IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5273 of 2002 Ashok Kumar, son of Late Dr. Kusheshwar Prasad, resident of New Patliputra Colony, P.S.-Patliputra, District- Patna. ……Petitioner Versus 1. Patna Regional Development Authority through its Vice-Chairman, Patna Regional Development Authority, Maurya Lok, Patna.800001. 2. The Vice Chairman, Patna Regional Development Authority, Maurya Lok, Patna.800001. 3. Appellate Tribunal for P.R.D.A., through its President, 4th Floor, Maurya Lok, Patna. 4. The State of Bihar, through its Secretary, Urban Development, Vikash Bhawan, Patna. 5. Arbind Kumar, 313, Parag Apartment, New Patliputra Colony, P.s.-Patliputra, District- Patna. 6. Secretary, Parag Grih Nirman Samiti Ltd., New Patliputra, Patna. 7. Patna Municipal Corporation through its Municipal Commissioner, Maurya Lok, Patna. …Respondents For the petitioner : Mr. Prafulla Ranja Srivastava For the State : Mr. Ajay Kumar Sharma, AC to AAG III For P.M.C. : Mr. Bishwa Bishuti Kumar Singh _ 12. 09.03.2010 Heard learned counsels for the petitioner, for the Patna Municipal Corporation, for respondent no.5 and for the State. The writ application has been filed for setting aside the order dated 2.04.2002 passed by the Appellate Tribunal, Patna Regional Development Authority in Appeal Case No.29/01 and also the order dated 24.05.2001 of the Vice-Chairman of Patna Regional Development Authority by which the order of demolition of additional construction made in the ground floor has been passed. 2 The petitioner claims to have purchased the flat having super built area in the ground floor in 1996 in „Parag Apartment‟ from the Parag Sahkari Grih Nirman Samiti Ltd., New Patliputra Colony in nature of absolute sale deed on consideration amount of Rs.3 lacs. At the instance of respondent no.5, Vigilance Case No.66-B of 2000 was instituted by the authority in the year 2000. After hearing the parties, the Vice-chairman, P.R.D.A. passed the order dated 24.05.2001 holding that the sanctioned built up area on the ground floor is 211.98 mtrs, but the parties have constructed on the built up area amounting to 302.10 mtrs, which is an additional 90.12 meters, which was designated for parking and as passage for going to the first and subsequent floors, which the opposite party (petitioner herein) was using to run a medicine store and an office. He accordingly directed to remove the additional construction made by the opposite party. He further directed the office of PRDA to communicate the requisite condonation/compounding fee with regard to other area to the petitioner, who has been directed to deposit the same. Aggrieved by the said order, the petitioner as the Secretary of Parag Sahkari Grih Nirman Samiti Ltd. filed an appeal before the Appellate Tribunal, P.R.D.A. being Appeal No.29/2001 which was disposed of by its order dated 2.04.2002 (Annexure-1) with certain observations and directions with regard to demolition of the said flat and directed the office of PRDA to make fresh calculations of the condonation/compounding fee in 3 the light of said discussions and observations taking into consideration the bye-laws in the year 1990 with respect to the required set-back area and the rate of condonation/compounding fee and all the other directions/ orders against the same were set aside. Aggrieved by the said order directing demolition of the additional constructed area of 90.12 meters the petitioner in his individual capacity as the purchaser of the said area has approached this Court by filing this writ application. Learned counsel for the petitioner submits that the plan of the apartment in question as was sanctioned was below the permissible FAR as per the Building Bye Laws and therefore in terms of clause 20 of the Bye-Laws, the petitioner was entitled to construct additional area up to the permissible F.A.R. It is thus contended by learned counsel that the Appellate Tribunal has not taken into consideration the said aspect of the matter that the additional construction on the ground floor could have been regularized on the basis of the additional F.A.R. permissible for the same. Learned counsel also refers to other provisions of the modified Building Bye-Laws under which construction of ground floor would come under minor deviation and also Appendix L of the Bye-Laws which provides rules for compounding of minor deviation. It is submitted by learned counsel that in terms of the said provisions, the Appellate Tribunal ought to have allowed the 4 condonation and not directed the demolition of the said additional construction of 90.12 meters. Learned counsel urges that a revised building plan had been submitted before the P.R.D.A. on 27.06.2002 showing the additional construction on ground floor, to regularize the said construction and the same has been kept pending. It is also submitted by learned counsel that the P.R.D.A. Act, 1981 has since been repealed by Section 48 of the Bihar Municipality Act, 2007 w.e.f.5.04.2007 and under the new provisions the sanction of building map is to be made by a registered architect and the petitioner has approached a registered architect who has stated that the said additional construction on the ground floor is permissible in accordance with the provisions of the Bye-Laws. Learned counsel in support of aforesaid stand relies upon the decisions of the Supreme Court in the case of Syed Muzaffar Ali & ors. Vs. Municipal Corporation of Delhi 1995: Supp (4) SCC 426 in which, it has been held in paras 4 and 5 as follows :- “4. The mere departure from the authorized plan or putting up a construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of the structure. There are cases and cases of such unauthorized constructions. Some are amenable to compounding and some may not be. There may be cases of grave and serious breaches of the licensing provisions or building regulations that may call for the extreme step of demolition. 