Jharkhand High Court
Ratan Heights Residential Society vs Ranchi Municipal Corporation on 13 July, 2023
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No.5734 of 2022
With
W.P. (C) No.341 of 2023
With
W.P. (C) No.1420 of 2023
-----
1. Ratan Heights Residential Society, Tagore Hill Road, Morabadi, Ranchi.
2. Jaishankar Jaipuriar .......... Petitioners.
[In W.P.(C) Nos.5734/2022 & 341/2023]
1. Rinki Yadav
2. Ranjana Kumari Yadav
3. Kumar Vijaya Nand
4. Deepty Jay
5. Amita Khandelwal
6. Priyanka Jain .......... Petitioners.
[In W.P.(C) No.1420/2023]
-Versus-
1. Ranchi Municipal Corporation, Ranchi, through its Municipal Commissioner-cum-Chief Executive Officer.
2. Municipal Commissioner-cum-Chief Executive Officer, Ranchi Municipal Corporation, Ranchi.
3. Vinayaka & Associates, having its office at Shree Vishnu Talkies Lane, Main Road, Ranchi.
4. Narendra Butala
5. Pratyaksha Butala
6. Ashok Kumar Walamji Parmar
7. Jay Parmar
8. Jeet Parmar
9. Pratima Dayaram Parmar
10. Sweta Parmar
11. Anti-Corruption Bureau, Ranchi, through its Superintendent of Police, Audrey House, Ranchi.
12. Superintendent of Police, Anti-Corruption Bureau, Audrey House, Ranchi.
13. Deputy Commissioner, Ranchi.
14. Om Prakash Tulsyan
15. Dropadi Devi Modi
16. Mili Sarkar
17. Rekha Kedia
18. VKS Realty, 302, 2nd Floor, Gopal Marketing Complex, Argora Chowk, Ranchi.
.......... Respondents.
[In W.P.(C) Nos.5734/2022]
1. Ranchi Municipal Corporation, Ranchi, through its Municipal Commissioner-cum-Chief Executive Officer.
2. Municipal Commissioner-cum-Chief Executive Officer, Ranchi Municipal Corporation, Ranchi.
3. Vinayaka & Associates, having its office at Shree Vishnu Talkies Lane, Main Road, Ranchi.
4. Narendra Butala
5. Pratyaksha Butala
6. Ashok Kumar Walamji Parmar
7. Jay Parmar 2
8. Jeet Parmar
9. Pratima Dayaram Parmar
10. Sweta Parmar
11. Deputy Commissioner, Ranchi.
12. Om Prakash Tulsyan
13. Dropadi Devi Modi
14. Mili Sarkar
15. Rekha Kedia
16. VKS Realty, 302, 2nd Floor, Gopal Marketing Complex, Argora Chowk, Ranchi.
.......... Respondents.
[In W.P.(C) No.341/2023]
1. The State of Jharkhand, through its Chief Secretary, Jharkhand Mantralaya (Project Building), Dhurwa, Ranchi.
2. Principal Secretary, Urban Development Department, Government of Jharkhand, Jharkhand Mantralaya (Project Building), Dhurwa, Ranchi.
3. Commissioner, South Chotanagpur Division, Ranchi.
4. Director General of Police (Anti-Corruption Bureau), Audrey House, Ranchi.
5. Deputy Commissioner, Ranchi.
6. Sub Divisional Officer, Ranchi.
7. Ranchi Municipal Corporation, Ranchi, through its Municipal Commissioner-cum-Chief Executive Officer.
8. Ranchi Regional Development Authority, through its Vice Chairman, R.R.D.A. Bhawan, Kutchary Chowk, Ranchi.
9. Vinayaka & Associates, having its office at Shree Vishnu Talkies Lane, Main Road, Ranchi.
10. VKS Realty, 302, 2nd Floor, Gopal Marketing Complex, Argora Chowk, Ranchi.
11. Narendra Butala
12. Pratyaksha Butala
13. Ashok Kumar Walamji Parmar
14. Jay Parmar
15. Jeet Parmar
16. Pratima Dayaram Parmar
17. Sweta Parmar .......... Respondents.
[In W.P.(C) Nos.1420/20223]
-----
CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
-----
For the Petitioners : Mr. Indrajit Sinha, Advocate & [In W.P.(C) Nos.5734/2022 Mr. Rohit Ranjan Sinha, Advocate & 341/2023 For the RMC : Mr. Shashank Shekhar, Advocate [In W.P.(C) Nos.5734/2022 & 341/2023 For Res. Nos.6 to 10: Mr. A. K. Sinha, Sr. Advocate [In W.P.(C) Nos.5734/2022 Mr. Sameer Saurabh, Advocate & 341/2023 For the State : Mr. Sachin Kumar, A.A.G.II [In W.P.(C) Nos.5734/2022 Mrs. Surabhi, A.C. to A.A.G.II & 341/2023 3 For Res. Nos.14 to 17: Mr. Sumeet Gadodia, Advocate [In W.P.(C) Nos.5734/2022 & 341/2023 For Res. No.18 : Mr. Ajit Kumar, Sr. Advocate [In W.P.(C) Nos.5734/2022 Mr. Atanu Banerjee, Advocate & 341/2023 For the Intervenor : Mr. V. P. Singh, Sr. Advocate [In W.P.(C) Nos.5734/2022 Mrs. Bandana Kumari Sinha, Advocate & 341/2023 For the Petitioners : Mr. Sumeet Gadodia, Advocate [In W.P.(C) Nos.1420/2023] For the State : Mr. Mohan Kumar Dubey, A.C. to A.G. [In W.P.(C) Nos.1420/2023] For RMC : Mr. Shashank Shekhar, Advocate [In W.P.(C) Nos.1420/2023] For RRDA : Mr. Prashant Kumar Singh, Advocate [In W.P.(C) Nos.1420/2023] For Res. No.10 : Mr. Ajit Kumar, Sr. Advocate [In W.P.(C) Nos.1420/2023] Mr. Atanu Banerjee, Advocate For Res. Nos.13 to 17: Mr. A. K. Sinha, Sr. Advocate [In W.P.(C) Nos.1420/2023] Mr. Sameer Saurabh, Advocate
-----
Order No.17 Date: 13.07.2023
1. W.P.(C) No.5734 of 2022 has been preferred by Ratan Heights Residential Society through its Secretary for quashing and setting aside the order dated 29.9.2022 passed in Misc. Appeal No.13 of 2022 by the Chairman, Appellate Tribunal, Ranchi Regional Development Authority, Ranchi, whereby the appeal filed by the petitioners against the order/decision as contained in memo no.RMC/BP/1637/W03/2019 dated 14.2.2022 passed by the respondent no.2, granting permission to the landowners for construction/reconstruction/alteration of new building as well as alteration or addition in the existing building over the Plot No.(CS) 218, Plot No.(MSP) 218 under Khata No.170/36 situated at Village-Morhabadi, District-Ranchi, has been held to be pre- mature and not maintainable giving liberty to the petitioners to put their grievance within one month by filing objection against the order dated 14.02.2022 before the Ranchi Municipal Corporation.
2. W.P.(C) No. 341 of 2023 has been preferred by Ratan Heights Residential Society through its Secretary for quashing/setting aside the order dated 29.07.2022 passed in Misc. Appeal No. 35 of 2021 by Chairman, Appellate Tribunal, Ranchi Regional Development Authority, 4 Ranchi, whereby the said appeal filed by the petitioners against the order dated 06.09.2021 passed by Municipal Commissioner, Ranchi- respondent no.2 in U.C. Case No.29 of 2019 has been dismissed.
3. W.P.(C) No. 1420 of 2023 has been preferred by some of the flat owners of Ratan Heights Apartment, Morabadi, Ranchi for the following reliefs:
(i) For quashing/setting aside the order dated 29.07.2022 passed by the Chairman, Appellate Tribunal, Ranchi Regional Development Authority, Ranchi in Misc. Appeal No. 35 of 2021, whereby the appeal filed by Ratan Heights Residential Society has been dismissed upholding the order dated 06.09.2021 passed by the Municipal Commissioner, Ranchi Municipal Corporation, Ranchi in U.C. Case No.29 of 2019.
(ii) For quashing/setting aside the order dated 06.09.2021 passed by Municipal Commissioner, Ranchi Municipal Corporation in U.C. Case No. 29 of 2019 to the extent, in substance, it has been held that the original building plan for construction of residential building 'Ratan Heights' was sanctioned pursuant to development agreement executed between the land owners and developer only on 40 kathas of land as opposed to 86 kathas of land and, thereafter, it has been held that landowners can apply for sanction of fresh building plan over remaining 46 kathas of land, appertaining to plot no.(CS) 218, plot no.(MSP) 218, Khata no.170/36, village Morhabad, Ranchi.
(iii) For quashing/setting aside Building Permit/Plan issued vide Memo No. RMC/BP/1637/W03/2019 dated 14.02.2022, whereby Respondent-Ranchi Municipal Corporation had sanctioned commercial-cum-residential building plan over the remaining 46 kathas of land.
(iv) For restraining the respondents particularly respondent no. 10 and respondent nos. 13 to 17 from making any construction pursuant to sanction of Building Permit/Plan issued vide Memo No. RMC/BP/1637/Wo3/2019 dated 14.02.2022 in their favour.
(v) To direct Respondent-Ranchi Municipal Corporation and/or Deputy Commissioner, Ranchi to ensure restoration of the said 46 kathas of land at the cost of VKS Realty (builder of 46 Kathas of land) and/or respondent Nos.13 to 17 (landowners) as the said land has been illegally and dangerously dug-up/excavated 5 to the depth of 30-35 feet and below 15 feet of the bottom of foundation level of Ratan Heights Building Tower.
(vi) To direct Respondent-Ranchi Municipal Corporation and/or Deputy Commissioner, Ranchi to ensure reconstruction of extensively entire damaged approach road of Ratan Heights Apartment including restoration of septic tank and soak pit at the cost of Respondent No. 10 and/or respondent Nos.13 to 17.
Facts of the present batch of writ petitions
4. The factual background of the case emerging from the respective writ petitions is that a residential complex in the name and style of Ratan Heights (hereinafter referred as the said building) was constructed by the developer, namely M/s Vinayaka & Associates (hereinafter referred as the previous builder), a partnership firm, having its partners as Narendra Butala and Pratyaksha Butala, over the land appertaining to Khata No.170/36, Plot No.(CS) 218, Plot No.(MSP) 218, Holding Nos.31 and 123 (New Holding No.148/A and 148/A1), Ward No.VII, New Ward No.4 of Ranchi Municipal Corporation, measuring an area of 40 Kathas, situated at Village Morhabadi, P.S. Bariatu, District Ranchi out of total area measuring 86 Kathas (hereinafter referred as the said land). The landowners executed a registered power of attorney dated 27.08.2005 with respect to the aforesaid land in favour of Narendra Butala and thereafter he filed an application before the Ranchi Regional Development Authority, Ranchi on 12.09.2005 for sanction of map of the said building, which was sanctioned vide order 21.07.2008 passed in Building Plan Case No.1049 of 2005.
