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Monday, March 14, 2016

“There being enormous deviations from the sanctioned plan in constructing the multi-storeyed building, after following the due process of law, construction beyond sanctioned plan was directed to be demolished by the Patna Regional Development Authority. Deviation is shocking and can be undertaken only by such person who considers himself to be law unto himself. One of the deviations is that against sanction of 24 flats in 6 floors at the rate of 4 flats per floor, 9 floors have been constructed having 6 flats every floor.” Accordingly this Court had directed for demolition of the said unauthorized construction dismissing the civil appeal and that order has attained finality. Thereafter, a writ petition, being Writ Petition (Civil) No.337 of 2013 was filed by the petitioners/ owners of the residential flats in Santosha Complex, claiming themselves to be the owners of the portion which was directed to be demolished. This Court refused to recall the orders so passed for demolition of the unauthorized construction and directed M/s. Saket Housing Ltd. (respondent No.4) to deposit a sum of Rs.25 crores or furnish the Bank Guarantee in the Registry of this Court. Steps were taken accordingly in the matter. Subsequent thereto, the said writ petition was disposed of by this Court by an order dated July 9, 2014 when this Court was pleased to dismiss the writ petition holding that the writ petition was absolutely misconceived and passed the following order: “Having heard learned counsel for the parties and in the facts and circumstances of the case, we are of the opinion that ends of justice shall be met by directing payment @ Rs. 6,000/- per sq. ft. to the persons who shall be affected on account of the demolition. Those persons shall be entitled to have the amount @ Rs. 6,000/- per sq. ft. of the carpet area, i.e., the area transferred to individuals and not the common area.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL  ORIGINAL  JURISDICTION

                    WRIT PETITION (CIVIL) NO. 337 OF 2013

BABITA BADASARIA & ORS.                        PETITIONER(S)
                                  :VERSUS:
PATNA MUNICIPAL CORPORATION & ORS.       RESPONDENT(S)


                                  O R D E R
This matter has been placed before us by the Office  along  with  an  Office
Report for directions.

Civil Appeal No.5470 of  2004,   filed  by  M/s.  Saket  Housing  Ltd.,  was
dismissed by this Court on 7-5-2013, after noting the fact  that  there  was
enormous deviation from  the  sanctioned  plan  in  construction  of  multi-
storeyed building. At that point of time this Court observed as follows:

“There  being  enormous  deviations   from   the    sanctioned    plan    in
constructing  the  multi-storeyed  building,   after   following   the   due
process of law, construction beyond  sanctioned  plan  was  directed  to  be
demolished by  the  Patna  Regional  Development  Authority.  Deviation   is
shocking and can be undertaken   only   by   such   person   who   considers
himself to be law unto himself.  One  of  the  deviations  is  that  against
sanction of 24 flats in 6 floors at the rate of 4 flats per floor, 9  floors
have been constructed having 6 flats every floor.”

Accordingly this Court had directed for demolition of the said  unauthorized
construction dismissing  the  civil  appeal  and  that  order  has  attained
finality. Thereafter, a writ petition, being Writ  Petition  (Civil)  No.337
of 2013 was filed by the petitioners/ owners of  the  residential  flats  in
Santosha Complex, claiming themselves to be the owners of the portion  which
was directed to be demolished. This Court refused to recall  the  orders  so
passed for demolition of the unauthorized  construction  and  directed  M/s.
Saket Housing Ltd. (respondent No.4) to deposit a sum  of  Rs.25  crores  or
furnish the Bank Guarantee in the Registry of this Court. Steps  were  taken
accordingly in the matter. Subsequent thereto, the said  writ  petition  was
disposed of by this Court by an order dated July 9,  2014  when  this  Court
was pleased to dismiss the writ petition holding that the writ petition  was
absolutely misconceived and passed the following order:

“Having heard  learned  counsel  for  the  parties  and  in  the  facts  and
circumstances of the case, we are of the opinion that ends of justice  shall
be met by directing payment @ Rs. 6,000/- per sq. ft.  to  the  persons  who
shall be affected on account of  the  demolition.  Those  persons      shall
be     entitled  to   have    the     amount @ Rs. 6,000/- per  sq.  ft.  of
the carpet area, i.e., the area  transferred  to  individuals  and  not  the
common area.

For ascertaining the carpet area of each of  the  persons,  we  appoint  Mr.
Justice S.N. Jha, former Chief Justice   of      the       Rajasthan    High
Court,  as    the Commissioner.

