Patna High Court
Patna Municipal Corporation ... vs The State Of Bihar on 16 August, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10054 of 2019
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1. Patna Municipal Corporation through Municipal Commissioner, Patna
Municipal Corporation, Maurya Lok, Patna.
2. The Municipal Commissioner, Patna Municipal Corporation, Maurya Lok,
Patna.
... ... Petitioners
Versus
1. The State of Bihar through Principal Secretary, Urban Development
Department, Govt. of Bihar, Patna.
2. The Principal Secretary, Urban Development Department, Government of
Bihar, Patna.
3. The Municipal Building Tribunal, Patna through its Chairman
4. The Chairman, Municipal Building Tribunal, Patna
5. Krishna Kumar Rungta, S/o of Shree Govind Prasad Runta, Resident of 202,
Santosha Apartment, Bandar Bagicha, present address 303/304, Ambition
Residency, Exhibition Road, Behind Narayan Plaza, Distt.- Patna-1
6. Bina Devi Kataruka, W/o Late Lalit Kumar Kataruka, Resident of 04 Riding
Road, Sheikhpura, P.S.- Shastri Nagar, Patna, At present resident of 109,
Durga Marin Drive, 1st Floor, Main Road, Dujara, Patna-1
... ... Respondents
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Appearance :
For the Petitioners : Mr. Bindhyachal Singh, Senior Advocate
Mr. Shailendra Kumar Singh, Advocate
For the Respondent No.5: Mr. Suraj Samdarshi, Advocate
For the Respondent No.6: Mr. Rajiv Kumar Singh, Advocate
Mr. Sajal Kumar Sinha, Advocate
For the State : Ms. Deepika Sharma, AC to SC-9
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)
Date : 16-08-2022
Heard Mr. Bindhyachal Singh, learned senior
counsel for the petitioners, Mr. Suraj Samdarshi, learned
counsel for respondent no.5 and Mr. Rajiv Kumar Singh,
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
learned counsel for the respondent no.6.
2. In the instant case, the petitioners have prayed for
quashing of the order dated 12.09.2018, passed by the
Municipal Building Tribunal-1(respondent no.3) in Appeal No.
12 (North Bihar) of 2016 arising out of Vigilance Case No.
172A of 2014 by which the respondent no.3 has modified the
order dated 29.08.2016 passed by the Patna Municipal
Commissioner (petitioner no.2) in Vigilance Case No. 172A of
2014 with following observations and directions:-
"This Tribunal comes to the conclusion
that calculation of condonable and
demolishable set-back area is erroneous and
not correct and it should be done as per
prescribed procedure of calculation as stated in
above para. The averment and submission
made by the appellant's counsel is acceptable
in the light of the provisions made in Section
317 of the Bihar Municipal Act-2007, para-
11(1), Appendix-L and M of the Modified
Building Bye laws. Since, the 3 year duration
for validity of sanctioned map has elapsed,
hence the appellant will make the whole
structure as residential after submitting the
revised plan based on parameters of bye laws
prevalent at the date of interference by P.M.C.
after demolishing non-condonable area of
structure, removing extra construction beyond
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
present map. The revised map submitted by the
appellant will be sanctioned by the P.M.C. as
per parameters of Bye laws prevailing at the
time of interference by P.M.C. Before
submitting revised map the appellant will pay
condonation fee, leave 1.5m land strip for
widening of the front road and demolish all
illegal constructions assessed by P.M.C. as per
mathematical calculation stated in above para.
The impugned order will be modified to the
extent stated above.
Therefore, considering all above facts
and circumstances we come to the conclusion
that the impugned order regarding demotion of
entire structure is not just and proper in
accordance with law and that the structure may
be kept for the purpose of converting into the
residential building for which the appellant is
ready."
3. The facts of the case, according to the petitioners,
in brief, are that the suo motu Vigilance Case No. 172A of 2014
was initiated against one Lalit Kumar Kataruka (husband of
respondent no.6). and developer Krishna Kumar Rungta
(respondent no.5). After hearing the parties, the Patna Municipal
Commissioner vide order dated 29.08.2016 passed in vigilance
Case No. 172A of 2014 cancelled the map plan sanctioned by
the Architect and after declaring the whole structure illegal,
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
directed for demolishing the same.
4. As the map had been sanctioned for basement +
ground + six floors in which upto 5th floor community facility
had been provided and only in the 6th floor residential facility
had been provided whereas plot lies in the residential Zone
where no commercial facility could have been accorded. Hence,
it was ordered by the respondent no.2 to comply with the order
dated 29.08.2016 within 30 days, otherwise Patna Municipal
Corporation would demolish the same and the expenditure
incurred therein will be realized from the respondents. The
aforesaid Krishna Kumar Rungta being aggrieved by the order
passed in Vigilance Case No. 172A of 2014 preferred Appeal
No. 12 (North Bihar) of 2016 before the Municipal Building
Tribunal-1 (for short 'the Tribunal'), which was heard and the
impugned order was modified to the extent indicated in the
order, which is under challenge in the present application.
5. Mr. Bindhyachal Singh, learned senior counsel
appearing for the petitioners submitted that 30.10.2011, the
registered Architect had sanctioned the building plan of Lalit
Kumar Kataruka, who died during the pendency of the appeal
before the Tribunal. His wife Bina Devi Kataruka has been
impleaded as respondent no.6 in the present application. He
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
contended that the registered Architect had sanctioned the
building plan in contravention of the provisions of the Building
Bye laws by sanctioning the commercial facility in the
residential zone. He contended that the respondent no.5 is a
professional builder and knowingly he procured the sanction
order in collusion with the Architect by using unfair method. He
is erecting the building in collusion with the Architect wherein
the map has been sanctioned for basement + ground + six floors
in which upto the 5th floor community facility has been provided
and only in 6th floor the residential facility has been provided.
He submitted that a new case has been introduced at the
appellate stage by the respondent nos. 5 and 6, which is not
permissible in law. According to him, the Tribunal has travelled
beyond its jurisdiction by allowing the change of nature of the
building, which was neither an issue raised before the Municipal
Commissioner nor dwelt upon or determined by him. He argued
that the Tribunal has neither discussed nor considered any
illegality in the order of the Municipal Commissioner and issued
directions, which are absolutely unwarranted, unreasonable and
beyond the statutory provisions. He urged that the calculation of
condonable area in the impugned order is against the modified
Building Bye-law.