5. In the year 2009, one R.C. Talwar had filed a complaint before RRDA alleging, inter alia, that as per the sanctioned map of the said building, the road which was shown in front of the building was 22 ft., but the landowners and the pervious builder were giving passage through some other road having width of 16 ft. On the basis of the said complaint/clarification sought by said R.C. Talwar, a proceeding being L.S. Case No. 39 of 2009 was initiated by RRDA and notices were issued to landowners and the pervious Builder. In the said proceeding a map was submitted and the said map was shown to the representative of the complainant R.C. Talwar whereupon he submitted an application stating that he was satisfied with the map and demanded a copy of the said map from RRDA. Finally, L.S Case 6 No.39 of 2009 was dismissed vide order dated 24.07.2009 by recording that the building plan was sanctioned as per the building bylaws. According to the petitioners, in the garb of the proceedings of L.S Case No. 39 of 2009, a boundary wall of 60 meters long and about 18 to 20 ft. height running from north to south was constructed by the landowners/previous builder in the western side of the said building, separating the same from the area of 46 Kathas, which was identified in the original map as common area and facilities.
6. An F.I.R. being Vigilance P.S. Case No.20 of 2009 was registered against the landowners and the previous builder and subsequently chargesheet was filed against them stating that Building Plan No.1049 of 2005 was sanctioned on the entire land measuring an area of 86 Kathas, however, landowners along with the previous builder, in conspiracy with each other and in order to cheat the flat owners, made construction over an area of only 40 Kathas of land in a pre- planned manner. The landowners in the garb of construction of boundary wall started utilizing the banquet hall situated in common area which was earmarked for common facilities and was to be demolished as per the sanctioned plan. As such, a complaint was filed by the Society before the Municipal Commissioner on 26.10.2018 for demolition of the said unauthorized banquet hall constructed over the common area and the same was registered as U.C. Case No.29 of 2019 in which notices were issued to the landowners and the developer/builder of Ratan Heights building. The Junior Engineer submitted report in the said U.C. Case mentioning that the construction of boundary wall on the western side was 100% deviation of the sanctioned building plan and the banquet hall was being operated in an illegal manner. The landowners filed reply stating that they had entered into development agreement with the previous builder on 03.06.2005 only for 40 Kathas of land and the sanctioned plan beyond 40 Kathas of land was without their consent. In support of the said contention, the landowners relied upon certain sale deeds executed with the flat owners wherein it was depicted that construction had been carried out over 40 Kathas of land and only proportionate shares of land equivalent to 40 Kathas were allotted to flat owners. The land owners also contended before the Municipal Commissioner, Ranchi that the map was subsequently revised in L.S. Case No. 39 of 2009. The Municipal Commissioner, Ranchi framed 7 altogether six issues and finally held that since the development agreement executed between the landlord and the developer was only for 40 Kathas of land, as would be evident from the sale deeds executed with the flat owners, they cannot claim excess area to what had been purchased by different sale deeds. Accordingly, the landowners were permitted to apply for the building plan over rest 46 Kathas of land to the extent of remaining floor area ratio (FAR).
7. According to the petitioners, the landowners had filed an application for sanction of map for a new building to be constructed over 46 Kathas of the said land but they waited till passing of the order dated 06.09.2021 and thereafter they resubmitted the documents online on 27.9.2021 before the Ranchi Municipal Corporation, Ranchi for sanction of the building plan over remaining 46 Kathas of land. As soon as the Society came to know about such submission, a representation was filed on 1.10.2021 in the form of objection before the RMC requesting inter alia not to pass any order sanctioning the map with respect to the land in question, however, the RMC approved processing of the revised map on 2.10.2021 which was a national holiday. Finally, the building plan was sanctioned vide Memo No.RMC/BP/1637/W03/2019 dated 14.02.2022. Aggrieved with the order dated 06.09.2021, an appeal being Misc. Appeal No.35 of 2021 was preferred by the Society before the Appellate Tribunal, which was dismissed vide order dated 29.7.2022. The building permit sanctioned vide order dated 14.02.2022 was challenged by filing an appeal being Appeal Case No.13 of 2022 before the Appellate Tribunal, which was also dismissed vide order dated 29.09.2022 observing that the same was premature and not maintainable.
Submissions made on behalf of Ratan Heights Residential Society
8. Mr. Indrajit Sinha, learned counsel appearing on behalf of the Society submits that the said building was constructed by the previous builder over the land measuring an area of 40 Kathas with respect to which building plan got sanctioned by the landowners for the entire land measuring an area of 86 Kathas vide Building Plan Case No.1049 of 2005. Undisputedly, the landowners executed a registered power of attorney dated 27.08.2005 in favour of Narendra Butala with respect to the land in question and in terms of the said power of attorney, he filed an application for sanction of building plan vide Application 8 No.13185 dated 12.09.2005 and alongwith the said application he submitted an affidavit stating that he was the power of attorney holder of M.S. Plot No.218, Khata no.170/36, situated at Morhabadi measuring an area of 6022.30 Sq. meter and the construction on the said plot would be done as per the sanctioned plan.
9. The landowners also filed joint affidavit giving an undertaking to make construction and development of the land in terms of the sanctioned plan. The site plan in terms of which the building plan was sanctioned specifically mentioned FAR as 1.465, percentage of ground coverage as 15.84%, grand plot area as 5818.571 sq. meter, plot area after surrender deed as 5590.07 sq. meter and total plot area as 6022.30 sq. meter. Thus, in terms of sanctioned building plan, the construction was to be made over 40 Kathas of land equivalent to 2700 sq. meter and remaining 46 Kathas of land i.e. 3104.02 sq. meter was required to be kept vacant. Moreover, old construction standing over 46 Kathas of land was to be demolished in the site plan forming part of the sanctioned building plan.
10. The landowners and the previous builder claim that the building plan was revised in L.S Case No. 39/2009, however, there was no order in the said case to the effect of revision of the building plan sanctioned vide Building Plan Case No.1049 of 2005. The said case was actually registered on the complaint filed by one R.C. Talwar against the landowners and the previous builder alleging that passage to approach the said building was given through an adjacent land. There is no reference of the said L.S Case in the sale deeds executed in favour of the flat owners. The Municipal Commissioner while passing the impugned order dated 06.09.2021 exceeded its jurisdiction and granted liberty to the landowners to apply for the building plan over rest 46 Kathas of land. Such observation in the form of liberty without there being any prayer for the same by any of the parties is not fit to be sustained that too when the Municipal Commissioner had unequivocally observed that there were certain deviations in construction of the said building and the banquet hall standing over 46 Kathas of land was required to be demolished being an unauthorized construction.
11. In course of investigation, an inspection team of Vigilance Bureau had made an inspection of the said building comprising of competent engineers of the Technical Examiner Cell, Ranchi under the Cabinet 9 Secretariat and Vigilance Department, Government of Jharkhand, Ranchi and the said inspection team had submitted the report dated 30.10.2015 finding various irregularities in construction of the said building. The said inspection team had also found that there was gross violation of FAR and Ground Coverage Area in comparison with the approved percentage values. The inspection team had also calculated the FAR of the existing construction of the said building as 3.73 whereas it was 1.465 in the sanctioned building plan.
12. The appeal preferred by the Society i.e. Misc. Appeal No.13 of 2022 before the Appellate Tribunal, R.R.D.A., Ranchi was dismissed vide order dated 29.09.2022 as pre-mature without appreciating the fact that the appeal was filed in terms with section 436(3) of the Jharkhand Municipal Act, 2011 against the order/decision dated 14.2.2022 whereby a fresh map was sanctioned over 46 Kathas of the land which was the subject matter of a building plan earlier sanctioned vide order dated 12.06.2008 passed in B.C. Case No.1049/2005 in terms with Application No.13185 dated 12.9.2005 filed by the power of attorney holder that too without affording any opportunity to the petitioners in the process of sanctioning of fresh map initiated on the Application No.RMC/BP/0765/W03/2019 dated 25.1.2022.
13. Learned Tribunal while holding the appeal as pre-mature miserably erred in appreciating the law involved in the matter as the said appeal was preferred against the order dated 14.2.2022 which was passed behind the back of the Society. There was no provision to raise objection after passing of the order dated 14.2.2022 granting permission to the landowners for construction/reconstruction/ alteration of new building over the same plot which was the subject matter of earlier building plan sanctioned vide order dated 12.06.2008/21.07.2008 passed in B.C. Case No.1049/2005 in terms with Application No.13185 filed by the landowners dated 12.9.2005 through their power of attorney holder.
14. The order dated 29.9.2022 passed in Misc. Appeal no.13 of 2022 suffers from the vice of failure to exercise jurisdiction properly, non- application of judicial mind and Wednesbury principle of unreasonableness. Learned Tribunal failed to consider the relevant materials and passed the order on irrelevant considerations. Allowing sanctioning of map vide order dated 14.2.2022 over the remaining land of 46 Kathas which form part of the said building has led to multiplicity 10 of proceeding. The landowners in the garb of revised plan filed in L.S. Case No. 36 of 2009 are not only defrauding the other prospective flat- owners but also causing serious injuries to the Society and its residents.
Submissions made on behalf of some of the flat owners (writ petitioners of W.P.(C) No. 1420 of 2023)
15. Mr. Sumeet Gadodia learned counsel appearing on behalf of the respondent nos.14 to 17 (some of the flat owners) submits that the landowners through their Power of Attorney Holder had applied before the respondent- R.R.D.A., Ranchi for sanction of building plan with respect to the said building over entire 86 Kathas of land, which was finally sanctioned whereby 1.465 of FAR and 15.84% of ground coverage were to be achieved. The power attorney holder of the landowners had filed an affidavit along with the aforesaid building plan, specifically stating that he proposed to construct building over entire land measuring an area of 6022.30 sq. meters. While sanctioning the building plan, the landowners jointly filed affidavit dated 29.05.2008 specifically mentioning under Clause 3 that they had submitted building plan for construction of a residential apartment over the said land vide Application No.13185 dated 12.09.2005. Further, under Clause 20 of the said affidavit, it was stated that in any circumstance, the landowners would not propose any additional storey or any individual apartment/flat beyond the present sanctioned plan without the written consent of the apartment owners/society of the apartment owners. A gift deed dated 20.6.2008 was also executed by the landowners in favour of the State Government donating a strip of land for widening of road in front of the land proposed for construction of the said building for the purpose of sanction of map.