The  Patna   Municipal  Corporation shall within one  week  furnish  to  the
Commissioner the area/ flats to be demolished in terms of  the  Order  dated
7.05.2013 passed in Civil Appeal No. 5470 of 2004.  The  Commissioner  shall
ascertain through the agency of his choice the carpet area in possession  of
each of the persons going to be affected by the demolition.  He  will    not
  decide         inter    se      disputes           between           rival
claimants. In such cases he will determine the carpet area. On such  report,
the Registry of the Court will  earmark  sum  calculated  on  the  aforesaid
basis  and deposit  in an interest bearing    account.  The    amount  along
with interest shall be disbursed  to  the  person  establishing   the  right
before  a    Court   of    competent jurisdiction.  As  regards  others,  on
the report of the Commissioner, the  Registry  of         this  Court  shall
disburse the amount calculated on the aforesaid basis to all  those  persons
given by the Commissioner. The  Commissioner  may        indicate        the
amount  one would be entitled calculated on aforesaid basis.

The  functionaries  of  the  Patna  Municipal  Corporation  and  the   State
Government shall provide to the Commissioner all facilities as  required  by
him.  Within four weeks of the payment, all those persons shall  vacate  the
premises in their occupation  and  hand  it  over  to  the  Patna  Municipal
Corporation. In cases having inter se dispute between rival claimants,  they
shall  also  vacate  the same  within      four      weeks    of  submission
of the report and shall not wait for the disbursement  of  amount.  In  case
any one of them does not  do  so, he  will  be evicted   by  using force.

Immediately  thereafter all concerned  will     act     in  accordance  with
the directions given by this Court in its Order dated  7.05.2013  passed  in
Civil Appeal No.5470 of 2004.

      After the disbursement of the amount, as aforesaid, left over  amount,
 if   any, shall     be    returned  to respondent No. 4.

The Bank guarantee(s) furnished by respondent No. 4 be encashed   and    the
disbursement, as     aforesaid, be made. The encashed  amount  be  deposited
in an interest bearing account and the disbursement be made from  that  from
time to time. At the first instance, one of the Bank guarantees,  i.e.,  Rs.
15 Crore be encashed.

We fix the fee of the Commissioner @ Rs. 2 lac per sitting  and  that  shall
be  disbursed  from  the  amount  already     deposited   by      respondent
No.4.

For   the present,    a     sum    of     Rs.10     lac     be     disbursed
 to Mr. Justice S.N. Jha forthwith. Rest of the fee be paid to him  whenever
asked for.

All these  exercise including demolition be completed  within  a  period  of
ten weeks.

We make it clear that any deviation in carrying  out  this  order  shall  be
viewed seriously.

The writ petition is disposed  of   with   the directions aforesaid.”


In view of the disposal of the writ  petition,  all  the  I.As.  which  were
filed till then, were disposed of without any order.  Subsequently,  further
I.As., being I.A. Nos.7-14 & 15  were filed which were disposed  of  by  the
following order passed on 13.8.2014:

“Reference may be made to the Order dated 9.7.2014 whereby this  Court  very
categorically held that after the Writ Petition was finally disposed of,  no
further orders need be passed on the I.As. We are  of  the  same  view  that
after disposal of the  Writ  Petition,  I.As.  should  not  be  entertained.
Hence, all I.As. are hereby dismissed.

However, if the petitioners have any grievance with  regard  to  measurement
etc., they may approach the Commissioner and put their grievance.”



Subsequent thereto, I.A. No.16 was filed  which  was  also  disposed  of  on
8.9.2014,  clarifying  the order dated 13.8.2014, to  the  extent  that  the
word “Commissioner” used in the last but one line to the order  shall  refer
to  “Ld.  Court  Commissioner”.  Thereafter,  I.A.  No.17  was   filed   for
condonation of delay in renewing the Bank Guarantee  which  was  allowed  by
order dated 28.11.2014.

Thereafter,  Office Report for directions  was placed before this Court  and
an interim report was submitted by the learned  Court  Commissioner  and  on
22.02.2015 this Court requested the learned  Court  Commissioner  to  submit
the final report on or before 9.03.2015 and the Bank Guarantee was  extended
for another 10 weeks.

Parties, thereafter, prayed for report of the learned Court Commissioner  to
be furnished to them and on such prayer, an order was  passed  on  6.04.2015
to provide copies of the reports of the learned Court  Commissioner  to  all
the learned counsel appearing for the parties in the matter.