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
6. The further contention of the learned senior counsel
for the petitioners is that by ignoring the provisions of Section
315 of the Bihar Municipal Act, 2007 (for short 'the Act of
2007'), the Tribunal has held that the building structure shall not
be demolished and shall be converted into residential building.
He submitted that Section 315 of the Act of 2007 provides that
any building or structure of permanent nature, which has been
constructed or construction has commenced in contravention,
breach or deviation of building bye-laws shall further be liable
to pay a penalty of minimum of rupees one lakh, which may
extend upto rupees ten lakh depending on the size of the
building or structure and the extent of deviation. The penalty in
this Section is to be imposed in addition to any other fine
provided under this Act including fine for compounding. He
urged that the Tribunal has no jurisdiction to issue direction to
the Municipal Commissioner to sanction revised map or
building, which has been constructed in contravention of
building bye-laws by sanctioning the commercial activity in
residential zone. He argued that since the sanction of map was
found to be illegal by the Municipal Commissioner, it was
cancelled and the building was ordered to be demolished. The
Tribunal did not find the order to be illegal, but directed the
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
Municipal Commissioner not to demolish the same and to pass
the revised map on the basis of parameters of bye-laws at the
time of interference by the Patna Municipal Corporation
meaning thereby that if the building plan has to be sanctioned
afresh, it has to be sanctioned as per the new building bye-laws,
which came into effect from December, 2014.
7. On the other hand, Mr. Suraj Samdarshi, learned
counsel appearing for the respondent no.5 submitted that an
agreement was executed between the landlord (respondent no.6)
and the developer (respondent no.5) pursuant to which,
respondent no.5 got a sketch map ready for construction of the
building. The project map was duly sanctioned by the registered
Architect on 30.10.2011 for construction of basement + ground
+ six floors having absolute height of 28.92 meters from the
ground level. He submitted that though the said plan was
sanctioned for residential purpose upto 5th floor, the sanctioned
map referred to community facility and only the 6 th floor
showed construction for residential purpose. While the
construction was going on pursuant to the sanction of the
building plan, the petitioners initiated a suo motu vigilance case
against the land owner and the developer for the alleged
irregularities. At the time of initiation of the vigilance case, the
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
construction was made only upto the 3rd floor. The allegations
levelled were for minor deviations. However, the most
important allegation was that the Zone in which the map was
sanctioned was a residential area and, therefore, in view of the
restriction over the commercial activity, the building which did
not reflect any residential habitation in future upto 5th floor
could not have been constructed. Thus, the map, which was
sanctioned by the registered Architect of the Patna Municipal
Corporation was held to be collusive in nature, and ultimately,
vide order dated 29.08.2016 passed in Vigilance Case No.172A
of 2014, the Municipal Commissioner, Patna Municipal
Corporation cancelled the map sanctioned by the registered
Architect. He contended that being aggrieved by the aforesaid
order dated 29.08.2016 passed by the Municipal Commissioner,
respondent no.5 preferred an appeal before the Tribunal vide
Appeal Case No.12 of 2016 and after a detailed hearing, the
Tribunal modified the order of the petitioner no.2 vide
impugned order dated 12.09.2018.
8. Mr. Suraj Samdarshi, learned counsel for
respondent no.5 further contended that there is no illegality in
the order passed by the Tribunal. He submitted that there is no
merit in the contention of the petitioners that the Tribunal has
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
passed order without jurisdiction. According to him, every order
passed by the Municipal Commissioner under Section 323 of
the Act of 2007 is subject to sub-sections (3), (6) and (7) of
Section 323 of the Act of 2007 and, therefore, the direction of
the Tribunal for sanction of map for residential purpose is within
the jurisdiction of the Tribunal under Section 329 read with
Sections 323 and 340 of the Act of 2007. He submitted that the
constitution of the Tribunal under Section 329 of the Act of
2007 is for the redressal of grievance and in particular for the
cases dealt with in Chapter-XXXVII wherein Section 342
primarily deals with the premises not to be used for non-
residential purpose without municipal license. He contended
that the jurisdiction of the respondent no.2 so far as it related to
the cancellation of the sanctioned map is limited and can be
exercised only if any material misrepresentation or fraud has
been made in the application form, or any incorrect information
is furnished for sanction of map. He contended that any
deviation from the sanctioned map during the period of
construction has to be strictly in terms of the bye-laws during
which the map was sanctioned and not the subsequent bye-laws,
which came into existence after the sanction of the plan.
According to him, the subjective opinion of the respondent no.2
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
that the nature of the building has been converted into
commercial from residential is totally misconceived. He has
referred to the various provisions of the relevant bye-laws in
order to persuade us that the inference drawn by petitioner no.2
that the building in question is being constructed in a manner
that it will be used for commercial purpose is based on
conjecture and surmises.
9. Mr. Rajiv Kumar Singh, learned counsel for the
respondent no.6 adopted the submissions made by Mr. Suraj
Samdarshi, learned counsel for the respondent no.5. Ms.
Deepika Sharma, learned AC to Standing Counsel No.9
submitted that the State is a formal party in the present
application. She contended that she would support the
contentions advanced on behalf of the petitioners in the present
case.
10. We have heard submissions made on behalf of the
parties and carefully perused the material on record.
11. From the submissions made on behalf of the parties
and the pleadings made in the application and the counter
affidavit filed on behalf of the respondents, it would be manifest
that the land-owner Lalit Kumar Kataruka now being
represented by his wife (respondent no.6) entered into an
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
agreement with the respondent no.5 for construction of building.
12. In furtherance of the agreement, a project map was
presented before the registered Architect, which was sanctioned
by him on 30.10.2011 for construction of a building as basement
+ ground + six floors having absolute height of 28.92 meters
from the ground level. The respondent no.5 started construction
in compliance of the aforesaid map approved by the registered
Architect. An inspection was carried out by the Patna Municipal
Corporation on 12.04.2014 wherein it was alleged that there was
deviations with regard to the set-back of structure. There was
also an objection with regard to the nature of the building. It
was alleged that according to the sanctioned map, only 6 th floor
was shown as bed room while rest of the construction were
shown to be community facility, which was against the Building
Bye-laws.