16. After getting the building plan sanctioned the landowners cannot say that the same was sanctioned without their knowledge. At the time of obtaining fire clearance, it was clearly recorded that in the front portion of the building, an underground static water tank of minimum one lakh litre capacity was required to be constructed. Despite the fact that at the time of construction of the original building, a substantial piece of land was left as open space/common area for the purpose of constructing an underground Water Tank having capacity of one lakh litre and recharge bore well, the landowners with an evil intention to 11 further develop and construct building over the common area, started playing fraud upon the residents of Ratan Heights' Apartment.
17. The Vigilance Inquiry Report would clearly reveal that the approved land area for construction of the said building as per the sanctioned plan was about 86 Kathas i.e. 5818.574 sq. meters, which was deliberately reduced to 2655 sq. meters by erecting a 60 meters long wall of 18-20 feet height in the western side of the apartment. It was a planned attempt to deviate from the sanctioned map and to capture and grab the common area of 'Ratan Heights Apartment'. After erection of the said illegal wall, the area of front set-back of the apartment became nil, whereas it should have been 10 meters or more. There was a categorical finding in the said report that due to construction of the said illegal wall, there was no way left for any fire- brigade to enter into the front side of the Apartment in case of any unfortunate event of fire which might cause serious risk to lives of flat owners and their families. It was also clearly mentioned that FAR was also increased from 1.465 to 3.73 which was much beyond the permissible limit. It has been stated in the chargesheet submitted in the Vigilance P.S. Case No. 20 of 2009 dated 24.10.2009 that Building Plan No.1049 of 2005 was sanctioned for the entire land measuring 86 Kathas. It has been concluded in the vigilance report that the builder as well as the landowners fraudulently got the building constructed over 40 Kathas only after getting the map sanctioned for 86 Kathas.
18. The Municipal Commissioner, Ranchi framed altogether six issues in the order dated 06.09.2021 passed in U.C. Case no.29 of 2019 and while answering issue No.2, it was clearly recorded that as per the approved Building Plan, Banquet Hall standing over the plot in question was an unauthorized construction which was required to be demolished by the landowners. The said observation of the Municipal Commissioner led to a conclusion that original Building Plan was sanctioned for entire area of 86 Kathas. The Municipal Commissioner further observed that there were certain deviations in construction of Ratan Heights Building, which were condonable if the total area was taken into account and existing boundary wall at the western side along the north-south direction was removed/demolished. Despite the aforesaid fact, the Municipal Commissioner gave liberty to the landowners to apply for building plan over remaining 46 Kathas of land, which was beyond its jurisdiction.
1219. The letter dated 18.09.2020 written by Narendra Butala to the Ad hoc Committee, Ratan Heights Apartment would reflect that the previous builder had categorically taken stand that the building plan was sanctioned for 86 Kathas of land and 'Ratan Heights Building' was constructed taking into consideration the entire area of 86 Kathas. The purported development agreement sought to be relied upon by landowners is neither registered nor notarized and the same is a manufactured document just to somehow grab the remaining 46 Kathas of land. Moreover, the landowners had entered into the development agreement after sanction of the map of the said building. Even if, for the sake of argument, it is presumed that the development agreement executed between the landowners and the previous builder was only for 40 Kathas of land, then also, the building plan was sanctioned for the entire area of 86 Kathas.
20. L.S. Case No.39 of 2009 has no connection with respect to the revision of the building plan and the map pertaining to 40 Kathas of land was deliberately filed in the said proceedings in order to get a certified copy of the map with a reduced area. On bare perusal of the ordersheet of L.S. Case No. 39 of 2009 it would be evident that neither the said proceeding was pertaining to any revision of original map concerning B.C. Case No.1049 of 2005 nor there was any recording that the map submitted in original B.C. Case No.1049 of 2005 was revised. Moreover, the Municipal Commissioner did not give any finding that the original map of the building submitted for 86 Kathas of land was revised to 40 Kathas of land.
21. The certified copy of L.S. Case No.39 of 2009 was obtained by the Advocate of R.C. Talwar who had filed the complaint and a certified copy of the same has been filed with the counter affidavit of the landowners which clearly suggests that R.C. Talwar was actually a dummy person. Moreover, there is no authentication or seal of the court in the map filed in L.S. Case No.39 of 2009, which is required to be made while sanctioning of the map and it proves that there was no proposal for revision of the earlier building plan in the proceeding of L.S Case No.39 of 2009 as claimed by the landowners. On bare perusal of the oredersheet of L.S. Case No. 39 of 2009, it would appear that no separate sanction order has been passed for revision of the map of the said building as mandated under law. Moreover, as per Clause 21.2(a) of the Ranchi Planning Standards and Building Bylaws, 2002, 13 the absolute height limitation of a building should not exceed 1.5 times the existing width of the road abutting the property plus the front open space including road widening strip whereas during the proceeding of L.S. Case No.39 of 2009, the landowners and the previous builder while calculating the building height knowingly took the length of 46 kathas of land as front set back of the said building. The landowners and the concerned builder were quite aware of the fact that 12 storied building could not be constructed over 40 kathas of land rather due to height restrictions, they would be allowed to construct a building of only six storied over 40 kathas of land. Further, in the sale deeds of the flat owners there is reference of only B.C Case No. 1049 of 2005 and the fact of revision of the map vide L.S Case No. 39 of 2009 has not been referred.
22. Mere mentioning in the Schedule of some of the sale deeds of the flat owners as 40 Kathas cannot change the nature of the sanctioned building plan and the area for which the building plan was sanctioned. Moreover, there are various sale deeds which have been executed with flat owners wherein undivided share of land is reflected to the extent of 950 sq. ft. while the carpet area of all the flats is 1830 sq. ft. each and if the same is multiplied by 48 flats, the total area comes to 45,600 sq. ft., whereas 40 Kathas of land is equivalent to 28,800 sq.ft. Thus, no reliance can be placed upon individual sale deeds of the flat owners for deciding the dispute as to whether fresh building permit could have been sanctioned over the land for which the same was already sanctioned.
23. On bare perusal of the order dated 29.07.2022 passed by the Appellate Tribunal, R.R.D.A., Ranchi, it would appear that the learned Tribunal has taken note of Clause 27.2 of the Jharkhand Building Bylaws, 2016 and has rendered a finding that as per provision of the Clause 27.2.1 of the said Building Bylaws, the sanctioned map cannot affect the title of the land and/or building. On going through the said Jharkhand Building Bylaws, particularly Clause 27.2 thereof, it would be evident that the said clause only states that approval of plan and/or grant of permission to construct a building will not confer title over the land or building to a person in whose favour Building Plan has been sanctioned. This has no co-relation with the area of the building plan or otherwise which was the subject matter of dispute before the Appellate Tribunal.
1424. There was no dispute that the landowners had title over the land in question, rather the dispute was that earlier the landowners had given entire land for development as per the previous sanctioned building plan. Thus, it is really unconceivable as to how Clause 27.2 can be construed in favour of the landowners to declare that no building plan can confer any right, title over the land or building. Reference to Clause 24 of the sanction order in the order dated 29.07.2022 is again wholly misconceived and has no relation whatsoever with respect to the dispute in question. On the contrary, Clause 19 of the Sanction Order has been ignored both by the Municipal Commissioner and the Appellate Tribunal, while passing the impugned orders which speaks that the previous builder and the landowners shall follow all the conditions mentioned in the affidavits. Thus, the landowners, at the time of sanction of original map, not only specifically disclosed the specific purpose for which land in question was to be utilized, but also gave undertaking in the form of guarantee that in case, in future, the land was to be used for making additional construction, written consent of the owners of flats/society of the apartment owners would be taken by the landowners. Neither the flat owners nor the society duly represented through the flat owners of the said building had given any consent for construction of any new building over remaining 46 Kathas of land.
25. The excavation work for the new building adjacent to the said building has been carried out in a vertical manner, without taking adequate measures to prevent landslides. An open space has been dug to a depth of approximately 8 meters, which is a staggering 15 feet (or 4.5 meters) below the bottom of foundation of the said building and this reckless excavation poses an immediate threat to the differential segments of the existing foundation of the said building, and there is an imminent threat of collapsing of the building due to rainfall or vibration. It is imperative that swift protective measures be taken to halt the construction of the new building adjacent to 'Ratan Heights' to prevent any potential landslides that could lead to the complete collapse of the existing 'Ratan Heights' building. The excavation work has also severely impacted the access leading to the building. The road has developed deep cracks and has sunk by a level of 2 to 4 feet, creating a hazardous situation for the residents. Moreover, the damaged road jeopardizes the residents' access to critical utilities such 15 as electricity, sewage and water supply lines as all these lines pass through the affected area. The Soak Pit/Septic Tank has also been extensively damaged.
26. In view of the provisions of section 4(3) and 6(2) of the Jharkhand Apartment (Property Regulation and Ownership) Act, 2005 and the new provision under section 10(4) of the Jharkhand Apartment (Flat) Ownership Act, 2011 make it clear that percentage of undivided interest of each flat owner in the common areas and facilities shall not be altered without the written consent of all the flat owners and the same shall not be separated from the apartment (flat) to which it appertains and shall be deemed to be conveyed or encumbered with the apartment (flat) even though such interest is not expressly mentioned in the conveyance or other instrument.
27. A careful reading of the recital of the sale deeds of the flat owners reveals that the same merely states that the building is constructed over 40 Kathas of land out of 4 Bighas, 9 Chhataks and 2 Sq. ft. more or less as mentioned in the schedule of the sale deeds and it nowhere conveys that undivided share and the areas of common facilities are only restricted to 40 Kathas of land. If the building and/or sanctioned plan was restricted to only 40 Kathas of land, there was no occasion for mentioning '40 Kathas out of 4 Bighas, 9 Chhataks and 2 Sq. ft.' in the Schedule, rather simply '40 Kathas' would have been mentioned. Thus, from the schedule of the sale deeds also, it is reflected that the building was constructed over 40 Kathas of land out of the total area of 4 Bighas, 9 Chhataks, 2 Sq. ft. which was the subject matter of original sanctioned plan.
28. Mr. Sumeet Gadodia, learned counsel puts reliance on the judgment rendered by the Madras High Court in the case of Abbotsbury Owners' Association Vs. The Member Secretary, Chennai Metropolitan Development Authority & Others (W.P. No. 5765 of 2020) and submits that in the said case the Bench has held that even if undivided share has been inadequately encumbered in the sale deed, a revised sale deed is required to be executed providing adequate undivided share to the Apartment owners.