Thereafter, a proposal was filed before this Court by  the  petitioners  and
the matter was adjourned from time to time. The Patna Municipal  Corporation
was also directed to consult the Engineers and give suggestions with  regard
to the suggestions placed by the parties before this Court.

The proposals which were given on  behalf  of  the  petitioners/flat  owners
were as follows:

“(A) Direct permanent sealing/ demolition of the  mezzanine  floor  so  that
the FAR so released can be made available to the flat owners/petitioners  by
considering the second floor as  the  first  floor  and  in  the  same  way,
considering the seventh floor as the sixth floor;

(B) Direct the Ld. Court Commissioner to work out the number of flat  owners
whose areas can be saved in view of the fact that  the  mezzanine  floor  is
sealed and is not being utilized towards  the  FAR  and  also  in  terms  of
compounding vide order of the  Vice-Chairman,  Patna  Municipal  Corporation
dated 24.02.2000,  which  has  become  final  after  the  dismissal  of  the
builder’s Civil Appeal No.5470 of  2004  by  this  Hon’ble  Court  vide  its
judgment dated 07.05.2013.”



Patna Municipal  Corporation  filed  its  response  to  the  proposal  dated
31.8.2015 filed by the petitioners and it was further  submitted  before  us
that the proposals given by the petitioners cannot be accepted and the  same
should be rejected by this Court in  their  entirety.  It  is  submitted  on
behalf of the Municipal Corporation that  the  so  called  Mezzanine  Floor,
which is actually the First Floor of the building, be completely sealed  and
not be counted as a floor, has no merit. It was further submitted on  behalf
of the  Municipal  Corporation  that  it  is  not  possible  to  accept  the
suggestion of the petitioners as the Mezzanine Floor  is  a  complete  floor
built over 100% of the Ground Floor. As per the  rules,  a  Mezzanine  Floor
can only be one if it is over 1/3rd of the  Ground  Floor  area.  Therefore,
the said proposal is not accepted by the Municipal Corporation  Authorities.
It is further contended that the building was sanctioned for Ground and  six
floors (G+6 floors). The height of the building is important because if  the
proposal of the petitioners is accepted, then the building will be  Ground+7
Floors or more with one floor (the so called Mezzanine Floor) which  is  not
being counted.  It is further pointed out that the sanctioned  plan  is  G+6
Floors and it may not be safe to allow it to rise over the number of  floors
for which the foundation has been laid by the  Builder  –  Respondent  No.4.
Accordingly, it is submitted that it would not be safe to allow  compounding
of any part of the construction of the building.  It  is  further  submitted
that in case of sealing of the Mezzanine Floor, it is necessary  to  monitor
the same in the future. It is further stated that it may not  be  proper  to
do so on account of the severe deviation in  the  Floor  Area  Ratio  (FAR),
which in the building is 5.459  as  against  the  sanctioned  FAR  of  2.99,
further the  height  of  the  Building  was  illegally  increased  from  the
sanctioned height of 21 metres to 31.05 metres. Instead of G+6  Floors,  the
Builder has constructed G+9 Floors. It is further submitted that it is  also
contrary to the notification and guidelines issued by the Airport  Authority
of India as the height of the building  was  increased  by  the  Builder  to
beyond 23 metres without any sanction or approval of the  Airport  Authority
of India.  It is  further  submitted  that  it  would  not  be  possible  to
demolish the so called  Mezzanine  Floor.  In  these  circumstances,  it  is
submitted on behalf of the Patna  Municipal  Corporation  that  the  illegal
construction should be demolished.

We have considered the Report  of  the  Patna  Municipal  Corporation  filed
before this Court. We have also duly considered the Report dated  24.02.2015
filed by the Court Commissioner. However, we  do  not  accept  part  of  the
Report which has been specifically stated as follows:

“(13) In any case, I am inclined to think that as the Builder  was  pursuing
the legal remedies – by way of appeal before the Appellate Tribunal  or  the
writ petition/ LPA  before  the  High  Court  –  bona  fide,  the  issue  of
compounding should not be treated as a closed option.  If  it  is  allowable
under the bye-laws of the PRDA/PMC, the Hon’ble Court may give a fresh  look
at the same if it results in regularization of a few  flats  of  the  owners
who purchased them bona fide from their hard-earned money  and  are  now  on
the verge of being displaced.

