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2011 DIGILAW 1025 (JHR)

Ashish Kumar Singh v. State of Jharkhand

2011-11-23

P.P.BHATT, PRAKASH TATIA

body2011
Order Heard the learned counsel for the parties. 2. The present writ petition has been filed making grievance that in municipal area of Ranchi, which is a capital city, several illegal constructions have been raised by large number of public resulting in a chaotic situation, affecting the public at large and created serious traffic congestion problem, parking problem and what not, which we need to narrate in detail. The petition was filed on 26th April, 2010 and on 26th July, 2010, it was ordered that the “Respondents shall file an affidavit regarding the plan, according to which they were proceeding in the past for removal of encroachments. If there was no plan, but encroachment was being removed on places chosen at random, arbitrarily, then the officers may have a lot to answer for, considering the evils which could result to the advantage of the officers from such random selection of places for removing encroachment”. The Court then observed that why short time is being given to the Respondents, because of the reason that no plan has been disclosed so far and the learned counsel appearing for the State of Jharkhand says that he is not aware of any plan of action according to which anti encroachment team has proceeded so far. On 13th September, 2011, the Court observed that no steps have been taken to remove the encroachments existing on the main road, whereby general public is facing day to day problem. The Vice-Chairman of the R.R.D.A. and the Chief Executive Officer of the Municipal Corporation were directed to remain present in Court on 19th September, 2011 with a concrete action plan and apprise the Court about the existing Town Planning and Master Plan, if in existence within the R.R.D.A. Then on 19th September, 2011, another order was passed after taking note of the contention of the counsels for the Ranchi Regional Development Authority and the Ranchi Municipal Corporation. It was stated on 19th September, 2011 that the cases of Ranchi Regional Development Authority have been sent to Ranchi Municipal Corporation for taking further action. It was stated on 19th September, 2011 that the cases of Ranchi Regional Development Authority have been sent to Ranchi Municipal Corporation for taking further action. There appears to be some confusion that who shall exercise the power of removal of encroachments, therefore, this Court gave longer time to the party respondents and this Court made it clear that there may be lack of coordination and cooperation between the two bodies i.e. Ranchi Regional Development Authority and the Ranchi Municipal Corporation and there may be some issues which are not addressed with respect to the distribution of work and powers. Those issues may also be addressed within this long period so that the public may not suffer because of the dispute between the two bodies in the city of Ranchi itself. 3. Today, learned counsel appearing for the Ranchi Municipal Corporation drew our attention to the affidavit, dated 14th November, 2011 and submitted that it is true that some powers have been given to the Municipal Corporation, Ranchi but power under Section 54 of the Ranchi Development Authority Act has not been given, whereunder, only the illegal constructions can be demolished by the Municipal Corporation, Ranchi. We found from the record that only order has been passed to authorize the Municipal Corporation, Ranchi to grant sanction for the building construction. During course of hearing, we came to know about the Section, i.e., Section 242 of the Patna Municipal Corporation Act, 1951. The Act which has been adopted by the State of Jharkhand, obviously after creation of the State of Jharkhand in the year 2000. Section 242 of the Patna Municipal Corporation Act, 1951, as adopted by the State of Jharkhand is as under: - “242: Penalty for illegal erection or re-erection of building:- (1) If any person begins, continues or completes the erection or re-erection of, or any material alternation in, a building, or the construction or enlargement of a well, without giving the notice referred to in section 230 or waiting for a period of one month after giving such notice, or in contravention of an order passed by the Chief Executive Officer refusing sanction or any written directions of the Chief Executive Officer under section 233, he shall be liable to a fine not exceeding five hundred rupees. (2) In any case where the Chief Executive Officer considers that erection, re-erection or alteration of a building, or part of a building or construction or enlargement of a well, on any land is an offence under sub-section (1) he may, within one month from the date on which information is received by him of such offence, by written notice direct the owner or occupier of the land to stop such erection, re-erection, alteration, construction or enlargement, and may in like manner and within the same period direct the alteration or demolition, as he may deem necessary, of such building or part of a building or well: Provided that no action shall be taken under this sub-section more than one month after such erection, re-erection, alteration, construction or enlargement has been completed. (3) If a person to whom a notice has been given under the foregoing provisions of this section fails to comply with the notice before the expiry of twenty eight days, or such longer period as the District Judge may, on his application, allow, the Chief Executive Officer may pull down or remove the work in question, or effect such alternation therein as he deems necessary, and may recover from him the expenses reasonably incurred by the Chief Executive Officer in so doing. (4) If the plans are approved by the Chief Executive