29. The description of the said building has been given in a website, namely, "Magic Bricks" which shows that the building is having Swimming Pool, Park etc. and the said activities are required to be 16 undertaken over 46 Kathas of adjacent land, but due to clandestine motive of the landowners, the same were not undertaken. Submissions made on behalf of Intervenors (some of the flat owners, who intervened in W.P.(C) No. 5734 of 2022)
30. Mr. V.P Singh, learned Senior Counsel for the Intervenors (some of the flat owners who have filed Interlocutory Application in W.P.C No. 5734 of 2022) submits that due to the impugned action of the respondent nos.1 to 10, the house property, life and liberty of the occupants of the said building are under threat. The act of the respondent nos.1 to 10 clearly amounts to cheating and depriving the occupants of their life and property. The intervenors have acquired their respective flats in the said building after considering the initial building plan shown to them which was spread over 86 Kathas of land. Section 85 of the Evidence Act, 1872 relates to presumption with respect to power of attorney according to which the Court shall presume that every document purporting to be a power of attorney has been executed and authenticated by a Notary Public or any court/Judge, Magistrate and thus the landowners cannot escape from their responsibility. The right to life as guaranteed under Article 21 of the Constitution of India has been violated in the present case. Even if a single person raises the issue of proper living; the writ petition is maintainable. Since said Narendra Butala hold the power of attorney of the landowners, all action taken by him are binding on them as he was their lawful representative. The development agreement is not a registered document, rather the same is a manufactured one which is not part of the original sanctioned plan.
31. Section 32 of the Bihar Regional Development Authority Act, 1974 provides the procedure for sanction of a plan and in the case in hand while modifying the plan, the procedure mentioned in the said Act has not been followed. As such, the map so filed in L.S Case No. 39 of 2009 cannot be said to be the revised map of the building in question. Learned senior counsel for the intervenors has also supported the argument made on behalf of the Society.
Submissions made on behalf of landowners
32. Mr. Anil Kumar Sinha, learned Senior Counsel appearing on behalf of the landowners submits that on bare perusal of the development agreement dated 03.06.2005 it would appear that only 40 Kathas of the said land was given for the construction of the said building. The 17 previous builder illegally and fraudulently got the building plan sanctioned vide B.C. case no.1049/2005 without the knowledge and consent of the landowners by putting his signature as their attorney although they had not given any power of attorney to that effect to the said builder. None of the landowners had signed the application submitted by the previous builder for sanction of map related to B.C. case no.1049/2005. The landowners having come to know about the said illegal acts of the previous builder, put their serious objection and did not allow to construct the building on the basis of building plan sanctioned vide B.C. case no.1049/2005. Thereafter, the previous builder vide his letter dated 16.03.2009 assured that he would get the map revised for construction of a multistorey building only over the portion of the land mentioned in the development agreement. In the meantime, L.S. Case No.39 of 2009 was filed by one R.C Talwar against the landowners and the previous builder in which the building plan sanctioned vide B.C. case no.1049/2005 was modified with respect to only 40 Kathas of land as per the development agreement dated 03.06.2005. In the said L.S. case no.39/09, the said builder submitted an affidavit that he was the power of attorney holder for only 40 Kathas of land and he would follow the modified building plan.
33. It would be evident from the proceedings of L.S. Case No.39/09 that vide order dated 20.06.2009, the map presented by the previous builder was directed to be verified as per the applicable building bye laws and thereafter the R.R.D.A. processed the building plan as was presented by the previous builder. Only when the verified building plan with all exact details and measurements was presented before the Vice Chairman who also happened to be the competent sanctioning authority under the J.R.D.A. Act and an order was passed on 27.07.2009 approving the said revised plan to the satisfaction of all. It may also be evident from the proceedings of L.S. Case No.39/09 that the same had proceeded with the files of B.C. Case No.1049/05 and thus it is clear that the competent authority/sanctioning authority under the J.R.D.A. Act was in knowledge of the proceedings of the B.C. Case No.1049/05. Hence, the revised map of the earlier building plan in conformity with the area as was provided in the development agreement dated 03.06.2005 superseded the earlier map on the basis of which the petitioners have based their claims. Only after approval 18 of the revised sanctioned plan in the year 2009, the construction of the said building was started and was completed after few years. The agreements for sale were executed with flat owners sometime in the year 2012 and the registered sale deeds were executed in the year 2018. Thus, every transaction and commitment with the flat owners had taken place much after revision of the earlier building plan in the year 2009. The Municipal Commissioner, Ranchi vide order dated 06.09.2021 passed in U.C. Case No.29/2019 on the proposal of the Society itself, directed that the building plan would be permitted over remaining 46 Kathas of land owned by the landowners after adjustment of the F.A.R. already consumed in construction of the said building. It is surprising that the petitioners/members of the residential society have chosen to challenge the said order passed by the Municipal Commissioner in U.C. Case No.29/2019, which, in fact, was passed as per their own proposals and was obviously detrimental to the interest of the landowners, however they accepted the same in the interest of the petitioners/the members of the residential society.
34. The previous builder submitted an application along with the certificate of an architect before the Ranchi Municipal Corporation, Ranchi on 01.08.2018 for issuance of occupancy certificate, mentioning that the construction of said building was completed as per sanctioned plan vide B.C. case no.1049/05 revised vide L.S. case no.39/09. The RMC had initiated an encroachment proceeding wherein letter dated 22.5.2012 was issued to the previous builder, whereupon the said builder submitted his reply on 25.05.2012 annexing a copy of L.S. case no.39/09, mentioning that the revised map had been sanctioned by R.R.D.A vide L.S. case no.39/09 and road widening area had been left according to L.S. case no.39/09. The R.M.C. accepted the said reply after verification and dropped the encroachment proceeding. The petitioner society, however, with ill motive illegally started claiming the remaining 46 Kathas of land which is not the part and parcel of land under the said development agreement dated 03.06.2005. The society had filed a complaint before the Municipal Commissioner, Ranchi, as a result of which the proceeding was initiated for illegal and unauthorized construction.
35. No notice was issued to the land owners either before or at the time of spot enquiry conducted by the Junior Engineer, Town Planning Section, Ranchi Municipal Corporation, Ranchi and the complainants 19 had illegally and fraudulently got the said enquiry report prepared by the Junior Engineer suppressing the development agreement and records of L.S. case no.39/09 with an intention to grab the remaining land exclusively owned and possessed by the landowners. It has specifically been mentioned in the schedule of the sale deeds of the purchasers of the flats that the land area of the said building is 40 kathas.
36. The complaint filed by Jaishankar Jaipuriar and others was not maintainable, as he was neither the flat owner nor was given any authority to espouse the grievance of the flat owners. The complainant claimed ownership over 46 kathas of land which was not tenable under the provisions of section 436 of the Act, 2011 as the Municipal Commissioner had no authority to declare title of the complainant. The Municipal Commissioner, Ranchi in the order dated 06.09.2021 doubted the locus standi of the complainant and recorded that the President of the Flat Owners Association had refuted his claim and several flat owners also represented themselves separately. The Municipal Commissioner further recorded that other flat owners did not turn up in spite of notice to them.
37. Section 436(3) of the Act, 2011 clearly provides that any person aggrieved by an order of the Municipal Commissioner or the Executive Officer under sub-section-(1) may, within 30 days from the date of the order prefer an appeal before the Building Tribunal. It is, thus, clear from the provision itself that the Appellate Tribunal which was directly approached by the petitioners could not have entertained the same and thereby the order dated 29.09.2022 passed by the Tribunal is legal and justified having no jurisdictional error. Accordingly, the prayer for quashing of the same by way of issuance of a writ of certiorari is not tenable.
38. If the Society and the flat owners are complaining about any kind of deviation or breach of commitment under their agreement with the developer pertaining to the apartment purchased by them or its common facilities etc., those are supposed to be addressed only before an authority or adjudicating authority under the provisions of Real Estate (Regulation and Development) Act, 2016 (in short 'RERA Act, 2016'). It is worthwhile to point out that the RERA Act, 2016 has been declared to be retroactive in operation by the Hon'ble Supreme Court of India in the case of Newtech Promoters and Developers Pvt.
20Ltd. Vs. State of U.P., reported in 2021 SCC OnLine SC 1044. In the present case, admittedly no completion certificate has been issued by the R.R.D.A. under the previous applicable law. The RERA Act, 2016 is a complete code in itself and for the grievances pertaining to breach of commitment, if any, by the builder/developer, the Society and the flat owners were supposed to approach the authority under the provisions of the RERA Act, 2016, which actually they did, but after initial few dates they stopped appearing before the authority as a result of which the matter filed by them was dismissed for non-prosecution.
39. Learned Senior Counsel appearing on behalf of the landowners has relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Shubhas Jain Vs. Rajeshwari Shivam and Others, reported in 2021 SC OnLine SC 562, wherein it has been held that the High Court in exercise of its extraordinary writ jurisdiction under Article 226 of the Constitution of India, does not adjudicate hotly disputed question of facts. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable.
Submissions made on behalf of V.K.S. Realty (the New Builder)
40. Mr. Ajit Kumar, learned Senior Counsel appearing on behalf of the respondent no.18 (builder for the proposed building over 46 kathas of land) submits that in the light of the provision of Clause 27.2.1 of the Jharkhand Building Bye Laws, 2016, the flat owners have no right, title and interest over 46 Kathas of vacant land as the sanction of map or approval of a plan does not vest any title over the concerned land or building. Moreover, the sanctioned map which is referred by the flat owners and the Society has been duly revised in accordance with law and the same is not the subject matter of challenge in the present writ petition.
41. It is also submitted that the flat owners and the Society have no locus standi to challenge the approval of plan dated 14.02.2022 for construction over remaining 46 Kathas of land which is being undertaken as per the provision of the Jharkhand Building Bye Laws, 2016. The FAR in respect of the construction to be made over 46 Kathas of land as given in the approved plan is after adjusting and deducting the already consumed FAR by the said building constructed over 40 Kathas of the said land. On bare perusal of the Schedule 21 appended with the development agreement dated 03.06.2005 it would be evident that there was no intention to cover the total land of 90 Kathas for the purpose of building construction and in fact the proposed multistoried building was intended to be constructed upon the land measuring 40 Kathas only.
