ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) The Times of India dated 20.9.2011 carried a report that Bihar falls in seismic zone IV and V where the maximum intensity of earthquake can go up to 8.4 Richter scale. It needs no imagination to understand that if in normal times a fire tender cannot enter and reach an Apartment building constructed on roads 8 to 12 feet in width, what would be the extent of calamity in the aforesaid event. Rescue operations would itself become impossible due to lack of accessibility caused by accumulation of debris on an otherwise narrow road leading to avoidable loss of human lives. 2. In this Public Interest Litigation, it was alleged that Respondent no. 9 along with the builder Respondent no.8 were illegally constructing an apartment complex beyond the prescribed height in a narrow 8 feet lane contrary to building bye-laws. It was also alleged that in place of a G + 3 sanctioned structure, the builder had constructed fourth floor also with the municipal authorities paying no heed to the complaints. We had passed a detailed reasoned order on 10.5.2013 stopping construction of all high rise apartment buildings in town beyond the permissible height based on road width under the building by-laws. We had also directed to stop all commercial/non-residential constructions in residential areas/plots, prohibited commencement of any new commercial/non-residential user from the date of our order. Construction of apartments in Co-operative Housing Societies and commercial/non-residential use in the same contrary to the terms of land acquisition made by the government and the bye laws of the Society was also prohibited. It was observed that the distinction between residential and commercial areas had been rendered otiose. We had excluded for the present only such commercial/ non-residential constructions which were already complete, occupied and operational since before our order. It was further observed that the individual allegation for construction beyond permissible height in the present case was not an isolated exception but a rampant malady by a mushroom unregulated growth of multistoried apartments in lanes and bye-lanes of Patna town as revealed from the spate of litigations in this regard before this Court. It was not possible for every citizen to approach this Court each time there was a building violation. Complaints made by citizens before the Corporation are ignored. The Court directs consideration of the grievances. The Corporation still does not consider the grievances. It was not possible for every citizen to approach this Court each time there was a building violation. Complaints made by citizens before the Corporation are ignored. The Court directs consideration of the grievances. The Corporation still does not consider the grievances. A repeat writ application is filed, the Court then asks the Corporation, matters are thereafter reluctantly looked into by the Corporation acknowledging illegal construction. The municipal building bye laws were being followed more in breach than its enforcement. Pursuant to an order passed earlier on 15.11.1996 in another public interest litigation CWJC 2290 of 1990 (Arun Kumar Mukherjee v State of Bihar) prohibiting construction of high rise apartments on roads less than 15 feet wide, an ingenious device was invented by the Municipal authorities to imagine a non-existent state of affairs for passing building plans over reaching the order of the Court. If the road was less than 20 feet in width, the person constructing was asked to leave area to the extent falling short in front of his building to assume that the entire road was 20 feet wide, a fraud on statutory powers by blatant abuse. The building plan would be passed on this non-existent state of affairs. Subsequently the person constructing would either not leave this area after the plan was sanctioned or include it within his own premises raising additional construction on the same with the active connivance of the Municipal authorities who would turn a blind eye to it for reasons very obvious. The result has been that Urban planning in Patna has been reduced to a zig zag road on the same one stretch. The Corporation was directed not issue occupancy certificate under Section 327 of the Act to any such commercial/ non-residential construction on a residential plot. The Electricity Board was not to grant non-residential connection on a residential plot being used contrary to permitted land use. We had therefore observed that a beginning therefore had to be made at some time to start enforcing the law. 3. Our orders were not the first of its kind for enforcement of Municipal Building laws and building bye laws in the town of Patna but simply a reiteration of repeated orders passed by the Court on this aspect earlier in the Public Interest Litigation case of Arun Kumar Mukherjee (supra). The order dated 15.11.1996 in the same by a Division Bench (Hon‘ble Mr. The order dated 15.11.1996 in the same by a Division Bench (Hon‘ble Mr. Justice B. P. Singh and Hon‘ble N. K. Sinha) observed as follows:- “We had earlier noticed that large numbers of high rise buildings are coming up in densely populated locality of Patna. Surprisingly many of them are coming up on lanes which are not even 15 wide. The high rise structures cause great inconvenience to the residents of the locality apart from creating problems of ventilation, light etc and they also create traffic problems and impose a burden on the sewage system which it cannot bear. Similarly water supply is badly affected because the occupants of such structures engage pumping sets which drain out the water meant for supply to all residents of the locality. We were told that under the existing building laws no high rise building will be allowed to be constructed unless the plots abut a road at least 40 feet in width. We find that this rule is not being followed. Counsel for the P.R.D.A. (Patna Regional Development Authority- the predecessor body of the Patna Municipal Corporation) stated that they have written to the various builders to furnish them necessary particulars and that they are examining the same. We are hearing this for several months. In any event this will not solve the problems presently faced by the residents of the locality. In most cases the sanctioned plan is only for three or four storeys but in a clandestine manner many more storeys are added without there being any sanction for the same. We are, therefore, directing the P.R.D.A. to forthwith issue notice, not later than three days from today directing all builders, owners, occupiers to stop construction beyond the third floor in any building which is on a road or lane less than 40 feet in width. The builders must satisfy the P.R.D.A. that the construction is being done in accordance with the sanctioned plan. If the P.R.D.A. find additional storeys have been added contrary to the sanctioned plan it shall forthwith issue notice to the builders and after making an enquiry pass an appropriate order including an order for demolition of the additional storey or storeys. The builders must satisfy the P.R.D.A. that the construction is being done in accordance with the sanctioned plan. If the P.R.D.A. find additional storeys have been added contrary to the sanctioned plan it shall forthwith issue notice to the builders and after making an enquiry pass an appropriate order including an order for demolition of the additional storey or storeys. We warn the P.R.D.A. that this order of ours must be implemented forthwith and we do not wish to see that any construction work is going on in any building beyond the third floor if the building is located on a road or street less than 40 feet in width. Such work must come to a stand still forthwith. After the sanctioned plan etc. are examined, with the approval of this Court the P.R.D.A. may permit the building activity to continue. It is felt that in the implementation of the orders of this Court the approach of the P.R.D.A. is not fair and impartial. In many cases where important personalities are involved no action is taken but where ordinary citizens are involved a ruthless action is resorted to. It is stated before us that in many cases even when the orders are passed by the concerned authorities, Tribunal, or even by this Court, the orders are not implemented and that is because the persons affected happen to be influential persons who are able to bring pressure upon the authorities of the P.R.D.A. This state of affairs must come to an end. We hereby direct the P.R.D.A. that if in the implementation of any order passed by the competent authority, Tribunal or any Court any pressure is brought upon the P.R.D.A. and its officials with a view to prevent the implementation of the order, the matter must be reported immediately