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IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAJESH SHANKAR, J.
Ratan Heights Residential Society – Appellant
Versus
Ranchi Municipal Corporation – Respondent
W.P. (C) No.5734 of 2022 With W.P. (C) No.341 of 2023 With W.P. (C) No.1420 of 2023
Decided on : 13-07-2023
Jharkhand Municipal Act, 2011 - Section 436(3) - Jharkhand Apartment (Property Regulation and Ownership) Act, 2005 - Section 4(3) and 6(2) - Jharkhand Apartment (Flat) Ownership Act, 2011 - Section 10(4) - Evidence Act, 1872 - Section 85 - Constitution of India, 1950 - Article 21 - Grant permission to landowners - Sanction of fresh building plan - W.P.(C) has been preferred for quashing and setting aside order passed in Misc. Appeal - Held, Landowners are taking such plea after getting share in profit from building – Court is of view that said argument will also not help to case of landowners as prime issue before this court is as to whether Municipal Commissioner was right in sanctioning a building plan for land which was left open for common area and facilities while constructing said building - Moreover, said respondents have failed to produce before this court any complaint made by Airport Authority of India for not obtaining NOC before making construction of said building - It is for Airport Authority of India to take up said aspect and to proceed in accordance with law and Court does not wish to make any comment on said issue at this stage - Order passed by Municipal Commissioner to extent of holding that original building plan for construction of residential building 'Ratan Heights' was sanctioned pursuant to development agreement executed for 40 kathas of land as opposed to 86 kathas of land and liberty was given to landowners to apply for sanction of fresh building plan over 46 kathas of land is quashed - Writ petitions are allowed.
JUDGMENT :
1. W.P.(C) No.5734 of 2022 has been preferred by Ratan Heights Residential Society through its Secretary for quashing and setting aside the order dated 29.9.2022 passed in Misc. Appeal No.13 of 2022 by the Chairman, Appellate Tribunal, Ranchi Regional Development Authority, Ranchi, whereby the appeal filed by the petitioners against the order/decision as contained in memo no.RMC/BP/1637/W03/2019 dated 14.2.2022 passed by the respondent no.2, granting permission to the landowners for construction/reconstruction/alteration of new building as well as alteration or addition in the existing building over the Plot No.(CS) 218, Plot No.(MSP) 218 under Khata No.170/36 situated at Village-Morhabadi, District-Ranchi, has been held to be pre-mature and not maintainable giving liberty to the petitioners to put their grievance within one month by filing objection against the order dated 14.02.2022 before the Ranchi Municipal Corporation.
2. W.P.(C) No. 341 of 2023 has been preferred by Ratan Heights Residential Society through its Secretary for quashing/setting aside the order dated 29.07.2022 passed in Misc. Appeal No. 35 of 2021 by Chairman, Appellate Tribunal, Ranchi Regional Development Authority, Ranchi, whereby the said appeal filed by the petitioners against the order dated 06.09.2021 passed by Municipal Commissioner, Ranchi- respondent no.2 in U.C. Case No.29 of 2019 has been dismissed.
3. W.P.(C) No. 1420 of 2023 has been preferred by some of the flat owners of Ratan Heights Apartment, Morabadi, Ranchi for the following reliefs:
(ii) For quashing/setting aside the order dated 06.09.2021 passed by Municipal Commissioner, Ranchi Municipal Corporation in U.C. Case No. 29 of 2019 to the extent, in substance, it has been held that the original building plan for construction of residential building 'Ratan Heights' was sanctioned pursuant to development agreement executed between the land owners and developer only on 40 kathas of land as opposed to 86 kathas of land and, thereafter, it has been held that landowners can apply for sanction of fresh building plan over remaining 46 kathas of land, appertaining to plot no.(CS) 218, plot no.(MSP) 218, Khata no.170/36, village Morhabad, Ranchi.
(iii) For quashing/setting aside Building Permit/Plan issued vide Memo No. RMC/BP/1637/W03/2019 dated 14.02.2022, whereby Respondent-Ranchi Municipal Corporation had sanctioned commercial-cum-residential building plan over the remaining 46 kathas of land.
(iv) For restraining the respondents particularly respondent no. 10 and respondent nos. 13 to 17 from making any construction pursuant to sanction of Building Permit/Plan issued vide Memo No. RMC/BP/1637/Wo3/2019 dated 14.02.2022 in their favour.
(v) To direct Respondent-Ranchi Municipal Corporation and/or Deputy Commissioner, Ranchi to ensure restoration of the said 46 kathas of land at the cost of VKS Realty (builder of 46 Kathas of land) and/or respondent Nos.13 to 17 (landowners) as the said land has been illegally and dangerously dug-up/excavated to the depth of 30-35 feet and below 15 feet of the bottom of foundation level of Ratan Heights Building Tower.
(vi) To direct Respondent-Ranchi Municipal Corporation and/or Deputy Commissioner, Ranchi to ensure reconstruction of extensively entire damaged approach road of Ratan Heights Apartment including restoration of septic tank and soak pit at the cost of Respondent No. 10 and/or respondent Nos.13 to 17.
Facts of the present batch of writ petitions
4. The factual background of the case emerging from the respective writ petitions is that a residential comple
The court affirmed that flat owners have a permanent right to common areas as defined under the Jharkhand Apartment (Flat) Ownership Act, and any unauthorized construction infringing on these rights ....
Point of law: writ petition was not barred by either on the principles of res judicata or constructive res judicata. In the peculiar facts of the case since the issues referred to supra namely issue ....
Accrued rights from previous land use approvals must be respected despite new regulations; Town Planner's jurisdiction to deny building plan approval was not established.
Consent of existing flat owners is mandatory for modifications to original building plans under relevant statutes, and failure to secure such consent renders subsequent constructions illegal.
(1) Breach by planning authority of its obligation to ensure compliance with building regulations is actionable at instance of residents whose rights are infringed by violation of law. Their quality ....
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