IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10800 of 2009 Smt.Tajeshwari Sharma, Daughter of Sri Kailash Singh, Anand Bihar Apartment, South Mandiri, Patna, District Patna, Bihar. ----- Petitioner. Versus 1. The Patna Municipal Corporation, through its Municipal Commissioner, Patna. 2. The Municipal Commissioner, Patna Municipal Corporation, Patna. 3. The Vigilance Officer, Patna Municipal Corporation, Patna. 4. The Executive Engineer, Patna Municipal Corporation, Patna. All office at Maurya Lok, Block-C, PS Kotwali, Patna. 5. Anil Kishore Sahay. 6. Smt. Amita Sahay. 7. Smt. Mukti Sahay. All Resident of 44 Adarsh Colony, Kidwaipur, PS Budha Colony, District Patna. --- Respondents. For the petitioner : Mr. Jai Ram Singh, Advocate For the P.M.C. : Mr. H.S. Himkar, Advocate Mr. Bishwa Bibhuti Kumar Singh, Advocate For intervenors : Mr. Vivek Prasad, Advocate Mr. J.S. Arora, Advocate. with CWJC No.3891 of 2009 Vivek Prasad, Son of Late Mahabir Prasad, Resident of House No. 280, Patliputra Colony, PS Patliputra, Town + District Patna. ------ Petitioner. Versus 1. The State of Bihar. 2. The Principal Secretary, Urban Development & Housing Department, Government of Bihar, Patna. 3. The Principal Secretary, Vigilance Department, Government of Bihar, Patna. 4. The A.D.G., Vigilance Department, Government of Bihar, Patna. 5. Vice Chairman, P.R.D.A., Maurya Lok Complex, Patna – 800 001. 6. The Municipal Commissioner, Patna Municipal Corporation, Maurya Lok Complex, Patna – 800 001. 7. Administrator, Patna Municipal Corporation, Maurya Lok Complex, Patna – 800 001. 8. The District Magistrate, Patna. 9. Senior Superintendent of Police, Patna. 10. Smt. Tajeshwari Sharma, C/o Sri Kailash Singh, Anand Vihar Apartment, South Mandiri, Patna. 11. Anil Kishore Sahay, Resident of 44 Adarsh Colony, Kidwaipuri, PS Budha Colony, Patna. ------- Respondents. For the petitioner : Mr. Vivek Prasad, Advocate For the P.M.C. : Mr. H.S. Himkar, Advocate Mr. Bishwa Bibhuti Kumar Singh, Advocate For State respondents : G.P. 21 with CWJC No.1142 of 2010 Muskan, Wife of Mukesh Kumar Sinha, Resident of Flat No. 302, Anand Bihar Apartment, South Mandiri, PS Budha Colony, District Patna. ----- Petitioner. Versus 1. Patna Municipal Corporation through its Municipal Commissioner, Maurya Lok, Patna. 2 2. Municipal Commissioner, Patna Municipal Corporation successor in office of the Vice- Chairman of dissolved Patna Regional Development Authority, Maurya Lok, Patna. 3. Smt. Tejasari Sharma, Daughter of Kailash Singh, Resident of Anand Bihar Apartment, South Mandiri, PS Budha Colony, District Patna. 4. Smt. Madhuri Sinha, Wife of R.P. Sinha, C/o Smt. Tejasari Sharma, Resident of Anand Bihar Apartment, South Mandiri, PS Budha Colony, District Patna. 5. Anil Kishore Sahay, Director M/s Manu Kunj Construction (P) Ltd. Son of Late Nand Kishore Sahay, 44 Adarsh Colony, Kidwaipuri, PS Budha Colony, District Patna. 6. Smt. Anita Sahay, Director M/s Manu Kunj Construction (P) Ltd, Wife of Sri Binod Kishore Sahay, 44 Adarsh Colony, Kidwaipuri, PS Budha Colony, District Patna. 7. Smt. Mukti Sahay, Director, M/s Manu Kunj Construction (P) Ltd, Wife of Sri Sharda Chandra Sinha, 44 Adarsh Colony, Kidwaipuri, PS Budha Colony, District Patna. ----- Respondents. For the petitioner : Mr. Kishore Srivastava, Advocate Prafulla Ranjan Srivastava, Advocate For the P.M.C. : Mr. H.S. Himkar, Advocate Mr. Bishwa Bibhuti Kumar Singh, Advocate ----------- 6 17.11.2011 Heard learned counsel for the petitioner, counsel for the intervenors and the counsel appearing on behalf of the Patna Municipal Corporation. I.A. No. 5477 of 2009, I.A. No. 5519 of 2009 and Caveat Petition No. 74 of 2009 have been filed on behalf of person who have purchased flats from the builder. They are also affected by non-compliance of order dated 19.6.2001, passed by the Vice-Chairman, Patna Regional Development Authority (now replaced by the Patna Municipal Corporation). The aforesaid applications are allowed. On the last occasion, this Court had issued notice to the builder who had entered 3 into an agreement with Smt. Tajeshwari Sharma to construct an apartment consisting 1+4 floors. The building Anand Bihar Apartment is the residential house of Smt. Tajeshwari Sharma which is an old construction. While sanctioning the map the then P.R.D.A. had marked certain areas of the old house which were to be demolished by the land owner in the sanctioned plan (annexed with CWJC No. 1142 of 2010). The land owner while submitting the plan for construction of the house had file an affidavit in which it was stated as follows: “That the existing building demarcated for the set back by P.R.D.A. demolish within six months of the sanction of the map”. Thus the land owner had undertaken to demolish the area which was demarcated in the sanctioned plan. The dispute has arisen because of the fact that there was a complaint by the local engineers that there was no set back in front of Anand Vihar Apartment which lead to a vigilance proceeding no. 110A of 2000 against Smt. Tajeshwari Sharma. The order has been passed