BABITA BADASARIA & ORS versus PATNA MUNICIPAL CORPORATION & ORS.
[2016] 2 S.C.R. 886, Supreme Court of India, 2016
Outcome: Directions issued
Segment: Arguments
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[2016] 2 S.C.R.886 
BABITA BADASARIA & ORS. 
v. 
PATNA MUNICIPAL CORPORATION & ORS. 
(Writ Petition (Civil) No.337of2013) 
MARCH 10, 2016 
[PINAKI CHANDRA. GHOSE AND R.K. AGRAWAL, JJ.J 
Urban Development -
Demolition of unauthorized 
construction - Payment of compensation to affected person -
Construction of the multi-storeyed building - Deviation from the 
sanctioned plan - In appeal, before this Court, issuance of direction 
to the State Development Authority to demolish the unauthorized 
construction of flats - Thereafter, flat owners whose flats were to 
be demolished filed writ petition challenging the order passed by 
this Court - Demolition order upheld and direction issued to 
respondent no.4 to deposit Rs.25 crores or furnish Bank Guarantee 
- Subsequent thereto disposal of writ petition directing payment @ 
Rs. 6, 0001- per sq. ft. of the carpet area to the persons affected on 
account of the demolition - Adjournment of the matter from time to 
time - Submission of the flat owners-petitioners that the so called 
mezzanine floor, which is actually the first floor of the building be 
completely sealed and not be counted as a floor - Held: Suggestion 
given by the Court Commissioner to make an illegal (:onstruction 
as a legal construction by compounding the same by paying 
compounding fee cannot be accepted - Illegal construction which 
is contrary to law cannot be allowed - Since long time has. lapsed, 
rate of Rs. 6, 0001- per sq. ft. enhanced
to Rs. 70001- per sq. ft. -
Compensation to be paid to the flat owners who would vacate the 
premises in their occupation - Direction to Municipal Corporation 
to demolish the unauthorized structures within the stipulated period 
and file a compliance report. 
CIVIL ORIGINAL JURISDICTION: Writ Petition (C1vit) No. 
337 of2013. 
Vikas Singh, Sr. Adv,, Devashish Bharuka, A, Hasan, Advs. for 
the Appellant. 
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Sanjiv Sen, Sr.Adv., Abhinav Mukerji, Rudreshwar Singh, Gopal 
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BABITA BADASARIA & ORS. v. PATNA MUNICIPAL 
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CORPORATION & ORS. 
Jha, Gautam Singh, Kaushik Poddar, Dr. Maurya Vijay Chandra, Prem 
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Prakash, Raj iv Shankar Dvivedi, Advs. for the Respondents. 
The following Order of the Court was delivered 
ORDER 
I. This matter has been placed before us by the Office along with 
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an Office Report ford irections. 
2. Civil Appeal No.54 70 of 2004, filed by M/s. Saket Housing 
Ltd., was dismissed by this Court on 7-5-2013, after noting the fact that 
there was enormous deviation from the sanctioned plan in construction 
of multi-storeyed building. At that point of time this Court observed as 
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follows: 
"There being enormous deviations from the sanctioned plan in 
constructing the multi-storeyed building, after following the due 
process of law, construction beyond sanctioned plan was directed 
to be demolished by the Patna Regional Development Authority. 
Deviation is shocking and can be undertaken only by such person 
who considers himself to be law unto himself. One of the deviations 
is that against sanction of 24 flats in 6 floors at the rate of 4 flats 
per floor, 9 floors have been constructed having 6 flats every floor."~ 
3. Accordingly this Court had directed for demolition of the s&id 
unauthorized construction dismissing the civil appeal and that order has 
attained finality. Thereafter, a writ petition, being Writ Petition (Civil) 
No.337 of 2013 was filed by the petitioners/ owners of the residential 
flats in
Santosha Complex, claiming themselves to be the owners of the 
portion which was directed to be demolished. This Court refused to 
recall the orders so passed for demolition of the unauthorized construction 
and directed Mis. Saket Housing Ltd. (respondent No.4) to deposit a 
sum of Rs.25 crores or furnish the Bank Guarantee in the Registry of 
this Court. Steps were taken accordingly in the matter. Subsequent 
thereto, the said writ petition was di~posed of by this Court by an order 
dated July 9, 2014 when this Court was pleased to dismiss the writ petition 
holding that the writ petition was absolutely misconceived and passed 
the following order: 
"Having heard learned counsel for the parties and in the 
facts and circumstances of the case, we are of the opinion that 
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[2016] 2 S.C.R. 
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ends of justice shall be met by directing payment@ Rs. 6,000/-
per sq. ft. to the persons who shall be affected on account of the 
demolition. Those persons shall be entitled to have the amount@ 
Rs. 6,000/- per sq. ft. of the carpet area, i.e., the area transferred 
to individuals and not the common area. 
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For ascertaining the carpet area of each of the persons, we 
appoint Mr. Justice S.N. Jha, former Chief Justice of the Rajasthan 
High Court, as the Commissioner. 
The Patna Municipal Corporation shall within one week 
furnish to the Commissioner the area/ flats to be demolished in 
terms of the Order dated 7.05.2013 passed in Civil Appeal No. 