13. In sum and substance, it was alleged that the map,
which was sanctioned, was in relation to the residential zone
and in view of the restriction over commercial activity, the
building, which did not reflect any residential habitation in
future upto 5th floor could not be constructed. The petitioners
presumed that the map was sanctioned by the registered
Architect in collusion with the land owner, and ultimately, the
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
petitioner no.2 vide order dated 29.08.2016 passed in Vigilance
Case No.172A of 2014 cancelled the map sanctioned by the
registered Architect. At the time of cancellation of the building
plan, the building was constructed upto ground + third floor and
it was not even put to use either residential or commercial.
14. Thus, being aggrieved by the aforesaid order dated
29.08.2016, the respondent no.5 preferred an appeal before the
Tribunal vide Appeal Case No.12 of 2016. After hearing, vide
order dated 12.09.2018, the Tribunal modified the order of
petitioner no.2 vide order dated 29.08.2016.
15. As a matter of fact, the Tribunal did not set aside
the order of the Municipal Commissioner rather it directed for a
revised map to be issued by the Patna Municipal Corporation as
per the prevalent building bye-laws specifying the residential
uses of the building. The respondent no.5 was directed to pay
penalty and condonation fee in terms of the existing building
bye-laws and it was also directed to leave 1.5 meter land strip
for widening of the front road and demolition of the illegal
construction assessed by the Patna Municipal Corporation,
which was not condonable.
16. Apparently, the grievance of the petitioners is that
the Tribunal could not have directed the petitioner no.2 for
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
revising the map for a residential building. The further
grievance of the petitioners is that the revised plan as directed
by the Tribunal was to be issued under the existing building
bye-laws and not the new bye-laws, which was modified and
came into effect from December, 2014.
17. The petitioners have challenged the impugned
order mainly on the ground that it violated the provisions
prescribed under Sections 315, 323 and 340 of the Act of 2007.
18. In view of the rival submissions advanced on
behalf of the parties, at this stage, it would be apposite to take
note of the relevant provisions prescribed under Sections 312,
313, 314, 315, 316, 317, 323, 329 and 340 of the Act of 2007,
which read as under:-
Chapter XXXVI
BIHAR MUNICIPAL ACT, 2007
"Section 312. In this chapter, unless the
context otherwise requires, the expression-
(1)"to erect a building" means-
(a) to erect a new building on any
site, whether previously built upon
or not,
(b) to re-erect-
(i) any building of which more than
one-half of the cubical extent above the level
of plinth have been pulled down, burnt or
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
destroyed, or
(ii) any building of which more than
one-half of the superficial area of the external
walls above the level of plinth has been pulled
down, or
(iii) any frame-building of which
more than half of the number of posts or beams
in the external walls have been pulled down
(c) to convert into a dwelling-house any
building or any part of a building not originally
so constructed for human habitation or, if
originally so constructed for human habitation,
subsequently appropriated for any other
purpose,
(d) to convert into more than one dwelling-
house a building originally constructed as one
dwelling-house only,
(e) to convert into a place of religious worship
or into a sacred building any place or building,
not originally constructed for such purpose,
(f) to roof or cover an open space between
walls or buildings to the extent of the structure
formed by the roofing or covering of such
space,
(g) to convert two or more tenements in a
building into a greater or lesser number of such
tenements,
(h) to convert into a stall, shop, office,
warehouse or godown, workshop, factory or
garage any building not originally constructed
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
for use as such, or to convert any building
constructed for such use, by sub-division or
addition, into greater or lesser number of such
stalls, shops, offices, warehouses or godowns,
workshops, factories or garages,
(i) to convert a building, which, when
originally constructed, was legally exempt
from the operation of any building regulations
or any rules made under this Act or in any
other law for the time being in force, into a
building which, had it been originally erected
in its converted form, would have been subject
to such building regulations,
(j) to convert into, or use as, a dwelling-house
any building, which has been discontinued as,
or appropriated for any purpose other than, a
dwelling-house,
(k) to make any addition to a building, and
(l) to remove or reconstruct the principal
staircase of a building or to alter its position;
Section 313. Prohibition of construction
without sanction: - No person shall construct,
or commence to construct, any building or any
structure of a permanent nature or execute any
of the work relating to construction of building
including addition, alteration or modification of
an existing building in any municipal area, save
and except in accordance with building bye-law.
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
Section 314. Sanction of building
plan:- No persons shall construct or commence
to construct, any building or structure of
permanent nature or execute any work relating
to construction of building undertake or any
alteration, addition or modification of an
existing building unless, the building plan is
approved by a certified Architect registered
under Architects Act, 1972.
Provided that no Architect shall sanction
any building plan unless it is in conformity with
building bye-law framed by the State
Government/Municipality.
Provided further that any Architect, who
is found to have approved a building plan in
contravention or in deviation of building bye-
law, he shall be liable to be prosecuted and shall
be liable to pay fine of Rupees fifty thousand or
sentence to imprisonment for a period which
may extend to one year or both.
Section 315. Construction of building
in contravention of building bye-law:-Any
building or structure of permanent nature
which has been constructed or construction has
commenced in contravention or breach or
deviation of building bye-law shall be liable to
be demolished, notwithstanding that it may
have been approved by a registered Architect.
Provided further that the owner or
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
occupier or any person responsible for
construction of a building or structure of
permanent nature or commencement of
construction in contravention, breach, or
deviation of building bye-law shall further be
liable to pay a penalty of minimum of Rupees
one lac, which may extend up to Rupees 10
lacs depending upon size of the building or
structure and extent of deviation.
Provided further that the penalty under
this Section shall be in addition to any other
fine provided under this Act including fine for
compounding as may be provided under
building bye-law.
Section 316. Building plan approved
by registered Architect to be submitted to
Chief Municipal Officer:-
(1) Every registered Architect, who approves a
building construction plan shall within seven
days from approving the plan submit detail of
construction plan alongwith approval granted
by him to the Chief Municipal Officer of the
municipality.
(2) On receipt of approved building plan by
registered Architect, the Chief Municipal
Officer may inquire and verify and satisfy
himself that the building construction plan
confirms to building bye-law and other
parameters required under this Act.