Officer and the approval is communicated to the person intending to build the house or if the plans are rejected by the Chief Executive Officer, but no notice of their rejection is given to person intending to build the house within the prescribed period, it shall not be open to he Chief Executive Officer to give a notice under sub-section (1) and (2) on the ground that the building is erected or re-erected in contravention of any scheme or bye-laws or any other requirements under this chapter. (5) Nothing in this section shall affect the right of the Corporation or any other person to apply to the District Judge for an injunction for the removal or alteration of any building on the ground that it contravenes any provision of this Act or of the bye-laws made thereunder, but if the building is one in respect of Act or of the bye-laws made thereunder, but if the building is one in respect of which plans have been deposited and the plans have been passed by the Chief executive Officer, or notice that they have been rejected has not been given within the prescribed period after the deposit thereof, and if the work has been executed in accordance with the plans, the Court in granting an injunction shall have power to order the Corporation to pay to the owner of the work such compensation as the Court thinks just, but before making any such order the Court shall cause the Chief Executive Officer, if not a party, to be joined as a party to the proceeding”. 4. Before commenting on Section 242, we would like to mention here that Chapter XIV in the said Act deals with the subject of building control and Chapter XVI deals with the subject of streets and public streets and conversion of streets into public streets. Chapter XVII deals with the general provisions as to streets and public nuisance. There are very many other chapters for different subjects but we are concerned with the issue of taking care of illegal constructions in view of the subject matter in the writ petition. 5. In the above Act under Chapter-XIV, there is Section 229, which puts prohibition upon erection or re-erection of buildings without permission, which says that no person shall erect or re-erect any building; or commence to erect or re-erect any building; or make any material alteration to any building; unless the Chief Executive Officer has either by an order in writing granted permission or has failed to intimate within the prescribed period, his refusal of permission for the erection or re-erection of the building or for the construction or re-construction of the building. After the expiry of one year from the date of the said permission or such longer period as the Chief Executive Officer may allow or from the end of the prescribed period, as the case may be said permission will lapse. Therefore, there is statutory restriction against the construction without the permission of the authority or construction can be in consonance with the deemed permission of construction. Consequentially, every construction, which is not sanctioned by the authority, expressly or by implication under the deeming clause, all are illegal construction. 6. Section 242 though has heading the “Penalty for illegal erection or re-erection of building” but in fact, in our opinion, this Section is a mere eye wash and in fact, if not taking away, then, at least making the power redundant of the authorities under the Municipal Corporation Act and it specifically provides that even an order passed by the Chief Executive Officer refusing permission by giving reason, shall be of no consequence if the Chief Executive Officer upon receipt of the complaint about illegal and construction without permission fails to take any action within a period of one month from the date of receipt of the complaint and obviously he shall have no power to demolish such illegal construction. To make it more stronger, a proviso has been added to sub-section (2) of Section 242, which says: “Provided that no action shall be taken under this sub-section more than one month after such erection, re-erection, alteration, construction or enlargement has been completed”. Therefore, all those constructions, erection or re-erection or material alteration in a building for which any application has been submitted by any person seeking permission wherein, permission has been granted with certain restrictions is violated is not only but even if such permission is refused with reasoned order, then under Section 242 no action can be taken by the Municipal Authority against that wrong doer because of the wrong doing of the officer of the Municipal Corporation. Local laws and bye-laws are not meant and framed for the purpose of benefit of the officers of the Municipal Corporation or local bodies nor it is intended to benefit only persons seeking the construction permission or who is owner of the land but also have been framed in larger public interest so as to have a development of the planned city with adequate facilities and amenities and this is a right of the public to have hygienic and healthy living. It is very strange that absolutely illegal construction and that too declared by the competent authority under the Act, stand regularized and it becomes right of the wrong doer because of the lapse, or deliberate inaction on the part of one of the officers for illegal consideration. We seriously, doubt about the validity, as section 242, inasmuch as by which the power to take action against such wrong doer has been limited to the period of one month, therefore the government is required to look into the matter, first to examine Section 242 and thereafter address on the issue and to show cause why such restriction of one month, as provided in sub-section (2) of Section 242 as well as the proviso may not be declared un-constitutional as well as against the public policy. How a continuous wrong against public taking away their right to live in planned city can become lawful within one month of illegal lapse or act of municipal officer? 