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2011 DIGILAW 83 (PAT)

Madhav Roy, Late Satya v. State Of Bihar

2011-01-13

NAVIN SINHA

body2011
JUDGEMENT 1. Heard learned counsel for the petitioner, for the Danapur Nizamat Nagar Parishad and for the intervenor/builder of the apartment in question. 2. Respondent Nos. 5 and 6 are stated to be the owners of certain lands identified as Khata No. 13, Khesra No. 202 (part) situated on the East of Gola Road, Bailey Road, Rupaspur in Danapur. Notices were issued to them on 14.7.2010. They are stated to have been deceased. I.A. No. 9678 of 2010 has been filed for substituting their heirs as mentioned in Paragraph-5 of the application. The heirs are permitted to be added as party respondents. Since their interests are adequately protected by the intervenor builder, under the Development Agreement dated 20.2.2009, no prejudice shall be caused to them in the nature of the order being passed for notices not having been issued to them. 3. The petitioner claims to be the resident of the adjacent lands and is aggrieved by the apartment complex styled as "Sona residency" being built on the land of respondent nos. 5 and 6, through the intervenor builder. Allegations have been made of gross violation not only of building laws but also the sanctioned plan. He also contends that construction is being made in excess of the sanctioned plan with serious deviations and violations. A representation by him on 11.8.2009 before the Patna Regional Development Authority only informed him that it had been forwarded to the concerned Municipal Authority. He again represented before the Executive Officer of the Danapur Nizamat Nagar Parishad on 8.8.2009 to no avail. On 14.5.2010, he moved under the Right to Information Act-to elicit information with regard to the nature of the construction being made allegedly in violation of the sanctioned plan but even that proved fruitless when he ultimately filed the present writ application. 4. Further construction was stayed by the Coupon 14.7.2010. 5. Counter affidavit has been filed on behalf of the Danapur Nizamat Nagar Parishad affirmed by the Executive Officer. The Parishad has raised very serious objections with regard to the nature of the construction sanctioned and that being actually made. Serious question of deviations and conversions have been raised including height and set back in addition to the requirement as per the road width in front etc., to conclude that there have been serious violations of the original sanctioned plan without approval of the Nagar Parishad. 6. Serious question of deviations and conversions have been raised including height and set back in addition to the requirement as per the road width in front etc., to conclude that there have been serious violations of the original sanctioned plan without approval of the Nagar Parishad. 6. Learned counsel for the intervenor developer sought to persuade the Court that what the municipality contends is not entirely correct. 7. Sanctioning of building plans, regulating, monitoring and controlling the same is the statutory obligation and duty of the municipal authorities whose powers are regulated by statutory provisions. If they contend that there have been statutory violations, there is no occasion for the writ Court to take over the power of the statutory authorities. The issue has to be decided by them first in accordance with law whereafter questions of judicial review may or may not arise at the behest of the aggrieved. The Court is satisfied that very serious questions with regard to sanction, alleged deviation, conversion and violations have been raised by the Municipality and which are required to be dealt with by the statutory authorities first. 8. In A.I.R. 2005 SC 1 (Friends Colony Development Committee V/s. State of Orissa & Ors.), the Supreme Court dealing with allegations of illegal constructions in violation of building laws and the sanctioned plan has observed at Paragraphs-20 to 23 as follows: "20. The pleadings, documents and other material brought on record disclose a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorized constructions in the city of Cuttack. Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffer unbearable burden and are often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the design of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorized constructions being detected or exposed and threatened with demolition. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the design of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorized constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they dont act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop, some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catchhold of such unscrupulous builders. At the same time, in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorized constructions, but who failed in doing so either by negligence or by connivance." "21. The conduct of the builder in the present case deserves to be noticed. He knew it fully well what was the permissible construction as per the sanctioned building plans and yet he not only constructed additional built up area on each floor but also added an additional fifth floor on the building, and such a floor was totally unauthorized. In spite of the disputes and litigation pending he parted with his interest in the property and inducted occupants on all the floors, including the additional one. Probably he was under the impression that he would be able to either escape the clutches of the law or twist the arm of the law by some manipulation. This impression must prove to be wrong." "22. In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning though highly complex, is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed thereunder. In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning though highly complex, is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from marking the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of its being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable inter-meddling with the private ownership of the property may not be justified." "23. The municipal laws regulating the building construction activity may provide for regulations as to floor area, the number of floors, the extent of height rise and the nature of use to which a built-up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations are help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimized from the point of view of the control of community development, the prevention of over-crowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services." 