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
(3) If Chief Municipal officer, on such inquiry
or verification finds that the building or
structure of permanent nature construction plan
has been approved by the registered Architect
in contravention, breach or deviation of
building bye-law or other parameters under
this Act, he shall immediately stop
construction work and proceed to take action
against owner, occupier or any person
responsible for construction of such building in
contravention, breach or deviation of building
bye-law and other parameter and shall also
proceed to take action against registered
Architect, who approved such building
construction plan.
Section 317. Deviation in construction
of building within permitted level:-If any
building or structure of permanent nature has
been constructed or commence to construct
after duly approved building construction plan,
is found to have deviated from approved
construction plan within permitted level
deviation, the Chief Municipal officer shall not
order for its demolition.
Provided that Chief Municipal officer
shall proceed to realize such fine or penalty as
is prescribed under this Act or Rule,
Regulation or building bye-law as the case
may be.
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
Provided further that deviation within
permitted level shall not be a ground to
prosecute registered Architect.
Section 323. Order of demolition and
stoppage of buildings or works in certain
cases and appeal.-(1) Where the erection of
any building or the execution of any work has
been commenced, or is being carried on, or has
been completed without, or contrary to, the
sanction referred to in section 314 or in
contravention of any of the provisions of this
Act or the rules or the regulations made
thereunder, the Chief Municipal Officer may,
in addition to any other action that may be
taken under this Act, make an order directing
that such erection or work shall be demolished
by the person at whose instance the erection or
the work has been commenced or is being
carried on or has been completed, within such
period, not being less than five days and more
than fifteen days from the date on which a
copy of the order of demolition with a brief
statement of the reasons therefor has been
delivered to such person, as may be specified
in the order:
Provided that no order of demolition
shall be made unless such person has been
given, by means of a notice served in such
manner as the Chief Municipal Officer may
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
think fit, an opportunity of showing cause why
such order shall not be made:
Provided further that where the erection
of any building or the execution of any work
has not been completed, the Chief Municipal
Officer may, by the same order or by a separate
order, whether made at the time of the issue of
the notice under the first proviso or at any
other time, direct such person to stop the
erection of such building or the execution of
such work until the expiry of the period within
which an appeal against the order of
demolition, if made, may be preferred under
sub-section (3)
Explanation.- In this chapter, "the
person at whose instance" shall mean the
owner, or the occupier, or any other person
who causes the erection of any building or the
execution of any work, including alterations or
additions, if any, to be done, or does it by
himself.
(2) The Chief Municipal Officer may make an
order under sub-section (1), notwithstanding
the fact that the assessment of such building
has been made for the levy of the property tax
on lands and buildings.
(3) Any person aggrieved by an order of the
Chief Municipal Officer under sub-section (1)
may, within thirty days from the date of the
order, prefer an appeal against the order to the
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
Municipal Building Tribunal appointed under
section 329.
(4) Where an appeal is preferred under sub-
section (3) against an order under sub-section
(1), the Municipal Building Tribunal may stay
the enforcement of the order on such terms, if
any, and for such period, as it may think fit:
Provided that where the erection of any
building or the execution of any work has not
been completed at the time of the order under
sub-section (1), no order staying the
enforcement of the order under that sub-section
shall be made by the Municipal Building
Tribunal unless a surety, sufficient in the
opinion of that Tribunal, has been given by the
appellant for not proceeding with such erection
or work pending the disposal of the appeal.
(5) Save as provided in this section, no Court
shall entertain any suit, application or other
proceeding for injunction or other relief against
the Chief Municipal Officer to restrain him
from taking any action, or making any order, in
pursuance of the provisions of this section.
(6) Every order made by the Municipal
Building Tribunal on appeal and, subject to
such order, every order made by the Chief
Municipal Officer under sub-section (1), shall
be final and conclusive.
(7) Where no appeal has been preferred against
an order made by the Chief Municipal Officer
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
under sub-section (1) or where an order under
that sub-section has been confirmed on appeal,
whether with or without modification, the
person against whom the order has been made
shall comply with the order within
the period specified therein or, as the case may
be, within the period, if any, fixed by the
Municipal Building Tribunal on appeal, and,
on the failure of such person to comply with
the order within such period, the Chief
Municipal Officer may himself cause the
building or the work to which the order relates
to be demolished, and the expenses of such
demolition shall be recoverable from such
person as an arrear of tax under this Act.
(8) Notwithstanding anything contained in this
chapter, if the Empowered Standing
Committee is of the opinion that immediate
action is called for in relation to a building or a
work being carried on in contravention
of the provisions of this Act, it may, for reasons
to be recorded in writing, cause such building
or work to be demolished forthwith.
Section 329. The State Government
may appoint one or more Municipal Building
Tribunals (hereinafter referred to in this section
as the Tribunal) as may be considered
necessary to hear and decide appeals arising
out of sanctioning of building plans by the
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
Municipality in accordance with such
procedure, and to realize such fees in
connection of with such appeals, as may be
prescribed by the Government.
Section 340. Power to prohibit change
of authorized use of building.-(1) No person
shall, without the permission, in writing, of the
Chief Municipal Officer or otherwise than in
conformity with the conditions of such
permission,-
(a) use, or permit to be used, for the purpose of
human habitation any building or part thereof
not originally erected or authorized to be used
for such purpose,
(b) change, or allow the change of, the use of a
building for any purpose other than that
specified in the sanctioned plan,
(c) change, or allow the change of, the use of
any building erected before the commencement
of this Act contrary to the use for which such
erection was originally sanctioned or to the use
to which such building was actually put,
(d) convert, or allow the conversion of, a
tenement within a building to an occupational
use, other than the use intended in the original
sanctioned plan, or materially alter, enlarge, or
extend such use.
(2) If, in any case, such permission is given, no
change of occupancy or use shall be allowed
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
before necessary alterations or provisions have
been made to the satisfaction of the Chief
Municipal Officer and in accordance with the
provisions of this Act and the rules and the
regulations made thereunder and any other
law for the time being in force.
(3) Any change of use made before the
commencement of this Act, except in so far as
such use is permissible under the provisions of
an earlier State law on the subject in force
before the commencement of this Act, shall be
deemed to be a change in contravention of the
provisions of this Act.
