Chandra Vihar Colony, Development and Maintenance Society and Others vs The Mining Area Development Authority and Others

R. Banumathi, C.J.—This Public Interest Litigation has been filed by Chandra Vihar Colony, Development and Maintenance Society, Dhanbad seeking for a direction to respondent No. 1-Mining Area Development Authority (M.A.D.A.) not to sanction any map for the proposed Chandra Courtyard at C.D. Singh Colony, Bartand, Dhanbad and also seeking for a direction to the respondent No. 3 to stop the construction activity in the proposed multi-storied complex. The case of the petitioners in brief:--

Petitioners and other residents of Chandra Vihar Colony had purchased land from Chandra Dhan Singh, other members of his family and heirs. Petitioner No. 2 had purchased the land by registered sale deed dated 12.11.1987 and other members of Chandra Vihar Colony had purchased the land in the same colony on 17.2.1990. According to the petitioner, a piece of land measuring about 50 kathas situated near the centre of the colony was left vacant as children''s playground/walking track/multipurpose park and for past four decades the said land was used as a playground/walking track and used for the purpose of social and religious functions. According to the petitioners, by the Doctrine of Legitimate Expectation, plot owners of the colony were led to believe that the land in question would always be kept vacant for community purposes which the plot owners have been utilizing for several decades and while so, the respondent No. 3 proposed construction of multi-storied building over the said park area, the petitioners filed a detailed representation dated 26.4.2011 before first respondent-M.A.D.A. stating therein all the details and stating that the land in question was the only green open space in the colony which was essentially the lung space of the colony and being used by them for community purposes and also for children playground and the aforesaid representation was followed by a lawyer''s notice dated 5.5.2011 that the proposed multi-storied building of eight floors would be an environmental hazard.- According to the petitioner, the roads left in the front and sideways of the proposed multi-storied complex is very narrow and in violation of M.A.D.A. Regulations and in this Public Interest Litigation the petitioners seek for direction to the first respondent not to sanction any map for the Chandra Courtyard at C.D. Singh Colony, Bartand, Dhanbad and to direct the second respondent to forthwith stop all construction activity in relation to the proposed multi-storied complex.

On notice, the first respondent-M.A.D.A. and other respondents entered appearance. The respondent-M.A.D.A. filed its counter affidavit stating that the M.A.D.A. has examined the proposed map plan as per the Regulations and only after being satisfied that it is in compliance of Regulations, the map plan has been sanctioned by the authority.

The third respondent has filed the counter affidavit stating that the multi-storied complex is in compliance of M.A.D.A. Regulations and no public interest is involved in the writ petition.

The learned counsel for the petitioners Mr. Abhinesh Kumar contended that the construction of multi-storied building proposed to be made on the open space/green land is earmarked for children''s playground in Chandra Vihar Colony. It was submitted that the development plan sanctioned by M.A.D.A. was for eight floors building and considering the fact that the width of the roads (12-15 feet) available within Chandra Vihar Colony, no high rise building can be permitted to be constructed in the colony and the roads available are too narrow and inadequate for constructing any multi-storied building in the colony especially having regard to the fact that there is hardly any road for the fire tenders to access the different parts of the colony in case of an emergency. The learned counsel submitted that M.A.D.A. being the statutory development authority, is legally bound to prevent such illegal construction especially in view of the order passed by the Jharkhand High Court in W.P. (PIL) No. 1325 of 2011 whereby the Chief Secretary was directed to ensure the enforcement of Environmental Protection laws and therefore seeks for appropriate direction.

The learned counsel for the first respondent-M.A.D.A. Mr. Bhawesh Kumar contended that after examination of the map and on being satisfied that the map is in compliance with the M.A.D.A. Regulations and also the norms of environment protection, fire, rainwater harvesting and availability of ground water etc. has been fulfilled, the M.A.D.A. has rightly sanctioned the map of the third respondent and there is no violation of Bihar Coal Mining Area Building Regulations. Drawing our attention to the supplementary counter affidavit filed by M.A.D.A., the learned counsel submitted that even though the width of the front road is 20 feet, the landowner has gifted her own land measuring 17 1/2 feet for road widening and the total width of the front road is 37 1/2 feet and therefore, the petitioners cannot make any grievance of the width of the front road.

The learned counsel for the third respondent Mr. Mahesh Tewari contended that the land where the multi-storied building is constructed is private land of the third respondent and in none of the sale deeds of the petitioners or any resident of Chandra Vihar Colony the land in question has been mentioned as playground/park area/open space for public use etc. The learned counsel further submitted that the map was already sanctioned in December, 2010 and the writ petition filed on 7.7.2011 seeking for direction not to sanction the map has become infructuous. The learned counsel further submitted that the third respondent has observed all the specifications as per the Regulations of M.A.D.A. and the respondent has made provision for water harvesting system and has also obtained clearance from local Fire Brigade Authority which is necessary for the construction of the building. In so far as the width of the road, the learned counsel submitted that the existing road is 20 feet wide and the landowner has left 17 1/2 feet for road widening and hence, the total access (front) road of the proposed building is 37 1/2 feet and Rule 34 of the M.A.D.A. Building Regulations which deals with the access road, is being fulfilled by the third respondent. The learned counsel submitted that no public interest is involved in this writ petition and it is purely a case of private interest litigation and prayed for imposing heavy cost.

