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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

1. This matter has been placed before us by the Office along  

with an Office Report for directions.  

2. 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

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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.”   

3. 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

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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

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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.”

4. In  view of  the  disposal  of  the  writ  petition,  all  the  I.As.  

which were filed till then, were disposed of without any order.

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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.”

5. 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.  

6. 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

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before  9.03.2015  and  the  Bank  Guarantee  was  extended  for  

another 10 weeks.  

7. 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.

8. 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.

9. 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

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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.”

10. 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

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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

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Mezzanine  Floor.  In  these  circumstances,  it  is  submitted  on  

behalf  of  the  Patna  Municipal  Corporation  that  the  illegal  

construction should be demolished.  

11. 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.”

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12. 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.  

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

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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.  

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

…...................................J                                            (R.K. Agrawal)

New Delhi; March 10, 2016.

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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.

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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)