ควบคุมอาคาร : ฟ้องขอให้เพิกถอนคําสั่งให้ระงับการก่อสร้าง

เรื่อง ควบคุมอาคาร : ฟ้องขอให้เพิกถอนคําสั่งให้ระงับการก่อสร้าง ดัดแปลง หรือเคลื่อนย้าย
คําสั่งห้ามใช้ และคําสั่งให้รื้อถอนอาคารส่วนที่ทําการต่อเติม (พ.ร.บ. ควบคุมอาคาร
พ.ศ. ๒๕๒๒ มาตรา ๔๐ (๑) (๒) และ (๓) และมาตรา ๔๒ กฎกระทรวง ฉบับที่ ๕๕
(พ.ศ. ๒๕๔๓) ออกตามความใน พ.ร.บ. ควบคุมอาคาร พ.ศ. ๒๕๒๒ ข้อ ๓๔ วรรคสอง
และวรรคห้า)

เป็นคําสั่งที่ชอบด้วยกฎหมาย

คําพิพากษาศาลปกครองสูงสุดที่ อ. ๖๖๗/๒๕๕๗
ผู้ฟ้องคดีได้เช่าอาคารพาณิชย์จํานวน ๑ คูหา เพื่อประกอบกิจการร้านขายอาหาร
ประเภทข้าวราดแกงโดยผู้ฟ้องคดีได้ปรับปรุงและต่อเติมด้านหลังอาคารเพื่อใช้เป็นพื้นที่ในการปรุงอาหาร
ซึ่งผู้ฟ้องคดีเข้าใจว่าสามารถจะทําการต่อเติมด้านหลังอาคารดังกล่าวได้ เนื่องจากอาคารข้างเคียง
ก็มีการต่อเติมในลักษณะเดียวกัน ต่อมา ผู้ฟ้องคดีได้รับคําสั่งของผู้ถูกฟ้องคดีที่ ๑
(นายกเทศมนตรีนครพิษณุโลก) จํานวน ๓ ฉบับ คือ คําสั่งให้ระงับการก่อสร้าง ดัดแปลง
หรือเคลื่อนย้ายอาคารส่วนที่ทําการต่อเติม (แบบ ค.๓) ลงวันที่ ๔ สิงหาคม ๒๕๕๔ คําสั่งห้ามใช้
อาคารส่วนที่ทําการต่อเติม (แบบ ค.๔) ลงวันที่ ๔ สิงหาคม ๒๕๕๔ และคําสั่งให้รื้อถอนอาคาร
ส่วนที่ทําการต่อเติม (แบบ ค.๗) ลงวันที่ ๔ สิงหาคม ๒๕๕๔ ผู้ฟ้องคดีได้มีหนังสืออุทธรณ์คําสั่ง
ของผู้ถูกฟ้องคดีที่ ๑ ทั้งสามฉบับดังกล่าวต่อผู้ถูกฟ้องคดีที่ ๒ (คณะกรรมการพิจารณาอุทธรณ์
ในเขตเทศบาลนครพิษณุโลก) ต่อมาสํานักงานโยธาธิการและผังเมืองจังหวัดพิษณุโลกมีหนังสือ
แจ้งผู้ฟ้องคดีว่า ผู้ถูกฟ้องคดีที่ ๒ มีคําวินิจฉัยอุทธรณ์ เมื่อวันที่ ๑๒ ตุลาคม ๒๕๕๔ ให้ยกอุทธรณ์
ของผู้ฟ้องคดี และให้ผู้ฟ้องคดีปฏิบัติตามคําสั่งของผู้ถูกฟ้องคดีที่ ๑ ผู้ฟ้องคดีจึงนําคดีมาฟ้องขอให้
ศาลมีคําพิพากษาหรือคําสั่งให้เพิกถอนคําสั่งทั้งสามฉบับของผู้ถูกฟ้องคดีที่ ๑ และให้เพิกถอน
คําวินิจฉัยอุทธรณ์ของผู้ถูกฟ้องคดีที่ ๒ ดังกล่าว เห็นว่า เมื่อข้อเท็จจริงรับฟังได้ว่า ผู้ฟ้องคดีได้เช่า
อาคารตึกแถวเลขที่ดังกล่าวเพื่อประกอบกิจการร้านขายอาหาร และได้ทําการต่อเติมโครงเหล็กตาข่าย
ไม้ฝาเฌอร่า ขนาดความกว้าง ๑.๘๐ เมตร ยาว ๔ เมตร บริเวณด้านหลังอาคารตึกแถวที่มีการเว้นไว้
เป็นทางเป็นเหตุให้ด้านหลังอาคารมีที่ว่างน้อยกว่า ๓ เมตร กรณีจึงถือได้ว่าผู้ฟ้องคดีซึ่งเป็น
ผู้ครอบครองอาคาร ได้กระทําการฝ่าฝืน ข้อ ๓๔ วรรคสองและวรรคห้า ของกฎกระทรวง ฉบับที่ ๕๕
(พ.ศ. ๒๕๔๓) ออกตามความใน พ.ร.บ. ควบคุมอาคาร พ.ศ. ๒๕๒๒ ซึ่งเป็นบทบัญญัติ
ที่มีเจตนารมณ์เพื่อการป้องกันและระงับอัคคีภัยเป็นสําคัญ ผู้ถูกฟ้องคดีที่ ๑ ในฐานะเจ้าพนักงาน