ex-parte as the land owner did not 4 appear in the case despite receipt of notice. Certain facts have been noted in the proceeding. It is noted that the builder had not left the required set back on all four sides of the building however, the P.R.D.A. has condoned certain violations subject to payment of a fee (which has been done by the petitioner). It has also been noted that the sanction for the total built up area was 1305.09 mtr2 but till the date on which the local inspection was made the built up area was 1180.97 mtr2. The Vice-Chairman thus, ordered that the opposite party is directed to dismantle and remove the old existing building in front (south) set back so as to ensure that the sanctioned front set back becomes available within three weeks from the date of this order. The order aforesaid remained on paper as the land owner did not take any steps to comply with the order by removing the said portion specified in the order. After about nine years of the order some of the flat owners have filed writ applications (CWJC No. 1442 of 2010 and CWJC No. 3891 of 2009) making a prayer that the respondents i.e. the land owner should be asked to demolish the area which has been 5 shown in the sanctioned plan no. BRA-5A26 of 1995 and also to prepare a set back of 4.5 meters in between the existing building and apartment building G+4 in accordance with the modified building bye laws. A prayer has also been made that the respondent Patna Municipal Corporation should explain as to why and how they have not bothered to implement the order of the Vice-Chairman of the P.R.D.A. dated 19.6.2001. The case of the flat owners is that the set back should be between the newly built apartment and the old existing house of the land owner. The case of the land owner Smt. Tajeshwari Sharma is that the sanctioned plan does not speak of a set back between two buildings. The demand of the apartment owners at this stage is belated. It has been argued that the building was sanctioned in one block, and, as such all that was required to be done was to have a set back in front of the old existing building and also to have a passage at the side of the building as sanctioned in the map so that the vehicles of all sorts could enter the building without any difficulty. The complaint of the flat owners on the 6 other hand is that the land owner without taking any further sanction is making construction on the first floor and in a manner so as to block the light and air of the apartment holders, who have their flats on the front side of the apartment. This dispute has been created by the PRDA which has not taken into account the bye laws while sanctioning the plan. This matter needs some consideration and also a determination that whether the map was sanctioned in one block or whether the map was sanctioned treating the two buildings as separate block? If erstwhile P.R.D.A. had sanctioned the map in one block, presuming that it was possible to do so, under the rules then there is no question of set back in between the two buildings. On the other hand if the map was sanctioned in separate blocks, then the land holder/builder was required to have a proper set back in front and on the side for exit and entry of vehicles of Anand Vihar Apartment. Counsel appearing on behalf of the Patna Municipal Corporation submits that on the vigilance case being filed a proper order has 7 already been passed by the Vice-Chairman of the P.R.D.A. and, therefore, the land owner is to demolish those portions of the land which have been mentioned in the earlier order. It is also submitted that the land owner has deliberately absented from the proceedings. This Court on consideration of the facts directs the Executive Engineer, Patna Municipal Corporation (respondent no. 4) to inspect the Anand Vihar Apartment and the building of the land holder and after examining the map and the portion marked in the map which was to be demolished ensure that the portion is demolished as per the sanctioned map. Counsel appearing on behalf of Smt. Tajeshwari Sharma submits that she has in compliance with the earlier order dated 28.8.2009 already demolished this portion. This facts needs to be determined. I also refer the matter back to the Commissioner, Patna Municipal Corporation to consider the case of the parties in accordance with what has been observed above. Smt. Tajeshwari Sharma will be required to appear before the Municipal Commissioner on notice being issued to her. In case she refuses to take the notice and order is passed 8 ex-parte, she would not be entitled to say that the order should be set aside on the ground that it was an ex-parte order considering that she is aware of the order which has been passed by this Court. A copy of this order may be produced by the parties concerned before the Municipal Commissioner, Patna Municipal Corporation within a period of one month on its receipt. The matter may be adjudicated within a period of three months. These writ applications are disposed of with the aforesaid observations and directions. Sanjay (Sheema Ali Khan, J.)