We have considered the submissions and perused the materials on record including the sanctioned map of the multi-storied complex.

Even at the outset it is to be pointed out that the writ petition filed by the petitioner on 7.7.2011 has become infructuous. In the writ petition the petitioner has prayed that "not to pass or sanction any map for the proposed Chandra Courtyard at C.D. Singh Colony" whereas the map was already sanctioned by M.A.D.A. by letter No. T.P. 1543/N.Ni. dated 16.12.2010 and subsequently the third respondent has put part of construction.

The writ petition was filed mainly on the footing that the piece of land measuring about 50 kathas situated near the centre of the colony was used as children''s playground/walking track/multipurpose park and for past four decades the land in question was used as a playground and for social and religious functions as well as for marriage. According to the petitioners, the residents of Chandra Vihar Colony who purchased their plots from Chandra Dhan Singh and other members of his family, were led to believe that the land in question would always be kept vacant for the community purposes and while so, the private respondent cannot develop the property by putting up multi-storied complex. As seen from the averments in writ petition, no public interest is involved. The issue involved appears to be purely a private dispute between the petitioners and the private respondent.

On behalf of the petitioners it was contended that the multi-storied complex does not satisfy the Regulations of M.A.D.A. and other parameters which are essential for sanctioning the map plan. In the rejoinder filed by the petitioners, the petitioners contend that the front side road between the residential plots and the disputed plot is only 15 feet wide (in effect 12 feet) with 1 1/2 feet covered drains on both sides whereas the sub-road on both sides of the disputed plots are only 12 feet wide and since the width of the road is very narrow, in the event of an emergency like fire etc., the fire engine or any big vehicle will not be able to reach various parts of the colony. Petitioners refute the statement of M.A.D.A. that the road is 20 feet wide and the builder has left 17 1/2 feet totally 37 1/2 feet in front of the building. According to the petitioners, there is a ramp as per the map just from front road going into the plot and therefore 37 1/2 feet is not actually available in the front side of the building and therefore there is violation of Rule 37 of the M.A.D.A. Regulations.

According to the private respondent the construction fulfills all/oil the requirements of Building Regulations as prescribed by M.A.D.A. and other parameters. In the supplementary counter affidavit filed by M.A.D.A., it is stated that the proposed map plan was examined as per the Regulations and after being satisfied about ownership title, means of access and other parameters, the map was sanctioned. In so far as the access front road, it is stated that the existing width of the front road is 20 feet and the landowner has gifted her own land measuring 17 1/2 feet for road widening hence total width of the front road is 37 1/2 feet. According to M.A.D.A., the Technical Member-cum-Town Planner of the Authority and the Junior Engineer of the Authority visited the site and measured the road and as per the measurement and the width of the present road including the drainage is 37 1/2 feet and the road excluding the drainage is 34 1/2 feet. In so far as the alleged ramp, in the earlier counter affidavit filed by M.A.D.A. it is stated that the respondent-M.A.D.A. has written a letter to the builder vide T.P. 474 dated 31.8.2012 prohibiting her from construction of the ramp on the road widening area. It is stated that in response to the said letter, the builder has undertaken not to construct any ramp on the road widening area by preferring letter to M.A.D.A. It is seen from the counter affidavit filed by M.A.D.A. that the grievance of the petitioners regarding the width of the front road is baseless.

As rightly contended by the learned counsel appearing for the private respondent that the present writ petition appears to be a case of private interest litigation filed by the purchasers of plots of Chandra Vihar Colony who claim a right of user of 50 kathas of land situated near the centre of Chandra Vihar Colony and claiming that they were led to believe by their, vendors that it will be kept as a common area.

In a catena of decisions, the Hon''ble Supreme Court held that the Court must look into the petition carefully and ensure that there is genuine public interest involved in the case before invoking its jurisdiction. In the case of Dattaraj Nathuji Thaware Vs. State of Maharashtra and Others, , the Hon''ble Supreme Court held as under:--

...A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by this Court in Janata Dal Vs. H.S. Chowdhary and Others, and Kazi Lhendup Dorji Vs. Central Bureau of Investigation and Others, . A writ petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. [See The Ramjas Foundation and Others Vs. Union of India and Others, and K.R. Srinivas Vs. R.M. Premchand and Others, ].

There is sufficient material to show that there is no public interest involved but this writ petition has been filed only to settle the private disputes between the petitioners and the private respondent and this writ petition is liable to be dismissed. Hence, this writ petition is dismissed with cost of Rs. 5,000/-. The petitioners shall pay the said amount of Rs. 5,000/- to Jharkhand State Legal Services Authority within a period of four weeks from today.