42. There was no any need to issue notice or to hear the flat owners or the Society in course of sanction of map for construction over remaining 46 Kathas of land. Moreover, it could not have caused any prejudice to them, as the said land is a separate piece of land over which the members of the Petitioner-Society have no right, title, interest and possession. The construction of retaining wall has been made in strict compliance of the suggestions given by the experts of BIT, Mesra, whereas the survey plan and site analysis of 'Ratan Heights' building annexed by the Society with the writ petition does not contain any signature or seal of any recognized Government Civil Engineer.
Submissions made on behalf of the State
43. Mr. Sachin Kumar, learned AAG-II appearing on behalf of the Respondent-State puts reliance on the evidence memo of Vigilance P.S Case No.20 of 2009, Column no.3 of which suggests that as per the affidavit of landowners, they had authorized Narendra Butala to sign RRDA map and to get the plan sanctioned. Thus, they had full knowledge of the process of sanctioning of the building plan vide B.C. Case No.1049 of 2005. Further, in column no.9 of the evidence memo of the said case, it has been mentioned that landowner-Jai Parmar had stated that L.S. Case No.39 of 2009 had been filed for sanction of revised map over the land measuring 40 Kathas, which was pending. However, L.S. case was actually filed by a neighbour who had objected against certain deviations from the sanctioned building plan. It has also been mentioned that though the landowners had full knowledge of sanction of the building plan by the R.R.D.A., Ranchi vide B.C Case No.1049 of 2005, they conspired together and made construction only on 40 kathas of land by getting the map sanctioned for entire 86 Kathas of land.
44. Though notices were issued to the previous builder as well as its partners, namely, Narendra Butala and Pratyaksha Butala, however, they did not choose to appear.
22Finding of the Court
45. Heard the learned counsel for the parties and perused the materials available on record. The Society as well the flat owners are primarily aggrieved with the sanction of map for construction of a new building over 46 kathas of the land in question.
46. Learned senior counsel appearing on behalf of the landowners as well as the new builder have raised the issue of maintainability of the writ petition being W.P.(C) No. 5734 of 2022 and W.P. (C) No. 341 of 2023 by submitting that Mr. Jaipuriar who is claiming himself as secretary of the Society is not a flat owner rather he is the husband of one of the flat owners and he has not been duly authorized to espouse the grievance on behalf of the flat owners. Moreover, altogether 14 flat owners have come to this court and 13 flat owners including the president of the society are not with the secretary of the Society.
47. Further argument of the learned senior counsel for the new builder is that the flat owners are trying to get the common facilities treating 46 Kathas of land as part of the earlier building plan and for the said grievance the society/flat owners were required to move before Jharkhand Real Estate Regulatory Authority (RERA) and, in fact, one of the flat owners, namely, Leena Jaipuriar had taken the said recourse, however, the case was dismissed for non-prosecution and, thus, nothing survives in the matter.
48. On the point of locus standi of Jaishankar Jaipuriar to file the present writ petition, Mr. Indrajit Sinha, learned counsel for the petitioners of W.P.(C) No.5734 of 2022 & W.P.(C) No.341 of 2023 submits that at the time of filing of the complaint, the Society was not registered and it got registered in the month of July, 2019. It is further submitted that Clause 3 of the byelaws of the society defines member as either flat owner or near relative and Mr. Jaishankar Jaipuriar became member of the society as a near relative of a flat owner and after election of the society, he became secretary of the same. Otherwise also, any resident has the right to take recourse against the illegal act of the landowners and the builders.
49. Mr. Sumeet Gadodia, learned counsel appearing on behalf of the flat owners submits that the petitioners of W.P. (C) No.1420 of 2023 had never moved before RERA. Moreover, RERA Act is applicable in a completely different context and not in the facts situation of the present case. He further invites the attention of this court to the prayer 23 no.(iii) (v) and (vi) made in W.P.(C) No. 1420 of 2023 and submits that these prayers are sufficient in themselves. The availability of remedy with the flat owners and the society under Article 226 of the Constitution of India for enforcement of their legal rights under the given facts and circumstance has been duly recognized by the Hon'ble Supreme Court in the case of Supertech Limited Vs. Emerald Court Owner Resident Welfare Association & Others reported in (2021) 10 SCC 1. Their Lordships in the said case while holding that revision in map and/or fresh sanction of building permit were contrary to the relevant enactment ordered the builder to demolish the deviations.
50. So far as challenge to the filing of the writ petition by Jaishankar Jaipuriar on behalf of the Society is concerned, such technical objection cannot be accepted by this Court in the present facts and circumstances of the case. Even if the argument of the landowners and the new builder is taken as true, then also some of the flat owners have also come to this Court by filing an intervention application and they were allowed to intervene in the matter vide order dated 19.04.2023. Moreover, out of the batch of the present writ petitions, W.P.(C) No. 1420 of 2023 has been filed by some of the flat owners and they have also raised their concern with respect to the construction of proposed building over 46 Kathas of land. I am of the view that merely because the secretary of the society is not representing all the flat owners or he is not competent to represent the society, this court cannot shut its eyes when the issue involved in the writ petitions is also with respect to serious security threats to the flat owners residing in the said building due to digging of foundation of proposed building. Further, the flat owners have claimed enforcement of their fundamental right as enshrined under Article 21 of the Constitution of India claiming that due to such action of the landowners and the builders, the life and property of the flat owners is under threat. It is well settled that a writ petition is maintainable for enforcement of fundamental rights even if an alternative remedy is available to the petitioner.
51. Perused the judgment rendered by the Hon'ble Supreme Court in the case of Supertech Limited (Supra.), on which Mr. Sumeet Gadodia, learned counsel puts much reliance. In the said judgment, the Hon'ble Supreme Court found that initially the building plan was sanctioned for 24 fourteen towers each with G+11. The map was sanctioned for T-15 and T-16 both with G+11 by the first revised plan, whereas second revised plan was sanctioned for T-16 and T-17 both with G+24. Again, the third revised plan was sanctioned for T-16 and T-17 both with G+40. The apartment towers namely T-16 and T-17 were constructed in the area earmarked as green area in front of T-1 as was mentioned in the map accompanied with completion certificate of first eight towers dated 10.04.2008 that too without the consent of the flat owners and the construction of the same had reduced the undivided interest of the individual flat owners. The flat owners moved the High Court of Judicature at Allahabad against the construction of T-16 and T-17 and finally the High Court passed the order of demolition of T-16 and T-17. Aggrieved thereby, the builder moved the Hon'ble Supreme Court, however, the appeal of the builder was also dismissed by the Hon'ble Supreme Court.
52. In the said case Their Lordships have held that non-constitution of Resident Welfare Association (RWA) does not extinguish the right of individual flat owner. A breach of its obligation by the development/ planning authority to ensure compliance of building regulations is actionable at the instance of the residents whose rights are infringed by violation of law. The law must step in to protect their legitimate concern.
53. In the cases in hand, the landowners have tried to escape their responsibility by contending that the petitioners should have taken recourse before RERA. The RERA Act, 2016 provides for making complaint against the concerned promoter, allottee or real estate agent for violation or contravention of the provisions of the said Act or the rule or regulation made thereunder. The prayers made in the present writ petitions are of wider amplitude and are not confined to the RERA Act. The dismissal of the complaint filed before RERA will also not help the case of the landowners as the RERA has not made any observation touching the merit of the claim of the parties, rather has dismissed the complaint for non-prosecution. Moreover, the flat owners who are the petitioners of W.P.(C) No.1420 of 2023 were not the parties to the said complaint filed before RERA and the said order will otherwise be not binding on them. Thus, I am of the view that the question of maintainability of the present batch of writ petitions raised by the landowners and the new builder is not tenable.
2554. Thrust of the argument of learned counsel for the Society as well as the flat owners is that the landowners and the new builder have illegally got the map sanctioned for construction of a new building over 46 Kathas of land which was already undertaken by the landowners and the previous builder at the time of construction of the said building who had shown in the said portion of the land to be used as common area and facilities by the flat owners. In support of the said contention, learned counsel for the Society as well as for the flat owners have placed several documents before this Court such as sanctioned map of the said building, affidavits filed by the power of attorney holder- Narendra Butala, affidavit filed by the landowners, gift deed executed by the landowners in favour of the State of Jharkhand through the Governor for the purpose of sanction of map of the said building etc.
55. This Court has perused the documents relied upon by the Society and the flat owners, from which following facts emerge:-
(i) One of the partners of the previous Builder namely Narendra Butala being the power attorney holder of the landowners had executed two affidavits for the purpose of submitting those before the RRDA for sanction of the map of the said building wherein he had claimed to be the holder of 6022.30 sq. meter (90 Kathas approx.) of land and had proposed to construct building over the said land.
(ii) The landowners had also jointly executed affidavit on 29.05.2008 declaring that the proposed building plan was already sanctioned by RRDA in B.C No. 1049 of 2005. It was further declared that the landowners along with the developer would bear full responsibility of any deviation or alteration in the approved building plan and would be held responsible for any such act and the RRDA would be free to take any stern action against them.
(iii) It was declared in another affidavit sworn by the landowners that they were the holders of Municipal/Survey Plot No.218 situated at village Morabadi, P.S Bariatu, District Ranchi and they proposed to construct a building over the said land and had submitted building plan for construction of a residential apartment over the said land vide Application No. 13185 dated 12.09.2005. In the said affidavit, they had undertaken that they would not propose any additional storey or any individual 26 apartment/flat beyond the present sanctioned plan without the written consent of the apartment owner/society of the apartment owners. In case, such a sanction was obtained, they would do further construction only after getting the related building plan approved by RRDA.
(iv) The landowners had also executed gift deed dated 20.06.2008 in favour of the State of Jharkhand and had donated a strip of land measuring an area of 1792 sq. ft. out of total 90 kathas of land for road widening with respect to sanctioning of building plan submitted vide B.C. Case No.1049 of 2005. The land donated by the landowners was attached to 46 Kathas of land which reflects that they at the time of making gift for sanction of the map of the said building had clear intention of including 46 Kathas of land for construction of the said building, otherwise there was no need to donate 1792 sq. ft. of the land which was not attached to the rest 40 Kathas of land.
(v) The Divisional Fire Officer, Jharkhand, Ranchi had written to the Town Planner, RRDA, Ranchi, suggesting that an underground static water tank of at least 1,00,000/- litre capacity should be constructed in the front portion of the building.
(vi) On bare perusal of the map of the said building presented to the RRDA for its sanction, it appears that the entire land was shown as part of the said building and the existing construction over 46 Kathas of land was to be demolished. It was also shown in the map that water tank with capacity of 1,00,000/- litre was to be constructed over 46 Kathas of land. The covered area of the said building was shown as 8189.45 sq. meter, whereas the grand plot area was shown as 5818.574 sq. meter in the map and the net plot area after gifting the land to the government was shown as 5590.07 sq. meter. The FAR was calculated as 1.465 by dividing the net covered area of the said building i.e. 8189.45 sq. meter with the remaining land area after execution of the gift deed i.e. 5590.07 sq. meter.