(4) Without prejudice to any other action that
may be taken against any person, whether
owner or occupier, contravening any provision
of this section, the Municipality may levy on
such person such fine, not exceeding, in each
case, rupees one hundred per square metre per
month for the area under unauthorized use
throughout the period during which such
contravention continues, as may be provided
by regulations.
(5) The Chief Municipal Officer may, if he
deems fit, order that such unauthorized use be
stopped forthwith:
Provided that before making any such
order, he shall give a reasonable opportunity to
the person affected to show cause why such
order shall not be made.
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
(6) Any person aggrieved by an order of the
Chief Municipal Officer under sub-section (5)
may, within thirty days from the date of the
order, prefer an appeal against the order to the
Municipal Building Tribunal whose decision in
the matter shall be final and conclusive.
(7) When an appeal is preferred under sub-
section (6), the Municipal Building Tribunal or
the Municipality, as the case may be, may stay
the enforcement of the order made by the Chief
Municipal Officer under sub-section (5) on
such terms, and for such period, as it may think
fit.
(8) Save as otherwise provided in this section,
no court shall entertain any suit, application or
other proceeding for any relief or injunction,
restraining the Chief Municipal Officer or the
Municipal Building Tribunal or the
Municipality from taking any action or making
any order in pursuance of the provisions of this
section.
Explanation.-For the purposes of this
chapter, "unauthorized use" shall mean change
or conversion of a building without sanction
from one occupancy or use group to another
occupancy or use group referred to in sub-
section (2) of section 312."
19. It would further be relevant to take note of the
relevant Rules of the Bihar Building Bye-laws, 1993 as
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
amended from time to time and Bihar Building Bye-laws, 2014,
which read as under:-
Bihar Building Bye-laws, 1993 As Amended
From Time to Time
"Rule 10. Deviation during Construction-
10.1. During the course of construction of the
building, if any deviation excluding those
mentioned in Bye-laws 4.5 from the sanctioned
plan is intended to be made, permission of the
Authority shall be obtained before the proposed
deviation is executed. It shall be incumbent
upon every person, whose plans have been
approved, to submit plans for any deviation, he
proposes to make. The procedure laid down for
other documents hereinbefore shall apply to all
such amended plans excepting that the time
limit specified under Bye-law no.6.4(c).
Rule 10.2. Condonation of minor
deviation.- The Authority shall have the power
to condone minor deviations made in course of
execution on the basis of sanctioned plan
subject to the condition hereinafter laid down.
The term "minor deviation" shall be interpreted
in terms of the provisions of Appendix- 'L'.
The conditions for such condonation will be:-
(a) that the said minor deviation asked to
be condoned does not affect the Master
Plan.
(b) that the deviation is strictly within
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
the definition of "Minor Deviation".
(c) that the condonation with fine will be
considered only when deviation has been
made after getting the earlier map of the
plan sanctioned and not otherwise.
(d) that the condonation will be
considered only when the owner of the
building or the person at whose instance
the execution of the said building has been
made, applies in writing, for such
condonation and agrees to pay
condonation fee and such fees in advance
to the Authority.
(e) that the rate of condonation fee shall
be as per the rates stated in Appendix 'L'.
The rates will be subject to revision by the
Authority as and when considered
necessary.
(f) that the condonation fee will be
deemed to be public demand within the
meaning of the Bihar Public Demand
Recovery Act as such.
Rule 11. Cancellation of permission.-
11.1. If any time after permission to proceed
with any building or development work has
been given, the Authority is satisfied that such
permission was granted in consequence of any
material misrepresentation or fraudulent
statement contained in the application given or
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
information furnished, the Authority may
cancel such permission and any work done
thereafter shall be deemed to have been done
without permission.
Rule 18.2. No permission to construct a
building on site shall be granted, if the site is
within nine (9) Meters of the highest water
mark of a tank, unless the owner satisfies the
Authority that he will take such measures as
will prevent any risk of the domestic drainage
of the building passing into the tank. Further
the Authority may require the floor of the
lowest storey of such building to be raised
above the normal maximum flood level of the
adjoining ground or to such other level as the
Authority may specify.
Appendix- 'M'
Provision regarding Uses in Land Use Zone
(Bye-law No.18.4)
Land Use Zone Uses permitted Uses permissible
if allowed by the
Authority after
special appeal
A. Residential 1. Residence, Hostels 1. Places of worship.
and Boarding Houses 2. Professional,
with density Commercial and
Limitations. Government Offices.
2. Nursery, Kinder 3. Service uses and
garten and High retail shops of a
Schools. neighbourhood
3. Clinics, social and character when
cultural institutions located in local
with adequate parking shopping centres or
facilities. in concentrated
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
4. Retail shopping and locations or as
community facilities shown in the Zonal
with adequate parking Development plan of
facilities. the areas when
5. Neighbourhood prepared.
recreational use 4. Hotels, hospitals and
including clubs and sanitoria not treating
others such public contagious diseases
recreational facilities or mental patients,
with adequate parking provided the set
facilities. back and coverage
of plots are such as
not to constitute
nuisance to the
residential area.
5. Non-commercial
poultry and cattle
farms provided that
a part of such
building is not such
that 50 ft. away from
a dwelling or
property line.
6. Institutions of higher
learning.
7. Bus depots, railway
passenger and
freight station.
8. Petrol filling
Stations on road of
90 ft. width and
above.
9. Service and storage
Yard, taxi and
scooter stands.
B. 1. Retail shops and 1. Social and welfare
Commercial markets. institutions.
(Retail) 2. Business and 2. Petrol filling stations
professional Offices. and garages with
3. Service uses shops like adequate set back and
bar-beers, tailors, coverage so that there
laundary cleaners etc. is no nuisance created
4. Restaurants and places to the locality.
of entertainment with 3. Coal, Wood or
adequate parking Timber yard.
places. 4. Light manufacturing
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
5. Residences, Hostels units employing not
and Boarding Houses more than 4 persons
and social and welfare with or without power
institutions provided provided the goods
they are located in the manufactured are sold
first and higher floors. on the premises in
6. Meat, Fish, Vegetables retail and that does
and fruit markets. not create nuisance or
7. Roofed storage for hazard.
legitimate retail 5. Taxi and Scooter
business. stand, Bus Terminal
8. Public and semi-public (Parking areas
recreational discos. requirements for all
9. Public utilities and the above uses must
buildings (Parking area be approved).
requirements for all
these uses must be
approved).
