Creators, Ranchi, through one of its partners, Rajiv Kakkar v. Ranchi Municipal Corporation, Ranchi, through its Municipal Commissioner
2022-01-31
RAJESH SHANKAR
body2022
DigiLaw.ai
JUDGMENT : These cases are taken up through Video Conferencing. 2. W.P.(C) No. 06 of 2022 has been filed by the petitioner-the Creators, Ranchi (hereinafter referred to as ‘the firm’) for issuance of direction upon the authorities of the Ranchi Municipal Corporation (RMC), Ranchi to forthwith remove the seal of the Hotel Centre Point, Ranchi in view of the fact that the Appellate Tribunal, Ranchi Regional Development Authority (RRDA), Ranchi vide order dated 16.12.2021 (Annexure-9 to the writ petition) passed in Misc. Appeal No. 36 of 2021, has directed the RMC to remove the seal from the said hotel premises. 3. W.P.(C) No. 157 of 2022 has been filed by the petitioner-RMC for quashing the order dated 16.12.2021 passed by the Appellate Tribunal, Ranchi Regional Development Authority, Ranchi in Misc. Appeal No. 36 of 2021. 4. Learned counsel appearing on behalf of the RMC submits that the RRDA had initially sanctioned B+G+4 building plan over M.S. Plot Nos. 609 & 610 at Village- Hindpiri, Ranchi on 07.07.2000 in the name of Smt. Munni Devi, wife of Ishwari Prasad vide Building Plan No. 670 of 2000. However, the said building plan was subsequently cancelled by the competent authority on the ground that the same was obtained by misrepresenting the fact and playing fraud upon the authorities with respect to the ownership. The said order of cancellation was challenged before the Appellate Tribunal by filing appeal being M.A. No.01/2002, however, the same was withdrawn. Thereafter, an unauthorized construction case being U.C. Case No. 135 of 2001 was registered by the RRDA against Smt. Munni Devi and vide order dated 16.05.2007, she was directed to remove the alleged unauthorised construction within 30 days from the date of the order. Aggrieved thereby, the vendor of the firm preferred an appeal before the Appellate Tribunal, RRDA, Ranchi which was registered as Miscellaneous Appeal No. 19 of 2007, however, the same was also dismissed vide the order dated 30.08.2007.
Aggrieved thereby, the vendor of the firm preferred an appeal before the Appellate Tribunal, RRDA, Ranchi which was registered as Miscellaneous Appeal No. 19 of 2007, however, the same was also dismissed vide the order dated 30.08.2007. Thereafter, the vendor of the firm preferred a writ petition being W.P.(C) No. 5512 of 2007 before this Court and during pendency of the said writ petition, it filed an affidavit to the effect that on 25.09.2018, a revised building application for the building in question was filed before the competent authority and considering the said affidavit, a Bench of this Court dismissed the said writ petition on 23.10.2018 observing that the authority shall consider the revised building application in accordance with law. 5. It is further submitted that the RMC tried its best to search out any such application made for revision of the building plan, however, it could not find the same and as such the Deputy Town Commissioner, Ranchi Municipal Corporation, Ranchi vide letter No. 648 dated 16.08.2019, directed Shri Sanjay Jaiswal and Shri Rajesh Mishra to submit the Revised Building Plan within three days, failing which an unauthorized construction case would be instituted against them. The vendor of the firm replied that a revised building application was submitted to the RRDA on 25.06.2007 and also to the RMC through online mode bearing Application No. RMC/TEM/0907/18 dated 25.09.2018. The Deputy Town Commissioner, Ranchi Municipal Corporation, Ranchi vide letter No. 1590 dated 27.12.2021, wrote to the Secretary, RRDA, Ranchi to verify the fact as to whether the vendor of the firm had got any building plan sanctioned during the regime of the RRDA vide B.C. Case No. 698 of 2007 for which Challan No. 21687 dated 25.06.2007 was issued from the office of the RRDA whereupon vide letter No. 51 dated 17.01.2022, the Secretary, RRDA, Ranchi categorically stated that no revision plan for B.C. Case No. 698 of 2007 was sanctioned by it at the relevant point of time. 6. It is further submitted that the Appellate Tribunal failed to consider that fresh online application was preferred by the firm vide Acknowledgment No. RMC/TEM/0907/18 dated 25.09.2018 without any requisite fee and as such the same was rejected by the software itself and it was well within the knowledge of the architect of the firm. Thus, the unauthorized construction case instituted by the then RRDA and the orders passed therein, remained intact.