56. Thus, it is apparently clear that in the sanctioned map of the said building as well as in the affidavits filed for the said purpose, it was represented by the previous builder as well as the landowners that the building was being constructed over the entire 86 Kathas of land.
2757. The learned senior counsel for the landowners submits that the developer agreement for construction of the said building was executed only for 40 kathas of land and the sale deeds of the flat owners also show the land area as 40 Kathas and as such the flat owners cannot claim the area in excess to what has been shown in their sale deeds. Learned senior counsel has also put much reliance on Clause 27.2 of the Jharkhand Building Bye Laws, 2016 which speaks that the approval of the building plan would mean granting of permission to construct building and shall not mean to declare title over the land or building. It is further contended that the map of the said building was subsequently revised in L.S Case No. 39 of 2009 on the objection made by the landowners and as such the flat owners cannot claim any benefit by referring the map sanctioned vide B.C Case No. 1049 of 2005.
58. This Court has also perused the documents filed on behalf of the landowners in support of their claims from which following facts emerge:-
(i) An unregistered development agreement was executed on 03.06.2005 between the landowners and the previous builder represented through one of its partners, namely, Pratyaksha Butala whereby they agreed to develop a building over 40 Kathas of land out of total 90 Kathas of land.
(ii) A letter dated 16.03.2009 has been referred by the landowners whereby Narendra Butala had written to the landowners that the map for the said building had been sanctioned over the entire plot and on objection of the landowners he had agreed to get a new/revised map approved for construction of multistoried building only over the portion of the land which was mentioned in the development agreement measuring about 40 Kathas instead of 90 Kathas.
(iii) The landowners have brought on record the sale deeds of some of the flat owners and in the said sale deeds the area of the land over which the said building has been constructed is shown as 40 Kathas out of 04 Bighas, 09 Chhataks & 02 sq. ft.
(iv) The landowners have also placed before this Court the entire order sheet of L.S. Case No.39 of 2009 to contend that the map sanctioned vide B.C. Case No. 1049 of 2005 was subsequently 28 revised showing that the said building was to be constructed over 40 Kathas of land only.
59. This Court has further perused the order passed in U.C Case No.29 of 2019, relevant part of which reads as under:-
"Having recorded the written submissions and the written notes of argument submitted by the parties this court now comes to the issues framed and to decide it one by one.
Issue number 1- What was the F.A.R consumed at the time of sanction of map.
From the above submission and the documents, material, facts on record, it is found that only 1.465 FAR has been consumed.
Issue number 2- Is there any deviation in the construction of the said building.
It is held that the building, Ratan Heights has been constructed with certain deviations which are on the West, east and south portion. That the banquet hall was shown to be demolished in the approved building plan and therefore the banquet hall standing on the plot in question is an unauthorized construction and this has to be demolished by the landlords.
Issue number 3 - Whether the deviations are condonable or not.
It is held that the deviations are condonable if the total plot area is taken into account.
Issue number 4 - What action has been taken so far for the condonation of the deviations.
It is held that if the existing boundary wall at western side along the north-south direction is removed/demolished then the deviations can be condoned on application of offline revise plan application.
Issue number 5- What was the plot area on which the landlord and developer had agreed/Development Agreement entered for development of the said Building.
It is held that the Development agreement was signed only on 40 kathas of land between the landlord and the developer.
Issue number 6 - Whether the clauses of the Registered Deed have been followed by the developer/landlord/flat owners.
It is held that the landlord and the developer have complied the Registered deed and it is held that the land area in the development agreement is only 40 kathas but land area beyond the claims proportionate share in the plot. The sale deed of the complainant being deed no. 1150 dated 22-05-2018, mentions in the schedule A the land area to be 40 kathas of MS plot no. 218Village Morabadi thana no. 192. The complainant cannot claim the land area in excess to what he has purchased vide his sale deed.
Issue No. 7 - Whether any provisions of Building Bye Laws or other laws/regulations have been violated by the developer/landlord/flat owners.
It is held that the building has been constructed with deviations by the developer.
It is held that the development agreement entered between the land owner and the developer was executed only on 40 kathas of land and therefore the building plan application would not have been made over and above 40 kathas of land.
From the above facts, documents and materials presented before this court, this Court is of firm opinion, that the development-agreement- entered-into between the landlord and the developer was executed only on 40 kathas of land and the Builder/ developer who submitted and made the building plan application before the competent authority of RRDA on the basis of the said development agreement could not have applied over any extra land over 40 kathas of land. The sale deed of the complainant being deed no. 1150 dated 22-05-2018, mentions in the schedule 'A' the land area to be 40 kathas of MS plot no. 218 Village Morabadi thana no. 192. The complainant 29 cannot claim the land area in excess to what he has purchased vide his sale deed.
The question of right, title, interest could not be adjudicated by this court and the parties are at liberty to approach the appropriate forum for the redressal of their grievances.
Therefore, the objection and the complaint is disposed off as being not sustainable. The land owners can apply the Building Plan over the rest 46 kathas but the ratio of F.A.R available will be only remaining F.A.R taking into account the already consumed F.A.R by the existing building i.e Ratan Heights. The new map shall have to be applied as per the provisions of existing Building Bye Laws in force i.e. Building Bye Laws. 2016 and the mode of application shall be online mode. There shall be no plea of offline mode and no plea to consider the map as per the old bye laws."
60. Thus, the Municipal Commissioner, RMC, Ranchi observed that the banquet hall existing on 46 kathas of land was shown to be demolished in approved building plan and as such the same was required to be demolished by the landlords being an unauthorized construction. It was further observed that the said building was constructed with certain deviations which were condonable only when the total plot area was taken into account. However, he finally observed that the land area in the development agreement as well as in the sale deeds of the flat owners has been shown as 40 Kathas and as such the complainant could not have claimed the land in excess of what was purchased by them. The Municipal Commissioner went further to hold that the landowners could apply for sanction of the building plan over remaining 46 Kathas of land which was not even the subject matter of the said case. The issue before the Municipal Commissioner, Ranchi in U.C. Case No.29 of 2019 was as to whether the construction of a banquet hall over vacant premises of the said building measuring an area of 46 Kathas was liable to be removed by the builder. The said question was answered by the Municipal Commissioner in favour of the Society by observing that the banquet hall existing over 46 Kathas of land was a deviation from the approved building plan and the same was required to be demolished. However, the Municipal Commissioner exceeded his jurisdiction by observing that the landowners could apply for the building plan over remaining 46 Kathas of land. Taking benefit of the said order, the landowners got the map sanctioned for a new building over 46 Kathas of land vide memo no.RMC/BP/1637/W03/ 2019 dated 14.02.2022.
61. The appeal filed by the Society against the order passed in U.C Case No.29 of 2019 was dismissed by the Appellate Tribunal, RRDA Ranchi, observing that as per the development agreement, the power of attorney and the sale deeds of the flat owners, the said building was 30 constructed over 40 Kathas of land, whereas the appellants claimed remaining 46 Kathas of vacant land on the basis of earlier approved building plan, however, as per the conditions mentioned by the sanctioning authority on the back side of the map particularly condition no.24, the sanctioning of the map did not confirm the title of the appellant upon the said land.
62. It would thus appear that the Municipal Commissioner, Ranchi as well as the Appellate Tribunal, RRDA, Ranchi, both, rejected the claim of the Society on the sole ground that the Society did not have any right, title and interest over 46 Kathas of land, as it was mentioned in the development agreement and the sale deeds of the flat owners that the land area for the said building was 40 Kathas only.
63. This Court finds serious infirmity in the orders of the Municipal Commissioner as well as the Appellate Tribunal as those failed to take into consideration vital fact that the said building was constructed on the basis of the sanctioned map showing the net covered area of the building as 8189.45 sq. meter and the grand plot area as 5818.574 sq. meter and after execution of the gift deed the land area remained as 5590.07 sq. meter. The FAR was also calculated as 1.465. If the land area of 46 Kathas is deducted from the total land area, the same remains as 2655 sq. meter and if the net covered area of the building as calculated in the enquiry report of the vigilance department i.e. 9912 sq. meters is divided by 2655 sq. meter, the FAR will come to 3.73, which is not only much more than the FAR shown in the map but also higher than maximum permissible limit. Moreover, the percentage ground coverage of 15.84% shown in the sanctioned map increases to 82.19% after reduction of the land area, as has been shown in the report of the enquiry committee of the vigilance department. Thus, by permitting the landowners to file application for sanction of map of a building to be constructed over 46 Kathas of land, the Municipal Commissioner, Ranchi, in fact, made part of the existing building as illegal. Resultantly, the flat owners who had purchased the flats relying on the map sanctioned vide B.C. Case no.1049 of 2005, which was produced before them by the previous builder and the landowners, will have to suffer irreparable loss for no fault on their part.
64. The development agreement which has been taken into consideration by the Municipal Commissioner while passing the order dated 06.09.2021 in U.C Case No. 29 of 2019 is an unregistered document 31 and there is every possibility that the same has been created by the previous builder and the landowners after getting the map of the building sanctioned vide B.C Case No.1049 of 2005 as has been claimed on behalf of the flat owners. Under such circumstance, the Municipal Commissioner was not correct in relying on the said unregistered development agreement while passing the order dated 06.09.2021. Though the area of the land has been mentioned as 40 Kathas in the sale deeds of the flat owners, but it has simultaneously been mentioned in the sale deeds that the map of the building has been sanctioned vide B.C. Case No.1049 of 2005 which indicates that 46 Kathas of the said land was part of the said building and the structure standing over 46 Kathas of land was required to be demolished. Moreover, in that part of the land, an underground water tank with one lakh litre capacity and recharge borewell were required to be constructed. The said aspect of the matter was also not taken into consideration by the Municipal Commissioner while passing the impugned order dated 06.09.2021.
