of building regulation shall be liable to be demolished.
Provided that the owner or occupier or any person responsible for construction of a building or structure of permanent nature or commencement of construction in contravention, breach, or deviation of building regulation shall further be liable to pay a penalty of minimum of one lakh rupees which may extend up to ten lakhs rupees, depending upon size of the building or structure and extent of deviation:3
Provided further that the penalty under this section shall be in addition to any other fine provided under this Act including fine for compounding as may be provided under building regulation."
7. Thus, section 428 of the Act, 2011 speaks about demolition of any building or structure of permanent nature which has been constructed or construction has commenced in contravention or breach or deviation of building regulation as well as imposition of penalty to the owner or occupier or any person responsible for construction of a building or structure of permanent nature or commencement of construction in contravention, breach, or deviation of building regulation which shall be minimum of one lakh rupees and may extend up to ten lakhs rupees, depending upon size of the building or structure and extent of deviation:
8. It is evident from the order passed by the respondent no. 2 that the petitioner made 6.59% deviation in the plinth covered area as well as encroached the right and rear setback by making temporary shed due to which the drive way of four-wheeler vehicles was not available in the said building. Thus, the respondent no. 2 while imposing penalty upon the petitioner took into consideration the said deviation as well as illegal encroachment made by the petitioner in the said building. Under the said circumstance, the argument made by the learned counsel for the petitioner to the effect that the penalty is not proportionate to the deviation made by the petitioner is not tenable.
9. Another aspect in the matter is that the petitioner has not yet deposited the penalty imposed upon him rather he has been litigating the matter since 2017 that too by not disputing the alleged deviation and the imposition of penalty, rather challenging the quantum of of the same which according to him is not proportionate to the deviation. Had the petitioner deposited the said amount under protest and got the map revised, he would have shown his bona fide. In fact, the petitioner by not depositing the said amount of penalty for about six years is beneficiary of the said situation. This is also one of the reasons not to interfere with the said amount of penalty at this stage. That apart, the building is a multi-storied commercial building and the petitioner has made encroachment in the drive way of four-wheeler vehicles which has also been taken note of by the respondent no. 2 while exercising its discretion in imposing the amount of penalty of Rs.8.00 lac upon the petitioner.
410. In view of the aforesaid reasons, this Court while exercising power under Article 226 of the Constitution of India does not find any such infirmity in imposition of penalty of Rs.8.00 lac upon the petitioner by the respondent no.2 vide order dated 5th October, 2017 passed in U.C. Case no.127 of 2016.
11. The writ petition is, accordingly, dismissed.
(Rajesh Shankar, J.) Sanjay/AFR