to this Court disclosing the name and designation of the concerned persons so that appropriate action may be taken against such persons. We direct the P.R.D.A. to forthwith implement all the orders passed by this Court and by other Courts of competent jurisdiction with regard to removal/demolition of unauthorised structures unless the orders have been stayed by a competent Court. Before parting, we are constrained to observe that the P.R.D.A. has existed for decades. Unfortunately it has not been able to make any useful contribution to achieve the objectives for which it was established. Before parting, we are constrained to observe that the P.R.D.A. has existed for decades. Unfortunately it has not been able to make any useful contribution to achieve the objectives for which it was established. The Act under which the P.R.D.A. has been established itself provides for various plans which the P.R.D.A must draft and get approved by the Government. Apart from the regional development plan, master plan and the zonal plans, other actions are also to be taken by the P.R.D.A. for general development of region. Unfortunately an impression has been created that the P.R.D.A. is only meant for sanctioning the building plans, which is really a very insignificant part of the role assigned to the P.R.D.A.” 4. On 16.5.1997 the Division Bench further observed as follows:- “We have no doubt that the Vice Chairman, P.R.D.A., the District Magistrate and the police officials will take notice of this fact and act accordingly. If the erection of illegal structures is not stopped at the very inception, it may acquire alarming proportions later, and the whole purpose of acquisition of land for widening of the road will be defeated. The Vice Chairman, P.R.D.A. informs us that she has got a survey done of the multi-storied structures which have been erected in the city of Patna. In some cases it has been found that the structures have been made in deviation of the sanctioned building plan and strict action is being taken against such persons in accordance with law. In some cases the structures raised contrary to the sanctioned building plan are being demolished. She also assures this Court that no building plan shall be sanctioned by the P.R.D.A. in violation of the building bye-laws regulations as they existed today.” 5. On 14. 5. 1999 the Division Bench further observed as follows :- “Part of the mass is created on account of inaction of the concerned authorities, and partly on account of corruption. Large number of multistoried buildings/high rise buildings have come up for which sanctioned plans do not exist. The modus operandi is to get a plan sanctioned for a building, not a high rise building, but later the builder constructs a few additional floors so that the building answers the description of a high–rise building. Such high rise buildings have come up on narrow roads and without sufficient arrangement for discharge of sewerage etc. The modus operandi is to get a plan sanctioned for a building, not a high rise building, but later the builder constructs a few additional floors so that the building answers the description of a high–rise building. Such high rise buildings have come up on narrow roads and without sufficient arrangement for discharge of sewerage etc. From many of the building sewerage is discharged on the road with the result that the road is waterlogged almost throughout the year and in the process the road gets broken. The Vice Chairman PRDA also informs us that he has constituted a team to make a survey of the high rise buildings constructed in different parts of the city with a view to ascertain as to whether those buildings have been constructed pursuant to a sanctioned plan and whether there has been any violation of the building by-laws, rules and the sanctioned plans. It is pointed out that as many as 63 structures were identified as having been constructed without a sanctioned plan or in breach of the sanctioned plan. Out of them, in the case of 7 buildings it was found that deviations were very minor which are condonable. However in 17 cases, it was found that the structures were either wholly unauthorized or that there was a deviation from the sanctioned plan. Demolition orders have therefore been passed by the PRDA in these 17 cases directing total demolition or partial demolition of the structures.” 6. The institution of the present Public Interest Litigation twenty three years later is ample evidence by itself that the authorities on whom the responsibility lay to enforce the building laws and the earlier orders of the Court in this regard did not intentionally and willfully fulfill their obligations for obvious reasons including petty personal gain. 7. We had observed in our order dated 10.5.2013 that the present was not an isolated case. In CWJC No. 9739 of 2010 (Madhav Roy Vs. State of Bihar) disposed on 13.1.2011 the situation was similar to the facts of the present case. The apartment complex in question styled “Sona Residency” was alleged to be constructing in gross violation not only of the building laws but also in deviating from and in excess of the sanctioned plan. A representation before the PRDA and the Executive Officer of the Municipality evoked no response. The apartment complex in question styled “Sona Residency” was alleged to be constructing in gross violation not only of the building laws but also in deviating from and in excess of the sanctioned plan. A representation before the PRDA and the Executive Officer of the Municipality evoked no response. The information sought to be elicited under the Right to Information Act yielded no result. The Court stayed further construction. Only then the Municipal Authorities filed a counter affidavit raising serious objections with regard to the nature of the constructions sanctioned and that actually being made. Serious questions of deviations and conversions were raised including with regard to the height and set back. It was observed as follows:- “The statements made in the counter affidavit of the Municipality demonstrate that according it, illegal construction continued unabated without let or hindrance much less discharge of statutory duties by its officials to stop such illegal construction. The State Government in the Department of Urban Development is directed to forthwith institute a First Information Report against the concerned officials and also initiate departmental proceedings against them forthwith, in light of the directions of the Supreme Court in (2004) 8 SCC 733 (Friends Colony Development Committee Vs. State of Orissa & ors.).” 8. Separate counter affidavits have been filed by the Municipal Commissioner, the District Magistrate and the Registrar Cooperative Societies in the present proceedings. CONSTRUCTIONS BEYOND PRESCRIBED HEIGHT 9. We shall first take up the issue of construction contrary to the height requirement under the law. The counter affidavit filed on behalf of the Municipal Corporation (Mr. Himkar for the Corporation will describe it as a compliance report) states that in obedience to the directions of the Court the Corporation has had a survey carried out of the on-going constructions of multistoried apartments in the municipal area. The survey has revealed large scale constructions contrary to law. Notices have been issued to 771 persons and in 449 cases construction have been stopped. In support of the same Annexure ‘G’ to the counter affidavit contains the break up. 353 constructions have been stopped in the New Capital Division, Notice has been issued to 606 persons. 51 Constructions have been stopped in the Bankipur Division and notice issued to 54 persons. 21 constructions have been stopped in Kankarbagh Division and notice issued to 53 persons. 353 constructions have been stopped in the New Capital Division, Notice has been issued to 606 persons. 51 Constructions have been stopped in the Bankipur Division and notice issued to 54 persons. 21 constructions have been stopped in Kankarbagh Division and notice issued to 53 persons. 24 constructions have been stopped in Patna City Division and notice issued to 58 persons. It does not contain any details in which of the two categories identified by us the 771 cases fall. Mr. Himkar submits that it relates to commercial/non-residential user. In support of the claims Annexure ‘E’ to the counter affidavit contains a sample notice issued to a builder. It refers to the order of the Court and states that prima facie his plan was not in accordance with the building laws. In view of the order of the Court he is directed to stop construction. He has been asked to disclose the width of the road in front of his construction and whether it was being constructed for residential or non-residential purpose. It is putting the cart before the horse. We had asked the Corporation to list before us such constructions which were being raised beyond the permissible height or on a road less than 20 feet in width. The counter affidavit of the District Magistrate contains a list of the alleged constructions violating the law in the New Capital Division only furnished to him by the Corporation. It is simply a list of buildings being constructed on roads less than 20 feet width without any details as to which construction was being made contrary to the sanctioned plan or in excess of the stipulated height. The Corporation seems to be totally unaware and unconcerned about its statutory duties and responsibility for enforcing the laws and has reluctantly woken from its stupor after our orders. 