IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8270 of 2009 Ram Binay Singh son of Late Nageshwar Singh Resident of 401.B Priytadarshani Apartment, Boring Road, P.S. Budha Colony , Patna………………………………Petitioner. Versus 1. Patna Municipal Corporation through Municipal Commissioner, Patna Municipal Corporation, Maurya Lok, Patna. 2. Municipal Commissioner, Patna Municipal Corporation, Maurya Lok, Patna. 3. Sanjay Singh, M.L.C. son of Sri Gobardhan Prasad Singh, resident of 22 Strand Road, P.S. Sachiwalay, Patna 4. K.B. Sriniwasan, resident of Flat No.402A, Block-A Priyadarsani Apartment, Boaring Canal Road, P.S. Budha Colony, District Patna……………………………………….Respondents. ----------- O R D E R 11/ 27.08.2010 This writ petition has been filed by the petitioner challenging order dated 29.06.2009 (Annexure-1) by which the Municipal Commissioner, Patna Municipal Corporation (respondent no.2) directed the petitioner to remove grill fixed on the entrance point of the fourth floor of the building Priyadarshini Apartment containing Flat No.401-B and 402-B of Block-B on the stairs of the building leading to the roof which was exclusively possessed by the petitioner and also to remove a partition wall constructed by the petitioner for privacy and security of his family members separating Block-A and Block-B of the building dividing the corridor between the said blocks. 2. Admittedly the petitioner is not the owner of either the aforesaid two flats or of the roof of the building, rather the said premises are owned by Mrs. Sushmita Mukherjee as per the builder’s share. However, the petitioner is claiming the said properties on the basis of - 2 - agreement for sale from the said owner dated 22.06.2001 (Annexure-2). 3. It is interesting to note that the said admitted owner, namely Smt. Sushmita Mukherjee has lodged an F.I.R. against the petitioner and others bearing Budha Colony P.S. Case No.20 of 2002 (AnnexureB/3 to the counter affidavit) for offences punishable under sections 467, 468, 469, 471, 419, 452, 420, 380 and 120B/34 of the Indian Penal Code alleging that the agreement for sale is forged and fabricated document as neither the statement nor the signature thereon belong to her. It was also claimed that the original seal/stamp of the developer Company is also forged and lawyer Mr .Dharmendra Sigh who is said to have identified the builder in the alleged agreement for sale was actually the same person who had earlier identified one Farhan Malik, the terrorist who had masterminded the attack on Kolkata Based American Centre in which he was arrested and taken away to Kolkata by Kolkata police. The said case against the petitioner was prima facie found to be true and the police submitted charge sheet on 28.02.2003 finding that the aforesaid Flat No.401-B and 402-B of the building had been forcibly and illegally occupied by the petitioner. 4. Respondents no.3 and 4 have appeared and have stated that having forcibly and illegally occupied Flat No.401-B and 402-B on the fourth floor of the building, the petitioner is also trying to oust the said respondent nos.3 and 4 who are the owners of Flat No.401-A and 402-A on the same floor of the building and for that purpose he is trying to raise obstructions by fixing grills on the stair case and by constructing walls on that floor as well as on the roof. Hence, due to the aforesaid criminal and illegal activities of the petitioner, an emergency situation had arisen due to - 3 - which the said respondents approached Patna Municipal Corporation on 24.10.2008 to take immediate steps against the act of the petitioner. 5. From the facts and circumstances of the case as well as from the materials on record and the pleadings of the parties, it is quite apparent that the building in question, namely, Priyadarshini Apartment is one block building constructed as per the development agreement dated 01.12.1996 between the owners of the land, namely respondent no.4, his wife and the developer, namely M/s Manjil Construction Company represented through its partner Mrs. Sushmita Mukherjee. It further transpires that as per the development agreement half of the flats of each of the floors of the building was allotted to the owners’ share and other half of each floor of the building was allotted to the builder. Accordingly, the owner of the land, namely respondent no.4 got Flat No.401-A and 402A out of which he gave one flat to respondent no.3, whereas the remaining two flats on the fourth floor, namely Flat No.401-B and 402-B belonged to the developer which had now been occupied by the petitioner on the basis of the alleged agreement for sale, which has been challenged as forged by the developer and the matter is pending before a court of law. If the said claim of the informant, namely Mrs. Sushmita Mukherjee is allowed, the petitioner apart from being punished, shall be entitled to be ousted through the process of the court as a trespasser/encroacher but if the said informant does not succeed the petitioner will have to get the sale deed executed by the said developer or through the process of the court and only thereafter he can claim any right and title over the said properties 6. Furthermore, even if for the sake of argument, the agreement for sale of the petitioner is relied upon, the same is only with - 4 - respect to the two flats and half of the roof of those flats but the said agreement is completely silent with respect to the common area. According to the specific provision of law, the common area includes the stairs and the spaces left between the flats as well as the common passage. The petitioner according to his own case has put grills and has constructed partition wall on the said common area for which he had no sanction or authority in law. Hence, the said act of the petitioner is absolutely illegal and mischievous to say the least, as it fully supports the contention of respondent no.3 and 4 that the petitioner is trying to make their life miserable to force them to give the said flats to the petitioner at throw away price. The Budha Colony Police Station has also submitted its report dated 06.11.2008 (Annexure-E/3) under section 133 of the Code of Criminal Procedure before the Sub- Divisional Magistrate , Patna supporting the claim of the contesting respondents and requesting that an appropriate order in that regard be passed. 7. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned order of the Municipal Commissioner, Patna Municipal Corporation (respondent no.2) which is legal, proper and fully within his jurisdiction. This writ petition is accordingly dismissed. Harish (S.N. Hussain, J.)