Kameshwar Prasad Srivastava vs The State Of Bihar
2022 Latest Caselaw 2554 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.4625 of 2021
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1. Kameshwar Prasad Srivastava Son of Late Ram Bilash Prasad Srivastava Resident of - The Laxmi Heritage Apartment, Mohalla- Anandpuri, P.S.- S.K. Puri, District- Patna

2. Ajay Kumar Son of Late Surendra Nath Verma Resident of - The Laxmi Heritage Apartment, Mohalla- Anandpuri, P.S.- S.K. Puri, District- Patna

3. Dipak Kumar Son of Late Bishwanath Prasad Resident of - The Laxmi Heritage Apartment, Mohalla- Anandpuri, P.S.- S.K. Puri, District- Patna

4. Smt. Rita Srivastava Wife of Bhuneshwar Sahay Resident of - The Laxmi Heritage Apartment, Mohalla- Anandpuri, P.S.- S.K. Puri, District- Patna ... ... Petitioner/s Versus

1. The State of Bihar Through the Principal Secretary, Urban Development and Housing Department, Bihar- Patna

2. The Patna Municipal Corporation Through the Municipal Commissioner, Maurya Lok, Patna

3. The Municipal Commissioner, Patna Municipal Corporation Patna

4. The Vigilance Officer, Patna Regional Development Authority (Dissolved), Patna Municipal Corp. Maurya Lok, Patna

5. The Assistant Engineer, Vigilance Section PRDA (Dissolved), Patna Municipal Corporation Patna

6. S.B. Singh Flat No- 302, B Block, Laxmi Heritage Apartment, Anandpuri, P.S.- S.K. Puri, Patna- 800028.

7. Rakesh Kumar Flat No- 203, A Block, Laxmi Heritage Apartment, Anandpuri, P.S.- S.K. Puri, Patna- 800028.

8. Gangadhar Prasad Singh Flat No- 202, A Block, Laxmi Heritage Apartment, Anandpuri, P.S.- S.K. Puri, Patna- 800028.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s   :      Mr. Prashant Kashyap, Adv
     For the State          :      Mr. Jai Ram Singh, Adv
     For the PMC            :      Mr. Bindhyachal Singh, Sr. Adv with
                                   Mr. Ram Binod Singh, Adv

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE MADHURESH PRASAD CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE MADHURESH PRASAD)

Date : 09-05-2022

The petitioners are residents of one apartment building Patna High Court CWJC No.4625 of 2021 dt.09-05-2022

named the Laxmi Heritage Apartment. Certain flat owners made

a complaint alleging that the petitioners have covered the area

lying below the projection from the ceiling of their apartment

with iron grill which is projecting outside the building line and

has been made habitable.

The complaint led to lodging of Vigilance Case No.

25B/2011 instituted under Section 36 of the Bihar Regional

Development Authority Act 1981 (for short '1981 Act') read

with Section 313 of the Bihar Municipal Act 2007 (for short

'2007 Act'). The Engineer In-charge of the concerned locality

was directed to make an inspection. He submitted a report

which stated that ten flat owners including the instant petitioners

have committed the violation as alleged by the complainant.

Notice was then issued to the ten flat owners, including the

petitioners.

It is the petitioners' case that they were never served with

notice regarding the vigilance case. The order dated 04.08.2011

passed by the Municipal Commissioner in Vigilance Case No.

25B/2011, on the other hand, records that notice was issued to

all the ten flat owners. The Municipal Commissioner has

recorded that none of the noticees have appeared either

personally or through counsel. Having recorded this situation, Patna High Court CWJC No.4625 of 2021 dt.09-05-2022

which is disputed by the petitioners, the Municipal

Commissioner has proceeded to record a finding that the

allegation made by the complainant is correct. He has ordered

for removal of the alleged illegal construction under Section

54(1) of the 1981 Act read with Section 315 of the 2007 Act.

Petitioners assailed the order dated 04.08.2011 before the

Municipal Building Tribunal (for short 'Tribunal') in Appeal

Nos. 25/2011 and 27/2011 filed under Section 323(1) of the

2007 Act. The Tribunal rejected the petitioners' plea regarding

non-service of notice in the vigilance case proceedings. Relying

on the lower court records, the Tribunal has recorded a finding

that notice was sent to the petitioners and was duly served upon

them, still they chose to remain absent and did not appear in the

vigilance case. The Tribunal has, thus, dismissed the appeal vide

judgment dated 30.07.2012 affirming the order dated

04.08.2011 passed by the Municipal Commissioner.