C.Commercial 1. Wholesale and retail 1. Truck terminals and
(wholesale) shops. parking.
2. Storage for wholesale 2. Market, Clinic,
uses except when Social and Cultural
specifically institutions.
prohibited. 3. Dwelling for watch-
3. Commercial and and-ward. (Parking,
Government Offices. loading & unloading
4. Restaurants and requirements must
residences provided be approved for all
they are located in the above uses.
first and higher floors.
5. Public utilities and
buildings. (Parking,
loading and unloading
requirements must be
approved for all the
above uses).
D. Industrial: 1. Industries which do 1. Bus and Truck
not cause excessive, Terminal.
injurious or obnoxious 2. Railway
noise, vibration, passenger and
smokes, gas, flames, freight terminal.
odour, dust, effluent or 3. Petrol filling
other objectionable Station, Taxis and
conditions and do not Scooter stands,
employ more than 100 junk yards.
workers. (Parking, 4. Dwelling for
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
loading and unloading watch and ward
requirements must be staff, canteen and
approved for all use. recreational
facilities for the
employees.
E. Public and 1. Local, State and 1. Residences and
Semi-public Central Government other uses incidental
uses. Offices and use of land to main use in no
for defence purposes. way causing any
2. Social and cultural nuisance or hazard.
institutions. 2. Outdoor theaters
3. Radio Transmitters and and drive-in-
Wireless Stations cinemas.
subject to height and 3. Restaurants and
density restrictions. selling of eatables.
4. Educational, Medical 4. Uses clearly
and research incidental to
institution. recreational use
5. Social and Cultural which will not
institutions. create nuisance or
6. Monuments and hazard.
religious institutions. 5. Dwelling for
7. Public utilities and watch and ward
buildings. staff. (Parking area
8. Cremation grounds and requirements for all
cemetries. uses must be
9. Bus and Railways approved).
passenger terminals.
10.Parks, play-grounds
and special
recreational areas.
(Parking area
requirements for all
these uses must be
approved).
F. Agricultural 1. Agriculture and 1. Places of worship.
Horticulture. 2. Special educational
2. Dairy and Poultry and cultural
farming. buildings.
3. Farm houses and 3. Parks and non-
accessory buildings of commercial and
appropriate semi-public,
specification recreational uses.
4. Brick Kilns 4. Storage and
(Parking area processing & sale of
requirement for all farm product.
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
these uses must be 5. Service and repair
approved). of farm implements.
6. Public utility and
building (Parking
area requirement for
all these uses must
be approved).
Bihar Building Bye-laws, 2014
Rule 4. Deemed permission.-
(1)The construction or any building in respect
of which permission has been issued before
coming into force of these bye laws, shall, so far
as it is not inconsistent with the provisions of
the old bye laws, continue to be validly made
and the said permission shall be deemed to have
been issued under the corresponding provisions
of those bye laws.
(2) Where any building has been constructed
before the notification of these byelaws with
deviation of an approved plan, the provisions of
old byelaws shall be insisted upon.
(3) Where any building has been constructed
without an approved plan, the provisions of
these byelaws shall be insisted upon."
20. Be it noted here that Chapter XXXVI of the Act
contains provisions regarding erection of buildings within the
municipal area. Section 312 of the Act defines the expression
to 'erect building'. Section 313 of the Act says that no person
shall construct, or commence to construct, any building or any
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
structure of a permanent nature except in accordance with
building bye-law. Section 314 of the Act says that no person
construct or commence to construct, any building or structure
of permanent nature unless the building plan is approved.
Section 316 of the Act says the registered Architect, who
approves a building construction plan and submit detail of
construction plan along with approval granted by him to the
Chief Municipal Officer of the municipality. Section 315 of
the Act provides for actions which may be taken in case of
construction or commencement of construction in
contravention or breach or deviation of building bye-laws
whereas Section 317 of the Act gives power to the Chief
Municipal Officer of the municipality to condone deviations in
construction of building within permitted level.
21. It would be clear from the reading of the aforesaid
Sections of the Act that there is prohibition of construction of
any building or structure without sanction of building plan. In
case of any contravention, breach or deviation, the person
responsible may be liable to pay penalty which may ranged
between 1 lac to 10 lacs depending upon the size of the
building or structure or deviation under Section 315 of the Act.
However, certain deviations may be within permitted level,
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
and, in such a case, the Chief Municipal Officer shall be
obliged not to order for its demolition and shall condone the
same on the realization of such penalty or fine as may be
prescribed under the Act, Rule or Regulation or building bye-
laws as the case may be in terms of the provision prescribed
under Section 317 of the Act.
22. It is clear from a reading of Section 323 of the Act,
particularly, Sub-section (1) & (2), that they simply confer
power to a Chief Municipal Officer to pass an order of
demolition of any building or stop the erection of such
building, where the erection of any building or the execution
of any work has been commenced, or is being carried on, or
has been completed without, or contrary to, the sanction of
building plan referred to in Section 314 or in contravention of
any of the provisions of the Act or the rules or the regulations
made thereunder. Sub-section (3) confers right upon a person
aggrieved by an order of the Chief Municipal Officer under
sub-section (1) to prefer an appeal before the Municipal
Building Tribunal appointed under Section 329 of the Act
within thirty days from the date of order. Sub-section (4)
provides that where an appeal is preferred under sub-section
(3) against an order under sub-section (1), the Municipal
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
Building Tribunal may stay the enforcement of the order on
such terms, as it may think fit. Sub-section (5) puts a bar upon
any court to entertain any suit, application or other proceeding
for injunction or other relief against the Chief Municipal
Officer to restrain him from taking any action, or making any
order, in pursuance of the provisions of Section 323 of the Act.