Thus, the unauthorized construction case instituted by the then RRDA and the orders passed therein, remained intact. The Appellate Tribunal, however, without assigning any cogent reason directed to unseal the hotel premises in question and stayed the operation of the order dated 08.09.2021 passed in U.C. Case No. 06 of 2021 till 23.12.2021. The Appellate Tribunal also did not consider the fact that though the application for sanction of the building plan or revision of the same was filed before the RRDA along with requisite fee on 25.06.2007, the same was never sanctioned by the concerned authority and the said record was never perused nor called by the Appellate Tribunal before passing the impugned order dated 16.12.2021. It is also submitted that the Appellate Tribunal vide order dated 27.10.2021, had called for the LCR from the office of the RMC and in compliance thereof, the RMC had sent the photocopy of the entire LCR to the Appellate Tribunal, but the same was refused to be accepted. The stay grated to the firm was only till 23.12.2021 which was subsequently extended till 05.01.2022 and not thereafter. The Appellate Tribunal also did not consider the fact that mere filing of an application for sanction/revision of the building plan did not ipso-facto get sanction from the authority without following due process of law. It is further submitted that the impugned order dated 16.12.2021 passed in Misc. Appeal No. 36 of 2021 is also illegal on the ground that by granting interim relief, it has eventually allowed the main relief sought by the firm. 7. Learned counsel appearing on behalf of the firm submits that it had purchased 2nd, 3rd, 4th & 5th floors of a building popularly known as ‘Mahendra Market’, situated at Mahatma Gandhi Road/Main Road, Ranchi by virtue of registered sale-deed in the year 2008 from its lawful owners. After purchasing the same, the firm started to run a hotel in the said premises popularly known as ‘Hotel Centre Point’. The previous owners of the said building had filed a writ petition being W.P.(C) No. 5512 of 2007 which was disposed of on 23.10.2018 directing the respondent authorities to consider the application for revised building plan of the firm in accordance with law. The firm had brought the revised plan submitted before the RRDA vide B.C. Case No. 698 of 2007 including payment of Rs.16,355/- to the notice of the RMC.
The firm had brought the revised plan submitted before the RRDA vide B.C. Case No. 698 of 2007 including payment of Rs.16,355/- to the notice of the RMC. The firm again submitted receipt of the revised building plan along with online application dated 25.09.2018 before the RMC as well as the letter dated 28.09.2019, however, instead of considering the revised building plan or making any enquiry in the same, the RMC instituted U.C. Case No. 06 of 2021 in respect of the said hotel premises. It is further submitted that no notice was ever served on the firm, rather notice was sent to the previous owners and an ex-parte order was passed by the Municipal Commissioner, Ranchi Municipal Commission, Ranchi for demolition of 5th Floor of the said building and also imposing a penalty of s.5 Lakhs on the firm. Being aggrieved with the said ex-parte order, the partners of the firm preferred an appeal being Misc. Appeal No. 36 of 2021 before the Appellate Tribunal, RRDA, Ranchi, however, the said Tribunal was not functioning for want of quorum. It is further submitted that learned Division Bench of this Court vide order dated 05.08.2021 passed in W.P.(PIL) No. 4618/2018 has directed that the order passed by the original authority shall not be enforced until the Appellate Tribunal is functional, however, the RMC in utter disregard of the said direction, has passed the order dated 03.11.2021 for sealing the said hotel premises. The firm through one of its partners immediately informed the RMC that its appeal was pending before the Appellate Tribunal in which learned counsel for the RMC was also appearing and hence the order dated 03.11.2021 may not be enforced. However, the RMC vide letter dated 27.11.2021 ordered for sealing the said hotel premises. The said order was received by the firm on 29.11.2021 and thereafter a writ petition being W.P.(C) No. 4934/2021 was filed before this Court for quashing the order as contained in letter No. 1519 dated 27.11.2021. Since the said hotel premises was sealed immediately, an interlocutory application being I.A. No. 6893/2021 was filed in the said writ petition. The said writ petition was heard and disposed of on 08.12.2021 directing the Appellate Tribunal to consider the prayer for granting interim relief within one week of filing of such application. Thereafter, the firm filed an interlocutory application on 09.12.2021 in pending Misc.
