Bokaro v. 1. Mineral Area Development Authority through its Managing Director having its office at Lubi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 2319 of 2011 Shri Jagdish Prasad Jagnania, son of late Hiralal Jagnania, Resident of Main Road, Sitaram Path, Ramnagar Colony, P.O.: Chas, P.S.: Chas, Dist: Bokaro. Petitioner … … Versus 1. Mineral Area Development Authority through its Managing Director having its office at Lubi Circular Road, P.O. and P.S.: Dhanbad, Dist: Dhanbad 2. Nagar Nibeshan/Takniki Sadasya, Mineral Area Development Authority, P.O. and P.S.: Dhanbad, Dist: Dhanbad issioner, Dhanbad 3. Executive Engineer, Mineral Area Development Authority, P.O. and P.S.: Dhanbad, Dist: Dhanbad issioner, Dhanbad 4. Assistant Engineer, Nagar Nibeshan, Mineral Area Development Authority, Chas, P.O. and P.S. Chas, Dist: Bokaro. 5. Junior Engineer, Mineral Area Development Authority, Chas, P.O. and P.S. Chas, Dist: Bokaro 6. Smt. Kusumlata Ramuka, wife of Shri Purushottam Lal Ramuka, Ramnagar Colony, Main Road, Chas, P.O and P.S. Chas, Dist: Bokaro. 7. State of Jharkhand 8. Chas Nagar Nigam through Chief Executive Officer, Chas Nagar … Respondents Nigam, Dist- Bokaro … CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY ---
Legal Reasoning
--- For the Petitioner : Mr. Jitendra Pasari, Advocate For the Resp. Nos. 1 to 5: Mr. Santosh Kr. Jha, Advocate For the Resp. No. 6 For the Resp.-State : Mr. Gaurav Abhishek, Advocate : Mr. Aditya Raman, Advocate --- 20/18.01.2023 Heard Mr. Jitendra Pasari, learned counsel for the petitioner. 2. Heard Mr. Santosh Kr. Jha, learned counsel appearing on behalf of the respondent nos. 1 to 5. 3. Heard Mr. Gaurav Abhishek, learned counsel appearing on behalf of the respondent no. 6. 4. Heard Mr. Aditya Raman, learned counsel appearing on behalf of the respondent- State. 5. This writ petition has been filed for the following reliefs: “For commanding upon the respondents to show cause as to why they have not demolished the illegal construction over the plot no. 4766(P) khata no. 243 Mouza No. 31 Chas of the respondent no. 6 in pursuance of the notice issued by Mineral Area Development Authority, respondent itself under section 37 of the Jharkhand Mineral Area Development Authority, Act, 1986 dated 06.09.2010/10.09.2010 AND an appropriate 2 writ/order/direction may be issued to the respondent no. 1 and 5 to immediately and forthwith demolish the construction of the building over the plot no. 4766 (P) khata no. 243 Mouza No. 31 Chas as due to the said illegal construction of the building of the respondent no. 6 and due to the encroachment of the road/common passage, the privacy of the petitioner’s house is being affected as also for issuance of further appropriate writ/order/direction for doing conscionable and equitable justice to the petitioner.” Learned counsel for the petitioner has submitted that the writ 6. petition was filed on 30.04.2011 seeking the aforesaid relief in view of the fact that though a notice dated 10.09.2010 was issued to the private respondent to remove the unauthorized construction within a period of 30 days in terms of Section 37 of Jharkhand Mineral Area Development Authority Act, 2000 [ as adopted from Mineral Area Development Authority Act, 1986 ] (hereinafter referred to as the MADA Act) and a direction was also issued to the Junior Engineer of Mineral Area Development Authority (hereinafter referred to as MADA) to take appropriate action if the unauthorized construction is not removed within a period of 30 to 35 days, but no action was taken in spite of repeated representations filed by the petitioner. 7. The learned counsel further submits that during the pendency of the present writ petition, the power of MADA, so far as municipal functions are concerned, were transferred and vested with Chas Municipality with effect from 16.03.2012. Accordingly, Chas Municipality has also been made a party respondent no. 8 by the order of this Court and the matter remained pending before this Court. The learned counsel further submits that as per the records and affidavit filed by MADA, the respondent no. 6 had applied for regularization of her building with respect to the deviation over and above the sanctioned plan and that application with requisite fees was filed only on 12.12.2011. 8. The learned counsel for the petitioner has placed Section 37 of the aforesaid MADA Act to submit that as per the provision of Section 37, the required application for regularization could be filed only within a period of 30 days from the date of issuance of notice under section 37. He submits that the statutory period for filing such application for regularization having expired, the application filed by 3 the respondent no. 6 for regularization of her building deviations on 12.12.2011, is barred by limitation and has no consequence. Consequently, the only option is demolition of the deviations in the building. 9. The learned counsel submits that a supplementary counter- affidavit has been filed by the respondent no. 7 stating that after technical analysis a report was submitted by The Town Planner, Town And Country Planning Organization, wherein a recommendation has been made to the department vide report dated 11.01.2023, to direct Chas municipality to take decision on the application for regularization earlier submitted by the respondent no. 6 as per the then prevailing Byelaws through off line mode. 10. The learned counsel submits that such affidavit is fit to be rejected and no such direction can be issued by this court to consider the prayer for regularization of the building, as the application for regularization dated 12.12.2011 was barred by limitation and consequently, there is no option, but to demolish the deviated structure constructed by the private respondent no. 6. 11. The learned counsel has also submitted that it appears that the respondent no. 6 has given fresh application dated 08.10.2022 for the purposes of regularization of building and as per the affidavit filed by Chas Municipality, the application for regularization dated 08.10.2022 is not maintainable. He has referred to paragraph 9 of affidavit dated 11.10.2022 filed by Chas Municipality. The application dated 08.10.2022 for regularization has been annexed as Annexure- G to the affidavit dated 11.10.2022 filed by the Chas Municipality. 