5. These are matters for the authorities to consider having regard to the nature of the transgressions. It is open to the petitioners in the present case to move the 5 authorities for such relief as may be available to them at law. The petitioners may, if so advised, file a plan indicating the nature and extent of the unauthorized constructions carried out and seek regularization, if such regularization is permissible. The dismissal of the petitions challenging the demolition orders in the present case, will not stand in the way of the authorities from examining and granting such relief as the petitioners may be entitled to under law”. Learned counsel for the respondent no.5 on the other hand submits that it is not open to the petitioner to challenge the order of the Appellate Tribunal, PRDA since he had filed the appeal merely as Secretary, Parag Sahkari Grih Nirman Samiti which is the owner of the Parag Apartments and the Secretary of the said Samiti has been separately made respondent no.6 to the writ petition. It is further submitted by learned counsel that even if it is held that the petitioner is entitled to move this Court as the purchaser of the flat, being additional construction on the ground floor, it is not open for him to raise the grievance regarding the regularization of the additional construction as the same can only be sought by the Parag Sahkari Grih Nirman Samiti Ltd. Learned counsel also submits that the provisions regarding additional construction in order to adjust the F.A.R cannot be utilized for regularizing the illegal construction which has been made to the detriment of other flat owners, with respect to which respondent no.5 as one of the flat owners has serious objections and several owners have also objected to the same. In support of the aforesaid stand learned counsel for 6 respondent no.5 relies upon a decision of the Supreme Court in the case of Debashis Roy and Anr. Vs. Calcutta Municpal Corporation and Ors; 2005 (2) PLJR (SC) 271 , in paras 8 and 9 of which, it has been held as follows : “8. We feel that the writ petition filed in the High Court was not confined to raising dispute between private parties. There was essentially an element of public interest involved as serious questions alleging violations of building laws and the town planning were raised. Whether the power under Section 416 was available to be exercised and if so, whether it was rightly exercised by the local authority, was another question. They called for a serious consideration on the part of the High Court. If at all a case of illegal change of use and violation of building laws or town planning was made out, then it was a clear case of calling for an order of demolition of unauthorized construction. We may also place on record that the learned counsel for the petitioners was at pains in submitting that the change of use and the constructions were done during the pendency of the writ petition and also in defiance of the interim orders passed by the High Court which contention has not received the consideration of the High Court. 9. The impugned orders passed by the learned single Judge as well as by the Division Bench of the High Court are set aside. The case is remanded to the High Court for hearing afresh and decision in accordance with law consistently with the observations made hereinabove. As it is pointed out that commercial construction on the parking space has already come up and commercial activities are being carried thereon which causes serious inconvenience and discomfort to the flat owners, we request the High Court to given priority to the hearing of this petition and dispose off the same as expeditiously as it can, preferably within a period of six months from the date of this order being brought to the notice of the High Court”. Learned counsel for the Patna Municipal Corporation on the other hand submits that the order of the Appellate Tribunal is not assailable in view of the fact that he has discussed all factual and other aspects of the matter and it is not open to the 7 petitioner to raise any factual contention in the writ jurisdiction. It is further contended by learned counsel that the issue of F.A.R was not at all raised by the petitioner before the Appellate Tribunal, PRDA and the said matter is being raised before this Court for the first time; for the said reason, the impugned order ought not to be interfered with. On a consideration of the submissions of learned counsels for the parties, this Court does not find any force in the submission of learned counsel for the petitioner. The order of the Appellate Tribunal PRDA has been passed after taking into consideration all aspects of the matter and the tribunal has fairly considered the building Bye-Laws with respect to the claim regarding the set back in the construction made and has practically decided those issues in favour of Parag Sahkari Grih Nirman Samiti Ltd. That being the position, this Court does not find that the question of availability of an additional F.A.R for making the additional construction can have any relevance for the decision of the present matter. The decision of the Apex Court in Syed Muzaffar Ali case (Supra) is not at all relevant in the facts of this case. Here, it is merely question of compounding an unauthorized construction which has caused change of user leading to obstruction and inconvenience to the other flat owners. It is true that as per Annexure-9 series filed in the supplementary affidavit on behalf of 8 the petitioner, about 9 or 10 of 17 flat owners have stated that they did not have any objection to the additional construction but a significant number of 6 or 7 flats owners including the respondent no.5 have not spoken in favour of the said unauthorized construction. In that view of the matter, the impugned order of the Appellate Tribunal cannot be set aside merely on the ground that on the basis of additional F.A.R available, the said construction can be regularized. This Court is in agreement with the submission of learned counsel for the respondents that even if further construction is permissible then it may be permitted on the application of Parag Sahkari Grih Nirman Samiti Ltd. by raising either additional floors or over an area which is permissible under the Bye-Laws but which does not cause obstruction to the other flat owners already occupying the flats. In the light of the aforesaid discussions, this Court does not find any merit in this writ application and it is, accordingly, dismissed. V.K. Pandey (Ramesh Kumar Datta, J.)