IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14023 of 2007 AMARNATH PANDEY, SON OF LATE RAGHUNATH PANDEY, RESIDENT OF AYODHYA PRASAD LANE, MOTIHEEL, P.S. MUZAFFARPUR TOWN, DISTRICT MUZAFFARPUR AT PRESENT RESIDING IN THE MOHALLA KIDWAIPURI, P.S. BUDHA COLONY, DISTRICT PATNA. Versus 1. THE PATNA MUNICIPAL CORPORATION, REPRESENTED THROUGH ITS TOWN COMMISSISONER, PATNA MUNICIPAL CORPORATION, MAURYA LOK COMPLEX, BAILEY ROAD, PATNA-800001. 2. THE MUNICIPAL OFFICER, PATNA MUNICIPAL CORPORATION, MAURYA LOK COMPLEX, BAILEY ROAD, PATNA. 3. THE STATE OF BIHAR REPRESENTED THROUGH THE COMMISSIONER, URBAN DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. With CWJC No.12626 of 2007 ASIM ZAFAR, SON OF DR. M.Z.A. ZAFAR, RESIDENT OF FLAT NO.308, PANDEY SHOPPOING MALL, FRASER ROAD, TOWN & DIST. PATNA, PRESENTLY RESIDING AT KATIHAR MEDICAL COLLEGE CAMPUS, KATIHAR. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE PATNA REGIONAL DEVELOPMENT AUTHORITY, MAURYA LOK COMPLEX, PATNA THORUGH ITS VICE CHAIRMAN. 3. VICE CHAIRMAN, PATNA REGIONAL DEVELOPMENT AUTHORITY, MAURYA LOK COMPLEX, PATNA. 4. SECRETARY, PATNA REGIONAL DEVELOPMENT AUTHORITY, MAURYA LOK COMPLEX, PATNA. 5. SENIOR SUPERINTENDENT OF POLICE, PATNA. 6. INSPECTOR CUM OFFICER INCHARGE, KOTWALI POLICE STATION, PATNA. 7. M/S NIAGREE BUILDERS & DEVELOPERS PVT. LTD, 503 ADHARSHILA COMPLEX, SOUTH GANDHI MAIDAN, TOWN & DIST. PATNA THORUGH ITS M.D. NAUSHAD ALAM. With CWJC No.12717 of 2007 1. M/S VISHAL RETAIL LIMITED. A BODY CORPORATE OF VISHAL RETAIL LTD. A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT R.Z.A. 95/96, MAHIPALPUR EXTENTION, NEW DELHI REPRESENTED THROUGH ITS COMMERCIAL MANAGER, SHRI PRIYA RANJAN NAYAK, S/O SHRI BHABHANI PRASAD NAYAK, RESIDENT OF BORING ROAD, P.S. S.K.PURI, PATNA. 2 2. PRIYA RANJAN NAYAK, SON OF SHRI BHABHANI PRASAD NAYAK, RESIDENT OF BORING ROAD, P.S. S.K.PURI, PATNA. THE COMMERCIAL MANAGER, VISHAL RETAIL LIMITED, FRASER ROAD, PATNA. Versus 1. THE PATNA MUNICIPAL CORPORATION, REPRESENTED THROUGH ITS TOWN COMMISSISONER, PATNA MUNICIPAL CORPORATION, MAURYA LOK COMPLEX, BAILEY ROAD, PATNA. 2. THE TOWN COMMISSIONER, PATNA MUNICIPAL CORPORATION, MAURYA LOK COMPLEX, BAILEY ROAD, PATNA. 3. THE MAYOR, PATNA MUNICIPAL CORPORATION, MAURYA LOK COMPLEX, BAILEY ROAD, PATNA. 4. THE STATE OF BIHAR THROUGH THE URBAN DEVELOPMENT SECRETARY, GOVT. OF BIHAR, BAILEY ROAD, PATNA. With CWJC No.12728 of 2007 M/S NIAGAREE BUILDERS & DEVELOPERS PVT. LTD. HAVING ITS OFFICE AT 503, ADHARHSILA COMPLEX, SOUTH GANDHI MAIDAN, PATNA THROUGH ITS MANAGING DIRECTOR SRI NAUSHAD ALAM SON OF SRI ADALAT HUSAIN RESIDENT OF NEW AZIMABAD COLONY(NEAR MASJID), DARGAH ROAD, P.O. MAHENDRU, P.S. SULTANGANJ, DISTRICT PATNA. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT, GOVERNEMNT OF BIHAR, PATNA. 2. THE PATNA MUNICIPAL CORPORATION, MAURYA LOK COMPLEX, PATNA THROUGH ITS COMMISSIONER. 3. MUNICIPAL COMMISSIONER, PATNA MUNICIPAL CORPORATION, MAURYA LOK COMPLEX, PATNA. In C.W.J.C. Nos.14023 of 2007 & 12717 of 2007 For the petitioners : M/s Sanjay Singh, Uma Kant Prasad, Advocates. For the State : M/s A. Amanullah, GA-4, Arun Kr. Prasad, AC to GA-4. In C.W.J.C. No.12728 of 2007 For the petitioner : Mr. Y.V. Giri, Sr. Adv., Raju Giri, Advocate. In C.W.J.C. No.12626 of 2007 For the petitioner : M/s. Mrigank Mauli, Rajesh Mohan, Advocates. For respondents in all cases : M/s Vinay Kirti Singh, Bishwa Bibhuti Kumar Singh, Advocates. For the intervener : Mr. Gajendra Pratap Singh, Advocate. ----------- 10. 15.03.2011 Petitioner in these writ petitions are the land owner, developer, purchaser of a flat and 3 tenant occupying the lower, ground, first floor of the building in question. 