12. The learned counsel has also submitted that the Scheme for Regularization of Unauthorized Residential Constructions, 2019 has expired on 27.06.2020. The learned counsel submits that as on date, there is no scheme for regularization of the building of the respondent no. 6. 13. The learned counsel appearing on behalf of the private respondent, on the other hand, has opposed the prayer and has submitted that the respondent no. 6 had filed the required application along with the requisite fees and at that point of time, MADA did not take any action pursuant to the application and the application was not 4 even rejected. He submits that under such circumstances, the application remained pending, therefore, the respondent no. 7 has rightly filed the affidavit dated 12.01.2023 stating that the case of regularization of the building of respondent no. 6 can be taken as per the then prevailing bye-laws. The learned counsel submits that whatever was the prevailing bye-laws on the date of application, may be considered. The learned counsel submits that there was the sanction of the building in place, but the allegation is that there were deviations in construction of the building. 14. The learned counsel appearing on behalf of the respondent- State has supported the aforesaid submissions made by the learned counsel for the private respondent no. 6. 15. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that admittedly a notice under Section 37 of the aforesaid MADA Act was issued to the private respondent by MADA and a direction was also issued to the Junior Engineer to do the needful, if the unauthorized construction is not removed after 30 to 35 days. 16. The records of the case show that in spite of notice dated 10.09.2010, no action was taken by the concerned authorities and the petitioner had filed repeated representations for action to demolish the unauthorized construction of the private respondent no. 6, but no action was taken and consequently the present writ petition was filed on 30.04.2011. 17. The records of this case further reveal that the respondent no. 6 had filed an application for regularization of the deviation only on 12.12.2011 in support of which, MADA has filed an affidavit along with the photocopy of the concerned register. A fee was also deposited accompanied with the application. 18. The fact remains that in spite of notice dated 10.09.2010, the respondent no. 6 had neither removed the unauthorized construction nor the respondents had taken any steps to demolish the deviations. It is also not in dispute that the application which was filed by the respondent no. 6 for regularization on 12.12.2011 was neither acted upon nor ever rejected by the respondents. In the meantime, the 5 municipal functions of MADA were taken over by Chas Municipality with effect from 16.03.2012. 19. It is the case of the petitioner by referring to Section 37 of the aforesaid MADA Act that the outer limit for filing an application for regularization is one month and the respondent no. 6 having not filed the required application within one month, there is no option but to demolish the building. 20. Section 37 of the aforesaid Act of 1986, is quoted as under:- “37. Power to require removal of unauthorised development.- (1) where any development of land has been or is being carried out as described in section 36, the Authority shall serve on the owner a notice requiring him, within such period, not exceeding one month, as may be specified therein, after the service of the notice to take such step as may be specified in the notice- (a) in case specified in clauses (a), (c) and (e) of section 36 to restore the land to its condition before the said development took place; (b) in case specified in clauses (d) and (f) of section 36 to secure compliance with the conditions or with the permission as modified; (c) the development charge and such penalty, if any, as may be prescribed by the rules. in case specified in clause (b) to pay (2) In particular, any such notice may, for the purpose aforesaid require- (a) the demolition/alteration of any building or works; (b) the carring out on land, of any building or other operation; or (c) the discontinuance of any use of land: Provided that in case the notice requires the discontinuance of any use of land, the Authority shall serve a notice on the occupier also. (3) Any person aggrieved by such notice may, within the said period and in the manner prescribed- (a) apply for permission under section 30 of this Act for the retention of the land of any buildings or works or for the continuance of any use of the land, to which the notice relates; or (b) appeal to the prescribed Authority (4) (a) The notice shall be of no effect pending the final determination or withdrawal of the application or the appeal. (b) (i) The provisions of the foregoing sections 30, 31 and 32 apply in such applications with such modifications as may be necessary. 6 (ii) If such permission as aforesaid is granted on that application, the notice shall not take effect, or if such permission is granted for the retention only of some buildings or works or for the continuance of use of only a part of the land, the notice shall not take effect regarding such building or works or such part of the land, but shall have full effect regarding other buildings or works or other parts of the land. (5) The prescribed Authority may dismiss the appeal or accept the appeal by quashing or varying the notice as it may think fit. (6) If within the period specified in the notice or within such period after the disposal or withdrawal of the application for permission or the appeal under sub-section (3) the notice or so much of it as continues to have effect or the notice with variation made in appeal is not complied with, the Authority may- (a) prosecute the owner for not complying with the notice and in case where the notice required the discontinuance of any use of land, any other person also who uses the land or causes or permits the land to be used in contravention of the notice; and (b) (i) in the case of a notice requiring the demolition or alteration