ท้องถิ่นจึงมีอํานาจตาม พ.ร.บ. ควบคุมอาคาร พ.ศ. ๒๕๒๒ มาตรา ๔๐ (๑) ที่จะมีคําสั่งให้ผู้ฟ้องคดี
ซึ่งเป็นผู้ครอบครองในฐานะผู้เช่าระงับการกระทําดังกล่าว และมีอํานาจตามมาตรา ๔๐ (๒) ที่จะมีคําสั่ง
ห้ามมิให้บุคคลใดใช้หรือเข้าไปในส่วนใดๆ ของอาคารหรือบริเวณที่มีการกระทําดังกล่าว และเมื่อการกระทํา
ของผู้ฟ้องคดีดังกล่าวเป็นกรณีที่ไม่สามารถแก้ไขเปลี่ยนแปลงให้ถูกต้องได้ ผู้ถูกฟ้องคดีที่ ๑
ในฐานะเจ้าพนักงานท้องถิ่นจึงมีอํานาจที่จะสั่งให้ผู้ฟ้องคดีซึ่งเป็นผู้ครอบครองอาคารในฐานะผู้เช่า รื้อถอนอาคารส่วนที่ทําการต่อเติมได้ภายในระยะเวลาที่กําหนดแต่ต้องไม่น้อยกว่าสามสิบวัน
ตามมาตรา ๔๒ แห่งพระราชบัญญัติเดียวกัน ส่วนที่ผู้ฟ้องคดีกล่าวอ้างความเดือดร้อนหรือเสียหาย
จากการที่ต้องรื้อถอนอาคารส่วนที่ต่อเติมก็เป็นผลสืบเนื่องจากการกระทําที่ฝ่าฝืนกฎหมายของ
ผู้ฟ้องคดีเอง มิใช่เหตุที่จะทําให้คําสั่งของผู้ถูกฟ้องคดีที่ ๑ หรือคําวินิจฉัยของผู้ถูกฟ้องคดีที่ ๒
ที่เป็นเหตุแห่งการฟ้องคดีนี้เป็นคําสั่งที่ไม่ชอบด้วยกฎหมายแต่อย่างใด ดังนั้น การที่ผู้ถูกฟ้องคดีที่ ๑
ออกคําสั่ง จํานวน ๓ ฉบับดังกล่าว จึงเป็นการออกคําสั่งที่ชอบด้วยกฎหมาย และการที่ผู้ถูกฟ้องคดีที่ ๒
มีคําวินิจฉัยอุทธรณ์เมื่อวันที่ ๑๒ ตุลาคม ๒๕๕๔ ให้ยกอุทธรณ์ของผู้ฟ้องคดี จึงเป็นคําวินิจฉัย
อุทธรณ์ที่ชอบด้วยกฎหมายเช่นกัน สําหรับที่ผู้ฟ้องคดีอุทธรณ์ว่า การออกคําสั่งทั้ง ๓ ฉบับดังกล่าว
เป็นการปฏิบัติที่ไม่ถูกต้องตามขั้นตอนที่กฎหมายกําหนด เห็นว่า เมื่อมาตรา ๔๐ (๓) แห่ง พ.ร.บ.
ควบคุมอาคาร พ.ศ. ๒๕๒๒ บัญญัติให้เจ้าพนักงานท้องถิ่นมีอํานาจออกคําสั่งให้ผู้ครอบครองอาคาร
รื้อถอนอาคารนั้นทั้งหมดหรือบางส่วนภายในสามสิบวันนับแต่วันที่เจ้าพนักงานท้องถิ่นสั่งให้
ผู้ครอบครองอาคารระงับการกระทําตามมาตรา ๔๐ (๑) ดังนั้น เมื่อผู้ถูกฟ้องคดีที่ ๑ มีคําสั่งให้
ระงับการก่อสร้าง ดัดแปลง หรือเคลื่อนย้ายอาคารส่วนที่ทําการต่อเติม (แบบ ค.๓) เมื่อวันที่
๔ สิงหาคม ๒๕๕๔ และการต่อเติมอาคารของผู้ฟ้องคดีเป็นกรณีที่ไม่สามารถแก้ไขเปลี่ยนแปลง
ให้ถูกต้องตามกฎหมายได้ ผู้ถูกฟ้องคดีที่ ๑ จึงมีอํานาจออกคําสั่งให้รื้อถอนส่วนที่ทําการต่อเติมได้
ตั้งแต่วันที่ ๔ สิงหาคม ๒๕๕๔ จนถึงวันที่ ๓ กันยายน ๒๕๕๔ เมื่อผู้ถูกฟ้องคดีที่ ๑ มีคําสั่งให้รื้อถอน
อาคารส่วนที่ทําการต่อเติม (แบบ ค.๗) เมื่อวันที่ ๔ สิงหาคม ๒๕๕๔ คําสั่งดังกล่าวจึงออกภายในเวลา
ที่มาตรา ๔๐ (๓) แห่งพระราชบัญญัติดังกล่าวกําหนดแล้ว ที่ศาลปกครองชั้นต้นพิพากษายกฟ้องนั้น
ชอบแล้ว
ที่มา : สํานักประธานศาลปกครองสูงสุด

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