2. Initially three of the aforesaid four writ petition(s) bearing C.W.J.C. Nos.12626 of 2007, 12717 of 2007 and 12728 of 2007 was filed on 24.9.2007 challenging letter no.974 dated 11.7.2006, Annexure-4 of the Secretary, Patna Regional Development Authority(hereinafter referred to as the PRDA), whereunder the Secretary, PRDA communicated the Officer-in- charge, Kotwali police station, Patna the order dated 11.7.2006 of the Vice-Chairman, PRDA asking the Officer-in-charge to ensure stoppage of further construction of the building in question. In those writ petitions notice dated 20.7.2006, Annexure-5 issued by the Officer-in-charge, Kotwali police station, Patna in compliance of the order of the Vice-Chairman, PRDA dated 11.7.2006 restraining further construction of the building in question was also challenged. In C.W.J.C. Nos.12717 of 2007 and 12728 of 2007 4 petitioners also questioned the notice and order dated 20.9.2007, Annexures-3, 3/A passed by the Municipal Commissioner, Patna Municipal Corporation (hereinafter referred to as the PMC) directing the Manager, Vishal Mega Mart to close the mall until disposal of the pending legal proceedings initiated against the building owner. The Court considered the prayer for interim relief made in the aforesaid three writ petition(s) on 27.9.2007 and passed interim order staying closure of the shopping mall with liberty to the Municipal Commissioner, PMC to proceed with the pending legal proceeding and conclude the same. In the light of the liberty granted by this Court under interim order dated 27.9.2007 to the Municipal Commissioner to proceed with the ongoing proceeding, the Municipal Commissioner, PMC proceeded and concluded the proceeding under order dated 29.10.2007, Annexure-8 in C.W.J.C. No.12717 of 2007 directing demolition of the two shops which has been raised in the lower 5 ground floor of the building in question as also other portions of the building which has been raised in contravention of the provisions contained in Sub-Section-(1) of Section-54 of the Bihar Regional Development Authority Act, 1981 and Sub-Section-(1) of Section-323 of the Bihar Municipal Act, 2007 within 30 days from the date of receipt of order dated 29.10.2007, failing which PMC shall demolish the said construction and recover the cost of demolition from the land owner. Petitioners of the aforesaid three writ petition(s) questioned the order dated 29.10.2007 passed by the Municipal Commissioner, PMC by filing interlocutory application in the three pending writ petition(s). Interlocutory application filed in the three writ petition(s) was considered on 14.11.2007 and under interim order dated 14.11.2007 passed in C.W.J.C. No.12728 of 2007 status quo, as existing on that day was directed to be maintained till further orders of the High Court. Meanwhile, land owner filed C.W.J.C. 6 No.14023 of 2007 on 2.11.2007 questioning the validity of the order dated 29.10.2007 passed by the Municipal Commissioner, PMC. Under order dated 26.11.2007 passed in the said writ case direction was given that the said writ case be also heard along with the aforesaid three writ petition(s). 3. During hearing of these petition(s) counsel for the petitioners submitted that the finding recorded by the Municipal Commissioner, PMC that the two shops have been raised in the lower ground floor exceeding the sanctioned construction area of 86.80 M2 by raising construction over 207.54 M2 encroaching the covered parking area meant for scooter, motorcycle and cycle is not correct as the said parking for scooter, motorcycle and cycle has not been encroached by raising the shops in the lower ground floor. The shops have been raised at plinth level-1, which is at 0.90 meters from the ground level. The height of the shops raised on the lower 7 ground floor is 5.15 meters from plinth level-1. Plinth level-2 is 1.5 meters above the plinth level-I, which is the roof of the parking floor. On the roof of the parking floor there are other shops on the upper ground floor having roof height of 3.65 meters. It was also submitted that aforesaid submission may be verified from the sanctioned plan of the building in question. 