IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5071 of 2003 Nawal Kishore Singh, son of Shree Kunj Behari Singh, resident of J.F.I., Block-4, Flat-42, Road No. 10, Rajendra Nagar, Post Office- Rajendra Nagar, Police Station Kadamkuan, District-Patna --- Petitioner. Versus 1. The State of Bihar through the Secretary, Urban Development Department, Government of Bihar, Patna. 2. The Patna Regional Development Authority, Patna through its Vice Chairman. 3. Premawati Sinha wife of Radhika Sinha, J.F.I, Block 3, Flat 32, Road No.10, Rajendra Nagar,Patna-16, P.O. Rajendra Nagar, P.S. Kadamkuan, Patna. 4. Himansu Kumar Verma son of late H.N.Verma, J.F.I. Block 3, Flat 26, Road No. 10, Rajendra Nagar Patna 8000 16, P.O. Rajendra Nagar, P.S. Kadamkuan, Patna. 5. Commissioner, Patna Municipal Corporation, Patna. ---Respondents. ********* For petitioner: Mr. Chitranjan Sinha, Sr. Advocate with Mr. Ranjeet Kumar and Mr. Jay Prakash Sharma, Advocates. For respondent no.3 : Mr. S.N.Rai, Sr. Adv. With Mrs. Rama Sinha. For P.M.C. : Mr. Bishwa Bibhuti Kumar Singh and Mr. Manish Kumar (IAS), Municipal Commissioner, P.M.C.( in person). For the State : Mr. A. Amanullah, G.A. IX with Mr. S. Rahman, A.C. ********* 16/ 09-12-2010 In compliance of order dated 07.12.2010, Mr. Manish Kumar, I.A.S., the Municipal Commissioner of the Patna Muncipal Corporation was physically present in the court yesterday (08.12.2010), but neither show-cause was filed on his behalf nor any counter-affidavit was filed on behalf of the Patna Municipal Corporation. Therefore, by way of extraordinary indulgence, matter was passed over for the day and has been listed today for its final disposal. The Municipal Commissioner of the Patna Municipal 2 Corporation is physically present in the Court even today (09.12.2010) and has filed his show-cause stating therein that he has recently joined as Municipal Commissioner of Patna Municipal Corporation on 08.10.2010 and, therefore, counter-affidavit could not be filed earlier in the present proceeding. A counter affidavit has also been filed today on behalf of the Patna Municipal Corporation. He has tendered his apology for inconvenience caused to this Court. In the aforesaid circumstances, the show-cause filed on behalf of the Municipal Commissioner of Patna Municipal Corporation is accepted and the matter on the board is taken up for consideration on merits and for its final disposal. 2. Heard the parties. 3. The petitioner has filed the present writ petition before this Court for the following reliefs:- “That this application is for seeking issuance of appropriate writ and/or direction on the respondents: (a) To consider the petitioner at par with other allottees of Block-4 in J.F.I. type and of Block no.-3 in Road no.10, Rajendra Nagar, Patna for use of the common space abounding the said buildings, (b) To direct the respondents to make parking space free from encroachment by removing the encroachment made by ground floor allottees, (c) To consider and if found fit, allow 3 sanction for putting up garage in the open space.” 4. The facts involved in the present proceeding are not in much controversy. The petitioner was allotted a flat bearing no.J.F.I., Block no. 4, flat no. 42 at road no. 10, Rajendra Nagar by the then Patna Regional Development Authority (hereinafter referred to as “P.R.D.A.”),the predecessor body of Patna Municipal Corporation. The petitioner claims to be residing there since 1977, after allotment of the aforesaid flat. He also claims to have constructed a garage for keeping his vehicle in an open space near the aforesaid block no.4, which is a three storied building. The private respondent nos. 3 and 4 are also the owners of the flats, allotted to them by the then P.R.D.A. Respondent nos. 3 and 4 both were allotted flats in block no.3 in the ground floor. 5. According to the petitioner, the allottees of ground-floor of different blocks have converted the open space for their exclusive use. In some blocks they have built up certain pucca structures or/and they have set up boundary wall around their own flats, causing inconvenience to the other flat owners of first or second floor. It is also the case of the petitioner that open space around the buildings was meant to be used by all the flat owners and it was never allotted to the allottees of ground 4 floor. 