JUDGMENT :

MADHURESH PRASAD, J.

1. The petitioners are residents of one apartment building named the Laxmi Heritage Apartment. Certain flat owners made a complaint alleging that the petitioners have covered the area lying below the projection from the ceiling of their apartment with iron grill which is projecting outside the building line and has been made habitable.

2. The complaint led to lodging of Vigilance Case No. 25B/2011 instituted under Section 36 of the Bihar Regional Development Authority Act 1981 (for short ‘1981 Act’) read with Section 313 of the Bihar Municipal Act 2007 (for short ‘2007 Act’). The Engineer In-charge of the concerned locality was directed to make an inspection. He submitted a report which stated that ten flat owners including the instant petitioners have committed the violation as alleged by the complainant. Notice was then issued to the ten flat owners, including the petitioners.

3. It is the petitioners’ case that they were never served with notice regarding the vigilance case. The order dated 04.08.2011 passed by the Municipal Commissioner in Vigilance Case No. 25B/2011, on the other hand, records that notice was issued to all the ten flat owners. The Municipal Commissioner has recorded that none of the noticees have appeared either personally or through counsel. Having recorded this situation, which is disputed by the petitioners, the Municipal Commissioner has proceeded to record a finding that the allegation made by the complainant is correct. He has ordered for removal of the alleged illegal construction under Section 54(1) of the 1981 Act read with Section 315 of the 2007 Act.

4. Petitioners assailed the order dated 04.08.2011 before the Municipal Building Tribunal (for short ‘Tribunal’) in Appeal Nos. 25/2011 and 27/2011 filed under Section 323(1) of the 2007 Act. The Tribunal rejected the petitioners’ plea regarding non-service of notice in the vigilance case proceedings. Relying on the lower court records, the Tribunal has recorded a finding that notice was sent to the petitioners and was duly served upon them, still they chose to remain absent and did not appear in the vigilance case. The Tribunal has, thus, dismissed the appeal vide judgment dated 30.07.2012 affirming the order dated 04.08.2011 passed by the Municipal Commissioner.

5. Another development, in the meantime, which is considered relevant for ascertaining the legality of the order dated 30.07.2012 passed by the Tribunal, is the fact that one writ petition was filed by one Santosh Prakash (another apartment owner), who is not a party to the instant proceedings, assailing the order dated 04.08.2011 passed by the Municipal Commissioner in the vigilance case. The writ petition was numbered as CWJC No. 19207/2011. On 13.03.2012, a Bench of this Court stayed the order dated 04.08.2011 passed by the Municipal Commissioner in the vigilance case. The writ petition ultimately stood dismissed due to non appearance on 10.09.2018. In view of the order dated 13.03.2012 passed in the CWJC No. 19207/2011 staying the order dated 04.08.2011, which fact is not disputed, whether it was open to the Tribunal to proceed to consider the legality of the order dated 04.08.2011 in the two appeals No. 25/2011 and 27/2011, is also an issue which arises for consideration in the instant case.

6. The immediate cause of action for filing the instant writ petition is a notice dated 21.12.2020 issued by the Municipal Commissioner to the instant petitioners and six other flat owners asking them to explain within 15 days why for non-compliance of the order dated 04.08.2011 passed in Vigilance Case No. 25B/2011 and the order dated 30.07.2012 by the Tribunal, affirming the order dated 04.08.2011, the illegal structure erected by them be not demolished.

7. The writ petition has been filed seeking quashing of the three orders taken note of above, being order dated 04.08.2011 passed in Vigilance Case No. 25B/2011, order dated 30.07.2012 passed in Appeal Nos. 25/2011 and 2