DWARIKA PRASAD JAISWAL Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present Writ Petition (Civil) No. 6458/2002 has been preferred against an order dated 3.10.02 passed by the Town Planning Authority, Dumka in T.P. Case No. 7/2001 -02 whereby the petitioners have been restrained from fixing doors/ shutters of their constructed room and latrine opening towards private Gulli measuring 2'10" situated adjacent east of the lands and house measuring 5 Dhur 10 Dhurki of plot No. 629 of Dumka Town No.7.`

(2.) THE facts in brief as stated by the petitioner is set out as under: -

(3.) I have considered the submissions and the arguments advanced on behalf of the parties concerned. The admitted fact remains that Title Suit No. 56/02 has been filed by the plaintiff with respect to the same land in question and thus the present writ petition is not maintainable. The second admitted fact remains that the registered sale deed dated 30.1.97 specifically lays down the terms and conditions to be followed by both the parties wherein it has been specifically agreed that street (Guill) of 2'10" should be kept vacant between the holdings of both the seller and purchaser vacant for common use and no construction was to be made on it either by the seller or the purchaser. It was further agreed in the registered sale deed that none of the parties will make any construction over the same and the construction can be made only after 10 feet above and the same has also been violated by the petitioner. In any event the Special Officer was appointed who made a site inspection in presence of both the parties and after detailed enquiry gave its report. After perusal of the report by the Special Officer, Dumka Municipality and the show cause reply and after hearing both the sides the Town Planning Authority, Additional Collector, Dumka vide its impugned order dated 3.10.02 rightly came to the conclusion that as per Rule 26 of the Bihar Building Bye -laws no door, gate bar shall be placed so as to open outwards in any street and hence the writ petitioner has rightly been restrained from opening doors or shutters outwards in the aforesaid Gulli. Further the illegal construction without a sanctioned map was in any case not only in violation of the Building Bye -laws but was also against the terms and conditions of the registered sale deed. Thus the Town Planning Authority, Additional Collector was fully justified in issuing the impugned order dated 3.10.02. The main contention of the petitioner is that Rule 26 is not at all applicable. Rule 26 is quoted as under: -