Another development, in the meantime, which is

considered relevant for ascertaining the legality of the order

dated 30.07.2012 passed by the Tribunal, is the fact that one writ

petition was filed by one Santosh Prakash (another apartment

owner), who is not a party to the instant proceedings, assailing

the order dated 04.08.2011 passed by the Municipal Patna High Court CWJC No.4625 of 2021 dt.09-05-2022

Commissioner in the vigilance case. The writ petition was

numbered as CWJC No. 19207/2011. On 13.03.2012, a Bench

of this Court stayed the order dated 04.08.2011 passed by the

Municipal Commissioner in the vigilance case. The writ petition

ultimately stood dismissed due to non appearance on

10.09.2018. In view of the order dated 13.03.2012 passed in the

CWJC No. 19207/2011 staying the order dated 04.08.2011,

which fact is not disputed, whether it was open to the Tribunal

to proceed to consider the legality of the order dated 04.08.2011

in the two appeals No. 25/2011 and 27/2011, is also an issue

which arises for consideration in the instant case.

The immediate cause of action for filing the instant writ

petition is a notice dated 21.12.2020 issued by the Municipal

Commissioner to the instant petitioners and six other flat owners

asking them to explain within 15 days why for non-compliance

of the order dated 04.08.2011 passed in Vigilance Case No.

25B/2011 and the order dated 30.07.2012 by the Tribunal,

affirming the order dated 04.08.2011, the illegal structure

erected by them be not demolished.

The writ petition has been filed seeking quashing of the

three orders taken note of above, being order dated 04.08.2011

passed in Vigilance Case No. 25B/2011, order dated 30.07.2012 Patna High Court CWJC No.4625 of 2021 dt.09-05-2022

passed in Appeal Nos. 25/2011 and 27/2011 as well as the notice

dated 21.12.2020.

It is the petitioners' case that the threatened demolition

based on the three impugned orders is legally unsustainable for

the reason that the order of the Municipal Commissioner in the

vigilance case was without any notice to the petitioners. Being

violative of the Principle of Natural Justice, the order is legally

unsustainable. It is also their case that the alleged illegal

erection cannot be said to be a construction in violation of the

Bihar Building Bye-laws in view of the stipulation under Clause

4.5 of the Patna Planning Standards and Building bye-laws,

1981 (hereinafter referred as 'Building bye-laws), as approved

on 15.10.1993. It is also submitted by learned counsel for the

petitioners that impugned actions have been precipitated based

on extraneous considerations which are obvious from the fact

that without even waiting for conclusion of writ proceedings

arising out of CWJC No. 19207/2011 filed by another flat

owner, wherein order dated 04.08.2011 passed by the Municipal

Commissioner in the vigilance case has been stayed, the

Tribunal in hot haste has proceeded to affirm the order dated

04.08.2011, in the two Appeals bearing Appeal Nos. 25/2011

and 27/2011, wherein the petitioners had challenged the order Patna High Court CWJC No.4625 of 2021 dt.09-05-2022

dated 04.08.2011.

Counter-affidavits have been filed on behalf of the

respondents. The case of the respondents is that notice was

issued to the petitioners and other six affected flat owners in

respect of alleged illegal construction. They chose not to appear,

and thereafter Vigilance Case No. 25B/2011 was instituted

against the petitioners and after hearing the members of the

complainant and based on an alleged report of the Engineer In-

charge of the concerned locality, the Municipal Commissioner

concluded that the petitioners have deliberately violated the

rules and norms under the Building Bye-laws by making the

illegal construction of iron grill beyond the building line.

Accordingly, the same was ordered to be removed.

