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IN THE HIGH COURT OF JUDICATURE AT PATNA
JYOTI SARAN, J.
M/s Niagree Builders & Developers Pvt. Ltd. – Appellant
Versus
The State of Bihar through Principal Secretary, Town Planning and Urban Development Department & Ors. - Respondent
Civil Writ Jurisdiction Case No. 4625 of 2015
Decided on : 18.5.2015.
Building Construction - Bihar Municipal Act, 2007 - Section 313, 315, 317, 318 - The court considered the issue of building height, internal staircase, and setbacks in the context of the Bihar Municipal Act, 2007. It held that the height of a building cannot be dependent upon the level of the street and should be measured from the plinth level. The court also emphasized the need for a pragmatic approach to building height in the absence of official street level prescriptions. The petitioner's case was found to be a minor deviation falling within condonable limits and not an act of open defiance. The court remanded the matter to the Municipal Commissioner for reconsideration and disposal in accordance with the law.
Fact of the Case:
The petitioner, a builder-cum-developer, challenged an order declaring the construction of a third floor in deviation of the sanctioned plan and municipal bye-laws as illegal, requiring demolition. The petitioner argued that the height increase was within condonable limits due to factors beyond their control.
Finding of the Court:
The court found that the height of the building should be measured from the plinth level, not the street level, and emphasized the need for a pragmatic approach in the absence of official street level prescriptions. It held that the petitioner's case was a minor deviation falling within condonable limits and not an act of open defiance.
Issues: The court considered the issues of building height, internal staircase, and setbacks in the context of the Bihar Municipal Act, 2007.
Ratio Decidendi: The court held that the height of a building cannot be dependent upon the level of the street and should be measured from the plinth level. It emphasized the need for a pragmatic approach to building height in the absence of official street level prescriptions. The court also distinguished between minor deviations falling within condonable limits and acts of open defiance.
Final Decision: The court remanded the matter to the Municipal Commissioner for reconsideration and disposal in accordance with the law.
The petitioner is a builder-cum-developer and has entered into an agreement with the land owners for development of their property and construction of a Multi-storied building on a piece of land bearing Khesra No. 225, Sheet No. 63, Thana No. 139 Ward No. 6 in Mauza-Mohaerrampur presently Bhawarpokhar, Police Station Pirbahore in the town and district of Patna.
2. The petitioner by filing this writ petition under Article 226 of the Constitution of India has questioned the order dated 25.7.2014 passed by the Municipal Commissioner in Vigilance Case No. 51A of 2013 whereby the constructions of the third floor having been found in deviation of the sanctioned map and the municipal bye-laws that the same has been declared illegal requiring the petitioner to demolish the same. Some other irregularities as well has been found on the third floor as well as in the setbacks. The order passed by the Municipal Commissioner stands confirmed in the order dated 4.3.2015 by the Municipal Building Tribunal-II, Patna in Appeal Case No. 42 of 2015 and the petitioner being aggrieved is before this Court.
3. 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.
4. 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 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.
5. Mr. Sanjay Singh learned counsel appearing on behalf of the petitioner submits that there is no contest on the issue that the building has been constructed as per the sanctioned plan in so far as the floors are concerned rather the dispute is that the height of each of the floors has got increased in the process of construction resulting in increase in the height of the building. Referring to the order of the Municipal Commissioner present at Annexure 1 it was submitted that there is no dispute that there is a 12 ft. road abutting the building. It is submitted that the sanctioned height of the building is 10.95 meters and its measurement from the ground level by the Municipal a
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