PARAG SAHAKARI GRIH NIRMAN SAMITEE LTD. THROUGH ITS SECRETARY Vs. THE PATNA MUNICIPAL CORPORATION AND ORS.

JUDGEMENT

(1.) Heard learned counsel for the petitioner, Patna Municipal Corporation, Respondent No. 3 and the Intervener who has not only filed an Intervention Application but also filed counter affidavit opposing the prayer made in the writ petition. Petitioner is a Housing Co-operative Society. It has challenged the instruction of the Municipal Commissioner bearing Memo No. 5283 dated 31.12.2011, Annexure-1, whereunder Municipal Commissioner, Patna Municipal Corporation has requested the District Magistrate, Senior Superintendent of Police, Patna to make available required police force on 6.1.2012 for facilitating demolition of the illegal construction made by the petitioner deviating the sanctioned plan in compliance of the order of the Vice-Chairman dated 24.5.2001, Annexure-2, appellate authority dated 2.4.2002 passed in Appeal No. 29/2001, Annexure- 3 which has already been affirmed by the High Court under orders dated 9.3.2010 passed in C.W.J.C. No. 5273 of 2002, Annexure-4. From perusal of the original, appellate order dated 24.5.2001, 2.4.2002, Annexures-2, 3 respectively, it appears that the authorities directed for demolition of the structure measuring an area of 90.12 sqmt. raised in the parking/common area of the premises which was being objected to by the intervener. The original order directing demolition of the aforesaid construction as also the appellate order were challenged by one flat-owner Ashok Kumar by filing C.W.J.C. No. 5273 of 2002 which was dismissed under orders dated 9.3.2010 observing that availability of an additional F.A.R. cannot be a ground to uphold the offending construction. While making such observation this Court further observed that even if further construction is permissible the same may be permitted on the application of the Housing Co-operative Society by raising either additional floors or even an area which is permissible under the bye-laws but the construction should not cause obstruction to the existing flat-owners.

(2.) In the light of the aforesaid order of the High Court it is submitted by Dr. K.N. Singh, learned Senior Counsel that the Society having demolished the offending portion of the construction applied for post facto sanction of the construction which could be permitted under the permissible floor area ratio which was considered in accordance with law by the Architect under Section 314 of the Bihar Municipal Act, 2007 (hereinafter referred to as the "Act"), who under letter No. 0135 dated 22.4.2010, Annexure-7 called upon the Secretary of the petitioner-Society to deposit the building, regularization, pasting fee amounting to Rs. 20,245/- which was submitted through bank-draft drawn in the name of the Patna Municipal Corporation bearing no. 534545 dated 24.4.2010, Annexures-7/1, 7/2, 7/3 before the Architect who in turn deposited the bank-draft in the prescribed proforma before the Patna Municipal Corporation which was also encashed, as would appear from the certificate granted by the concerned Branch Manager dated 10.3.2012, Annexure-7/4. Learned counsel for the petitioner in the aforesaid background submitted that while giving instruction to the District Magistrate, Senior Superintendent of Police, Patna to make available the police force on 6.1.2012 for demolition of the offending portion of the building the Municipal Commissioner ignored the subsequent events, had he taken into account the aforesaid subsequent events, there was no occasion for the Municipal Commissioner to have issued the impugned instruction for making available police force for ensuring demolition.

(3.) Counsel for the Patna Municipal Corporation and the Intervener has opposed the aforesaid submission. According to them the High Court affirmed the order of the Vice-Chairman, Appellate Authority and while upholding the order of the Vice-Chairman, Appellate Authority observed that the offending constructions cannot be regularized and to ensure compliance of the order of the Vice-Chairman, Appellate Authority, High Court the impugned instructions have been issued and this Court should uphold the same without looking into the subsequent events. Reference in this connection has been made to the counter affidavit filed by the Municipal Corporation as also by the intervener. Learned counsel for the Corporation, Intervener further submitted that the sub-sequent sanction of the plan regularizing 50 and odd sqmt. out of the 90 and odd sqmt. offending portion found by the authorities, High Court cannot be regularized as such regularization has been made by the Architect without appreciating the observations of the High Court that the offending portions or part thereof found by the authorities cannot be regularized and in appreciation of such fact Municipal Commissioner has issued notice dated 12.12.2011, Annexure-J to the Architect asking him to show cause as to why his licence be not cancelled and has also lodged Report against him which is dated 30.12.2011 on the basis of which Patliputra P.S. Case No. 293/2011 dated 31.12.2011, Annexure-K has been registered against the Architect for the offence under Section 420 and other allied Sections of the Penal Code. It is further stated that the records relating to subsequently sanctioned plan dated 26.4.2010 is also traceless from the office of the Corporation.