5470 of 2004. The Commissioner shall asce1tain through the 
agency of his choice the carpet area in possession of each of the 
persons going to be affected by the demolition. He will not decide 
inter se disputes between rival claimants. ln such cases he will 
determine the carpet area. On such report, the Registry of the 
Court will earmark sum calculated on the aforesaid basis and 
deposit in an interest bearing account. The amount along with 
interest shall be disbursed to the person establishing the right before 
a Court of competent jurisdiction. As regards others, on the report 
of the Commissioner, the Registry of this Court shall disburse the 
amount calculated on the aforesaid basis to all those persons given 
by the Commissioner. The Commissioner may
indicate the amount 
one would be entitled calculated on aforesaid basis. 
The functionaries of the Patna Municipal Corporation and 
the State Government shall provide to the Commissioner all facilities 
as required by him. Within four weeks of the payment, all those 
persons shall vacate the premises in their occupation and hand it 
over to the Patna Municipal Corporation. In cases having inter se 
dispute between rival claimants, they shall also vacate the same 
within four weeks of submission of the report and shall not wait 
for the disbursement of amount. In case any one of them does not 
do so, he will be evicted by using force. 
Immediately thereafter all concerned will act in accordance 
with the directions given by this Court in its Order dated 7.05.2013 
passed in Civil Appeal No.5470 of2004. 
After the disbursement of the amount, as aforesaid, left over
BABITA BADASARIA & ORS. v. PATNA MUNICIPAL 
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CORPORATION & ORS. 
amount, if any, shall be returned to respondent No. 4. 
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The Bank guarantee(s) furnished by respondent No. 4 be 
encashed and the disbursement, as aforesaid, be made. The 
encashed amount be deposited in an interest bearing account and 
the disbursement be made from that from time to time. At the first 
instance, one of the Bank guarantees, i.e., Rs. I 5 Crore be 
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encashed. 
We fix the fee of the Commissioner@ Rs. 2 lac per sitting 
and that shall be disbursed from the amount already deposited by 
respondent No.4. 
For the present, a sum of Rs. I 0 lac be disbursed to Mr. 
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Justice S.N. Jha forthwith. Rest of the fee be paid to him whenever 
asked for. 
All these exercise including demolition be completed within 
a period of ten weeks. 
We make it clear that any deviation in carrying out this order 
shall be viewed seriously. 
The writ petition is disposed of with the directions aforesaid." 
4. In view of the disposal of the writ petition, all the I.As. which 
were filed till then, were disposed of without any order. Subsequently, 
further I.As., being I.A. Nos.7-14 & 15 were filed which were disposed 
of by the following order passed on 13.8.2014: 
"Reference may be made to the Order dated 9.7.2014 whereby 
this Court very categorically held that after the Writ Petition was 
finally disposed of, no further orders need be passed on the I.As. 
We are of the same view that after disposal of the Writ
Petition, 
I.As. should not be entertained. Hence, all I.As. are hereby 
dismissed. 
However, if the petitioners have any grievance with regard to 
measurement etc., they may approach the Commissioner and put 
their grievance." 
5. Subsequent thereto, I.A. No.16 was filed which was also 
disposed of on 8.9.2014, clarifying the order dated 13.8.2014, to the 
extent that the word "Commissioner" used in the last but one line to the 
order shall refer to "Ld. Court Commissioner". Thereafter, I.A. No.17 
was filed for condonation of delay in renewing the Bank Guarantee 
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which was allowed by order dated 28.11.2014. 
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6. Thereafter, Office Report for directions was placed before 
this Court and an interim report was submitted by the learned Court 
Commissioner and on 22.02.2015 this Court requested the learned Court 
Commissioner to submit the final report on or before 9.03.2015 and the 
Bank Guarantee was extended for another I 0 weeks. 
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7. Parties, thereafter, prayed for report of the learned Court 
Commissioner to be furnished to them and on such prayer, an order was 
passed on 6.04.2015 to provide copies of the reports of the learned Court 
Commissioner to all the learned counsel appearing for the parties in the 
matter. 
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8. Thereafter, a proposal was filed before this Court by the 
petitioners and the matter was adjourned from time to time. The Patna 
Municipal Corporation was also directed to consult the Engineers and 
give suggestions with regard to the suggestions placed by the parties 
before this Court. 
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9. The proposals which were given on behalf of the petitioners/ 
flat owners were as follows: 
"(A) Direct permanent sealing/ demolition of the mezzanine floor 
so that the FAR so released can be made available to the flat 
· owners/petitioners by considering the second floor as the first 
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floor and in the same way, considering the seventh floor as the 
sixth floor; 
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(B) Direct the Ld. Court Commissioner to work out the number 
of flat owners whose areas can be saved in view of the fact that 
the mezzanine
floor is sealed and is not being utilized towards the 
FAR and also in terms of compounding vide order of the Vice-
Chairman, Patna Municipal Corporation dated 24.02.2000, which 
has become final after the dismissal of the builder's Civil Appeal 
No.5470 of2004 by this Hon'ble Court vide its judgment dated 
07.05.2013." 
