Indian Kanoon - Search engine for Indian Law

by the Municipal Building Tribunal-II, Patna in Appeal Case No. 42 of 2015 and the petitioner being aggrieved is before this Court.

Mr. Sanjay Singh learned counsel has appeared for the petitioner while the State is represented through State counsel and the Municipal Corporation and its authorities are represented by Mr. Prasoon Sinha.

Shorn of unnecessary details, facts of the case in brief is that a development agreement was entered into between the petitioners and the land owners for construction of a Multi-storied building consisting of the basement, the ground floor plus three floors(hereinafter referred to as „B+G+3 floors‟). Such agreement was executed on 21.11.2008. A Plan Case No. P-Bhawarpokhnar/PCN-4-115/09 dated 10.6.2009 was sanctioned by the Patna Municipal Corporation for construction of the Multi-storied building consisting of „B+G+3 floors‟ up to a height of 10.95 meters. On 30.7.2013 the petitioners received a notice from the Officer in Charge, Pir Bahore Police Station directing them 3 Patna High Court CWJC No.4625 of 2015 dt.18-05-2015 to stop constructions on charge of violation of municipal laws. An inspection followed on 12.9.2013 by the authorities of the Corporation and when it was reported that the building had deviated from the sanctioned plan. A vigilance case followed bearing Vigilance Case No. 51A of 2013 and notice was served on the petitioners who appeared and placed their defence which was not accepted and the Municipal Commissioner, Patna vide order passed on 25.7.2014 in Vigilance Case No. 51A of 2013 declared the construction of third floor in excess of the permissible height, the extra staircase on the said floor in violation of the bye-laws and irregularities in the setbacks in the basement. By the same order the petitioner was directed to demolish these deviations; A copy of the order is placed at Annexure- 1 to the writ petition. The petitioner being aggrieved filed statutory appeal before the Municipal Building Tribunal giving rise to Appeal Case No. 42 of 2014 and the Municipal Building Tribunal by order passed on 4.3.2015 affirmed the order of the Commissioner on the issue of height of the building, the rear setback in the basement and on the issue of staircase on the third floor and ordered for their demolition. The deviations in the side set backs was however permitted to be condoned as per the byelaws.

According to Mr. Singh if these two elements which add up to 1.68 meters is reduced form the height difference of 2.73 meters, there would only be a minor deviation of 1.05 meters and which is within condonable limits.

The arguments of Mr. Singh has been that the height of a building cannot be dependent upon a factor over which the developer has no control. With reference to an order of this Court dated 5 Patna High Court CWJC No.4625 of 2015 dt.18-05-2015 4.10.2007 passed in C.W.J.C. No. 2686 of 2003 (Anup Kumar Vs. P.R.D.A. and Ors.) he submits that an identical issue came up for consideration and when by a bench decision it was held that a height of a building cannot be a fluctuating concept and cannot be dependent upon an increase or decrease of the street abutting the building. Mr. Singh next referred to an office order dated 25.8.2000 to submit that a 20% deviation in the height of building has been permitted subject to the fulfillment of the requirement of the byelaws. It is submitted that although the order of the Municipal Commissioner which stands affirmed by the Municipal Building Tribunal, rests on the orders of this court passed by this Court in the case of „Narendra Mishra‟ arising from C.W.J.C. No. 8152 of 2013 and the judgments of the Supreme Court but the case of the petitioner is clearly distinguishable from the those cases in as much as whereas the judgments relied upon by the Municipal Corporation is in respect of the unscrupulous builders who have defiantly violated municipal laws with the sole object of profit making, there is no such instance in the case of the petitioners in as much as neither there is any charge of addition of floors on the petitioner nor the height of the building in any manner would benefit the developer. Referring to the judgment of the Division Bench in the case of Narendra Mishra Vs. State (supra) he submits that in the said case the builder had constructed an additional 6 Patna High Court CWJC No.4625 of 2015 dt.18-05-2015 floor on a narrow street having a width of 8 ft. and it is considering such circumstances that a direction was issued by the Division Bench on 10.5.2013 restraining construction of any apartment beyond 11 meters unless the road abutting the building is uniformly 20 fit in width. Referring to the chart present in the order of the Municipal Commissioner, he submits that as per the own admission of the Municipal Commissioner, the road abutting the building is in between 3.60 to 3.68 meters and the petitioner has left a front setback of 4.24 meters to 4.75 meters which collectively is much more than 6 meters as required under the judgment or the bye-laws. He thus submits that despite everything existing for consideration of the case of the petitioner for condonation, mechanically the orders have been passed and if on this single aspect the petitioners case would find support, the other irregularities would automatically be taken care of. He submits that the internal staircase may be an addition on the third floor but Clause 26.5(iii) of the bye-laws permits interior staircases and admittedly the construction does not exceed the permissible limit.

Having given the anxious consideration to the issue of height I am of the considered opinion that until the local bodies including the State can achieve the official prescription as regarding the level of the 19 Patna High Court CWJC No.4625 of 2015 dt.18-05-2015 road and maintain such level at all times, the height of a proposed building abutting such road cannot be faulted on this account and if the height of the building from its plinth level falls with the sanctioned level or within the permitted level of deviation, this would satisfy the statutory requirements and there would be no reason to order for its demolitions. My opinion should in no manner be construed to give a premium to builders to add additional floors rather I would clarify here that these conclusions are in respect of such building(s) who have confirmed to the floors so approved under a sanctioned plan but have deviated in its height within permissible limits.

In my opinion, the petitioner has made out a case for intervention. Although there has been a deviation by the petitioners but their prayer cannot be rejected either on the observations of this court in case of Narendra Mishra(supra) or the judgments relied upon by Mr. Sinha. In each of the cases so relied upon by Mr. Prasoon Sinha, it was a clear case of open challenge to the statutory body and a brazen defiance to municipal laws. The builder in these cases had either made construction of additional floors or had not responded to the notices rather had defiantly gone ahead for making constructions 21 Patna High Court CWJC No.4625 of 2015 dt.18-05-2015 despite notices being issued by the civic body. Whereas in the case of Royal Paradise Hotel (supra) the constructions were made defiantly in a „controlled areas‟ and the notices were not responded to by the builder, in the case of Priyanka Estate (supra) the builder had made additional constructions. The case of the petitioners does not fall within the category of such extreme defiance for there is no such allegation against the petitioners. A height increase in each of the floors has definitely resulted in a deviation in the height of each of the floors and a resultant increase in total height of the building but in my opinion, neither such deviation can be termed as an act of open defiance nor can it be held to be a deliberate act with profit making motive rather is in the nature of minor deviations falling within condonable limits. In fact according to the written arguments filed on behalf of the respondents also the height of the building even if measured from the street level, would only result in an excess of 54 centimeters. In my opinion, a penalty of demolition of an entire sanctioned floor for such miniscule deviation would be a travesty of justice. There is a clear distinction between a bonafide deviation falling within permissible limits of condonation and an apparent act of defiance which is backed with selfish motives. The distinction is very clear and it is for the statutory authorities to appreciate such distinction.