10. In support of its claim for acting under the orders of the Court by issuing notices it also discloses at Annexure ‘B’ that in between 2009 to 2012 a total of 5684 plans have been passed by Licensed Architects under the Act. 10. In support of its claim for acting under the orders of the Court by issuing notices it also discloses at Annexure ‘B’ that in between 2009 to 2012 a total of 5684 plans have been passed by Licensed Architects under the Act. Of them one Raman Kumar has passed 1551 plans, Arun Kumar has passed 864 plans, Rakesh Kumar has passed 702 plans, Jiwachh Kumar has passed 213 plans, Sachida Nand has passed 210 plans, Pradeep Kumar Sinha has passed 194 plans, Rupak Kumar has passed 176 plans, Alok Kumar has passed 153 plans, Manoj Kumar has passed 148 plans, Neeraj Saunik has passed 144 plans, Ram Yatna Prasad has passed 139 plan, Md. Faiaz Ahmad has passed 120 plans. The rest are in two figures or less. The unreasonable number of plans that a Licensed Architect may have passed can raise doubts calling for enquiry and for which it has issued notices to the concerned Licensed Architects. Non-compliance with Sections 316, 318 and 337 of the Act requiring the Architect approving the construction plan to be submit it within seven days to the Chief officer of the Municipality, the verification/ enquiry by the Chief Municipal Officer of the Municipality to satisfy himself that the building construction plans confirms the building bye laws, if the Chief Municipal Officer found that the constructions have been approved by the Registered Architect in contravention of bye-laws he shall immediately stop the construction as also to register an F.I.R., periodic inspection of the construction by the Licensed Architect sanctioning the plan and to report violations to the Corporation, periodic surprise inspections by the Chief Municipal Officer stopping the construction and taking necessary action including demolition have all been abandoned both by the Licensed Architects and the Municipal Corporation evident from the public notice dated 21.6.2013 issued to the Licensed Architects now requiring them to now submit the necessary reports. There may however have been some who submitted reports but the Corporation never acted upon the same to stop illegal constructions contrary to bye laws or the sanctioned plan. Section 325 provides for five years imprisonment and Rs. 50,000 fine for illegal construction. 11. On the own showing of the Corporation from its counter affidavit there is admission and acknowledgement of an epidemic of constructions contrary to the law or contrary to the sanctioned plans in the town of Patna. Section 325 provides for five years imprisonment and Rs. 50,000 fine for illegal construction. 11. On the own showing of the Corporation from its counter affidavit there is admission and acknowledgement of an epidemic of constructions contrary to the law or contrary to the sanctioned plans in the town of Patna. Epidemics do not occur overnight. They take place when the illness is deliberately neglected and not attended to or deliberately nurtured. The constructions are not insignificant objects invisible to the naked eye of the authorities of the Corporation. If it is visible to a citizen there has to be some explanation why it was not visible to the eyes of the authorities of the Corporation except deliberately turning of a blind eye to the same for some consideration. 12. If our order has acted as a catalyst for the Corporation reminding them of their statutory duties and the responsibility to enforce them and while we do appreciate the efforts now being made by the Corporation, simultaneously we must observe that the Corporation cannot take shelter behind our orders for all and sundry purposes. The Corporation has the authority of the Court to act by stopping illegal construction or user including by use of Police force but only with regard to the two categories mentioned by us. If the Corporation is of the opinion that it has now discovered other violations also, it possesses power and jurisdiction under the statute independently. We shall not take lightly if it is brought to our attention that the Corporation is seeking to take shelter of our order beyond what we had ordered and allow the Corporation to denigrate the judiciary. The Corporation cannot use the shoulder of the Court to fire its gun. The officers of the Corporation appear to have mastered the art of turning every situation to their advantage either by allowing illegal construction or stopping them under the garb of our orders. 13. We have already noticed that the Corporation has stopped construction in 449 cases and issued notice to 771 persons. It is not clear who these 771 persons are. But once it has been brought to our notice by the Corporation we shall give suitable directions in that regard also. The Corporation shall file on affidavit the details of these cases identifying them and the reason for notice. It is not clear who these 771 persons are. But once it has been brought to our notice by the Corporation we shall give suitable directions in that regard also. The Corporation shall file on affidavit the details of these cases identifying them and the reason for notice. In so far as 449 constructions are concerned, while those who are violating the law must not derive any advantage simultaneously those who are abiding the law must not suffer unnecessarily. Matters of lawful construction also have an urgency. Apart from the builder investing his money there may be persons who have invested their hard earned money in search of home and may have taken loan also The negligence and cavalier working of the Corporation cannot be permitted to affect genuine cases. 14. We, therefore, direct that in so far as those 449 constructions identified by the Corporation are concerned it shall prepare a priority chart for inspection in the following manner:- (a) where super structure is complete; (b) where the structure is complete; (c) where the structure is itself incomplete, and (d) where the work is at the foundation stage. 15. We direct the Municipal Corporation to conduct and complete the verification of the constructions of these 449 cases prioritizing it in the manner directed within a maximum period of four weeks. The Principal Secretary, Urban Development Department, is directed that if the Patna Municipal Corporation requests for additional hands to facilitate completion of the verification within the time fixed by us, the State Government is mandated by us to make available the requisite man power for the purpose. Any blame game between the Corporation and the Government will invite contempt proceeding against both. The report shall be placed before us by the Municipal Corporation in a tabular form for all 449 cases mentioning which one of them has exceeded the height restriction and which one of them had not. If there are cases of no sanctioned plan before construction that shall be also disclosed. We may not be understood to have restricted in any manner other statutory powers of the Corporation under the building bye laws with regard to such construction. That regulatory and supervisory power of the Corporation remains unhindered and is not affected by our order. 16. We direct the Corporation not to stop at this list of 449 cases only. We may not be understood to have restricted in any manner other statutory powers of the Corporation under the building bye laws with regard to such construction. That regulatory and supervisory power of the Corporation remains unhindered and is not affected by our order. 16. We direct the Corporation not to stop at this list of 449 cases only. The Corporation shall continuously carry out verification to find out if there are more such violations. It has to be a continuous process. 