Sub-section (6) provides that every order made by the
Municipal Building Tribunal on appeal and, subject to such
order, every order made by the Chief Municipal Officer under
sub-section (1), shall be final and conclusive. Further, sub-
section (7) provides that where no appeal has been preferred
against an order made by the Chief Municipal Officer under
sub-section (1) or where an order under that subsection has
been confirmed on appeal, whether with or without
modification, the person against whom the order has been
made shall comply with the order within the period specified
therein, as the case may be, within the period, if any, fixed by
the Municipal Building Tribunal on appeal, and, on the failure
of such person to comply with the order within such period,
the Chief Municipal Officer may himself cause the building or
the work to which the order relates to be demolished, and the
expenses of such demolition shall be recoverable from such
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
person as an arrear of tax under the Act. Subsection (8) is a
non-obstante clause. It gives overriding power to the
Empowered Standing Committee to demolish building or a
work forthwith, for reasons to be recorded in writing, if it is of
the opinion that immediate action is called for in relation to a
building or a work being carried on in contravention with the
provisions of the Act.
23. Similarly, under Section 324 of the Act, the Chief
Municipal Officer may by order require the person at whose
instance erection of any building or the execution of any work
has been commenced or is being carried without, or contrary to
the sanction referred to in Section 314 of the Act or in
contravention of any condition subject to which such sanction
has been accorded or in contravention of any provisions of the
Act or the rules or the regulations made thereunder to stop
construction forthwith, and if his order is not complied with,
he may require any police officer to remove such person and
all his assistants and workmen from the premises within such
time as may be specified by him, and such police officer shall
comply with such requirement. Under this provision the Chief
Municipal Officer may, if he thinks fit, by an order in writing
depute a police officer to watch the premises in order to ensure
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
that the erection of building or execution of the work is not
continued, and where a police officer has been deputed to
watch the premises, the cost of such deputation to be
determined by the Municipality by regulations, shall be
realized from such person at whose instance such erection or
execution is being continued or to whom notice under sub-
section (1) has been given, and shall be recoverable from such
person as an arrear of tax under the Act.
24. Apparently, the provisions prescribed under
Sections 323 and 324 of the Act are public regulatory laws.
They provide for the manner in which the Municipal authorities
or the person aggrieved may proceed in case of any dispute
relating to construction of any structure or building in
contravention of any building bye-laws.
25. From the perusal of the impugned order, it would
be manifest that the petitioner no.2 presumed the building in
question to be commercial in nature. The basis for presumption
was that the sanctioned map depicted bed room only on 6 th floor
whereas the ground + five floors were shown to be community
facility.
26. The contention of Mr. Bindhyachal Singh, learned
senior counsel for the petitioners is that the community facility
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
is contrary to the existing bye-laws.
27. On the other hand, the submission of the
respondent no.5 right from the beginning is that the building
was never intended for any commercial use. The respondent
no.5 has filed an affidavit before this court also wherein a
specific assertion has been made that the building to be
constructed by respondent no.5 on survey plot Nos. 1780, 1783,
1784, 1785, 1772, 1773, Khata Nos.426, 434, 455 and 458,
Tauzi No.576, Mauza-Sheikhpura, Thana No.9, P.S.-
Gardanibagh, presently Shastrinagar, Town and District-Patna
abutting right in road, total area 1234.04 square meters shall be
used only for residential purposes by respondent no.5 and/or its
purchasers. The respondent no.5 has further undertaken not to
construct/build the structure beyond the permissible height in
the sanctioned map and will not seek any condonation with
respect to the height.
28. The respondent no.5 has taken a consistent stand
that the building was never intended for any commercial use.
The finding of the petitioner no.2 that the building was being
constructed for commercial use appear to be based on the fact
that though the map has been sanctioned for basement + ground
+ six floors, upto 5th floor community facility has been provided
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
and only in the sixth floor residential facility has been provided
whereas the plot lies in residential zone where no commercial
facility can be accorded. In this regard, if we look at Appendix-
'M' of the prevalent building bye-law, 1993, we find that the
uses permitted in residential zone provides for various activities
including community facilities. Hence, the finding of the
respondent no.2 that the building is being constructed for
commercial use is based on conjecture and surmises.
29. Insofar as the submission made on behalf of the
petitioners questioning the jurisdiction of the Tribunal is
concerned, sub-sections (3), (6) and (7) of Section 323 deal with
the jurisdiction of the Tribunal established under Section 329 of
the Act of 2007. They specifically refer that any person
aggrieved by an order of the Chief Municipal Officer may prefer
an appeal and the order passed by the Tribunal would be final
and conclusive.
30. It would also be pertinent to note at this stage that
sub-section (5) of Section 340 of the Act of 2007 empowers the
Chief Municipal Officer to stop unauthorized use of any
building forthwith. However, sub-section (6) of Section 340 of
the Act of 2007 empowers the Tribunal to entertain an appeal
against an order of the Chief Municipal Officer under sub-
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
section (5) and the decision of the Tribunal shall be final and
conclusive.
31. Thus, the contention of the learned senior counsel
for the petitioners that the Tribunal did not have any jurisdiction
to interfere with an order passed under Section 323 of the Act of
2007 is without force.
32. Insofar as the powers of the Chief Municipal
Officer under Section 323 of the Act of 2007 to order for
demolition and stoppage of building or work in certain cases are
concerned, it is reiterated that sub-section (1) of Section 323 of
the Act of 2007 would make it manifest that the erection of any
building or the execution of any work, which has been
commenced or is being carried on or has been completed
without or contrary to the sanction referred to in Section 314 or
in contravention of any of the provisions of the Act or the Rules
or the Regulations made thereunder, the Chief Municipal
Officer may in addition to any other action that may be taken
under the Act make an order directing that such erection of work
shall be demolished by the person at whose instance the erection
or work has been commenced or is being carried on or has been
completed.
33. In the instant case, it is not the case of the
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
petitioners that the erection of the building or the execution of
the work was being carried on contrary to the sanction referred
to in Section 314 of the Act of 2007 rather the case of the
petitioners is that the sanction granted by the registered
Architect of the Municipal Corporation itself was erroneous.
34. In this regard, it would be of salience to note that in
view of Rule 11 of the relevant building bye-laws interference
with the construction activity of the respondent nos. 5 and 6
could have been done and cancellation of permission could have
been invoked only when the petitioner no.2 would have
recorded his satisfaction that the permission was granted in
consequence of any misrepresentation or fraudulent statement
contained in the application seeking a sanction for erection of
the building.