(14)  To conclude the  discussions,  I  would  respectfully  recommend  that
while the offer of compounding may be allowed, the option of removal of  the
floor claimed to be mezzanine or the First Floor by either  side  –  may  be
considered. A favourable decision on these two  points  may  save  two  full
floors i.e. 14 flats of bona fide purchasers, without compromising  the  FAR
parameters. It may be mentioned that de hors the question of FAR, height  of
the building is not in issue. It may also be mentioned that three flats  out
of seven flats on the top floor – facing imminent demolition, belong to  the
Builder themselves.”



After the final report,  any suggestion which has been given  by  the  Court
Commissioner only to make an illegal construction as  a  legal  construction
by compounding the same by paying compounding  fee, is totally  unacceptable
to us.  In our opinion, the issue of compounding is a closed chapter as  the
writ petition as well as the appeal have  already  been  dismissed  by  this
Court. In these circumstances, we do not find any reason to change our  mind
and allow to keep this illegal construction which is contrary  to  law.   We
have already expressed our  views  in  our  order  passed  at  the  time  of
disposal of the writ petition. In these circumstances, we do not  intend  to
pass any further order in this matter. We only direct that  steps  shall  be
taken by the  respondent  authorities/Patna  Municipal  Corporation  in  the
matter in terms of our order dated 9th July, 2014 passed in  the  said  writ
petition.

We, however, make it clear  that  at  the  time  of  disposal  of  the  writ
petition, we had directed payment at the rate of  Rs.6,000/- per sq. ft.  to
the persons who shall be affected on account of the  demolition.  Since  the
matter is concluded today, we enhance the said rate from Rs.6,000/- per  sq.
ft. to Rs.7000/- per sq. ft.. We further direct that  all  the  flat  owners
will get their compensation and such compensation shall  be  paid  within  a
period of six weeks from date and they will vacate  the  premises  in  their
occupation, to give effect to the order so passed by us, within a period  of
one month thereafter.

We further direct that the Patna Municipal Corporation  shall  demolish  the
unauthorized structures within a period of four months and thereafter  shall
file a compliance report before this Court.


                                      …....................................J
                                                           (Pinaki Chandra
                                   Ghose)



                                       …...................................J
                                                     (R.K. Agrawal)
New Delhi;
March 10, 2016.
ITEM NO.1A               COURT NO.09                 SECTION X
(For orders)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                    Writ Petition(s)(Civil) No. 337/2013

BABITA BADASARIA & ORS.                            Petitioner(s)

                                VERSUS

PATNA MUNICIPAL CORPORATION & ORS.                 Respondent(s)



Date : 10/03/2016      This petition was called on for pronouncement
                       of orders today.


For Petitioner(s)      Mr. Devashish Bharuka, AOR

For Respondent(s)      Mr. Rajiv Shankar Dvivedi, AOR

                       Mr. Abhinav Mukerji, AOR
                       Ms. Tanya Shree, Adv.
                       Mr. Kaushik Poddar, AOR
                       Mr. Prem Prakash, AOR

                                            *****

      Hon'ble Mr. Justice Pinaki Chandra  Ghose  pronounced  the  reportable
order of the Bench comprising His Lordship  and  Hon'ble  Mr.  Justice  R.K.
Agrawal.
      This Court made the  following  directions  in  terms  of  the  signed
reportable order.
“12. .... .... In these circumstances, we do not intend to pass any  further
order in this matter.  We only direct that  steps  shall  be  taken  by  the
respondent authorities/Patna Municipal Corporation in the  matter  in  terms
of our order dated 9th July, 2014 passed in the said writ petition.

13.  We, however, make it clear that at the time of  disposal  of  the  writ
petition, we had directed payment at the rate of Rs.6,000/- per sq.  ft.  to
the persons who shall be affected on account of the  demolition.  Since  the
matter is concluded today, we enhance the said rate from Rs.6,000/- per  sq.
ft. to Rs.7000/- per sq. ft.. We further direct that  all  the  flat  owners
will get their compensation and such compensation shall  be  paid  within  a
period of six weeks from date and they will vacate  the  premises  in  their
occupation, to give effect to the order so passed by us, within a period  of
one month thereafter.

14. We further direct that the Patna Municipal  Corporation  shall  demolish
the unauthorized structures within a period of four  months  and  thereafter
shall file a compliance report before this Court.”



      (R.NATARAJAN)                                   (SNEH LATA SHARMA)
       Court Master                                      Court Master
            (Signed reportable order is placed on the file)




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