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IN THE HIGH COURT OF JHARKHAND AT RANCHI
HON’BLE SHREE CHANDRASHEKHAR, ACJ., HON’BLE MR. JUSTICE ARUN KUMAR RAI, J.
V.K.S. Realty - Appellant
Versus
Rinki Yadav, wife of Ajay Kumar and Ors. - Respondents
L.P.A. No. 431 of 2023 With L.P.A. No. 432 of 2023 With L.P.A. No. 433 of 2023 With L.P.A. No. 434 of 2023 With L.P.A. No. 435 of 2023 With L.P.A. No. 436 of 2023.
Decided On : 17-05-2024
[BUILDING PERMIT] - [SANCTION OF BUILDING PLAN] - [Jharkhand Apartment (Flat) Ownership Act, 2011; Jharkhand Building Bye-Laws, 2016; Article 226 of the Constitution] - [The court discussed the provisions of the Jharkhand Apartment (Flat) Ownership Act, 2011, particularly sections defining common areas and the rights of flat owners, and the Jharkhand Building Bye-Laws, 2016, which govern the approval of building plans. The court emphasized the importance of adhering to the original sanctioned plan and the implications of unauthorized construction on common facilities. The interpretation of these provisions influenced the court's decision to quash the new building permit and uphold the rights of the flat owners to the common areas.]
Fact of the Case:
Seven flat-owners of Ratan Heights, along with their Society, challenged the sanction of a new building plan on land they claimed was designated for common facilities. They sought to quash the orders of the Municipal Commissioner and the Appellate Tribunal that allowed the new construction.
Finding of the Court:
The court found that the orders of the Municipal Commissioner and the Appellate Tribunal failed to consider vital facts, including the original sanctioned plan for 86 kathas of land and the implications of unauthorized construction. The court held that the flat owners had rights to the common areas and that the new building plan was illegal.
Issues: Whether the new building plan sanctioned over 46 kathas of land infringed upon the rights of the flat owners and violated the original building plan sanctioned for Ratan Heights.
Ratio Decidendi: The court established that the rights of flat owners to common facilities cannot be altered without their consent, and any construction that deviates from the sanctioned plan is illegal. The court also reaffirmed the discretionary power of the High Court under Article 226 to intervene in cases of legal rights violations, even when alternative remedies exist.
Final Decision: The Letters Patent Appeals were dismissed, upholding the writ court's decision to quash the new building permit and directing the landowners and builder to restore the common area to the Society.
Certainly. Please specify the legal question or issue you would like me to address based on the provided document.
JUDGMENT :
Shree Chandrashekhar, ACJ.
After the adverse decisions by the Municipal Commissioner and the Appellate Tribunal, seven flat-owners of the Ratan Heights had joined hands with the Society and approached the writ Court by filing W.P.(C) Nos. 5734 of 2022, 341 of 2023 and 1420 of 2023. They were aggrieved by the sanction of a new building plan on 14th February 2022 on a part of the property which according to them was earmarked for common facilities for the flat-owners. This batch of the Letters Patent Appeals seeks to challenge the directions passed by the writ Court in the proceedings taken out by the Ratan Heights Residential Society,[hereinafter referred as “Society”] and the flat-owners.
2. In W.P.(C) No. 5734 of 2022 and batch cases, the writ Court passed the following directions:
(i) The order dated 06.09.2021 passed by the Municipal Commissioner, Ranchi Municipal Commissioner, Ranchi to the extent of holding that the original building plan for construction of residential building 'Ratan Heights' was sanctioned pursuant to the development agreement executed for 40 kathas of land as opposed to 86 kathas of land and liberty was given to the landowners to apply for sanction of fresh building plan over 46 kathas of land is quashed.
(ii) The order dated 29.07.2022 passed by the Appellate Tribunal, R.R.D.A., Ranchi in Misc. Appeal No. 35 of 2021 is quashed.
(iii) Building Permit/Plan issued vide Memo No. RMC/BP/1637/W03/ 2019 dated 14.02.2022, whereby Ranchi Municipal Corporation has sanctioned commercial-cum-residential building plan over the remaining 46 kathas of land is quashed. Consequently, the order dated 29.09.2022 passed by the Chairman, Appellate Tribunal, R.R.D.A., Ranchi in Misc. Appeal No.13 of 2022 is also quashed.
(iv) The landowners and the new builder are directed to remove/demolish the construction made over the remaining 46 Kathas of land and to fill the said part of the land as well as to handover the same to the Society of the flat owners which will be used as common area and facilities attached to the said building as per the building plan sanctioned vide B.C. Case No.1049 of 2005.
(v) The landowners and the new builder are directed to safely demolish the retaining wall which has been constructed to separate the said building from 46 Kathas of land in the western side of the same running from north to south.
(vi) If the amenities attached to the said building have been damaged in course of making construction over 46 Kathas of the said land, the same shall also be reconstructed by the landowners and the new builder.
(vii) The aforesaid directions shall be complied by the landowners and the new builder within one month from the date of this order.”
3. Briefly stated, an application for sanction of a building plan for residential use was submitted by Vinayaka & Associates,[hereinafter referred as “builder”] to the Ranchi Regional Development Authority,[hereinafter referred as “RRDA”] vide Application No. 13185 dated 12th September 2005. On the basis of a Power of Attorney dated 27th August 2005, this application was submitted by Narendra Butala claiming himself the power of attorney holder for Ashok Kumar Walamji Parmar, Jay Parmar, Jeet Parmar, Pratima Dayaram Parmar and Sweta Parmar who are the land-owners. The application dated 12th September 2005 was filed for a building plan over an area of about 6022.30 sq. meters, equivalent to approximately 90 kathas. Later on, the application for sanction of the building plan was supported by an affidavit dated 29th May 2008 by the land-owners whereunder they gave an undertaking that no additional construction beyond the sanction plan shall be carried without the written consent of the flat-owners. On behalf of the builder, a similar affidavit was filed by Narendra Butala and on that basis the RRDA approved the plan submitted by the builder over 6022.30 sq. meter
AI
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.
The court affirmed the authority of the Municipal Commissioner to regularize construction and condemned the complainant's repeated legal challenges as an abuse of process.
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