M/S TIRUPATI HOMES PVT. LTD. THROUGH ITS MANAGING DIRECTOR SHRI SHASHI BHUSHAN SINHA HAVING ITS OFFICE AT ARVINA APARTMENT NAGESHWAR COLONY, P.S. BUDDHA COLONY, DISTRICT Vs. THE MUNICIPAL BUILDING TRIBUNAL, SITUATED AT NEAR MILLER HIGH SCHOOL, P.S. KOTWALI, DISTRICT PATNA THROUGH ITS CHAIRMAN

JUDGEMENT

(1.) The petitioner prays for issuance of a writ in the nature of certiorari for quashing the order dated 16.2.2015 passed by the Municipal Building Tribunal hereinafter referred to as 'the Tribunal') in Appeal No.35 of 2014 whereby the appeal has been dismissed and the order dated 10.7.2014 passed by the Municipal Commissioner in Vigilance Case No. 139A of 2013 has been affirmed, copy of the orders are impugned at Annexures 6 and 7 respectively.

(2.) Facts of the case briefly stated is that the petitioner entered into a development agreement with Pradip Kumar Srivastava, Arbind Kumar Maldahiyar, Krishna Kumar Sinha and Dhiraj Kumar Sinha for development of Plot Nos. 19 and 20 situated at Mohalla-Kidwaipuri in the town and district of Patna having an area of 1072.98 square meters. Under the agreement the petitioner was to construct a multi storied residential apartment. Following the development agreement, the petitioner obtained sanction from the respondent-Patna Municipal Corporation (hereinafter referred to as 'the Corporation') vide Plan No. P/Mahuli-PRN-8-458/08 on 23.3.2009 for construction of a residential apartment consisting of Basement +Ground Floor+6 Floors. Since in between, the petitioner had a change of opinion as regarding the usage of the building that he claims to have submitted a revised map for construction of a guest house consisting of Basement +Ground Floor+7 Floors and which revised plan is stated to have been approved by the competent authority of the Corporation on 23.5.2009, a copy of which is placed at Annexure-1 and bears the signature of the Commissioner as well. According to the petitioner he was directed to make a deposit of Rs. 3,04,769.00 for sanction of the revised plan which was accordingly deposited. A copy of the revised plan is present at Annexure-2. The petitioner has obtained no objection certificate from the Airport Authority of India for a construction upto 34.22 meters from ground level and which is present at Annexure-3 and is dated 6.3.2014. The petitioner also claims that the land owners namely Arbind Kumar Maldahiyar and Pradip Kumar Srivastava have also obtained no objection certificate for the revised constructions from the Post and Telegraph, Government Employees Cooperative Housing Construction Society (hereinafter referred to as 'the Society') from whom they had obtained allotment. Copies of such certificate is present at Annexures-4 and 4/A respectively and is in respect of Plot Nos. 20 and 19 respectively. The sanction is for the construction of a residential-cum-Commercial building and is dated 21.3.2007 and 15.10.2007 respectively. It is the case of the petitioner that while the work was progressing on the project that a team of Engineers of the Corporation visited, inspected and measured the construction work on 3.10.2013 and submitted their report to the Commissioner reporting deviations and which led to institution of a Vigilance Case No. 139A of 2013. A copy of the Inspection Report has been enclosed at Annexure-5. The petitioner appeared in the vigilance case pursuant to the notice received and filed his show cause. The respondent Commissioner after hearing the parties has by the order dated 10.7.2014 impugned at Annexure-6 while directing the petitioner to demolish the 7th and 8th Floors has also directed the petitioner to restore the original character of the building in its residential form. The order of the Commissioner contains 12 directions which is primarily founded on the orders of this court passed in C.W.J.C. No. 8152 of 2013 (Narendra Mishra Vs. State) and the Commissioner finding deviations in the building by construction of two additional floors as well as being dissatisfied with the conversion in the nature of the building from residential to commercial, has accordingly directed the petitioner to ensure conformity with the map sanctioned on 23.3.2009 and restore the character of the building until the Registrar, Cooperative Society grants approval for such conversion and where after any such request would be considered. The order also restrains the petitioner from creating any third party interest, directs the Electrical Company to disconnect the electrical connection, orders for institution of a police case, directs the District Sub-Registrar, Patna not to allow registration of any part of the building and also directs the local Police Station to ensure that no further constructions are made and if the petitioner violates the orders then for registering a police case against him. The order passed by the Commissioner impugned at Annexure-6 has been affirmed by the Tribunal vide Annexure-7 and the petitioner being aggrieved is before this Court.

(3.) A counter affidavit had been filed which practically reiterates the position as reflecting from the order of the Commissioner. The petitioner has been charged with committing forgery and of consciously violating the orders passed in the case of Narendra Mishra (supra). The revised map as well as its approval has been questioned on its veracity and has been charged as being forged and ante dated documents leading to institution of a police case. As per the counter affidavit, the petitioner was neither entitled for conversion in the nature of the building without obtaining permission from the society and since the alleged constructions is founded on a forged revised map hence whatsoever has been the deviations in the building which is found contrary to the original sanction plan passed on 23.3.2009 for a residential apartment consisting of Basement +Ground Floor + 6 Floors should be demolished. As per the counter affidavit a plan sanctioned for a residential apartment cannot be converted in a hotel until such time any communication is received from the Registrar, Cooperative Society granting such permission which is found in conformity with the Building Bye Laws.