65. Though the landowners have accepted that in B.C Case No. 1049 of 2005 the entire land was shown as part of the said building, however they have contended that the previous builder had committed fraud with them and they had no knowledge about the mischief/fraud committed by the previous builder while sanctioning of the map. The said contention of the landowners has no leg to stand since the Society has produced before this court the affidavit executed by the landowners wherein they had declared that the proposed building plan was already sanctioned by RRDA in B.C. Case No.1049 of 2005. The power of attorney holder of the landowners had also executed affidavit stating that the said building was being constructed over the entire plot. Thus, the landowners cannot claim that the building plan of the said building was sanctioned behind their back. Moreover, for sanction of the said building plan, the landowners had executed gift deed for 1792 sq. ft. out of total 90 kathas of land in favour of the State of Jharkhand and the gifted property was not connected with 40 kathas of land, rather it was connected with rest 46 kathas of land facing the Main Road, Morabadi. The landowners have failed to explain as to why they had gifted the land which was connected with 46 kathas of land, if they had any intention to keep 46 Kathas of land separate from 40 kathas over which according to their claim, the said building was 32 constructed. The conduct of the previous builder and the landowners clearly suggests that they had taken 46 kathas of land as part and parcel of the land over which the said building was constructed. It is irrelevant as to who has committed fraud. What is relevant is that the conduct of the builder and the landowners conveyed to the flat owners that for construction of the said building, 46 kathas of land shall be kept vacant for common area and facilities.
66. One of the claims of the landowners is that having found the infirmity in the sanctioned map, they raised the objection before the builder and thereafter the map of the said building was revised vide L.S Case No. 39 of 2009 which specifically discloses that the said building was constructed over 40 Kathas of land. As such, the Society as well as the flat owners cannot claim any right over 46 Kathas of land on the basis of the map sanctioned vide B.C. Case No.1049 of 2005.
67. To appreciate the said contention of the landowners, this Court has perused the record of L.S. Case No. 39 of 2009 which reveals that the same was not filed for revision of the map earlier sanctioned vide B.C. Case No.1049 of 2005, rather the same was filed by one R.C. Talwar claiming carving of proper road as per the sanctioned map of the said building and in the said case, the builder produced a fresh map of the said building and looking to the said map the case was dismissed by the Vice Chairman, R.R.D.A., Ranchi. In fact, L.S. Case No.39 of 2009 was confined to the issue of redressing the claim of the complainant with respect to the approach road and the Vice Chairman, R.R.D.A., Ranchi did not pass any specific order with respect to revision of the map sanctioned vide B.C Case No. 1049 of 2005. It is also evident from the map filed in L.S Case No. 39 of 2009 that there is no seal or signature of the competent authority on the same and, therefore, it otherwise cannot be treated as revised map of the said building.
68. Moreover, Clause 4.2 of the Ranchi Planning Standards & Building Bye Laws, 2002 provides for filing of an application before the competent authority in a prescribed form to erect, re-erect or make material alteration at any place in building or part thereof as well as to develop or re-develop any piece of land within the jurisdiction of the competent authority and the said procedure is also applicable for revision of any map earlier sanctioned. It has specifically been provided under clause 6.4.1(c) of the said Bye Laws that for revised plan of a building which the authority has already sanctioned, the fees chargeable shall be ¼ 33 of the fees chargeable on the original plan subject to the condition that the covered area of the building has not increased more than the original sanctioned plan. However, in the present case neither any application for revision of the map was filed by the landowners nor the fee prescribed for revision of earlier sanctioned map was paid to the Authority. Thus, the map so filed in L.S. Case No.39 of 2009 cannot be treated to be a revised map of the said building.
69. It is also contended by learned senior counsel for the landowners that prior to the year 2011, the Vice Chairman, R.R.D.A., was the competent authority for sanctioning the map of a building and the proceeding of L.S. Case No. 39 of 2009 was also pending before said authority wherein revised map of the said building was filed and he approved the same, but the said approval was never challenged by the flat owners/Society. Thus, they cannot be allowed to question the revised map before this court.
70. In the case of Kunwar Pal Singh (dead) by LRs v. State of U.P. & Others, reported in (2007) 5 SCC 85, the Hon'ble Supreme Court has held as under:-
"16. Section 6(2), on a plain reading, deals with the various modes of publication and they are: (a) publication in the Official Gazette, (b) publication in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and (c) causing public notice of the substance of such declaration to be given at convenient places in the said locality. There is no option left with anyone to give up or waive any mode and all such modes have to be strictly resorted to. The principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then, that thing or act must be done in accordance with the manner prescribed therefor in the Act."
71. In the case of J. Jayalalithaa & others Vs. State of Karnataka & Others, reported in (2014) 2 SCC 401, the Hon'ble Supreme Court has held as under:-
"34. There is yet an uncontroverted legal principle that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. In other words, where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim expressio unius est exclusio alterius, meaning thereby that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following any other course is not permissible."
72. Thus, it is a well settled principle of law that if the manner of doing a particular act is provided under statute, the act must be done in that manner only. I am of the view that though the Vice Chairman, RRDA, Ranchi was competent to make revision of a map already sanctioned, the due procedure of law was not followed for revision of map earlier 34 sanctioned vide B.C Case No. 1049 of 2005. The so-called map was filed in an altogether different proceeding and was also not duly sanctioned. Thus, it cannot be treated as revised map of the said building.
73. Though the construction of the said building was made after the so called revision of the map, in the sale deeds of the flat owners, namely, Leena Jaipuriar and Kumar Vijaya Nand, the copies of which have been brought on record, there is no reference of L.S. Case No.39 of 2009, which goes to show that the map was actually not revised. It has been stated in the said sale deeds that the builder and the vendors have got the building plan for the said building sanctioned vide B.C. Case No.1049 of 2005. Thus, the builder and the landowners had presented only one plan before the flat owners which was sanctioned vide B.C. Case No.1049 of 2005 and the map which was filed in L.S. Case No. 39 of 2009 was not brought to the knowledge of the flat owners. Since the landowners or the previous builder did not refer the fact of revision of map vide L.S. Case No. 39 of 2009 in the sale deeds of the flat owners, there is no need of challenging the said act of revision of the map by the flat owners.
74. Otherwise also, in the map filed in L.S. Case No.39 of 2009, the height of the building was determined taking into consideration the length of 46 Katha land as the front set back of the building which also supports the contention of the flat owners that 46 Kathas land was actually the part of the said building. The height of the said building is 37.95 meter also cannot be in conformity with the Building Byelaws, if the so-called revised map comes into play. Moreover, in the said map, the FAR has been calculated as 2.421 and percentage ground coverage has been calculated as 21.285% whereas in the inspection made by the vigilance team, the FAR of the building treating area of the land as 40 Kathas has been found as 3.73 and percentage ground coverage has been found as 82.19% which is much higher than what has been reflected in the map filed in L.S Case No. 39 of 2009.
75. The order dated 06.09.2021 passed in U.C Case No. 29 of 2019 refers the report dated 19.03.2019 submitted by the Junior Engineer, Town Planning Section, R.M.C., Ranchi, wherein it was mentioned that the deviation had occurred due to unauthorized occupation of the vacant land in the west side by the landowners. There was 100% deviation (west portion) due to construction of the boundary in the front setback 35 of the said building. The town planner of the R.M.C., Ranchi had also submitted a report dated 17.11.2020, mentioning that no revised map was submitted. Both the reports support the claim of the flat owners that there was no revision of map of the said building.
76. So far the claim of the landowners that the flat owners cannot claim title over 46 Kathas of land as the land area has been shown as 40 Kathas of land in their sale deeds, this Court is of the view that the prime issue before this court is not with respect to adjudication of right, title and interest over 46 Kathas of land, rather as to whether the Ranchi Municipal Corporation was right in sanctioning the map for a building to be constructed over 46 Kathas of land. The previous builder and the landowners got the map of the said building sanctioned showing the land area as 86 Kathas and constructed the said building taking into consideration the entire area of the said land and now they without the consent of the flat owners are trying to reduce the land area by disturbing the FAR previously calculated, which cannot be permitted as the same will prejudicially affect their rights. Otherwise also, any change in the existing FAR will make part of the building illegal.
77. The landowners by referring to the sale deeds of some of the flat owners have claimed that they have been given the undivided proportionate share in the land to the extent of 600 sq. ft. and if the same is multiplied by 48 flats, it will come to 28800 sq. ft. On the other hand, the flat owners have contended that sale deeds of two flat owners namely Rinki Yadav and Kumar Vijaya Nand (writ petitioners of W.P.(C) No. 1420 of 2023) show their undivided interest in the property as 953 Sq. Ft. and 950 sq. ft. respectively and if the same are multiplied by 48 flats, it will be 45744 sq. ft and 45600 sq. ft., respectively, which is much more than 40 Kathas. The said fact itself contradicts the claim of the landowners that the area of the land was 40 kathas. Since undivided proportionate share as mentioned in the sale deeds of the flat owners are in variance, it cannot be said that the flat owners are wrong in claiming their right over 46 Kathas of land merely because the area of land has been shown as 40 Kathas in some of the sale deeds.
78. This Court has also perused section 3(i) of the Jharkhand Apartment (Flat) Ownership Act, 2011, which defines common areas and facilities with respect to a building. Section 3(i) of the said Act reads as follows:-
36"Common areas and facilities" in relation to a building means:-
(i) The land on which such building is located and all easements, rights and appurtenances belonging to the land and the building.
(ii) The foundation, columns girders, beams, supports, main wall, roofs, halls, corridors, lobbies, stairs, stair-ways, fire escapes, and entrances and exit of the building.
(iii) The basements, cellars, yards, gardens, open areas, shopping centers, schools and storage spaces.
(iv) The premises for the lodging Gatekeeper or the person employed for looking after the property.
(v) Installation of central services, such as, power, lights, gas, hot and cold water, heating, refrigeration, air conditioning, incinerating, and sewerages.
(vi) The elevators, tanks, pumps, motors, fans, compressor, ducts and in general, all apparatuses and installations existing for Common use.
(vii) Such other community and commercial facilities as may be prescribed;
and
(viii) All other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in Common use."
79. It would thus be evident that the common areas and facilities include open areas as well as the other part of the property necessary or convenient to its existence, maintenance and safety or normally in Common use. Section 10(4)(a) provides that the common areas and facilities shall have permanent character and shall not be altered without the written consent of all the flat owners. Further Section 10(4)(b) provides that the percentage of undivided interest in the common areas and facilities shall not be separated from the flat to which it appertains and shall be deemed to be conveyed with the apartment (flat) even though such interest is not expressly mentioned in the conveyance.
80. In the case in hand, it transpires from the sanctioned plan of the said building that 46 kathas of the land was the part and parcel of the same and a static water tank having capacity of one lakh litre was to be constructed over the said 46 kathas of land. Moreover, the said part of the land is also necessary for the safety of the flat owners as it has been mentioned in the vigilance report that due to raising of boundary wall, the fire fighting vehicles will have no access to the front side of the said building. Thus, the same has to be treated as common areas and facilities attached to the said building which cannot be altered without the consent of the flat owners.