The said writ petition was heard and disposed of on 08.12.2021 directing the Appellate Tribunal to consider the prayer for granting interim relief within one week of filing of such application. Thereafter, the firm filed an interlocutory application on 09.12.2021 in pending Misc. Appeal No. 36/2021 with a prayer to remove seal from the said hotel premises and the Appellate Tribunal vide interim order dated 16.12.2021, directed the RMC to unseal the premises in question and further stayed operation of the order passed in U.C. Case No. 06/2021. Though the order dated 16.12.2021 was passed in presence of counsel for both the parties, yet the RMC did not remove seal from the said hotel premises. The firm through its letter dated 21.12.2021, submitted a copy of the said order before the Assistant Municipal Commissioner, Ranchi and requested for removing seal from the said hotel premises, however, no action was taken in pursuance of the said interim order of the Appellate Tribunal. The firm once again submitted its representation before the Municipal Commissioner on 31.12.2021, however, the same went in vain. It is also submitted that the firm is suffering irreparable loss and injury by the order of sealing. The revised building plan was submitted by the previous owner before the RRDA and requisite fee was also deposited and thus the firm has a good case and there is every chance of its succeeding in the appeal pending before the Appellate Tribunal. The RMC had sealed the said premises hurriedly without awaiting the decision of the Appellate Tribunal. Moreover, no inconvenience will be caused to the RMC, if the said hotel is allowed to be operated during pendency of the said appeal, rather after sealing of the said hotel premises, inconvenience was caused to the firm and the employees of the said hotel, who are now unemployed and are also not getting incentives from the guests on which they were much dependant. Therefore, balance of convenience also lies in favour of the firm. The RMC cannot refuse to remove seal from the said hotel premises of the firm when a direction has been issued by a competent Court of law. 8. Heard learned counsel for the parties and perused the relevant materials available on record. On the one hand, the RMC has challenged the order dated 16.12.2021 passed by the Appellate Tribunal, RRDA, Ranchi in Misc.
8. Heard learned counsel for the parties and perused the relevant materials available on record. On the one hand, the RMC has challenged the order dated 16.12.2021 passed by the Appellate Tribunal, RRDA, Ranchi in Misc. Appeal No. 36 of 2021 whereby as an interim measure, it has been directed to remove the seal of the said hotel premises of the firm, on the other hand, the firm has sought compliance of the interim order dated 16.12.2021 passed by the Appellate Tribunal alleging that the RMC has intentionally not complied the said order. 9. For better appreciation of the matter, it would be appropriate to refer the interim order dated 16.12.2021 passed by the Appellate Tribunal, R.R.D.A, Ranchi which reads as under:- “From the above fact, at this stage this Tribunal finds that previously by the Ranchi Regional Development Authority, Ranchi instituted an U.C Case No. 135/2001 and direct the appellate to demolish the deviation done by him. Against the said order the appellant prefer an appeal before this tribunal which decided on dated 30.08.2007 vide Misc. Appeal No. 19/2007. Again against the said order the appellant filed writ petition before the Hon’ble High Court of Jharkhand, Ranchi and the same was decided by the Hon’ble High Court of Jharkhand, Ranchi on dated 23.10.2018 and order that “the petitioner have also submitted the revised plan on 25.09.2018 this court find that no order need be pass in this writ petition as now the party would be governed by the order that may be passed on revised plan as has been submitted by the petition.” This Tribunal also find that from the Annexure-4 and 5 which is filed by the appellant with the memo of appeal in which the Annexure-4 is revised plan submitted before Ranchi Regional Development Authority, Ranchi filed B.C No. 689/2007 with the amount Rs. 6355 from the challan no. 21687 dated 25.06.2007. And a letter Annexure-5 is also given in this regard Ranchi Nagar Nigam on 28.09.2019. But the Ranchi Municipal Corporation, Ranchi has not given any reply on the interlocutory petition of the appellant nor denied the Annexure-4 & 5 and also not sent the L.C.R. to this tribunal. The said L.C.R is called by this tribunal vide letter no. 85 dated 27.10.2021.