17. I.A. No. 4294 of 2013 has been filed by the Builders Association of India, Patna Chapter. It alleges that the Corporation has directed the local Police to stop the works in the garb of the Court order even in such cases where the construction was proceeding in accordance with law. Unless and until such buildings are identified, it is working great hardship to those builders who are not violating the law as the intervener is espousing the cause of such builders who are not violating the law. In support of the assertion reliance is placed on a notice issued to one Narendra Kumar Singh, Shanti Apartment. The pleadings in the intervention application are general and nothing specific has been stated about Narendra Kumar Singh, Shanti Apartment. On the contrary, learned Additional Advocate General No. III has invited our attention to the list furnished by the District Magistrate with regard to the constructions identified in the New Capital area and submits that perhaps it finds place in the list. Counsel for the intervener opposes the submission. 18. The pleadings in the Interlocutory Application that it espouses cause of only such builders who are constructing according to law suggests and leaves it open that there are others who are constructing in violation of the law. The need is to identify such of them even if they are not members of the Intervener Association. We are of the opinion that if there is a registered Association of Builders and they are of the firm conviction that their members are not violating the building laws, a public duty is also cast on the Association also to ensure that not only members of the Association but even otherwise illegal constructions are not permitted for which they owe a duty not only to the Corporation but to the citizens of the State to bring it to the attention of the Corporation. It is next submitted that no building plans are being passed by the Corporation for the last Seven months. We are not concerned with the same as our order is dated 10.5.2013. Learned Counsel for the intervener submits that if the constructions are to be verified as confirming to the law, it may not be left to the discretion of the Corporation and the Court should give directions so that the necessary exercise is completed within a time frame. We have already given directions in that regard. 19. Counsel for the Intervener also suggested that in some areas encroachments have been made not prevented by the authorities and the width of the road is being calculated after excluding the encroachment. If any builder/building owner brings it to the attention of the authorities based on documentary evidence we direct the Municipal Corporation/ State Government to have the matter enquired into by reference to appropriate documents for determination of the original width of the road and take appropriate steps for removal of encroachments. 20. It has now been brought to our attention that between 2009 and 2012 an unreasonably large number of building plans have been passed for which the Corporation has issued noticed to the Licensed Architects. We require the Corporation to submit a report to us in that regard also for which we do not fix a time limit at the moment but may consider doing so at a later stage. However the Corporation is expected to expedite the process also in similar manner. Needless to state that all enquiry under our orders shall also take within its ambit the officials of the Corporation also who did not discharge their statutory duties so that necessary directions can be given with regard to them also. The Licensed Architect and the builder alone cannot be singled out. All inspection of constructions pursuant to our orders shall be carried out in presence of the builders/building owner, as the case may be. The report shall be prepared at the site and shall be signed by the builder/ building owner. 21. We are informed that the town of Patna has had no master plan for about four decades and the last master plan of Patna was prepared in 1962. We are also informed that even today Patna does not have any City Development Plan. 22. 21. We are informed that the town of Patna has had no master plan for about four decades and the last master plan of Patna was prepared in 1962. We are also informed that even today Patna does not have any City Development Plan. 22. Had the authorities responsible for enforcing the building laws prevented the illegal construction paying heed to the orders of this Court in 1996 and 1997 referred to above, things may not have come to such a pass. Even on 20.9.2001, it was observed in Arun Mukherjee (supra) as follows:- “Learned Counsel appearing for the Patna Regional Development Authority, during the course of hearing, informed this Court that inspite of information being given to the concerned Police Stations to stop unauthorised construction in terms of the provisions contained under Section 39 of the Bihar Regional Development Authority Act, 1981, no action has been taken by them, the result is that unauthorised constructions are going on. Learned Government Advocate states that if the list of unauthorised constructions is supplied to him by tomorrow, he will immediately ask the concerned Police officers to stop the said unauthorised constructions. In view of the aforesaid statement, let the details of the places where unauthorised constructions are going on, be supplied by the learned Counsel for the P.R.D.A. to the learned Government Advocate and the learned Government Advocate is directed to ask the concerned Police Officers to stop unauthorised construction forthwith. In case it is found that any unauthorised construction is going on inspite of orders passed by this Court, then stern action will be taken against the erring officers.” 23. If the Corporation has any in-house difficulties in enforcing the law with regard to illegal constructions/impermissible user, or implementation of our orders by way of obstructions or impediments created by officials and employees of the Corporation, the Commissioner, Patna Municipal Corporation shall bring it to the attention of the Principal Secretary, Urban Development Department, who shall take necessary corrective action upon the same immediately. 24. In (2002) 7 SCC 564 (Padma v. Hiralal Motilal Desarda) it has been observed at paragraphs 31 & 32 as follows:- “31. Laws dealing with development planning are indispensable to sanitation and healthy urbanization. Development planning comprehensively takes care of statutory, manual, administrative and land-use laws hand in hand with architectural creativity. 24. In (2002) 7 SCC 564 (Padma v. Hiralal Motilal Desarda) it has been observed at paragraphs 31 & 32 as follows:- “31. Laws dealing with development planning are indispensable to sanitation and healthy urbanization. Development planning comprehensively takes care of statutory, manual, administrative and land-use laws hand in hand with architectural creativity. In the words of a well-known architect, development planning is the DNA of urbanization — the genetic code that determines what will get built. A development plan is essential to the aesthetics of urban society. American Jurisprudence, 2d (Vol. 82, at p. 388) states: ? “Planning, as that term is used in connection with community development, is a generic term, rather than a word of art, and has no fixed meaning. Broadly speaking, however, the term connotes the systematic development of a community or an area with particular reference to the location, character, and extent of streets, squares, and parks, and to kindred mapping and charting. Planning has in view the physical development of the community and its environs in relation to its social and economic well-being for the fulfillment of the rightful common destiny, according to a master plan based on careful and comprehensive surveys and studies of present conditions and the prospects of future growth of the municipality, and embodying scientific teachings and creative experience.” 32. The significance of a development planning cannot therefore be denied. Planned development is the crucial zone that strikes a balance between the needs of large-scale urbanization and individual building. It is the science and aesthetics of urbanization as it saves the development from chaos and uglification. A departure from planning may result in disfiguration of the beauty of an upcoming city and may pose a threat for the ecological balance and environmental safeguards.” 25. In (2004) 8 SCC 733 (Friends Colony Development Committee v. State of Orissa) it was observed at paragraph 20 & 22 as follows:- 20. The pleadings, documents and other material brought on record disclose a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorised constructions in the city of Cuttack. Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffers unbearable burden and is often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the designs of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorised constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don‘t act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders. At the same time, in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorised constructions, but who failed in doing so either by negligence or by connivance. 