The two appeals preferred by the petitioners and other flat

owners, namely, Appeal Nos. 25/2011 and 27/2011, were

dismissed by a common order on 30.07.2012. The petitioners

have chosen not to assail the common order passed in appeal by

the Tribunal. Having done so, now they cannot be permitted to

assail the order dated 21.12.2020 passed by the Municipal

Commissioner, which is only a notice for ensuring compliance

with the order dated 04.08.2011 passed in vigilance case, and

order dated 30.07.2012 by the Tribunal, on the petitioners' Patna High Court CWJC No.4625 of 2021 dt.09-05-2022

appeal. There is no plausible explanation as to why the

petitioners have approached this court after inordinate delay

when for about ten years prior thereto they elected not to assail

either the order dated 04.08.2011 or the order dated 30.07.2012

passed by the Tribunal in the appeals.

Apart from delay and laches, the respondents have also

urged that installation of iron grill was not an internal alteration

of the flat. It being an external alteration, could have been done

only after obtaining prior permission of the competent authority

as contemplated under Section 314 of the 2007 Act. They have

also placed on record a notice dated 31.05.2011 purported to

have been issued in the vigilance case to all the petitioners.

A reply of petitioner No. 1, to the said notice, has also

been placed on record. The same is dated 10.06.2011. In his

reply, the petitioner No. 1 has denied erecting any unauthorised

construction.

From perusal of the notice dated 31.05.2011, a copy of

which has been enclosed as Annexure-A to the second

supplementary counter-affidavit filed on behalf of the

respondent Nos. 2,3,4 and 5, this Court finds that the name and

address of the flat owners have been mentioned on the notice

format and the date fixed (10.06.2011) has been mentioned. The Patna High Court CWJC No.4625 of 2021 dt.09-05-2022

notice is under Section 36 of the 1981 Act read with Section 313

of 2007 Act containing a performa allegation that the

unauthorised construction is being undertaken by the noticees. It

does not specify that there is any allegation regarding covering

by iron grill of the projection beyond the building line. The

petitioner no. 1, therefore, in his response, has stated that no

illegal construction has been undertaken. The notice does not

specify the nature of illegality alleged by the complainant,

which was being enquired in the vigilance case and for which

notice had been issued. Even this response of the petitioner No.

1 which has been placed on the record by the respondents

themselves in the counter affidavit has not been considered by

the Municipal Commissioner in the impugned order dated

04.08.2011 passed in the vigilance case.

The specific assertion of the petitioners, in the instant writ

proceedings, that after the notice dated 31.05.2011, no

intimation or notice regarding vigilance case was sent to the

petitioners, also remains undisputed.

Coming to the merits of the allegations levelled against

the petitioners that they have covered the roof projection by a

grill beyond the building line, this court would consider it useful

to take note of certain provisions contained in the Building Bye- Patna High Court CWJC No.4625 of 2021 dt.09-05-2022

laws which were in vogue at the time when the allegation had

been levelled.

Clause 2.13 of the Building Bye-laws defines the building

line which reads as follows;

"2.13. Building Line.- The line upto which the

plinth of a building adjoining a street or an extension of a

street or on a future street may lawfully extend. It

includes the lines prescribed in the Patna Master plan or

specially indicated in any scheme or layout plant or in

these Bye-laws."

Having taken note of the provision regarding building

line, what remains to be seen is, whether prior permission is

required to be obtained for fixing grill on the area within the

roof projection. In this connection Clause 4.5 of the Bye-laws is

relevant, which reads as follows;

"4.5. No application and building permit is

necessary for the following alterations which do not

otherwise, violate any provisions regarding general

building requirements, structural and fire safety

requirements of the bye-laws.

(a) Providing or closing of a window or door or

ventilator not opening towards other's property;

Patna High Court CWJC No.4625 of 2021 dt.09-05-2022

(b) Providing intercommunication doors;

(c) Providing partition;

(d) Gardening;

(e) White washing;

(f) Painting;

(g) Plastering and patch work;

(h) Re-flooring; and

(i) Construction of sunshades over windows, doors

and other openings on one's own land"

It is the specific case of the petitioners that the iron grills

were fixed for their protection and safety within the area lying

below the roof projection of their flat. It is nobody's case that

the iron grill has been affixed beyond the existing roof

projection. Thus even as per allegation, the grill at best encloses

an existing roof projection of the building's own land. Such

fixing of grills on the existing roof projection cannot be said to

be a construction of building or any structure of permanent

nature or any additional alteration or modification of an existing

building as contemplated in Section 313 of 2007 Act. That being

so, the prohibition prescribed under Section 313 would not be

applicable to the fixing of grills on the existing projections in

the petitioners' apartment building. The fixing of grills on the Patna High Court CWJC No.4625 of 2021 dt.09-05-2022

existing projections is covered by Clause 4.5 (i) of the Building

bye-laws, which has been taken note of above. There is no

allegation that the petitioners, in any way extended the existing

roof projection beyond the building line/plinth of the building.