35. It is not the case of the petitioners that the
permission to proceed with the erection of the building had been
given in favour of the respondent no.6 in consequence of any
material misrepresentation or fraudulent statement contained in
the application given or information furnished.
36. A perusal of the order dated 29.08.2006 passed by
the petitioner no.2 as contained in Annexure-3 would reveal that
the there was no finding regarding misrepresentation or
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
fraudulent statement in the application seeking permission to
construct the building.
37. The next submission of the petitioners is that the
Tribunal ignored Section 315 of the Act of 2007 while passing
the order.
38. A perusal of Section 315 of the Act of 2007 would
make it evident that if any building or structure of permanent
nature, which has been constructed or construction has been
commenced in contravention or breach of all deviation of
building bye-laws shall be liable to be demolished
notwithstanding that it had been approved by a competent
authority. However, the first proviso to Section 315 of the Act of
2007 provides that in case of any contravention, breach of
deviation person may be liable to pay penalty, which may range
between one lakh to ten lakhs depending upon size of building
or structure or deviation. However, certain deviations may be
within permissible limit and clause 10 of the Building Bye-laws,
1993, which was prevalent when the building plan of the
respondent was sanctioned provides that the authority shall have
power to condone minor deviation made in course of execution
on the basis of sanctioned plan subject to the condition laid
down therein.
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
39. The Building Bye-laws of 1993 are in the form of
regulations and, in case, the same provides for condonation of
minor deviations from the sanctioned plan subject to the
conditions mentioned therein. Thus, clause 10 of the Building
Bye-laws, 1993, as amended from time to time, will have to be
read together with Section 315 of the Act of 2007 and, in case,
the deviations are within the permissible limit, the Chief
Municipal Officer shall be obliged not to order for its
demolition and shall condone the same on realization of such
penalty or fine as may be prescribed under the Act.
40. Furthermore, even if there was any deviation in
construction within the permitted (condonable) limit, as per
section 317 of the Act of 2007, the Municipal Officer shall not
order for demolition.
41. Since the construction by the respondent no.5 was
in accordance with the sanctioned plan, there was no reason for
Municipal Commissioner to pass the order of demolition.
42. Since the constitution of the Tribunal under Section
329 of the Act of 2007 is for redressal of the grievance, as such,
by necessary implication when the sanctioned map had been
cancelled on the ground that the premise is sought to be used for
commercial purpose in residential zone, the Tribunal had the
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
authority to decide the same.
43. The order impugned would make it clear that the
Tribunal has not passed any order altering the intended use of
the structure. On the contrary, it has directed the respondent no.5
to get a fresh map sanctioned for residential use after removal of
deviation beyond the condonable limit and after paying the fine
assessed for the deviations made within the condonable limits.
There is nothing in the order of Tribunal to infer that it has
issued direction to the respondent no.2 to sanction commercial
activity in residential zone.
44. Insofar as the challenge to the impugned order that
the calculation of condonable area in the impugned order passed
by the Tribunal is against the modified building bye-laws is
concerned, it would be evident from the order passed by the
Tribunal that how the calculation has to be made. Any deviation
from the sanctioned map during the period of construction has
to be strictly in terms of such bye-laws during which the map
was sanctioned and not subsequent bye-laws which came into
existence after the sanction of plan.
45. The petitioner no.2 had directed for demolition of
building structure upto 3rd floor mainly on the ground that the
sanctioned map was against building bye-laws because upto
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
ground + five all floors had been sanctioned as a hall showing
community facility and at the 5th floor, bed room had been
shown. It was interfered on the ground of deviation of uses, as
in the residential zone a commercial structure is not permissible.
However, it would be manifest from Appendix- 'M', which
prescribes the permitted uses in residential zone, would make it
clear that in a residential zone, various uses, such as,
Residences, Hostels, Boarding Houses with density limitations,
Nursery, Kindergarten, High Schools, Clinics, Social and
Cultural Institutions with adequate parking facilities, Retail
Shopping, Community Facilities with adequate parking
facilities and Neighbourhood Recreational use including Clubs
and others such public recreational facilities with adequate
parking facilities are permitted. Apparently, the uses permitted
by the bye-laws enumerated in Appendix- 'M' include
community facilities. Hence, it can safely be said that it is not a
case where in a residential zone, the structure being erected is
not permissible. The restriction, if any, is only to the extent of its
uses.
46. So far as the Building Bye-laws, 2014 is
concerned, sub-rule (1) of Rule 4 therein clearly provides that
the construction of any building in respect of which permission
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
has been issued before coming into force of 2014 bye-laws,
shall, so far as it is not inconsistent with the provisions of the
old bye-laws, continued to be validly made and the said
permission shall be deemed to have been issued under the
corresponding provision of those bye-laws. Sub-rule (2) of the
aforesaid Rule 4 provides that where any building has been
constructed before the notification of the 2014 bye-laws with
deviation of an approved plan, the provision of old bye-laws
shall be insisted upon and sub-rule (3) of Rule 4 provides that
when any building has been constructed without approved plan,
the provision of 2014 bye-laws shall be insisted upon.
47. In the instant case, admittedly, it is not the case of
the petitioners that the building had been constructed without an
approved plan rather the case of the petitioners is that the
building plan was wrongly and collusively sanctioned by the
registered Architect. The reasons due to which the petitioners
have held the sanction of building to be collusive and bad had
already been found erroneous by us. Hence, the Tribunal has
rightly modified the order passed by the petitioner no.2 to the
extent that the respondents would make payment for deviation
as per the bye-laws and, in case, there is deviation from the
permissible limit, the same would be demolished. Also, the
Patna High Court CWJC No.10054 of 2019 dt.16-08-2022
Tribunal has rightly observed that a revised map will be
submitted by the respondents, which would be sanctioned by the
Patna Municipal Corporation as per the prevailing bye-laws and
the entire structure should be residential.
48. We are of the opinion that the Tribunal has rightly
held that on technical ground, demolition of building would be a
harsh punishment particularly when the structure is compatible
to the existing building bye-laws and the provisions of the Act.
49. For the reasons stated above, we see no merit in the
present application. The writ petition is dismissed.
50. However, there shall be no order as to costs.
(Ashwani Kumar Singh, J.)
(Nawneet Kumar Pandey, J.)
Sanjeet/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 21.08.2022
Transmission Date NA