6. It is submitted that in view of certain illegal construction made by certain flat owners in the open space, a policy decision was taken by the then P.R.D.A. to regularize those constructions provided they conform to the rules/regulation existing at that time. For that purpose a public notice, as contained in Annexure-5, was issued on 30th January, 1997 in a local Hindi daily News-„Aaj‟ inviting applications from the flat owners for consideration of their claim for regularization of such illegal/extra construction. The petitioner also claims to have filed an application on 22.02.1997 before the then P.R.D.A., seeking permission to construct a garage in an open space. It is further contended that in anticipation of approval, he had constructed a temporary garage in the open space, but that was subsequently demolished on 12.05.2003 by the authorities without passing any final order on the application filed by the petitioner. His grievance is that the illegal/extra construction made by the other allottees including the private respondent nos. 3 and 4, has not been demolished and they are still having their unauthorized possession over the same. In the submission of learned counsel appearing on behalf of the petitioner, the then P.R.D.A. or the Patna Municipal Corporation, its successor body,being an instrumentality of the State under 5 Article 12 of the Constitution of India cannot be permitted to act arbitrarily. Similar treatments are/were required to be given to all the allottees as per the rules applicable at the relevant time, or as per the existing Rules/ regulations. 7. Learned counsel appearing on behalf of respondent no. 3 submits that in fact the open space was allotted to her by virtue of lease deed and she was required to pay extra money for allotment of ground floor and the open space. It is further contended that there is no clash in the interest of the petitioner vis-à-vis interest of respondent no.3, as they are allottees of the flats in different blocks and, therefore, she is not at all a necessary party in the present case and proceeding against her may be dropped. 8. Learned counsel appearing on behalf of the Patna Municipal Corporation submits that if certain allottees/persons have put up their illegal construction over the open space in front of or around the building, then on that strength the petitioner cannot claim to have similar treatment. Any illegality committed by any authority or any flat owners cannot be permitted to be perpetuated. In his submission the notice was issued by the then P.R.D.A. for regularization of some extra construction by the flat owners provided that was in accordance with the provisions of rules/regulations and other bye-laws existing 6 at that time. He further submits that open space is for common use by all the flat owners. 9. By virtue of the order passed by this Court on 07.12.2010, Mr. Manish Kumar, I.A.S., Municipal Commissioner of Patna Municipal Corporation, is physically present in the court and he has also submitted that the Patna Municipal Corporation shall see to it that no illegality by any flat owners is permitted to be perpetuated. He has assured the Court that a uniform standard shall be applied with respect to all the flat owners. 10. After having heard the parties at length and perusing the materials on record, it is apparent that pursuant to the public notice, as contained in Annexure-5, the petitioner had submitted his application seeking permission to construct a garage in the open space in front of the building of his flat, but that matter has not been disposed of as yet and is still pending. In view of nature of controversy raised in this petition, it would be appropriate that entire matter is examined by the Municipal Commissioner of Patna Municipal Corporation and a final decision is taken with respect to a larger issues. If the allottes of other buildings/flats have been permitted to use the open space for putting up a certain pucca structure for the purpose of constructing garage or for some other similar facilities, then it is expected that the petitioner 7 shall not be discriminated. However, if the Municipal Commissioner by examining the relevant rules, regulations or bye- laws comes to a conclusion that no flat owners have the exclusive right to use that open space or they cannot be permitted to convert the open space for their exclusive use by putting up certain pucca structure, then in that case that decision must be made application with respect to all the flat owners in the whole town of Patna falling under the jurisdiction of Patna Municipal Corporation. It is made clear that before taking final decision so far as the controversy in the present proceeding is concerned, all concerned persons shall be given opportunity of hearing. Entire exercise in the light of the present order must be completed within a period of four months by the Respondent Municipal Commissioner of Patna Municipal Corporation. 9. With the aforesaid observation/direction, the present writ petition stands disposed of. There shall be no order as to costs. BTiwary/ ( Birendra Prasad Verma, J.)