Affixing of grills on the existing projections without any

extension/modification of the plinth cannot be said to be a

construction within the meaning of Section 313 of the Act 2007

which reads as follows;

"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."

Having regard to the provisions relied upon by the

petitioners which have been taken note of above, this Court is

convinced that affixing of grills on the existing projections from

the roof, that also for the purpose of safety and protection,

cannot be said to be a construction within the meaning of

Section 313 of the 2007 Act. The court would also find that

there is not even a whisper in the entire records before this Patna High Court CWJC No.4625 of 2021 dt.09-05-2022

Court that the petitioners have in any way added, extended, or

materially altered the plinth area. There being no such

allegation, it cannot be concluded by any stretch of imagination

that as per clause 2.13 of the Building Bye-laws, as taken note

of hereinabove, the building line has in any manner been

violated.

The allegation of the respondents regarding the writ

petition suffering from delay and laches has been taken note of

only to be rejected. It is not disputed by the respondent

authorities in the various affidavits filed by them that the order

dated 04.08.2011 passed in the Vigilance Case No. 25B/2011

was stayed by order dated 13.03.2012 passed in CWJC No.

19207/2011. The same remained stayed till 10.09.2018, on

which date the writ petition stood dismissed due to non-

appearance by counsel for the petitioner. The petitioner of that

writ proceedings is also one of the flat owners like the instant

petitioners, though he is not a party to the instant proceedings.

The stand of the petitioners that they did not consider any

urgency to assail the order dated 04.08.2011 on account of stay

of the order in a writ proceeding by one of the flat owners who

resides in the same apartment building, appears to be a natural

and legally sustainable stand. It is also worth noting that it is Patna High Court CWJC No.4625 of 2021 dt.09-05-2022

only after the writ petition was dismissed for default that the

authorities also have awoken from slumber and issued the notice

dated 21.12.2020 threatening the petitioners with demolition of

the alleged illegal construction.

This Court, at this juncture, would take judicial notice of

the fact that the order dated 04.08.2011 passed in the vigilance

case was stayed on account of order dated 13.03.2014 passed in

CWJC No. 19207/2011 and remained stayed till 10.09.2018,

when the writ petition stood dismissed for default in appearance

of the counsel for the petitioner. Still the Tribunal has proceeded

to pass the final order dated 30.07.2012 dismissing the

petitioners' appeal and affirming the order dated 04.08.2011.

What has prompted the Municipal Building Tribunal to proceed

with the appeal and consider the merits of the order dated

04.08.2011, by overreaching the process of the Court in CWJC

No. 19207/2011 is intriguing, to say the least.

It is obvious from the records that the authorities

themselves were aware of the stay order operating, and therefore

eight years after the order passed by the Municipal Building

Tribunal, the impugned notice dated 21.12.2020 had been

issued. This notice provided a fresh cause of action to the

petitioner. In the opinion of this court, there is no delay and Patna High Court CWJC No.4625 of 2021 dt.09-05-2022

laches in view of the aforesaid discussion.

The Court, in view of the forgoing consideration and

discussion, is convinced that the impugned order dated

04.08.2011 passed in Vigilance Case No. 25B/2011 is legally

unsustainable. The same is hereby quashed. The order dated

30.07.2012 in Appeal Nos. 25/2011 and 27/2011 affirming the

order dated 04.08.2011 also must collapse, and are hereby

quashed. In view of quashing of these two order, authorities

have no basis for proceeding further in the matter pursuant to

notice dated 21.12.2020 issued by the Municipal Commissioner.

The same is also quashed.

The writ petition stands allowed in the above terms.

( Madhuresh Prasad, J)

I agree Chakradhari Sharan Singh, J:

(Chakradhari Sharan Singh, J) SUMIT/-

AFR/NAFR                NAFR
CAV DATE                05.05.2022
Uploading Date          10.05.2022
Transmission Date