22. In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified. 23. The municipal laws regulating the building construction activity may provide for regulations as to floor area, the number of floors, the extent of height rise and the nature of use to which a built-up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimised from the point of view of the control of community development, the prevention of overcrowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services.” 26. On the issue of deviations claimed to be a part of sanctioned plan to the extent that condonation may be permitted under the building bye-laws it was observed at paragraphs 25 and 26 as follows:- “25. Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilised for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions. 26. The application for compounding the deviations made by the builders should always be dealt with at a higher level by a multi-membered High Powered Committee so that the builders cannot manipulate. The officials who have connived at unauthorised or illegal constructions should not be spared. In developing cities the strength of staff which is supposed to keep a watch on building activities should be suitably increased in the interest of constant and vigilant watch on illegal or unauthorised constructions. 27. In (2007) 2 SCC 468 (State of Rajasthan v. H. V. Hotels (P) Ltd.) it was observed that deviations to the extent condonable could not be treated as integral part of the sanctioned plan presuming sanction by condonation holding as follows:- “14. The High Court has failed to remember that the power of exemption is not to be exercised freely. In (2007) 2 SCC 468 (State of Rajasthan v. H. V. Hotels (P) Ltd.) it was observed that deviations to the extent condonable could not be treated as integral part of the sanctioned plan presuming sanction by condonation holding as follows:- “14. The High Court has failed to remember that the power of exemption is not to be exercised freely. The power to relax a building rule, regulation or requirement is an exception to the rule and it is to be used with caution and to justify or condone minimum bona fide violations or deviations……..” 28. In (2009) 15 SCC 705 (Shanti Sports Club v. Union of India) the Supreme Court expressed its anguish with regard to unplanned growth menace of illegal and unauthorised constructions acquiring monstrous proportions for which the time had come to act sternly in the law observing at paragraph 73 and 74 as follows:- “73. Before concluding, we consider it necessary to enter a caveat. In all developed countries, great emphasis has been laid on the planned development of cities and urban areas. The object of planned development has been achieved by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the concept of planned development of cities by strictly adhering to the planning laws, the master plan, etc. They respect the laws enacted by the legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan, etc. in the construction of buildings, residential, institutional or commercial. In contrast, scenario in the developing countries like ours is substantially different. Though, the competent legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations and bye-laws with impunity. 74. In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. In the 21st century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorised constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realise that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorised constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasised that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasised that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc.” 29. In AIR 2010 SC 1030 (Priyanka Estates International (P) Ltd. v. State of Assam) it has been observed at paragraphs 73 to 75 as follows:- “73. It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder. 74. Even though on earlier occasions also, under similar circumstances, there have been judgments of this Court which should have been a pointer to all the builders that raising unauthorised construction never pays and is against the interest of society at large, but, no heed has been given to it by the builders. Rules, regulations and bye-laws are made by Corporations or by Development Authorities, taking in view the larger public interest of the society and it is a bounden duty of the citizens to obey and follow such rules which are made for their benefit. If unauthorised constructions are allowed to stand or given a seal of approval by court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent. 75. If unauthorised constructions are allowed to stand or given a seal of approval by court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent. 75. The jurisdiction and power of courts to indemnify a citizen for injuries suffered due to such unauthorised or illegal construction having been erected by builder/coloniser is required to be compensated by them. An ordinary citizen or a common man is hardly equipped to match the might and power of the builders.” 30. In 2013 (5) SCC 357 (Esha Ekta Apartments Cooperative Housing Society Limited & others Vs. Municipal Corporation of Mumbai & others) it has been observed at para 1 as follows:- “1. In the last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc. have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularisation of illegal constructions by way of compounding and otherwise. 31. In AIR 2013 SC 927 (Dipak Kumar Mukheree v. Kolkata Municipal Corporation & ors.) observing that in the last four decades menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions, the repeat orders of the Court on the aspect, including some noticed by us already, it has been observed at paragraphs 8 and 27 as follows:- “8. What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storied structure raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors. 27………..It must be remembered that while preparing master plans/zonal plans, the Planning Authority takes into consideration the prospectus of future development and accordingly provides for basic amenities like water and electricity lines, drainage, sewerage, etc. Unauthorized construction of buildings not only destroys the concept of planned development which is beneficial to the public but also places unbearable burden on the basic amenities and facilities provided by the public authorities. At times, construction of such buildings become hazardous for the public and creates traffic congestion. Therefore, it is imperative for the concerned public authorities not only to demolish such construction but also impose adequate penalty on the wrongdoer. 32. We have noticed the aforesaid orders of the Supreme Court for the express purpose that the Corporation, those who are making construction and user contrary to permissible land use realize that non compliance with the building laws, failure of the authorities to enforce building laws, constructions not only contrary to the law but also sanctioned plans are very extremely serious matters which have gross implications beyond the simple issue of a building construction. 33. The website of the Corporation has been launched. We have seen it in the Court room. Much remains to be done on it. In the search option for “Notice Board”, we require the Corporation within one week simultaneously to list out all the 449 constructions and 771 mentioned by it before us. 33. The website of the Corporation has been launched. We have seen it in the Court room. Much remains to be done on it. In the search option for “Notice Board”, we require the Corporation within one week simultaneously to list out all the 449 constructions and 771 mentioned by it before us. The list shall contain appropriate provision for inspection reports to be loaded with regard to each one of them so that we can also see in the Court room and any citizen can also access it directly if he has any grievance of any kind whatsoever with regard to the report of the Corporation in regard to a particular building. The search option for online services provides for filing of complaints. That shall also be made operational for lodging of complaints by a citizen with regard to illegal constructions or user contrary to law apart from that identified by the Corporation. Provision shall be made so that the moment a complaint is registered a number is generated alongside the complaint on the web site with a facility also for transmission by e-mail to the complainant if he furnishes his e-mail id in the complaint. The report with regard to the action initiated on the complaint must be generated and put on the website within 72 hours on the Notice Board against the particular complaint. Commercial/Non-residential user on residential plots. 