Case Background
The case concerns an apartment building called “Prashray Villa” in Patna. The petitioner claims to be the owner and occupant of Flat No. 501 in this building.
According to her, the building was constructed as per a revised building plan approved on 27.05.2009. Later, one of the flat owners, respondent Sanjeev Kumar Pandey, along with other flat owners, complained that the builder had gone beyond the approved plan.
The complaint alleged that the builder had constructed two extra floors in the apartment, apart from other irregularities. On this complaint, Vigilance Case No. 26B of 2015 was initiated before the Patna Municipal Corporation.
On 16.01.2019, the Vigilance case was decided. The Municipal Commissioner directed demolition of construction above the 4th floor, i.e., the 5th and 6th floors, and an existing toilet on the ground floor. The Commissioner also directed that the generator room and guard room be freed from the builder’s possession, that Rs.7,00,000/- be deposited under Section 315 of the Bihar Municipal Act, 2007, and that after compliance, a revised map be submitted for post facto sanction to regularize deviations.
The builder challenged this order by filing Appeal No. 5(S) of 2019 before the Municipal Building Tribunal, Patna. This appeal was between the builder and the municipal authorities.
The petitioner says she learnt of these proceedings only later. On 22.07.2021, she moved an application before the Municipal Building Tribunal seeking to be added as a respondent in Appeal No. 5(S) of 2019.
Her application for impleadment was filed under Order 1 Rule 10(2) read with Section 151 of the Code of Civil Procedure. She claimed she was a proper and necessary party because she was directly affected by the demolition order regarding the building where she owns and occupies a flat.
On 28.04.2022, the Municipal Building Tribunal dismissed her impleadment application. The Tribunal held that a purchaser of a flat was not a necessary party as per the Bihar Municipal Act, 2007 in such appeal proceedings.
Aggrieved by this rejection, the petitioner approached the Patna High Court under Article 226 of the Constitution. She sought quashing of the Tribunal’s order dated 28.04.2022 and protection of her property rights in Flat No. 501.
What the Court Examined and Decided
Justice Harish Kumar heard the petitioner, represented by advocate Mr. Ankit Katriar, and the Patna Municipal Corporation represented by advocate Mr. Prasoon Sinha.
The petitioner’s case rested on two main points: first, that as a flat owner in the affected building she was directly aggrieved by the demolition directions passed in Vigilance Case No. 26B of 2015; and second, that she had a constitutional right to property under Article 300(A) of the Constitution which could not be taken away without following due process of law.
She argued that the Tribunal had wrongly concluded that a purchaser of a flat was not a necessary party to the builder’s appeal. She pointed out that Section 323(3) of the Bihar Municipal Act, 2007 allows “any person” aggrieved by an order of the Chief Municipal Officer to file an appeal within thirty days from the date of the order.
On this basis, she contended that the law itself recognises that persons like her, whose property interests are affected, have a right to challenge the order. She emphasised that she was being deprived of her property without even being given a chance to be heard in the proceedings.
The petitioner also relied on two Supreme Court judgments: Deputy Commissioner, Hardoi Vs. Rama Krishna Narain & Ors, AIR 1953 SC 521, and Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, (2005) 11 SCC 403. These cases were cited to support the importance of hearing affected parties and recognising their rights in property disputes and proceedings where their interests are directly involved.
On the other side, the Municipal Corporation strongly opposed the writ petition. Its counsel submitted that if the petitioner was aggrieved by the order of the Municipal Commissioner in Vigilance Case No. 26B of 2015, her proper remedy was not to seek impleadment in the builder’s appeal.
Instead, he argued, she should have filed her own appeal under Section 323(3) of the Bihar Municipal Act, 2007 before the Municipal Building Tribunal. According to him, the provisions of Order 1 Rule 10(2) read with Section 151 of the Code of Civil Procedure did not apply to the Tribunal proceedings, and therefore her impleadment application itself was misconceived.
He also submitted that there was no perversity in the Tribunal’s order rejecting her impleadment plea.
The High Court carefully considered these rival submissions and examined the record. The Court first looked at the scheme of Section 323(3) of the Bihar Municipal Act, 2007. It noted that this provision empowers any person aggrieved by an order of the Municipal Commissioner to approach the Municipal Building Tribunal by way of an appeal, but this must be done within thirty days from the date of the order.
The Court then turned to the petitioner’s position. From the material on record, the Court found that, prima facie, the petitioner appeared to be a necessary and proper party in relation to the dispute. She is an occupant of Flat No. 501 in the same apartment building where demolition of certain portions had been ordered by the Municipal Commissioner.
Therefore, her rights over the property were clearly at stake. The Court observed that such rights could not be curtailed in an easy manner on mere technicalities. Once she is able to show that she has subsisting right, title and interest over the property in question, she must get an opportunity to defend those rights.