7. At this juncture, we would like to mention herein that there are two laws , normally in every city, one is Municipal Law and another is Area Development Authority Act. In Capital City of Ranchi also, there is an Act which was in force since the time of the unified State of Bihar and i.e., Bihar Regional Development Authority Act, 1974. This Act has been adopted by the State of Jharkhand obviously, from the time of its inception and i.e. from the year 2000 in spite of having a provision like Section 54 in the Act of 1951 in Bihar Regional Development Authority Act which is adopted by the State of Jharkhand. Section 54 of the Act, 1974 reads as under:- “54. Order of demolition of building. Section 54 of the Act, 1974 reads as under:- “54. Order of demolition of building. - (1) Where any development or erection of a building has been commenced or is being carried on or has been completed in contravention of the Regional Plan, Master Plan or Zonal Development Plan or without the permission, approval or sanction referred to in sections 35, 36, 37 or in contravention of any conditions subject to which such permission, approval or sanction has been granted, any officer of the Authority empowered by it in this behalf may, in addition to prosecution that may be instituted under this Act, make an order briefly stating the reasons there for directing that such erection or development work shall be removed by demolition, filling or otherwise by the owner thereof or by the person at whose instance the erection or development work has been commenced or is being carried out or has been completed within a period of thirty days from the date on which a copy of the order of removal has been delivered to the owner or that person, as may be specified in the order, and on his failure to comply with the order, any officer of the Authority may remove or cause to be removed the erection or development work and the expenses of such removal shall be recovered from the owner or the person at whose instance the erection or development was commenced or was being carried out or was completed, as arrears of land revenue : Provided that no such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to show cause why the order should not be made. (2)Any person aggrieved by an order under sub-section (1) may appeal to a Tribunal constituted under this Act against that order within thirty days from the date thereof; and the Tribunal may after hearing the parties to the appeal either allow or dismiss the appeal or reverse or vary the order or any part thereof. (3)The decision of the Tribunal on the appeal and subject only to such decision the order under sub-section (1) shall be final and conclusive. (3)The decision of the Tribunal on the appeal and subject only to such decision the order under sub-section (1) shall be final and conclusive. (4)The provisions of this section shall be in addition to and not in derogation of any other provisions relating to demolition of buildings contained in any other law for the time being in force.” 8.Under Section 54, it is very clearly provided that all such types of illegal constructions, referred above, are liable to be demolished in addition to right to prosecute the wrong doers. How and why there can be two laws, one for the residents residing in the Municipal Area and another, resident of the same city residing within the area failing within the jurisdiction of Ranchi Regional Development Authority? 9. When permission to raise construction has been given to Municipal Corporation by the State Government vide resolution dated 11.8.2009 (Annexure-B to the counter affidavit) then what was the reason of not giving power under Section 54 of the Act, 1974 to the Municipal Corporation is also not known. The above fact fully justifies this Court's observation, taken as back as on 26th July, 2010, more than a year ago that the Court already was informed that in the matter of removal of encroachments, at random choose and pick method is being adopted and that arbitrary action requires to be answered by the officers who may have a lot to answer for, considering the evils which could result to the advantage of the officers from such random selection of places for removing encroachments. 10. Learned counsel for the petitioner as well as learned senior Counsel for the respondents assisting the Court, have raised their voice against not taking action by the State Authority in the matter of removal of encroachment from the main part of the city of Ranchi. There may be justification for raising voice by them and that finds support from the stand of the Municipal Corporation, Ranchi who says that it has no power under Section 242 of the Act of 1951 and under Section 54 of the Act of 1974 to take action therefore obviously, the Ranchi Regional Development Authority may not exercise power under Section 54 of the Act of 1974 under the impression that the Area is falling within the jurisdiction of Municipal Corporation, Ranchi. 11. 11. Be that as it may, We are yet to find out that who is the authority who will take action against the illegal construction and therefore, before passing any harsh order, we would like to know the stand of the State. Mr. M. S. Anwar, learned senior counsel appearing on behalf of the Ranchi Municipal Corporation, submitted that the matter of framing of the appropriate law in this regard is pending with the State Government, if it is so, then we are happy that now the Government started thinking to act in consonance with the mandate of the Constitution which provided establishment of the strong local bodies, Panchayats and also intended to distribute the power. 12. Put up this case on 09th January, 2012.