34. The affidavit filed by the Municipal Corporation unfortunately is not specific with regard to properties identified as being used for commercial/ non-residential purpose when original permissible land user was for a residential plot only. We had given specific directions for the kind of report to be submitted in this regard also. 35. In the case of Arun Kumar Mukherjee (supra) on 15.1.1999 and 2.4.1999 it was directed:- “……..The District Magistrate is present, and she has been directed to prepare a list of the locality broadly indicating those which are for purely residential purposes and those which are for commercial purposes and have become commercial by efflux of time, so that necessary direction may be issued modifying the earlier direction with regard to entry of commercial vehicles inside the city…..” “…… The P.R.D.A. is directed to submit before the Court a list of areas/ localities which according to it. are purely residential and those which can classified as commercial…..” 36. are purely residential and those which can classified as commercial…..” 36. On 13.1.2000 in the case of Arun Kumar Mukherjee (supra) it was directed as follows:- “…….. We also direct the P.R.D.A. as well as the Housing Board and the Government to take appropriate action wherever any land allotted by them is being used for an unauthorised purpose. It is submitted that Rajiv Nagar, Shri Krishna Puri and Krishna Nagar colonies were meant to be purely housing colonies but a large number of shops have come up in an unauthorised manner and many of the unauthorised structures are being used for commercial and other purposes, and not for residential purposes. We direct the P.R.D.A. Housing Board and Government of Bihar to make a survey and identify the persons who are using the land for an unauthorised purpose by setting up unauthorised structures. The authority concerned will take steps to remove such unauthorised structures. In the first instance, attempt should be made to remove the unauthorised structures in the residential localities which may considerably improve the conditions in the residential localities, because move of the roads are congested on account of such unauthorised structures….” 37. On 9.9.2004 in the case of Arun Kumar Mukherjee (supra) it was ordered as follows:- “… A grievance was made by Mr. M. P. Gupta and Mr. Devendra Prasad, Advocates, that many persons in Rajendra Nagar, who were allowed plots for residential purposes, are using for running the shops. The Counsel for the P.R.D.A. states that steps have been taken to close the same without any discrimination he is also directed to file an affidavit indicating that the steps have been taken by the P.R.D.A. to close the shops in the Rajendra Nagar residential areas.….” 38. On 16.10.1998 in Arun Kumar Mukherjee (supra) in context of illegal construction of Apartment on roads less than 20 feet in width, commercial/ non residential user on residential plots and the non implementation of the directions of the Court in this regard it was observed as follows:- “We are sorry to notice that the orders of this Court which are meant to be obeyed by the authorities that be, are observed only in their breach. We are constrained to say so because it is not any individual authority who is guilty of not obeying the orders of this Court. We are constrained to say so because it is not any individual authority who is guilty of not obeying the orders of this Court. We say so because the entire Governmental machinery has defied the orders of the Court and failed to implement the orders. We feel that a stage has been reached when we must sound a note of caution and remind the authorities that be, that the State machinery has to function in accordance with the provisions of the Constitution and under the Constitution, orders passed by this Court are to be obeyed by the authorities and where they affect private citizens the authorities are expected to act in aid of the orders of this Court. If the authorities of the State of Bihar ignore the orders of this Court, or defy the same, it would be difficult to contend that the administration is being run in accordance with the provisions of the Constitution because there is a designed effort on the part of the State authorities to defy the orders of this Court. After a matter is decided by this Court, this Court is not expected to monitor the execution of the order day to day because the authorities are expected to act in accordance with the same without any interference by a Court of law. Administration has to be run in accordance with the provisions of the Constitution by the Government of the State, and it too much to expect this Court to run the administration of the State, because this Court is neither expected, nor equipped with the machinery, to enforce each and every order of this Court. If the authorities who are required to implement the orders of this Court refuse or fail to implement the same, it would certainly amount to failure of the constitutional scheme and a break down of the administration……” 39. If the authorities who are required to implement the orders of this Court refuse or fail to implement the same, it would certainly amount to failure of the constitutional scheme and a break down of the administration……” 39. Today we take judicial notice of the fact that with regard to the aforesaid specific and identified areas in the earlier orders of Arun Kumar Mukherjee (supra), commercial/non-residential use contrary to that permissible and prohibited by the Court has escalated in intensity and assumed gigantic proportions not only displaying scant regard to orders of the Court amounting to Contempt by the concerned but also gives an impression to the ordinary citizen that Court orders are empty rhetorics which the State and its authorities and the powerful segment of citizens can ignore with impunity. In A.I.R. 1996 Patna 163 [M/s. Hindustan Petroleum Corp. Ltd v. State of Bihar] it has been observed as follows :- “60……Justice is, as is well-known, rooted in confidence. When ordinary men see that suddenly the structures of a petrol pump which were there before almost the last 40 years and which was bona fide carrying on its business are razed to the ground at the instance of governmental authorities and with the help of police, they would obviously go away thinking that liberty and property of people are at the total mercy of the government and its merit. That instead of there being a government of laws, it has degenerated into a government document. This would certainly shake their faith in the efficacy of the judicial system. At least this wanton display of arrogance on part of the executive authority has shocked the conscience of this court.” 40. We direct the State Government and the Corporation to file separate affidavit under what circumstances flouting and disobedience of the orders of the Court have been actively allowed and encouraged by those responsible to enforce the law and the orders of the Court. In our opinion such acts are contemptuous. Earlier on 29.11.1996 in the case of Arun Kumar Mukherjee (supra) this Court noticing the discriminatory and truncated manner in which the authorities were enforcing the orders of the Court warned them not to denigrate the judiciary. HOUSING CO-OPERATIVE SOCIETIES 41. A counter affidavit has been filed by the District Co-operative officer on behalf of the Registrar Co-operative Societies. Earlier on 29.11.1996 in the case of Arun Kumar Mukherjee (supra) this Court noticing the discriminatory and truncated manner in which the authorities were enforcing the orders of the Court warned them not to denigrate the judiciary. HOUSING CO-OPERATIVE SOCIETIES 41. A counter affidavit has been filed by the District Co-operative officer on behalf of the Registrar Co-operative Societies. At the suggestion of Learned Additional Advocate General III appearing on behalf of the State respondents, the Registrar Co-operative Societies, Bihar, is formally added as party respondent in the cause title. The Office shall take necessary steps. No fresh notice need be issued as he is already represented by the Learned Additional Advocate General III. 42. The counter affidavit filed on behalf of the Registrar of Cooperative Societies encloses an order passed by him on 24.2.2009 in Appeal Case No. 75 of 2007 (Nandan Cooperative Housing Construction Society Ltd. through its Secretary vs. Sumitra Shukla). Setting aside the order of the Joint Registrar dated 23.7.2007 directing the Co-operative Housing Society to give no-objection to facilitate the obtaining of loan for constructing an apartment complex on a residential plot allotted in a Co-operative Housing Society, it was held that construction of apartment complex on a residential plot in the Housing Co-operative Society was not permissible. Construction had to be in accordance with the bye laws of the Society under which only a residential house was permissible. No permission for construction of multi storied apartment could be given in a Housing Cooperative Society because it would vitally affect drainage, sanitation and other civic amenities to the extent that the Society may be capable to provide and may have planned for. The very purpose of the Society shall be put to great inconvenience. The mere sanction of the plan by P.R.D.A. cannot be justification to permit such construction. 