6. When aforesaid submission was raised this Court directed the petitioners to place on record the sanctioned plan of the building in question. In compliance of the directions of this Court, the sanctioned plan of the building in three sheets was placed on record by filing supplementary affidavit dated 23.2.2011 in C.W.J.C. No.14023 of 2007. With reference to Section-YY map learned counsel for the petitioners submitted that at the lower ground level construction has been made only to the extent of 86.80 M2, which has been sanctioned in the map and the two shops have been raised on the upper 8 ground floor, which is 1.5 meters above the ground level and part of the upper ground floor. Learned counsel further submitted with reference to Section A-A of the map that stairs sanctioned in front of the building shall always act as obstruction from the front of the building for approaching the covered parking area meant for scooter, motorcycle and cycle. 5. Counsel for the PMC, on the other hand, in reply submitted that petitioners have not placed on record the sanctioned plan in all four sheets as they have placed on record with the supplementary affidavit dated 23.2.2011 only three sheets. He further contended that if all the four sheets of the sanctioned plan is seen together there will not be any difficulty to appreciate that the entire lower ground floor is the parking area comprising of 1600.95 M2, out of which covered parking area at the lower ground floor is 1310.87 M2 and the remaining area at the ground is open parking space, the set backs and the drive way. 9 The construction which has been sanctioned at the lower ground floor is of guard, generator room etc. comprising of 86.80 M2. The two shops have been raised at 0.90 meters from the ground level contrary to the sanctioned plan which was required to be raised on the upper ground floor i.e. the roof of the parking area at the height of 2.4 meters. The stairs sanctioned in the front of the building is for landing at roof of the covered parking area, upper ground floor at the height of 2.4 meters. 6. In reply to the aforesaid submission of the counsel for the PMC, learned counsel for the petitioners with reference to the inspection report dated 23.10.2007, Annexure-9 in C.W.J.C. No.14023 of 2007 submitted that the construction raised at the lower ground floor is over 207.54 M2 wherefrom the sanctioned construction area is required to be subtracted to ascertain the less parking area found in the building which is 120.74 M2 contrary to the finding recorded in the 10 inspection report as thereunder 95.05 M2 has been found as less parking area. 7. Learned counsel for the petitioners further submitted with reference to Appendix- L(Bye-law No.10.2) Rules for Condonation of Minor Deviation that the deviation made in the sanctioned plan by raising the shops in the lower ground floor reducing the parking space is fit to be condoned as the deviation is within the condonable limit, provided for in the Bye-law. Learned counsel further submitted that when request of the land owner/developer for grant of video exhibiting licence was not granted the building plan was revised reducing the parking area on the lower ground floor. The revised plan was submitted on 27.4.2006 requesting the PRDA to sanction the same. The said revised map shall be presumed to have been sanctioned in the light of the provisions contained in Sub-Section-(5) of Section-37 of the Bihar Regional Development Authority Act, 1974 (hereinafter referred to as the 11 1974 Act) as nothing contrary was ever communicated by the PRDA to the land owner/developer. 8. In response to the aforesaid submission of the petitioners counsel for the PMC with reference to the sketch map appended with the inspection report dated 23.10.2007, Annexure-F to the counter affidavit filed in C.W.J.C. No.14023 of 2007 submitted that the building in question has been raised at a distance of 4.35 meters from Fraser Road end instead of 8.26 meters leading to discrepancy of 25.69 meters in the availability of the parking space for which the building is required to be pruned from the front and having found the said fact the Municipal Commissioner, PMC in the penultimate paragraph of his order dated 29.10.2007 directed the land owner to remove all such unauthorized construction from the building in question. 