Gouranga Dutta vs Mineral Area Development ...
2023 Latest Caselaw 332 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                L.P.A.No. 83 of 2015
Gouranga Dutta, Son of late Manoranjan Dutta, resident of
Durga Mandir Road, Near Agarsen, Bhawan, Heerapur, P.O. &
P.S. Dhanbad, Dist. Dhanbad.         .... Appellant/Petitioner
                      Versus
1. Mineral Area Development Authority (MADA) through
   its Managing Director officiating at Dhanbad, P.O. &
   P.S. Dhanbad, Dist. Dhanbad.
2. The Deputy Commissioner, Dhanbad, P.O. & P.S. Dhanbad,
   District-Dhanbad
3. The Circle Officer, Dhanbad, P.O. & P.S. Dhanbad,
   Dist. Dhanbad.
4. Executive Engineer (Town Planning) MADA, Dhanbad, P.O. &
   P.S. Dhanbad, District-Dhanbad.
5. A.K.Pandey, son of late Indradeo Pandey, resident of
   Manohar Jain Vila Apartment, Durga Mandir Road,
   Heerapur, P.O. & P.S. Heera Pur, District-Dhanbad.
6. Dhanbad Municipal Corporation through its Municipal
   Commissioner, P.O. + P.S. Dhanbad, Dist. Dhanbad.
7. Chief Executive Officer, Dhanbad Municipal Corporation,
   P.O.+ P.S. Dhanbad, District-Dhanbad. .... Respondents
                      --------
CORAM :     HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
            HON'BLE MR. JUSTICE SUBHASH CHAND
                      --------
For the Appellant               : Mr. Amit Kumar Das, Advocate
                                : Mr. Sarabajit Dutta, Advocate.
                                : Mr. Preetam Mandal, Advocate.
For the Res. No.1 and 6, 7      : Mr. Mahavir Prasad Sinha, Advocate.
                                : Mr. Santosh Kumar Jha, Advocate.
For the State                   : Ms. Shivani Kapoor, A.C. to S.C.-II.
For the Res. No.5               : Mr. Rajendra Krishna, Advocate.
                                : Mr. Krishna Kumar, Advocate.
                                : Mr. Shubham Mayank, Advocate.
                          -------
Order No.26/dated 19.01.2023
Per Sunit Narayan Prasad, J.

Counter-affidavit has been filed in the Court, the same has been taken on record after serving copy upon the learned Counsel for the petitioner.

The instant intra-court appeal, under clause- 10 of Letters

Patent, is directed against the order/judgment dated 13.01.2015

passed by the learned Single Judge of this Court in W.P. (C) No.

4116 of 2013 whereby and whereunder the learned Single Judge

has dismissed the writ petition with cost of Rs. 10,000/- to be paid

to the Jharkhand State Legal Services Authority, Ranchi (JHALSA)

by declining to pass positive direction for demolition of the alleged

illegal construction made by the respondent No.5 in respect of

Manohar Jain Vila Apartment.

The matter has been heard on several occasion and lastly

on 5th January, 2023 by this Court and after having heard the

learned Counsel for the parties the following order was passed

which reads as under:

"Perused the enquiry report dated 17.01.2019, annexed as Annexure-A to the supplementary counter affidavit dated 13.02.2019 filed on behalf of Dhanbad Municipal Corporation, wherein it has been stated that the entire calculation has been made on the basis of Jharkhand Gazette Act, 04, 2012 dated 30.01.2012, notified on 09.02.2012, which contains provision as under Section 4 (ka), (kha) and 6 (Gha) basis upon which the entire deviation has been calculated, which has been said to be condonable and on the basis of said limit of condonation fine of Rs.6,63,712/- has been imposed.

Serious objection has been raised on behalf of appellant that the Act on the basis of which entire measurement of deviation treating it to be condonable is based upon the Jharkhand Gazette Act, 04, 2012 but the provision of the said Act will not be applicable since the said Act only provides to condone the deviation with respect to three-storey building.

It has been pointed that the building in question is a four-storey building, therefore, the provision of the said Act will not be applicable.

This Court has posed a pin-pointed question upon counsel for the Dhanbad Municipal Corporation to explain as to how Jharkhand Gazette Act 04, 2012 dated 30.01.2012 has been made applicable in the given facts of the case wherein the building is four-storey building.