43. The order of the Registrar of Co-operative Societies is an order in-rem in so far the question of law with regard to construction of multi storied apartments in a Housing Cooperative Society is concerned. The view and reasoning of the Registrar finds full support from a Division Bench judgment of the Bombay High Court in AIR 1989 Bombay 392 (Kaarvenagar Sahakari Griha Rachana Sanstha Maryadit, Pune vs. State of Maharashtra). The view and reasoning of the Registrar finds full support from a Division Bench judgment of the Bombay High Court in AIR 1989 Bombay 392 (Kaarvenagar Sahakari Griha Rachana Sanstha Maryadit, Pune vs. State of Maharashtra). The State Government had directed the Housing Co-operative Society to amend its bye laws to permit construction of multi storied apartments in view of what the State Government opined was housing shortage. The Division Bench held at para 8 as follows:- “8……..Though there is undoubtedly dearth of accommodation, that does not enable the State to compel the Housing Society to act contrary to bye-laws or to foist new members who are not acceptable to the existing members of the Society. The members have joined the Society in accordance with the bye-laws and the members join a Housing Society by ascertaining what would be the environment in which they will reside. It is not permissible for the State Government to compel the Society to amend its bye-laws as to the defeat the object of formation of the Society. In the present case the Society was constituted with the object of providing peaceful accommodation to the members. The compulsion of the State Government that members should be permitted irrespective of the desire of the majority to effect high rising building would totally destroy the basic concept of formation of Society. The answer to the dearth of accommodation is not to force the existing registered Housing Society to amend bye-laws and permit few members to commercially exploit the plots in violation of agreement under which they were secured…..” 44. The Court held that construction of an apartment complex on a residential plot in a Housing Co-operative Society amounted to commercialization of the plot given for residential use at the cost of the peace and solicitude that the residents of the Society may have planned for observing at paragraph 10 as follows :- “10……… It hardly requires to be stated that permission to an allottee of a plot in the housing Society to construct multi – storied structure would not be in the interest of the housing Society. The housing Society, like the petitioner Society, is formed with a view to provide for peaceful accommodation to the members and therefore the by-laws insist that the allottee of a plot of land can erect structure for his own occupation and not for letting out or for commercial exploitation of the land. An amendment to the by-laws permitting such action by no stretch of imagination can be in the interest of the Society. The members of the Society contributes the amount for maintenance of common amenities and service and the liability to contribute is on the basis that plots of land would be enjoyed by the members by construction of houses for their own benefit. The internal roads are constructed, the lights are provided, water supply is given and all other common amenities and services are provided by the Society. The permission to a member to construct high rise buildings and letting out the flats on ownership basis would result into heavy pressure on the common amenities and services provided by the Society and for which the members surely have not contemplated while joining the Co-operative Society. The permission to construct high rising building on a developed plot in a housing Society would certainly give huge benefit to a member but at the cost of other members and in clear violation of the by-laws.” 45. The judgment of the Bombay High Court has been affirmed by the Supreme Court in (2000) 9 SCC 295 (State of Maharashtra v. Kaarvenagar Sahakari Griha Rachana Sanstha Maryadit, Pune). 46. The Counter affidavit of the Registrar otherwise is extremely casual and cryptic, of no assistance to us at all. We are of the clear opinion that the representative from the Co-operative Department have simply gone to the office of the respective Co-operative Housing Societies and collected such information that the office bearers of the Society considered appropriate to disclose in their own interest, withholding information considered detrimental to their interest. No independent survey has been has been carried out by the Registrar of the Housing Cooperative Societies with regard to ongoing construction of multistoried apartments in the same or ongoing construction for commercial/non-residential use and preparation for commencement of the same as directed by us. No independent survey has been has been carried out by the Registrar of the Housing Cooperative Societies with regard to ongoing construction of multistoried apartments in the same or ongoing construction for commercial/non-residential use and preparation for commencement of the same as directed by us. We direct the Secretary, Department of Co-operative to constitute adequate teams of at least three persons each from the Co-operative Department to be accompanied by a Civil Engineer either from the Municipal Corporation, if it is possible for it to spare, or otherwise from the Building Construction Division/Urban Development Department of the State Government. The team shall physically survey each Housing Co-operative Society independently of its own with regard to all ongoing construction of apartment complexes and commercial/non-residential constructions or preparation for commencement of commercial/non-residential user of residential plots contrary to the terms on which the State Government may have acquired lands for the Society and the constructions permissible under the registered bye laws of the Society. The team shall take photographs of all such structures from all four sides on the date of inspection so that clandestine construction in connivance does not continue. The team shall call for the sanctioned plans of such all such structures. Failure or refusal of the concerned to produce the same shall be brought to our attention. The Registrar Cooperatives shall submit a report to us in tabular form with regard to each Housing Society with defaulting plot numbers. Commercial/ non- residential user for the purpose shall mean and include as explained by us, ?Commercial shops, Departmental stores, Eateries, Banks, Schools / Coaching institutes, Hospitals, Hotels, Wedding Halls [excluding those established according to permissible land use] Petrol pumps, Commercial Godowns, and Hospitals / Nursing Homes but shall exclude Clinical Consultation Chambers. 47. We hold and direct that no such construction and fresh usage shall be allowed permissible in a Housing Co-operative Society. The Registrar will strictly enforce our order dated 10.5.2013. He has no police or enforcement powers of his own. His directions shall be enforced by the Municipal Commissioner, Patna, the District Magistrate, Patna, the Senior Superintendent of Police, Patna, and the S.H.O. of the concerned Police Station. If the construction still continues or new commercial/non-residential use commences, the S.H.O will be first answerable in Contempt. He has no police or enforcement powers of his own. His directions shall be enforced by the Municipal Commissioner, Patna, the District Magistrate, Patna, the Senior Superintendent of Police, Patna, and the S.H.O. of the concerned Police Station. If the construction still continues or new commercial/non-residential use commences, the S.H.O will be first answerable in Contempt. Any violation by the concerned will also invite proceedings in contempt jurisdiction and which the Registrar is directed to bring to our attention. The Managing Committee of the housing co-operative society which fails to stop or take proper steps to stop such user contrary to our orders shall also be answerable. The Registrar shall also be at liberty to take appropriate steps with regard to such housing co-operative societies as vested in him under the Co-operative Societies Act At present only pre-existing apartments and commercial/non-residential user already occupied and functional stand excluded. We shall take up the same for consideration later. 