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 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 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 JUDGMENT 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 JUDGMENTto 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.
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. JUDGMENT (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.”
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 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.
(Pinaki Chandra Ghose) (R.K. Agrawal) New Delhi; JUDGMENT March 10, 2016. ITEM NO.1A COURT NO.09 SECTION X (For orders)
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'bleMr. 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)