Sarika Kumar Sinha vs The Chairman, Municipal Building ...
2023 Latest Caselaw 5224 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Civil Writ Jurisdiction Case No.11140 of 2022
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Sarika Kumar Sinha, D/o Sri Girishwar Nath, resident of Flat No. 501, Prashray Villa apartment, Pump house gali, Primohani, P.S. Kadamkuan, district- Patna.

... ... Petitioner/s Versus

1. The Chairman, Municipal Building Tribunal Patna.

2. Patna Municipal Corporation, through the Municipal Commissioner, Maurya Lok, Patna.

3. Municipal Commissioner, Patna Municipal Corporation, Maurya Lok, Patna.

4. Rupesh Kumar, S/o Sri Sant Kumar Sinha, Prashray Villa apartment, Pump house gali, Primohani, P.S. Kadamkuan, district- Patna.

5. Sanjeev Kumar Pandey, Prashray Villa apartment, Pump house gali, Primohani, P.S. - Kadamkuan, district- Patna.

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

For the Petitioner/s : Mr. Ankit Katriar, Advocate For the Respondent/s : Mr. Prasoon Sinha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT Date : 10-10-2023

Heard Mr. Ankit Katriar, learned counsel for the

petitioner and Mr. Prasoon Sinha, learned counsel representing

the Patna Municipal Corporation.

2. The petitioner, claimed to be the owner of Flat

No. 501 in the subject Apartment, namely, "Prashray Villa" ,

filed the present writ petition by invoking the extraordinary writ

jurisdiction of this Court under Article 226 of the Constitution

of India seeking quashing of the order dated 28.04.2022, passed

in Appeal No. 5(S) of 2019, by which the learned Municipal

Building Tribunal has been pleased to dismiss the petitioner's Patna High Court CWJC No.11140 of 2022 dt.10-10-2023

impleadment petition.

3. It is submitted on behalf of the petitioner that the

building, in question, in which the petitioner is one of the

occupant, was constructed in terms of the revised approved

building plan/map dated 27.05.2009 (Annexure- P/1). A

complaint was filed by one Sanjeev Kumar Pandey and other

flat owners of the subject apartment that builder has constructed

two additional floors after the construction plan/map, besides

other alleged irregularities, which resulted into institution of

Vigilance Case No. 26B of 2015. The aforesaid Vigilance Case

No. 26B of 2015 was disposed of vide order dated 16.01.2019

with the following directions:

"(i) Demolition of construction above the 4th floor (i.e. 5th and 6th floor) and the existing 2.71 M x 1.7 M toilet on the ground floor.

(ii) Free the generator room and guard room from his possession,

(iii) Deposit Rs.7,00,000/- under Section 315 of the Bihar Municipal Act, 2007 and

(iv) After compliance of the above, submit a revised map for post facto sanction for regularizing the deviations."

4. Against the aforenoted order, the builder has Patna High Court CWJC No.11140 of 2022 dt.10-10-2023

preferred Appeal, bearing Appeal No. 5(S) of 2019 before the

Municipal Building Tribunal. The petitioner, subsequently,

having come to know about all these events, filed an

impleadment petition on 22.07.2021 before the Municipal

Building Tribunal (hereinafter referred to as 'the Tribunal')

requesting therein to implead her as a respondent, being a

proper and necessary party, as she is directly aggrieved by the

order dated 16.01.2019, passed by the Vigilance Court.

5. It is made clear that the said impleadment

petition was filed under Order 1 Rule 10(2) read with Section

151 of the Code of Civil Procedure. The aforenoted petition

came to be dismissed vide order dated 28.04.2022.

6. The petitioner while assailing the impugned

order has vehemently submitted that the Tribunal has

erroneously come to the misplaced conclusion that the purchaser

of the flat is not necessary party as per the provisions of the

Bihar Municipal Act, 2007 (hereinafter referred to as 'the Act,

2007'), nonetheless, the Municipal Act provides in Section

323(3) that any person aggrieved by an order of the Chief

Municipal Officer may, within thirty days from the date of

order, prefer an appeal. He next submitted that the right to

Property is a constitutional right to safeguard the property rights Patna High Court CWJC No.11140 of 2022 dt.10-10-2023

as envisaged under Article 300(A) of the Constitution of India,

which says that no person shall be deprived of his/her property

save and except by authority of law. The petitioner next

submitted that she is being sought to be deprived of her property

without even any cause to be shown or being given any

opportunity of being heard. Reliance has also been made over

two of the judgments rendered by the Hon'ble Supreme Court in

the case of Deputy Commissioner, Hardoi Vs. Rama Krishna

Narain & Ors, AIR 1953 SC 521 and Amit Kumar Shaw and

Another Vs. Farida Khatoon and Another, (2005) 11 SC 403.

7. A counter affidavit has been filed on behalf of the

Patna Municipal Corporation and the submissions of the

petitioner has been vehemently refuted.

8. Mr. Prasoon Sinha, learned counsel for the

Corporation submits that if the petitioner has any grievance to

the order of the Municipal Commissioner passed in Vigilance

Case No. 26B of 2015, the petitioner has a remedy to assail the

order under Sub-Section 3 of Section 323 of the Act, 2007 and

in no circumstances the petitioner has remedy of filing a petition

for impleadment under Order 1 Rule 10(2) read with Section

151 of the Code of Civil Procedure, as the same is not

applicable. He next submitted that there is no perversity in the Patna High Court CWJC No.11140 of 2022 dt.10-10-2023

order passed by the Tribunal negativing the request/contention

of the petitioner.

9. Having given anxious consideration to the

submissions advanced before this Court and after perusing the

materials on record, it would be evident that Section 323 (3) of

the Act, 2007 empowers any person to approach before the

Municipal Building Tribunal on being aggrieved by the order

passed by the Municipal Commissioner, however, the same is

required to be done within 30 days from the date of order passed

by the Municipal Commissioner.

10. From the record, the petitioner, prima facie,

appeared to be a necessary and proper party, being occupant of

the flat, which is sought to be demolished under the order

passed by the Municipal Commissioner. Thus, his right cannot

be curtailed in such an easy manner on mere technicality, once

she is able to prove that she is having subsisting right, title and

interest over the property, in question, which is at stake and

moreover, she had never been noticed at any point of time.

11. Thus, this Court in the interest of justice by

invoking the extraordinary jurisdiction under Article 226 of the

Constitution allow the petitioner to file a proper appeal under

Section 323 (3) of the Act, 2007 before the Municipal Building Patna High Court CWJC No.11140 of 2022 dt.10-10-2023

Tribunal, preferably within a period of two weeks from today.

12. If such appeal is preferred by the petitioner, the

same shall be considered and proceeded by the Tribunal on its

own merit taking into consideration the fact that the petitioner is

an occupant of the Plot No. 501 of the subject apartment and she

has been pursuing her remedy bonafidely. It is needless to

observe that any petition for condonation of delay shall be

considered sympathetically, as she has had no knowledge of the

proceeding pending before the Municipal Corporation.

13. This Court also deems it fit and proper to

observe that if both the appeals shall be heard together, it would

certainly avoid different orders in similar matters.

14. The present writ application stands disposed of

with the aforesaid observations made hereinabove.

(Harish Kumar, J) uday/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          11.10.2023
Transmission Date       NA