Mr. Mahabir Prasad Sinha, learned Counsel appearing for the respondent-Dhanbad Municipal Corporation has submitted that the calculation is based upon MADA Building Bye laws, which was

enacted in the year 1983 and was in existence till the year 2016.

This Court, after perusing the chart appended with supplementary affidavit dated 28.01.2019, has found no reference of bye-laws prepared by Mineral Area Development Authority (MADA) Building Bye- laws rather there is reference of calculation based upon the provisions of Jharkhand Gazette Act, 04, 2012 dated 30.01.2012.

Learned Counsel appearing for the respondent- Dhanbad Municipal Corporation has failed to explain the position.

In view thereof, the affidavit dated 13.02.2019 filed on behalf of Dhanbad Municipal Corporation is out rightly rejected.

Let Municipal Commissioner, Dhanbad Municipal Corporation appear in person with proper explanation by filing appropriate affidavit on the next date of hearing.

Post this case on 19.01.2023."

Mr. Satyendra Kumar, at present working as Municipal

Commissioner, Dhanbad Municipal Area is present and affidavit

has been filed after serving copy of the same stating the stand, inter

alia, therein as under paragraph 6 that the respondent concerned

on misconception has taken decision on earlier occasion for

condoning the deviation found in the construction of the aforesaid

Apartment and as such by taking recourse of Jharkhand Adhiniyam

04/12 a notice was issued to the respondent No.5 and the deviation

has been condoned subject to payment of fine to the tune of Rs.

6,63,712/-

A serious objection was raised on behalf of the petitioner

that the act basis upon which the entire exercise for condoning the

deviation in the construction has been taken i.e. by taking recourse

of the Jharkhand Adhiniyam 04/12 is not at all applicable since the

said provision is only meant to deal with the deviation pertaining to

three-storey building. According to the petitioner/appellant the

building in question is more than three -storey. In the affidavit, the

fact about taking action in pursuant to the Jharkhand Adhiniyam

04/12 has been wrongly accepted by making further statement that

the building in question is to be dealt with so far as the

consideration of condonation of deviation is concerned in

pursuance to the Jharkhand Building By-laws, 2017 as per

applicable MADA building by-laws which has been carved out in

pursuance to the provision of Section 78.2 of the Jharkhand

Building By-laws, 2017.

It has further been stated that the time was sought for as

under the statement made at paragraph 7 for taking action in

accordance with law for regularizing by taking recourse of the MADA

Building Bye-laws for the purpose of condonation of the deviation

as alleged by taking appropriate measure in accordance with law.

Mr. Mahavir Prasad Sinha, leaned Counsel appearing for

the MADA as well as Dhanbad Municipal Corporation has

submitted that since the fresh action is to be taken on the basis of

the MADA Bye-laws and since the Municipal Commissioner,

Dhanbad Municipal Corporation is in Court and now the action is

to be taken by the Dhanbad Municipal Corporation and as such it

would be just and proper to dispose of the instant appeal by

directing the Dhanbad Municipal Corporation to issue notice to the

respondent No.5 so as to take appropriate decision for condoning

the deviation or demolition if the deviation is not fit to be condoned

as per the applicable Building Bye-laws.

Learned Counsel for the petitioner-appellant as also the

respondent No.5 has no objection to such submission.

This Court after taking into consideration the stand, inter

alia, taken in the affidavit filed on 19.01.2023 is of the view that

since the Dhanbad Municipal Corporation, the present Sanctioning

Authority, has already taken stand to take decision afresh and as

such it would be appropriate for this Court to dispose of the Letters

Patent Appeal.

Accordingly, this Letters Patent Appeal is disposed of

with the direction to Municipal Commissioner, Dhanbad Municipal

Corporation to issue notice to the respondent No.5 and to proceed

thereafter in accordance with law by taking decision within a period

of six weeks from the date of receipt/production of a copy of this

order.

Needless to say that while taking decision the

opportunity of hearing is also to be given to the petitioner-appellant.

With the aforesaid observation and direction, this Letters

Patent Appeal is disposed of.

Consequently, the writ petition being W.P.(C)No.4116 of

2013 also stands disposed of.

It is made clear that this Court has not entered into

the rival claims of the parties and a decision is to be taken by

the concerned authority strictly in accordance with the

applicable bye-laws/laws/regulation etc.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.) P.K.S.