But the Ranchi Municipal Corporation, Ranchi has not given any reply on the interlocutory petition of the appellant nor denied the Annexure-4 & 5 and also not sent the L.C.R. to this tribunal. The said L.C.R is called by this tribunal vide letter no. 85 dated 27.10.2021. Up till now at this stage, the Ranchi Municipal Corporation has not disposed the revised plan submitted by the Appellant as directed by the Hon’ble High Court of Jharkhand, Ranchi filed the order on 23.10.2018 pass in W.P.(C) No. 5512 of 2007. Since without disposing the revised plan which is filed by the appellant before Ranchi Municipal Corporation, Ranchi and sealed premises of appellant for such this tribunal find the prima facie case in favour of appellant and balance of convenience is also in favour of appellant and the appellant also suffer irreparable loss if the premises is not unseal. Therefore, in above fact and circumstance in the interest of justice, the respondent is directed to unseal the premises and the operation of the order pass in U.C Case No. 06 of 2021 dated 08.09.2021 is stay till 23.12.2021.” 10. It would thus be evident that the Appellate Tribunal while granting interim relief to the firm, has observed that the revised plan was submitted before the RRDA along with requisite fee and a letter to that effect was also sent to the RMC on 28.09.2019. The RMC has neither disputed the said fact nor has replied the interlocutory application of the Firm. The LCR called by the Appellate Tribunal has also not been sent. The Appellate Tribunal has also observed that since the RMC without disposing of the revised building plan, has passed the order of sealing, the prima-facie case and balance of convenience are in favour of the firm. It has been further held that the firm will suffer irreparable loss and injury, if the said hotel premises is not unsealed. Thus, the Appellate Tribunal, after hearing learned counsel for both the parties, has passed the interim order of unsealing of the said hotel premises looking to the conduct of the RMC, a prima-facie case, balance of convenience as well as irreparable loss and injury caused to the firm which are the key points for granting interim relief. 11. The RMC, however, did not comply the interim order dated 16.12.2021 passed by the Appellate Tribunal.
11. The RMC, however, did not comply the interim order dated 16.12.2021 passed by the Appellate Tribunal. Learned counsel for the RMC while justifying the said conduct, submits that the Appellate Tribunal has wrongly appreciated the fact of the case and has erroneously passed the interim order of unsealing of the said hotel. It is further submitted that the building plan of the said building was already cancelled by the RRDA on the ground of misrepresentation and fraud and the said order is still intact. The vendor of the firm had filed wrong affidavit in W.P.(C) No. 5521 of 2007 that a revised building plan was submitted before the competent authority on 25.09.2018, rather the true fact was that a revised building plan was submitted before the RRDA on 25.06.2007, but the same was not sanctioned by the RRDA. It is also submitted that on 25.09.2018, the vendor of the firm had filed online application which was rejected as the same was not accompanied with requisite fee. 12. Per-contra, the claim of the firm is that the order of sealing has been passed in violation of the principles of natural justice as no opportunity of hearing has been provided to it before passing the same. Moreover, there was specific direction of a Bench of this Court that the revised building plan filed by the vendor of the firm should be considered by the RMC in accordance with law and the firm had apprised the RMC that the revised building plan with requisite fee was lying with the RRDA, however, the RMC did not consider the said fact and arbitrarily passed the order for demolition and sealing of the hotel in question. 13. Since the appeal preferred against the order dated 08.09.2021 passed in U.C. Case No. 06 of 2021 is still pending before the Appellate Tribunal, it would not be appropriate for this Court to comment on merit of the respective claims of the parties. 14. The only question arises for consideration of this Court is as to whether the RMC has committed a serious wrong in not complying the interim order dated 16.12.2021 passed by the Appellate Tribunal, RRDA, Ranchi in Misc. Appeal No. 36 of 2021 for unsealing of the said hotel belonging to the firm. 15.
14. The only question arises for consideration of this Court is as to whether the RMC has committed a serious wrong in not complying the interim order dated 16.12.2021 passed by the Appellate Tribunal, RRDA, Ranchi in Misc. Appeal No. 36 of 2021 for unsealing of the said hotel belonging to the firm. 15. On perusal of the record, it appears that the order of unsealing was passed by the Appellate Tribunal on 16.12.2021 after hearing learned counsel for both the parties and the next date of hearing was fixed as 23.12.2021. The RMC neither filed any application for vacating/modifying the interim order nor complied the order of unsealing till the next date fixed. Thereafter, one of the members of the Appellate Tribunal retired on 31.12.2021. The day on which the writ petition filed by the firm being W.P.(C) No. 06 of 2022 before this Court seeking direction upon the RMC to comply the order dated 16.12.2021 was taken up i.e. 18.01.2022, the counsel for the RMC informed that the RMC also filed the writ petition being W.P.(C) No. 157 of 2022 on 17.01.2021 on the ground that the Appellate Tribunal was non-functional due to retirement of one of the members on 31.12.2021. The RMC also filed an application before the Appellate Tribunal on 21.01.2022 for recall of the order dated 16.12.2021. 16. It thus transpires that the RMC neither complied the interim order of unsealing nor showed due diligence in timely filing application to get the said interim order of the Appellate Tribunal vacated/modified. Only after filing of the writ petition by the firm, the RMC filed its writ petition before this Court and also filed an application before the Appellate Tribunal for vacating the order of unsealing knowing fully well that the Appellate Tribunal had already gone nonfunctional by then. Thus, the aforesaid conduct of the RMC clearly suggests that it has acted in utter disregard of the order passed by the Appellate Tribunal. 17. One of the arguments of learned counsel for the RMC is that the vendor of the firm had filed a wrong affidavit in W.P.(C) No. 5512 of 2007 stating that the revised sanctioned map was filed before the RMC.