9. As regards condonation of deviation by applying the Rules for Condonation of Minor 12 Deviation, learned counsel for the PMC submitted that shops having been established on the lower ground floor contrary to the sanctioned plan reducing the parking space cannot be condoned in the light of the Rules for Condonation of Minor Deviation as unauthorized construction of the shops in the parking space cannot be held to be a minor deviation of the sanctioned plan. Learned counsel for the PMC further submitted that revised plan submitted by the land owner/developer on 27.4.2006 cannot be presumed to have been sanctioned under Sub- Section-(5) of Section-37 of 1974 Act as no notice presuming such sanction by the land owner/developer was ever served on the PRDA after submission of the revised plan on 27.4.2006. 10. Dr. (Mrs.) Sahida Hassan has filed I.A. Nos.1811 of 2008 and 1509 of 2011 in C.W.J.C. Nos.12626 of 2007 and 14023 of 2007 praying inter alia to be heard in opposition of the prayer made in the two writ petitions. It is submitted on 13 her behalf that the building in question has been raised over holding no.542 measuring an area of 23 kathas of land known as Shanti Niketan situated at Fraser Road, Patna which was dedicated along with other properties under registered wakf deed dated 28.4.1931 by late Syed Hassan Imam as Wakf-ALAL-AULAD. After the death of Syed Hassan Imam dispute arose between his son Syed Mehdi Imam and daughters from his first wife on the one hand and his second wife Mrs. Nattie Imam and her son Syed Askari Hadi Ali Augustine Imam on the other. The dispute was referred to the arbitration of the two Hon’ble Judges of this Court, Sir Stewart Mac Pherson & Khwaja Md. Noor, J.J. The arbitrators submitted award in the year 1935 dividing the entire 16 annas of Syed Hassan Imam wakf estate into two blocks of 10 annas comprising Shanti Niketan for which Syed Mehdi Imam was appointed Mutwalli. Mrs. Nattie Imam was appointed Mutwalli of the other block comprising 14 6 anna share and after her death her son Syed Askari Hadi Ali Augustine Imam became the Mutwalli of 6 anna block. Both the blocks were duly registered as separate wakf and were managed by their Mutwallies as per the wakf deed, the arbitration award and the provisions of law. Under registered deed of lease dated 28.8.1970 the then Mutwalli of 10 anna block late Syed Mehdi Imam leased out Shanti Niketan in favour of Shamim Amna Imam who remained in possession as a lessee. Syed Askari Hadi Ali Augustine Imam executed the sale deed on 9.2.1988 in regard to Shanti Niketan in favour of Muzaffarpur Properties Private Limited, which was registered on 11.4.1988. After execution of the sale deed dated 9.2.1988/11.4.1988 Title Suit No.262 of 1991 was filed by Shamim Amna Imam for a declaration that the sale deed executed/registered on 9.2.1988/11.4.1988 by Syed Askari Hadi Ali Augustine Imam in favour of Muzaffarpur Properties Private Limited is void 15 fraudulent, illegal and without any consideration with respect to the property in Schedule-I of the plaint and not binding on the plaintiff as the executant of the sale deed had no manner of right, title, interest and possession over the suit properties (Shanti Niketan). Aforesaid suit continued during the lifetime of the plaintiff who died issueless on 23.5.1998 leaving behind her mother Mrs. Sayeeda Mehdi Imam who became Mutwalli of 10 anna block as her husband Syed Mehdi Imam predeceased her. Mrs. Sayeeda Mehdi Imam died on 22.2.2004 without leaving behind any child or grand child. On 22.5.2004 Dr. (Mrs.) Sahida Hassan, the intervener filed petition in Title suit No.262 of 1991 for being substituted in place of Mrs. Sayeeda Mehdi Imam claiming to be the Mutwalli of 10 ana block having been appointed by Bihar State Siya Wakf Board. Under order dated 6.6.2005 passed in Title Suit No.262 of 1991 Dr. (Mrs.) Sahida Hassan, the intervener along with Faiz Murtaza Ali and Syed Akabir 16 Hussain has been added as co-plaintiff in the suit. 11. In the background of