9. Zoning and building regulations are also legitimized from the point of view of the control of community development, the prevention of over-crowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services." 9. It has further been explained that deviation by invoking provisions of compounding were not to be done as a matter of routine and right as explained in Paragraphs 25 and 26 of the judgment which reads as follows: "25. Though the municipal laws permit deviations from sanctioned constructions being regularized by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into under hand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilized for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions." "26. The application for compounding the deviations made by the builders should always be dealt with at a higher level by multi-membered High Powered Committee so that the builders cannot manipulate. The officials who have connived at unauthorized or illegal constructions should not be spared. In developing cities the strength of staff which is supposed to keep a watch on building activities should be suitably increased in the interest of constant and vigilant watch on illegal or unauthorized constructions." 10. The officials who have connived at unauthorized or illegal constructions should not be spared. In developing cities the strength of staff which is supposed to keep a watch on building activities should be suitably increased in the interest of constant and vigilant watch on illegal or unauthorized constructions." 10. Learned counsel for the petitioner has rightly relied upon a recent judgment of the Supreme Court reported in A.I.R. 2010 SC 1030 (Priyanka Estates International Pvt. Ltd. & Ors. V/s. State of Assam & Ors.) when the Court has expressed its anguish in the matter at Paragraphs 73, 74 and 75 as follows: "73. It is a matter of common knowledge that illegal and unauthorized constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonizers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall pray to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the Builder." "74. Even though on earlier occasions also, under similar circumstances, there have been judgments of this Court which should have been a pointer to all the builders that raising unauthorized construction never pays and is against the interest of society at large, but, no heed to it has been given by the builders. Rules, Regulations and Bye-laws are made by Corporation or by Development Authorities, taking in view the larger public interest of the society and it is a bounden duty of the citizens to obey and follow such Rules which are made for their benefit. If unauthorized constructions are allowed to stand or given a seal of approval by Court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent." "75. If unauthorized constructions are allowed to stand or given a seal of approval by Court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent." "75. The jurisdiction and power of Courts to indemnify a citizen for injuries suffered due to such unauthorized or illegal construction having been erected by builder/colonizer is required to be compensated by them. An ordinary citizen or a common man is hardly equipped to match the might and power of the builders." 11. In the nature of the dispute as brought before the Court and the obvious reluctance of the official respondents to act, but for the present writ petition, and the intervention of the Court, the Court is satisfied that it is necessary to allow the petitioner directly or through representative to participate in the proceedings before the Chief Municipal Officer. 12. The parties themselves or through their representative will appear before him on or before 31st of January, 2011. The counter affidavit of the municipality is deemed to be a show cause notice to the intervenor builder. Once the counter affidavit has been filed in a proceeding before this Court, the municipality cannot rescile from the same as it may raise very serious issues of a wrong representation made by them before a Court of law in a judicial proceeding. 13. The Chief Executive Officer shall then fix a date when if the municipality so desires, it may serve further show cause notice on the intervenor builder on the date fixed thereafter the proceeding shall be deemed to be commenced and the Chief Executive Officer after hearing the parties shall proceed to pass a final order, reasoned and speaking in nature comprehensively keeping in mind his duties and the anguish expressed by the Supreme Court in more than one judgment in building and construction matters affecting the planned growth of the city preferably within a period of two months from the date of commencement of the proceeding. 14. It is expected that the intervenor builder shall appropriately inform the substituted herrs in any event he represents and whose interests adequately protects. 15. 14. It is expected that the intervenor builder shall appropriately inform the substituted herrs in any event he represents and whose interests adequately protects. 15. Till such fresh orders are passed by the Chief Municipal Officer, no construction shall be permitted on the lands in question. All or any construction materials shall be removed from the site by the Executive Officer on presentation of the present order. The Officer Incharge of the Danapur. Police Station and the Executive Officer of the Danapur Municipality are held personally liable to ensure that no construction is allowed to be done till fresh disposal of the matter by the Chief Executive Officer. On the date that the petitioner produces a copy of this order before the Officer incharge of the Danapur Police Station, he shall be obliged to make videography of the construction site and handover a CD. copy of the same to the petitioner. 16. Till the matter is not disposed off by the Chief Executive Officer, the Officer Incharge Danapur Police Station shall continue to carry out fresh videography at fortnight intervals furnishing CD. copy to the petitioner. 17. The statements made in the counter affidavit of the Municipality demonstrate that according it, illegal construction continued unabated without let or hindrance much less discharge of statutory duties by its officials to stop such illegal construction. The State Government in the Department of Urban Development is directed to forthwith institute a First Information Report against the concerned officials and also initiate departmental proceedings against them forthwith, in light of the directions of the Supreme Court in Paragraphs-20 and 26 (Friends Colony) (supra) discussed hereinbefore. 18. The proceedings before the Chief Executive Officer must also adequately notice the proceedings against the officials concerned, as a narration. 19. The writ application stands allowed with the aforesaid directions.