17. One of the arguments of learned counsel for the RMC is that the vendor of the firm had filed a wrong affidavit in W.P.(C) No. 5512 of 2007 stating that the revised sanctioned map was filed before the RMC. The said argument on behalf of the RMC cannot be accepted by this Court as it did not choose to file any review petition for reviewing/modifying the order dated 23.10.2018 passed in W.P.(C) No. 5512/2007 pointing out the alleged false affidavit filed by the vendor of the firm. 18. I am of the considered view that any attempt to delay implementation of the orders of a Court/statutory Tribunal weakens the foundation of the rule of law on which the judicial system rests. Executives are bound to obey the judicial orders at all costs. They cannot be allowed to take stand that an order suffers from infirmity to justify the non-compliance of the same. Once an order is passed and the same is not reversed by any superior Court of law, the Executives have no option, but to comply it. 19. The Hon’ble Supreme Court in the case of Surya Vadanan Vs. State of Tamil Nadu & Ors. reported in (2015) 5 SCC 450 , has held that violation of an interim or an interlocutory order passed by a Court of competent jurisdiction ought to be viewed strictly, if the rule of law is to be maintained. It has further been held that no litigant can be permitted to defy or decline adherence to an interim or an interlocutory order of a Court merely because he or she is of the opinion that the order is incorrect as the same has to be judged by a superior Court or by another Court having jurisdiction to do so. If the violation of an interim or an interlocutory order is not viewed seriously, it will have widespread deleterious effects on the authority of Courts to implement their interim or interlocutory orders or compel their adherence. 20. The order passed by the Appellate Tribunal is interim in nature which is subject to the final order which may be passed in the pending appeal. Moreover, the Appellate Tribunal before passing the interim order has considered all the points i.e. prima-facie case, balance of convenience as well as irreparable loss and injury, which are necessary for granting an interim protection.
Moreover, the Appellate Tribunal before passing the interim order has considered all the points i.e. prima-facie case, balance of convenience as well as irreparable loss and injury, which are necessary for granting an interim protection. On the one hand, the firm has pointed out that due to sealing of the said hotel premises, the lives of the employees have been adversely affected, on the other hand, the RMC has failed to show as to what prejudice will be caused to it by the said interim protection given to the firm. Thus, the Appellate Tribunal has rightly observed in the interim order that the firm will suffer irreparable loss and injury due to sealing of the said hotel premises. 21. Thus, without entering into the merit of the respective claims of the parties, both the writ petitions are disposed of in following terms:- (i) The writ petition being W.P.(C) No. 06 of 2022 is allowed with a direction to the RMC to forthwith comply the interim order dated 16.12.2021 passed by the Appellate Tribunal, RRDA, Ranchi in Misc. Appeal No. 36 of 2021 which shall be effective till the same is either modified by the Appellate Tribunal or till disposal of the said miscellaneous appeal. (ii) The writ petition being W.P.(C) No. 157 of 2022 is dismissed. This Court finds that the said writ petition is frivolous in nature which has been filed just to save the RMC from deliberate noncompliance of the interim order passed by the Appellate Tribunal. In my view, such type of practice must be discouraged, otherwise it would be difficult to get adherence of an interim order passed by judicial or quasi-judicial bodies and the hierarchical system of the Courts would go meaningless. Accordingly, the RMC is imposed a cost of Rs.20,000/- to be paid in favour of the Advocates’ Association Welfare & Development Fund, Jharkhand High Court, Ranchi within fifteen days from the date of this order. 22. Consequently, I.A. No. 414/2022 [W.P.(C) No. 06/2022] also stands disposed of.