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2011 Supreme(Pat) 388
PATNA HIGH COURT
V. N. SINHA, J.
Amarnath pandey - Petitioners
Vs.
The Patna Municipal Corporation & Ors. - Respondents
CWJC Nos. 14023, 12626, 12717, with 12728 of 2007
Decided on: 15.3.2011
For the Petitioners: M/s Sanjay Singh, Uma Kant Prasad (in 14023 & 12717); M/s Y.V. Giri, Raju Giri (in 12728); M/s Mrigank Mauli, Rajesh Mohan (in 12626).
For the State: M/s A. Amanullah, Arun Kr. Prasad (in 14023 & 12717).
For the Respondents: M/s Vinay Kirti Singh, Bishwa Bibhuti Kumar Singh (in all).
For the Intervener: Mr. Gajendra Pratap Singh (in 12626).
Headnote:Bihar Regional Development Authority Act, 1981-Section 54(1) r/w Bihar Municipal Act, 2007-Section 323(1) Demolition of unauthorised construction Sanctioned plan of the building in question provided for raising of guard, generator room, toilet etc. over an area of 86.80 M2 in the ground floor-Besides the said construction no other construction is permitted to be raised in ground floor-The remaining area on the ground floor is to be used for set backs, drive way and parking space violating the sanctioned plan land owner/ developer raised the two shops at plinth level-1, 0.90 meters above the ground level As per sanctioned plan those two shops should have been raised at plinth level-2 on the upper ground floor i.e. the roof of the covered parking area at the height of 2.4 meters from the ground level-The Municipal Commissioner, PMC rightly ordered for demolition of the said two shops-Such un authorized construction cannot be condoned by the authorities as the unauthorized construction is not a minor deviation of the sanctioned plan-The revised plan reducing the parking area also could not have been acted upon by the petitioners as the same was neither passed by the authorities nor the land owner/developer ever served the required notice-However, the area of other construction required to be pruned by the petitioner not having been specified in the impugned order, the Municipal commissioner directed to pass orders specifying the extent of the other portions of the building which is required to be pruned-Municipal Commission also directed to grant further 30 days time to the petitioners for removal of two shops. (Paras 13 & 14)
1. Petitioner in these writ petitions are the land owner, developer, purchaser of a flat and tenant occupying the lower, ground, first floor of the building in question.•
2. Initially three of the aforesaid four writ petition(s) bearing C.W.J.C. Nos.12626 of 2007,12717 of 2007 and 12728 of 2007 was filed on 24.9.2007 challenging letter no.974 dated 11.7.2006, Annexure-4 of the Secretary, Patna Regional Development Authority (hereinafter referred to as the PRDA),' whereunder the Secretary, PRDA communicated the Offlcer-in-charge, Kotwali police station, Patna the order dated 11.7.2006 of the Vice-Chairman, PRDA asking the Officer-in-charge to ensure stoppage of further construction of the building in question. In those writ petitions notice dated 20.7.2006, Annexure-5 issued by the Officer-in-charge, Kotwali police station, Patna in compliance of the order of the Vice-Chairman, PRDA dated 11.7.2006 restraining further construction of the building in question was also challenged. In C.W.J.C. Nos.12717 of 2007 and 12728 of 2007 petitioners also questioned the notice and order dated 20.9.2007, Annexures-3, 3/A passed by the Municipal Commissioner, Patna Municipal Corporation (hereinafter referred to as the PMC) directing the Manager, Vishal Mega Mart to close the mall until disposal of the pending legal proceedings initiated against the building owner. The Court considered the prayer for interim relief made in the aforesaid three writ petition(s) on 27.9.2007 and passed interim order staying closure of the shopping mall with liberty to the Municipal Commissioner, PMC to proceed with the pending legal proceeding and conclude the same. In the light of the liberty granted by this Court under interim order dated 27.9.2007 to the Municipal Commissioner to proceed with the on going proceeding, the Municipal Commissioner, PMC proceeded and concluded the proceeding under order dated 29.10.2007, Annexure-8 in C.W.J.C. No.12717 of 2007 directing demolition of the two shops which has been raised in the lower ground floor of the building in question as also other portions of the building which has been raised in contravention of the provisions contained in Sub-Section-(1) of Section-54 of the Bihar Regional Development Authority Act, 1981 and Sub-Section-( 1) of Section-323 of the Bihar Municipal Act, 2007 within 30 days from the date of receipt of order dated 29.10.2007 failing which PMC shall demolish the said construction and recover the cost of demolition from' the land owner. Petitioners of the aforesaid three writ petition(s) questioned the order dated 29.10.2007 passed by the Municipal Commissioner, PMC by filing interlocutory application in the three pending writ petition(s). Interlocutory application filed in the three writ petition(s) was considered on 14.11.2007 and under interim order dated 14.11.2007 passed in C.W.J.C. No.12728 of 2007 status quo, as existing on that day was directed to be maintained till further orders of the High Court. Meanwhile, land owner filed C.W.J.C. No.14023 of 2007 on 2.11.2007 questioning the validity of the order dated 29.10.2007 passed by the Municipal Commissioner, PMC. Under order dated 26.11.2007 passed in the said writ case direction was given that the said writ case be also heard along with the aforesaid three writ petition(s).
3. During hearing of these petition(s) counsel for the petitioners submitted that the finding recorded by the Municipal Commissioner, PMC that the two shops have been raised in the lower ground floor exceeding the sanctioned construction area of 86.80 M2 by raising construction over 207.54 M2 encroaching the covered parking area meant for scooter, motorcycle and cycle is not correct as the Said parking for scooter, motorcycle and cycle has not been encroached by raising the shops in the lower ground floor. The shops have been raised at plinth level-1, which is at 0.90 meters from the ground level. The height of the shops raised on the lower ground floor is 5.15 meters