81. The claim of the landowners is that the previous builder had committed forgery with them for which they should not be put to adversity. This Court is of the view that the landowners have also earned profit due to such act of the builder and, therefore, they cannot be absolved from the consequences. Had the land area been taken as 40 kathas, the map of the building would not have been sanctioned as the FAR would 37 have gone much beyond the permissible limit. The previous builder and the landowners by showing the entire land as part of the said building got the map sanctioned and subsequently tried to portray that the area of the land was only 40 kathas. The said act of the previous builder and the landowners can certainly be said to be mischievous.
82. It has also been contended on behalf of the landowners that considering the request made on behalf of the complainant as well as the landowners, the Municipal Commissioner has passed an equitable order directing the landowners to apply for a Building Plan over the rest 46 Kathas of land with an observation that the ratio of available FAR will be only to the extent of remaining FAR taking into account the FAR already consumed by the existing building. This Court does not find any substance in the said argument made on behalf of the landowners particularly due to the reason that if a new building is constructed over 46 Kathas of the said land, the FAR of the existing building will naturally increase which will be in violation of the earlier building plan sanctioned vide B.C. Case No.1049 of 2005. In the case of Supertech Ltd. (Supra.) the Hon'ble Supreme Court has held that due to the increase in the total number of flat purchasers from 650 to 1500, there would be reduction of the undivided interest of the existing purchasers in the common area. It has also been held that the purchase of additional FAR by the appellant cannot be used to trample over the rights of the existing purchasers. It has further been held as under:-
"161. The judgments of this Court spanning the last four decades emphasise the duty of planning bodies, while sanctioning building plans and enforcing building regulations and bye-laws to conform to the norms by which they are governed. A breach by the planning authority of its obligation to ensure compliance with building regulations is actionable at the instance of residents whose rights are infringed by the violation of law. Their quality of life is directly affected by the failure of the planning authority to enforce compliance. Unfortunately, the diverse and unseen group of flat buyers suffers the impact of the unholy nexus between builders and planners. Their quality of life is affected the most. Yet, confronted with the economic might of developers and the might of legal authority wielded by planning bodies, the few who raise their voices have to pursue a long and expensive battle for rights with little certainty of outcomes. As this case demonstrates, they are denied access to information and are victims of misinformation. Hence, the law must step in to protect their legitimate concerns.
162. In K. Ramadas Shenoy v. Town Municipal Council, Udipi [K. Ramadas Shenoy v. Town Municipal Council, Udipi, (1974) 2 SCC 506] , A.N. Ray, C.J. speaking for a two-Judge Bench of this Court observed that the municipality functions for public benefit and when it "acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess". This Court also held : (SCC p. 513, para 27) 38 "27.... The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the courts. If sanction is given to build by contravening a bye-law the jurisdiction of the courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative.
(See Yabbicom v. R. [Yabbicom v. R., (1899) 1 QB 444])."
This Court held that an unregulated construction materially affects the right of enjoyment of property by persons residing in a residential area, and hence, it is the duty of the municipal authority to ensure that the area is not adversely affected by unauthorised construction."
83. Thus, it is the duty of the development authorities/municipal bodies, while sanctioning building plans and enforcing building regulations and bye-laws to conform to the norms by which they are governed and any breach of such obligation by them is actionable at the instance of residents whose rights are infringed due to violation of law. The municipal bodies function for public benefit and when they act in excess of powers conferred by law or abuse those powers, then in such cases they do not only exercise their jurisdiction irregularly or wrongly but also usurp such powers which are not possessed and in said situation the jurisdiction of the constitutional court is invoked.
84. Another aspect in the present case is the security concern of the inhabitants of the said building. It has been contended by the flat owners that for construction of the new building, open space being part of 46 Kathas of land has been dug in a vertical manner to a depth of approximately 8 meters, which is a staggering 15 feet (or 4.5 meters) below the bottom of foundation of the said building due to which there is an immediate threat to the inhabitants of the same. Deep cracks have developed in the road leading to the said building which jeopardizes the residents' access to critical utilities such as electricity, sewage and water supply lines as all these lines pass through the affected area.
85. Keeping in view the safety concern of the flat owners of the said building, this court vide order dated 06.02.2023 had directed the Additional Municipal Commissioner, R.M.C., Ranchi as well as the Deputy Commissioner, Ranchi to depute their respective representatives in the rank of Deputy Collector or equivalent to supervise/keep watch on the construction work of retaining wall and 39 also to ensure that no further construction was made by the developer over 46 Kathas of land in question.
86. The Deputy Commissioner, Ranchi filed a counter affidavit stating that pursuant to the order dated 06.02.2023, a Committee was constituted to study the safety and strength of the said building and the retaining wall being constructed by the respondent no.18 (the new builder). Accordingly, the Committee members visited the site on 10.02.2023 and in view of the site condition, the members recommended immediate temporary measures. Thereafter, the Sub Divisional Officer, Sadar, Ranchi issued letter no.499 dated 13.02.2023 to the Registrar, BIT, Mesra, Ranchi seeking opinion with regard to the said building whereupon the Registrar, BIT, Mesra Ranchi vide letter no.7617 dated 01.03.2023 sent report to the Sub Divisional Officer, Sadar, Ranchi, giving some suggestions, which were communicated to the respondent no.18 for its compliance.
87. Again vide order dated 21.03.2023, the Deputy Commissioner Ranchi was directed to ensure that the retaining wall which was constructed, be examined by a Committee of experts of BIT, Mesra so that the safety, design and other effective measures indicated in the report of BIT, Mesra dated 27.02.2023 are strictly adhered to.
88. In compliance of the order dated 21.03.2023 the Deputy Commissioner, Ranchi requested BIT, Mesra to examine retaining wall work and to submit expert committee report. The Registrar, BIT, Mesra replied that the BIT, Mesra would provide a design for a permanent retaining wall, but only after April 20, 2023 subject to payment of fee and also demanded certain documents for making the drawing.
89. Thereafter, vide order dated 29.03.2023 the Director (Technical), Mecon was directed to take immediate steps for constituting a committee for the purpose of verification of the retaining wall constructed by the respondent no.18 and to get the retaining wall verified as well as to submit a report to the court.
90. Pursuant to the order dated 29.03.2023, the Director (Technical), Mecon submitted evaluation report stating that the under construction retaining wall was not safe in sliding and over turning criteria as per design calculation. In addition to that, the base raft was also not safe in cantilever condition and if left as it was, it might lead to failure of the wall and could lead to undue secondary stress to the columns 40 supporting the slab over ramp of the adjoining building (Ratan Heights). Since those columns were made integral part of the overall building frame system, the same would also be subjected to additional load.
91. In the verification/evaluation report of the retaining wall submitted by Mecon Limited two suggestions in the form of opinions were given as per which construction of basement floors was to be done in the proposed new building over 46 Kathas of land. The said suggestions were not accepted by this Court keeping in view that the proposed construction of new building over the said part of the land was already under challenge in the writ petitions.
92. The aforesaid facts also suggest that there is a security threat for the inhabitants of the said building as the retaining wall constructed for safety of the said building is also not proper. That apart, it has been mentioned in the vigilance report that after construction of retaining wall, there is no approach road for the vehicles of fire brigade service to enter into the front side of apartment. It has also been mentioned in the letter dated 17.10.2006 issued by the Divisional Fire Officer, Jharkhand, Ranchi to the Town Planner, R.R.D.A., Ranchi that in front of the said building, an underground static water tank having capacity of minimum one lakh litre is required to be constructed for fire safety. The Municipal Commissioner while allowing the landowners to apply for the building plan over the rest 46 kathas of land in U.C. Case No. 29 of 2019, however, failed to take into consideration the said vital fact suggested by the concerned officer of Jharkhand Fire Brigade Service. Thus, as per the order of the Municipal Commissioner, in case of incident of fire, the life of the flat owners of the existing building will be under threat.
93. Another argument of the learned senior counsel for the landowners is that the height of the building is 38.25 meter, however, no NOC has been obtained from the Airport Authority of India before making construction of the said building and as such a part of the said building has illegally been constructed. It is also submitted that if the society or the flat owners had any grievance against the previous builder, they should have filed a case before the Jharkhand Real State Regulatory Authority. In fact, the Society had moved before the RERA and the application filed by it was dismissed for default.
4194. It is surprising that the landowners are taking such plea after getting share in the profit from the said building. I am of the view that the said argument will also not help to the case of the landowners as the prime issue before this court is as to whether the Municipal Commissioner was right in sanctioning a building plan for 46 Kathas of land which was left open for common area and facilities while constructing the said building. Moreover, the said respondents have failed to produce before this court any complaint made by the Airport Authority of India for not obtaining NOC before making construction of the said building. It is for the Airport Authority of India to take up the said aspect and to proceed in accordance with law and this Court does not wish to make any comment on the said issue at this stage.
95. In view of the aforesaid discussions, these writ petitions are allowed in following terms:-
(i) The order dated 06.09.2021 passed by the Municipal Commissioner, Ranchi Municipal Commissioner, Ranchi to the extent of holding that the original building plan for construction of residential building 'Ratan Heights' was sanctioned pursuant to the development agreement executed for 40 kathas of land as opposed to 86 kathas of land and liberty was given to the landowners to apply for sanction of fresh building plan over 46 kathas of land is quashed.
(ii) The order dated 29.07.2022 passed by the Appellate Tribunal, R.R.D.A., Ranchi in Misc. Appeal No. 35 of 2021 is quashed.
(iii) Building Permit/Plan issued vide Memo No. RMC/BP/1637/W03/ 2019 dated 14.02.2022, whereby Ranchi Municipal Corporation has sanctioned commercial-cum-residential building plan over the remaining 46 kathas of land is quashed. Consequently, the order dated 29.09.2022 passed by the Chairman, Appellate Tribunal, R.R.D.A., Ranchi in Misc. Appeal No.13 of 2022 is also quashed.
(iv) The landowners and the new builder are directed to remove/demolish the construction made over the remaining 46 Kathas of land and to fill the said part of the land as well as to handover the same to the Society of the flat owners which will be used as common area and facilities attached to the said building as per the building plan sanctioned vide B.C. Case No.1049 of 2005.42
(v) The landowners and the new builder are directed to safely demolish the retaining wall which has been constructed to separate the said building from 46 Kathas of land in the western side of the same running from north to south.
(vi) If the amenities attached to the said building have been damaged in course of making construction over 46 Kathas of the said land, the same shall also be reconstructed by the landowners and the new builder.
(vii) The aforesaid directions shall be complied by the landowners and the new builder within one month from the date of this order.
96. Pending interlocutory application(s) in respective writ petition(s) stand disposed of.
(Rajesh Shankar, J.) Sanjay/AFR