The Court also noted that the petitioner had not been issued any notice at any point of time in the prior proceedings. This meant she had no opportunity to participate or present her side when the Vigilance case was decided or when the builder’s appeal was filed.
Balancing these considerations, the Court did not directly set aside the Tribunal’s order refusing impleadment. Instead, the Court crafted a remedy using its extraordinary jurisdiction under Article 226 of the Constitution to ensure that the petitioner would still have an effective opportunity to challenge the demolition-related order.
The Court held that, in the interest of justice, the petitioner should be allowed to file a proper appeal under Section 323(3) of the Bihar Municipal Act, 2007 before the Municipal Building Tribunal. It granted her liberty to file such appeal preferably within a period of two weeks from the date of the High Court judgment, i.e., from 10.10.2023.
The Court then issued specific directions to the Tribunal. It directed that if the petitioner files an appeal, the Tribunal shall consider and proceed with it on its own merits. While doing so, the Tribunal must take into account that the petitioner is an occupant of Flat No. 501 in the concerned apartment and that she has been pursuing her remedy bona fide.
Recognising that there would naturally be a delay far beyond the normal 30 days prescribed in Section 323(3), the Court expressly observed that any petition by her for condonation of delay should be considered sympathetically. This observation was made keeping in view that she had no prior knowledge of the proceedings pending before the Municipal Corporation.
The Court also felt that to avoid conflicting decisions in similar matters, both appeals pending before the Tribunal – the builder’s earlier appeal and the petitioner’s proposed appeal – should be heard together. This would help ensure consistency and fairness in the outcome.
With these observations and directions, the High Court disposed of the writ petition. It did not grant the prayer to quash the Tribunal’s order of 28.04.2022, but it effectively opened a new, proper legal route for the petitioner to protect her property rights.
Why This Judgment Matters
This judgment is important for flat owners and other property purchasers in multi-storey buildings, especially in cities like Patna where building violations are common.
First, it confirms that even if an owner was not made a party in municipal proceedings, their rights cannot be ignored. If their flat or building is affected by a demolition or regularisation order, they can seek remedy before the Municipal Building Tribunal under Section 323(3) of the Bihar Municipal Act, 2007.
Second, the Patna High Court recognised that many buyers may come to know about such orders very late. By directing that delay in filing appeal should be considered sympathetically where the person had no knowledge, the Court has given practical protection to innocent purchasers.
Third, the judgment reinforces the constitutional protection of property under Article 300(A). Government or municipal actions affecting property must follow a fair process and give affected persons an opportunity to be heard.
Finally, by suggesting that related appeals be heard together, the Court encourages consistent decisions and avoids confusion where both builder and purchaser are challenging aspects of the same municipal order.
Legal Issues and Answers
- Issue: Can a flat owner, not originally a party to municipal vigilance proceedings, insist on being impleaded in the builder’s appeal before the Municipal Building Tribunal?
Answer: The Court did not direct impleadment in the builder’s appeal but held that the flat owner has an independent statutory remedy to file her own appeal under Section 323(3) of the Bihar Municipal Act, 2007, and allowed her to pursue that remedy with sympathetic consideration of delay. - Issue: How should delay in filing an appeal under Section 323(3) be treated when the affected person had no knowledge of the earlier municipal proceedings?
Answer: The Court directed that any petition for condonation of delay in such circumstances should be considered sympathetically, noting that the petitioner had been pursuing her remedy bona fide. - Issue: Can a flat owner’s property rights be curtailed on technical grounds without hearing her?
Answer: No. The Court held that when a person has subsisting right, title and interest in property that is at stake, such rights cannot be curtailed easily on technicalities, especially when the person was never given notice.
Cases Cited by the Court
- Deputy Commissioner, Hardoi Vs. Rama Krishna Narain & Ors, AIR 1953 SC 521.
- Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, (2005) 11 SCC 403.
Case Details
Case Number: Civil Writ Jurisdiction Case No. 11140 of 2022
Case Title: Sarika Kumar Sinha vs. The Chairman, Municipal Building Tribunal Patna & Ors.
Citation: 2024(1) PLJR 587
Coram: Hon’ble Mr. Justice Harish Kumar
Advocates: Mr. Ankit Katriar, Advocate for the petitioner; Mr. Prasoon Sinha, Advocate for the Patna Municipal Corporation (respondents)
Nature of the Case: Writ petition under Article 226 of the Constitution of India challenging rejection of impleadment application in appeal before Municipal Building Tribunal
Date of Judgment: 10.10.2023
Link to Full Judgment: Patna High Court Judgment in CWJC No. 11140 of 2022
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