10. Patna Municipal Corporation filed its response to the proposal 
dated 31.8.2015 filed by the petitioners and it was further submitted 
before us that the proposals given by the petitioners cannot be accepted 
and the same should be rejected by this Court in their entirety. It is 
submitted on behalf of the Municipal Corporation that the so called 
Mezzanine Floor, which is actually the First Floor of the building, be 
completely sealed and not be counted as a floor, has no merit. It was
BABITA BADASARIA & ORS. v. PATNA MUNICIPAL 
CORPORATION & ORS. 
further submitted on behalf of the Municipal Corporation that it is not 
possible to accept the suggestion of the petitioners as the Mezzanine 
Floor is a complete floor built over I 00% of the Ground Floor. As per the 
rules, a Mezzanine Floor can only be one if it is over 113rd of the Ground 
Floor area. Therefore, the said proposal is not accepted by the Municipal 
Corporation Authorities. It is further contended that the building was 
sanctioned for Ground and six floors (G+6 floors). The height of the 
building is important because if the proposal of the petitioners is accepted, 
then the building will be Ground+ 7 Floors or more with one floor (the so 
called Mezzanine Floor) which is not being counted. It is further pointed 
out that the sanctioned plan is G+6 Floors and it may not be safe to allow 
it to rise over the number of floors for which the foundation has been 
laid by the Builder- Respondent No.4. Accordingly, it is submitted that 
it would not be safe to allow compounding ofany part of the construction 
of the building. It is further submitted that in case of sealing of the 
Mezzanine Floor, it is necessary to monitor the same in the future. It is 
further stated that it may not be proper to do so on account of the severe 
deviation in the Floor Area Ratio (FAR), which in the building is 5.459 as 
against the sanctioned FAR of2.99, further the height of the Building 
was illegally increased
from the sanctioned height of2 I metres to 31.05 
metres. Instead ofG+6 Floors, the Builder has constructed G+9 Floors. 
It is futiher submitted that it is also contrary to the notification and 
guidelines issued by the Airport Authority oflndia as the height of the 
building was increased by the Builder to beyond 23 metres without any 
sanction or approval of the Airport Authority of India. It is further 
submitted that it would not be possible to demolish the so called Mezzanine 
Floor. In these circumstances, it is submitted on behalf of the Patna 
Municipal Corporation that the illegal construction should be demolished. 
11. We have considered the Report of the Patna Municipal 
Corporation filed before this Court. We have also duly considered the 
Report dated 24.02.2015 filed by the Court Commissioner. However, 
we do not accept part of the Report which has been specifically stated 
as follows: 
"(13) In any case, I am inclined to think that as the Builder was 
pursuing the legal remedies by way of appeal before the Appellate 
Tribunal or the writ petition/ LPA before the High Court bona 
fide, the issue of compounding should not be treated as a closed 
option. !fit is allowable under the bye-laws of the PRDA/PMC, 
the Hon'ble Court may give a fresh look atthe same ifit results in 
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regularization of a few flats of the owners who purchased them 
bona fide from their hard-earned money and are now on the verge 
of being displaced. 
( 14) To conclude the discussions, I would respectfully recommend 
that while the offer of compounding may be allowed, the option of 
removal of the floor claimed to be mezzanine or the First Floor by 
either side - may be considered. A favourable decision on these 
two points may save two full floors i.e. 14 flats of bona fide 
purchasers, without compromising the FAR parameters. It may 
be mentioned that de hors the question of FAR, height of the 
building is not in issue. It may also be mentioned that three flats 
out of seven flats on the top floor-facing imminent demolition, 
belong to the Builder themselves." 
12. After the final repo1t, any suggestion which has been given 
by the Court Commissioner only to make an illegal construction as a 
legal construction by co111pounding the same by paying compounding 
fee, is totally unacceptable to us. In our opinion, the issue of compounding 
is a closed chapter as the writ petition as well as the appeal have already 
been dismissed by this Court. In these circumstances, we do not find 
any reason to change our mind and allow to keep this i !legal construction 
which is contrary to law. We have already expressed our views in our 
order passed at the time of disposal of the writ petition. Jn these 
circumstances, we
do not intend to pass any further order in this matter. 
We only direct that steps shall be taken by the respondent authorities/ 
Patna Municipal Corporation in the matter in terms of our order dated 
9th July, 2014 passed in the said writ petition. 
13. We, however, make it clear that at the time of disposal of 
the writ petition, we had directed payment at the rate of Rs.6,000/- per 
sq. ft. to the persons who shall be affected on account of the demolition. 
Since the matter is concluded today, we enhance the said rate from 
Rs.6,000/- per sq. ft. to Rs. 7000/- per sq. ft.. We further direct that all 
the flat owners will get their compensation and such compensation shall 
be paid within a period of six weeks from date and they will vacate the 
premises in their occupation, to give effect to the order so passed by us, 
within a period ofone month thereafter. 
14. We further direct that the Patna Municipal Corporation shall 
demo! ish the unauthorized structures within a period of four months and 
thereafter shall file a compliance report before this Court. 
H 
Nidhi Jain 
Directions issued.