of any building or works or carrying out of any building or other operation itself cause the restoration of the land to its condition before the development took place and secure the compliance with the conditions of the permission or with the permission as modified, by taking such steps as the Authority may consider necessary including demolition or alteration of any building or works or carrying out of any building or other operations. (ii) the Authority may recover the cost of any expenses incurred by it in this behalf from the owner as arrears of land revenue. (7) Any person prosecuted under clause (a) to sub-section (6) shall be punishable with simple imprisonment for a term which may extend to one year or with a fine which may extend to ten thousand rupees, or with both and, in the case of a continuing offence, with a further fine which may extend to five hundred rupees for everyday during which such offence continues after conviction for the first commission of the offence.” 21. Upon reading of Section 37 of the aforesaid Act of 1986, this court finds that once a notice under Section 37 is issued, it is open to the concerned person to file an application for regularization within one month and if such an application is made, then the notice will be of no effect pending final determination or withdrawal upon appeal. It 7 means that if an application for regularization is filed within a period of one month from the notice under section 37, then there is an automatic stay till the matter is ultimately decided. It further appears that if the contravention continues then there are penal consequences in terms of section 37(6) and 37 (7). This court is of the considered view that Section 37 does not provide that no application for regularization can be made after expiry of one month from notice under section 37(1) and 37(2). Admittedly, in the instant case after issuance of notice under section 37(1) and 37(2), no action was taken by the respondent authorities against the respondent no.6 and during the pendency of this case the respondent no. 6 applied for regularization of building. The fact remains that application for regularization remained pending and no action for demolition was taken. This Court is of the considered view that the argument of the learned counsel for the petitioner that once 30 days expires from issuance of notice under section 37 of the aforesaid MADA Act, there is no option but to demolish the unauthorized construction, is devoid of any merit. This court does not find any legal bar in submitting a belated application for regularization of building deviations. However, in case the required application is filed within 30 days in terms of timeline prescribed under section 37 (3), the consequences of automatic stay in terms of sections 37(3) and 37(4) shall follow. The consequences of belated application would be that the applicant will not be entitled to benefits of timely filing of application for regularization of building. 22. This Court is of the considered view that the application dated 12.12.2011 for regularization of building deviations , which was filed by the respondent no. 6 before MADA is required to be considered by Chas Municipality. Accordingly, the said application of the respondent no.6 dated 12.12.2011 is directed to be processed and considered in terms of the supplementary counter affidavit dated 12.01.2023 filed by respondent no. 7, wherein a specific stand has been taken after due report from the Town Planner, Town and Country Planning Organization, that the Chas Municipality can take action as per the then prevailing building bye-laws on the basis of offline mode. 8 23. At this, the learned counsel for the respondent no. 6 has submitted that if the amount of Demand Draft has not been encashed by MADA, then she will take appropriate steps to renew the Demand Draft / furnish fresh Demand Draft, if the same is returned back to the respondent no. 6. 24. The respondent no. 6 is directed to appear before the respondent no. 8 on 01.03.2023 by filing a representation along with a copy of this order and a copy of the writ records. The Demand Draft, if not encashed by MADA, be given back to the respondent no.6 by MADA / respondent no.8 and the respondent no.6 shall deposit the required fee before the Respondent no. 8 within a period of one week. In case the demand draft has been already encashed, the same will be adjusted against the charges /fees payable by the respondent no.6. 25. Upon appearance of the Respondent no.6, the respondent no. 8 is directed to do the needful and consider the application for regularization filed as back as on 12.12.2011 in accordance with law and in terms of supplementary counter affidavit dated 12.01.2023 filed by respondent no. 7 as per the then building bye-laws after giving an opportunity of hearing to the respondent no.6. The final decision be taken by a speaking order in accordance with law within a period of two months from 01.03.2023 and follow up orders be also issued such that the alleged diversion in the building of the respondent no.6 is either regularized or demolished in accordance law. The speaking order be communicated to the respondent no.6 through speed post at the address to be provided by the respondent no.6 in the representation itself. 26. At the end of the dictation of the order, learned counsel for the petitioner has submitted that the petitioner has no personal grudge against the Respondent no.6 -his immediate neighbour, but he is aggrieved by hinderance caused due to illegal construction in enjoyment of some easement rights with respect to air and light. He submits that if this grievance is redressed, the petitioner will not be aggrieved by the private respondent no. 6 and also the action of the official respondents. 27. With regards to the aforesaid last submission of the petitioner, it is sufficient to observe that if there are any issue between the 9 petitioner and the private respondent no. 6, those can certainly be
Decision
amicably resolved amongst them. 28. This writ petition is accordingly disposed of with the aforesaid observations and directions. 29. Pending interlocutory application, if any, is closed. Pankaj AFR (Anubha Rawat Choudhary, J.)