the prayer made in Title Suit No.262 of 1991 questioning the validity of the sale deed executed/registered on 9.2.1988/11.4.1988 in favour of Muzaffarpur Properties Private Limited a petition dated 22.9.2005, Annexure-2 to I.A. No.1811 of 2008 was filed by the intervener before the Vice- Chairman, PRDA invoking Section-54 read with Section-38 of 1974 Act praying inter alia to cancel the sanctioned plan for raising the building in question as the said sanction has been obtained without furnishing information regarding pendency of the title suit questioning the validity of the title deed executed in favour of Muzaffarpur Properties Private Limited effecting transfer of land over which the building in question has been raised. It is further submitted on behalf of the intervener that direction be issued to the authorities of the PMC to consider the request made in the petition dated 22.9.2005. When such 17 submission was raised this Court asked the counsel for the intervener about the scope of the intervention application as intervention application is only heard in opposition of the prayer made in the writ petition and no positive direction in favour of intervener is issued while considering the intervention application. Counsel for the intervener then submitted that cancellation of the sanctioned building plan shall lead to the demolition of the entire building and goes to the root of the matter and this court while considering the prayer made in the writ petition may also direct the authorities to consider the request made in the petition dated 22.9.2005. In this connection, he also submitted that sanction of the building plan having been obtained by the land owner/developer suppressing the information about the civil suit tantamounts to obtaining sanction of the building plan by practicing fraud and it is well known that fraud vitiates such sanction and in appreciation of such fraud 18 committed by the land owner/developer their writ petition is fit to be dismissed. Learned counsel for the intervener with reference to the order of the Division Bench passed in the case of Srikrishnapuri Boring Road Vyapari Sangh through its president Sri Sanjay Kumar & Another Vs. The State of Bihar & Others, reported in 1995(1) PLJR 418 and the order dated 17.3.1998 passed in C.W.J.C. No.246 of 1998 submitted that the tenant/purchaser of a portion of the building does not have any legal right to question the impugned order of demolition and they can be heard only through the land owner/developer and the writ petition of the purchaser, tenant is fit to be dismissed. 12. In response to the submission of the counsel for the intervener that the building in question has been raised over 23 kathas of holding no.542, Fraser Road, Patna, learned counsel for the petitioners submitted that the building in question has been raised over holding 19 no.544 of ward no.2, circle no.6, which is also the subject matter of the wakf deed dated 28.4.1931 empowering the Mutwalli to sell any portion of the wakf property for the benefit of the beneficiaries of the wakf estate. Dispute arose about the administration of the wakf estate and matter was referred to the arbitrators who submitted award dated 2.5.1935 holding that the scheme for management of wakf estate as indicated under deed dated 28.4.1931 has become unworkable and required modification in material particulars providing for division of the wakf estate into two blocks of 6 annas with Mrs. Nattie Imam as its Mutwalli and another block of 10 annas with Syed Mehdi Imam as Mutwalli. Second award dated 16.1.1936 was also made by the arbitrators dividing the wakf estate in Schedule-A consisting of 6 anna block, Schedule-B consisting of 10 anna block, property in Schedule-C was to remain under joint Mutwaliship of the two Mutwalies of 6, 10 anna block. According to the petitioners, 20 Shanti Niketan became the part of 6 anna block, Schedule-A. With reference to Schedule-I of Title Suit No.262 of 1991 it was submitted by the counsel for the petitioners that the suit land is