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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Rajesh Shankar, J.
Pradip Kumar Khatuwala – Petitioner
Versus
Nagar Parishad, Jhumri Telaiya through the Administrator, District- Koderma and ors. – Respondents
W.P.(C) No. 69 of 2021
Decided On : 14-01-2021
Jharkhand Municipal Act, 2011 - Section 436(1) - Petitioner claim - Quash - Petition has been preferred for quashing and setting aside letter Annexure to writ petition issued by Administrator Nagar respondent whereby petitioner has been directed to remove illegal construction of third and fourth floors of building known as Desiree Complex Ward No - Station hereinafter referred as said Building within seven days on his own in purported compliance of order passed by failing which same would be demolished at his cost – Held, Petitioner puts reliance on Section provides for regularization to extent of permissible level of deviation by imposing fine or penalty - He further submits that Appendix of Planning Standards & Building Bye-Laws provides rules for condo nation of deviation - Petitioner had any such claim he should have approached competent authority for determination extent of deviation - However fact remains that due to omission on part of petitioner extent of deviation of his building could not be determined by concerned authority - Court view that such contention petitioner cannot be accepted by this Court at this stage - petitioner has also raised some disputed questions of fact claiming that there is temporary construction on fourth floor of building however said plea cannot be taken note of writ jurisdiction of this Court particularly when petitioner did not apprise respondents of fact at appropriate time - One arguments of counsel for petitioner is that he was not given any opportunity of hearing by while passing order hence any observation made by him would not be binding on petitioner - Since order has not been challenged by petitioner in present writ petition any argument touching merit of order passed by be taken into consideration by this Court – Petition dismissed
ORDER :
The present case is taken up through video conferencing.
2. At the request of the learned counsel for the petitioner, the defects, as pointed out by the office, are ignored.
3. The present writ petition has been preferred for quashing and setting aside letter no.1750 dated 05.12.2020 (Annexure-7 to the writ petition) issued by the Administrator, Nagar Parishad Jhumri Telaiya(respondent no.2) whereby the petitioner has been directed to remove the illegal construction of third and fourth floors of the building known as Devshree Complex, Ward No. 15, Station Road, Jhumri Telaiya (hereinafter referred as “the said Building”) within seven days on his own in purported compliance of the order dated 04.12.2020 passed by the learned Lokayukta failing which the same would be demolished at his cost. Further prayer has been made for quashing letter no.30 dated 05.01.2021 (Annexure-10 to the writ petition) issued by the respondent no. 2 whereby last opportunity has been granted to the petitioner to remove the alleged illegal construction within one week from the date of issuance of the said letter. The petitioner has further prayed for issuance of direction upon the respondent nos. 1 and 2 to keep the letter no. 1750 dated 05.12.2020 and letter no. 30 dated 05.01.2021 issued by the respondent no. 2 in abeyance till the respondents assess the deviation from the sanctioned building plan and consequently condone the deviation in accordance with law by imposing appropriate fine and thereafter regularize 3rd floor of the said building.
4. The factual background of the case as stated in the writ petition is that the petitioner is the owner of the land situated over R.S Plot No. 7532, Ward No. 15, Station Road, Jhumri Telaiya measuring an area of about 0.08 ½ acre. The petitioner intended to construct a commercial complex in the name of ‘Devshree Complex’ over the said land by demolishing the existing residential house. The respondent no. 2 vide order dated 02.03.2015, sanctioned the said demolition directing the petitioner to apply and obtain a sanctioned building plan by the Nagar Parishad, Jhumri Telaiya before commencing any new construction. Thereafter, the old structure was demolished. The petitioner applied for sanction of plan of the said building on 12.09.2015 and paid fee as assessed by the Executive Officer of Nagar Parishad, Jhumri Telaiya. The petitioner was granted license for erection of the said building by the Executive Officer, Nagar Parishad, Jhumri Telaiya, vide letter no. 3177 dated 29.09.2015. Thereafter, the petitioner commenced the construction work of the said building and completed it in April 2018. While the construction was underway, the Executive Officer, Nagar Parishad, Jhumri Telaiya, vide letter no. 825 dated 24.03.2017, informed the petitioner that the construction was being carried out in contravention of the sanctioned plan and hence he was directed to adhere to the sanctioned plan and inform the same to the office of the respondents within seven days failing which further steps would be taken in accordance with law. After receipt of the said notice, the petitioner visited the office of the respondent no.1 and 2 and apprised them that since the width of the road was 30 feet, he could construct a higher and bigger building in terms with the existing bye laws and regulations. Thereafter, no step was taken by the respondent no.1 and 2 and hence the petitioner continued with his construction up to third floor. After completion of the said building, the petitioner sold/rented/leased out shops to different persons. The petitioner repeatedly approached the respondent nos. 1 and 2 to undertake the formalities for regularization of the said deviation and they verbally assured him that steps in accordance with law would be taken. In the meantime, the entire building was assessed for the purpose of levy of property tax which the petitioner regularly paid. Thereafter, the Executive Officer, Nagar Parishad, Jhumri Telaiy
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