different from the land over which building in question has been raised and as the suit land and the land over which building in question has been raised are different the land owner/developer was not obliged to disclose about the pendency of the title suit in the application filed for obtaining sanction of the building plan. 13. Having considered the submission of the counsel for the parties in the light of the sanctioned plan of the building in question approved by the PRDA in four sheets, the inspection report dated 23.10.2007, Annexure-9 in C.W.J.C. No.14023 of 2007, this Court is of the view that the sanctioned plan of the building in question provide for raising of guard, generator room, toilet etc. over an area of 86.80 M2 in the ground floor of the building. Besides the said 21 construction no other construction is permitted to be raised in the ground floor. The remaining area of the ground floor is to be used for set backs, drive way and the parking space both covered and uncovered. The stairs provided for in the front of the building is for landing at the roof of the covered parking area and the stairs do not obstruct entry in the covered parking area meant for scooter, motorcycle and cycle. Violating the sanctioned plan land owner/developer raised the two shops at plinth level-1, 0.90 meters above the ground level. As per sanctioned plan those two shops should have been raised at plinth level-2 on the upper ground floor i.e. the roof of the covered parking area at the height of 2.4 meters from the ground level. The Municipal Commissioner, PMC has rightly ordered for demolition of the two shops raised at plinth level-I i.e. 0.90 meters above the ground level and such unauthorized construction can not be condoned by the authorities as the unauthorized construction, in my opinion, is not a 22 minor deviation of the sanctioned building plan. The revised plan submitted on 27.4.2006 reducing the parking area also could not have been acted upon by the petitioners as the same was neither passed by the authorities nor the land owner/developer ever served notice as is required under Sub-Section-(5) of Section-37 of the 1974 Act. In the penultimate paragraph of the impugned order dated 29.10.2007, the Municipal Commissioner, however has not specified the area of the other construction in the building which is to be pruned by the petitioners so as to provide for frontage of 8.26 meters from the Fraser Road end of the building in question. Accordingly, it is directed that the Municipal Commissioner, PMC should pass further order specifying the extent of the other portions of the building which is required to be pruned for providing a clear frontage of 8.26 meters from the Fraser Road end of the building in question, of course after providing the land owner opportunity of being 23 heard. Land owner is, accordingly, directed to appear before the Municipal Commissioner within one week from the date of receipt of a copy of this order, whereafter the Municipal Commissioner shall fix a date for measurement and pass orders indicating the extent of the other portion of the building, which is required to be pruned for providing clear frontage of 8.26 meters from the Fraser Road end of the building. 14. In the light of my order above, the status quo order dated 14.11.2007 passed in C.W.J.C. No.12728 of 2007 is vacated with direction to the Municipal Commissioner, PMC to grant further 30 days time from the date of the subsequent order to the petitioners to remove the two shops and the other offending portions of the building. 15. Before parting with the order, I would like to observe that having considered the submission of the intervener and the response thereto made by the petitioners, I am of the view 24 that it is difficult for me in these proceedings to record a finding as to whether the lands in question over which building (Shanti Niketan) was raised became part of 6 anna or 10 anna block made by the two arbitrators. It is also difficult for me to record finding whether the building in question has been