48. I.A. 4330 of 2013 has been filed by the Indian Institute of Architects, Bihar and Jharkhand aggrieved by the allegations against them by the Corporation. We do not entertain the intervention application as the Corporation has only issued show cause notices to them. The intervention application is rejected. 49. Learned counsel for the Corporation has urged that it is handicapped by severe shortage of hands attention to which has been invited of the State government also by letter dated 27.6.2013 suggesting the need for fresh appointments. If that be so, it is for the State government to consider the same. Shortage of funds and staff can never be an excuse or justification for failure to discharge statutory duties. Repelling the plea in (1980) 4 SCC 162 (Municipal Council, Ratlam v. Vardichan) it was held as follows:- “12. The statutory setting being thus plain, the municipality cannot extricate itself from its responsibility. Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under Section 123 of the Act. This ?alibi? made us issue notice to the State which is now represented by counsel, Shri Gambhir, before us. The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis. This ?alibi? made us issue notice to the State which is now represented by counsel, Shri Gambhir, before us. The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis. The criminal procedure code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, Section 123 of the Act has no saving clause when the municipal council is penniless. Otherwise, a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. That cannot be.” 50. Similar view has been taken in (1996) 2 SCC 594 (B.L. Wadehra (Dr) v. Union of India) holding as follows:- “22….Apart from the rights guaranteed under the Constitution the residents of Delhi have a statutory right to live in a clean city. The courts are justified in directing the MCD and NDMC to perform their duties under the law. Non-availability of funds, inadequacy or inefficiency of the staff, insufficiency of machinery etc. cannot be pleaded as grounds for non-performance of their statutory obligations.” 51. Respondent no. 8, builder, in the proceedings before the Municipal Corporation has admitted that he has constructed a G+4 structure contrary to the sanctioned plan for a G+3 structure. We reject the submission on his behalf that he may be permitted to pursue his remedies by appeal and condonation before the Corporation. We have already noticed the observations in Friends Colony (supra) that when a professional builder violates building plans the presumption is that it was intentional with full know of the law. We therefore restrain him permanently from any further construction till such time that he does not demolish the 4th storey constructed by him contrary to the sanctioned plan. The municipality shall also be at liberty to demolish the same and recover the costs from the builder. We shall consider to allow him to proceed thereafter. 52. Let two copies of this order be given to the Learned Additional Advocate General III for doing the needful by the Urban Development Department and the Co-operative Department. One copy of the order be also given to Mr. H.S. Himkar, appearing on behalf of the Corporation. 53. We shall consider to allow him to proceed thereafter. 52. Let two copies of this order be given to the Learned Additional Advocate General III for doing the needful by the Urban Development Department and the Co-operative Department. One copy of the order be also given to Mr. H.S. Himkar, appearing on behalf of the Corporation. 53. List on 12.8.2013 at 2.15 PM. Subsequent Orders Order dt. 8.7.2013 This matter has been listed at our instance today as during finalization of the order dated 2.7.2013 we felt the need for an additional direction with regard to the office of the Municipal Commissioner, Patna. 2. Heard Counsel for the parties. We also take note of the observations made in the case of Arun Kumar Mukherjee (supra) that frequent transfers of the then Vice Chairman, Patna Regional Development Authority, had hindered enforcement of buildings laws. We therefore, direct that the present Municipal Commissioner, Sri Kuldip Narain, IAS, shall not be transferred without the permission of the Court, both for the purpose of continuity and answerability. Order dt. 26.8.2013 The Municipal Corporation in its counter affidavit filed on the previous date had informed that it had issued notice to 771 persons for commercial/non-residential user of residential plots or houses. We shall take it up this issue for consideration subsequently. 2. The same affidavit had also mentions that 449 constructions had been stopped by the Corporation on the ground that the buildings were being constructed beyond the permissible height on road less than 20 feet in width. The break up figures furnished by the Corporation area-wise however consist of more than 449 constructions. In the New Capital Area alone 353 constructions have been stopped and 609 persons have been noticed for raising constructions beyond the permissible height. In Bankipur Area 51 constructions had been stopped as being beyond the permissible height and 54 persons noticed. Likewise in Kankarbagh 21 constructions had been stopped for being above the prescribed height and 53 persons noticed. In Patna City 24 constructions had been stopped and 58 persons noticed. 3. Today, Mr. Himkar for the Corporation has filed five counter affidavits. We requested him to acquaint us from the several affidavits if statutory notices had been issued to such alleged violators and Vigilance Cases instituted for such unauthorised construction beyond permissible height. Without answering our query Mr. In Patna City 24 constructions had been stopped and 58 persons noticed. 3. Today, Mr. Himkar for the Corporation has filed five counter affidavits. We requested him to acquaint us from the several affidavits if statutory notices had been issued to such alleged violators and Vigilance Cases instituted for such unauthorised construction beyond permissible height. Without answering our query Mr. Himkar tried to convince us that pursuant to the directions of the Municipal Corporation, statutory reports by the Licensed Architects which were required to be submitted by them at the time of sanctioning of the plan and monitoring of the construction, has now been submitted by them under the pressure of the Court orders and it is found that several of the buildings are beyond the prescribed height. If that is so, there is no answer coming from the Corporation why statutory notices for demolition have not been issued to such identified constructions. Not a single instance has been placed before us in which the Corporation has issued a statutory notice for construction beyond the permissible height and instituted a vigilance case. 4. In our order dated 2.7.2013 we had observed that such constructions had not come up overnight in form of an epidemic. The constructions were not insignificant object invisible to the naked eyes of the officials of the Corporation. The Officers of the Corporation deliberately turned a blind eye to the same for some consideration. The Officers of the Corporation appeared to have mastered the art of turning every situation to their advantage whether it be allowing illegal constructions or stopping them under the garb of our orders. Detailed directions were given for the prioritisation for enquiry where constructions had been stopped as there was an inherent urgency when apart from the builders a person may have invested his hard earned money in search of home and may have taken loan also. 5. We had also stated that we shall not take it lightly if it is brought to our attention that the Corporation is seeking to take shelter of our order beyond what we had ordered and allow the Corporation to denigrate judiciary. 6. It is not very difficult to appreciate the half hearted attitude of the Officials of the Corporation having to act under the duress of court orders, testing our patience so that we may ourselves drop the proceedings in exasperation. 7. 6. It is not very difficult to appreciate the half hearted attitude of the Officials of the Corporation having to act under the duress of court orders, testing our patience so that we may ourselves drop the proceedings in exasperation. 7. We hereby issue a direction to the Municipal Corporation that on the next date; to begin with, it shall place before us on affidavit alongwith the copies of the statutory notice issued to the concerned, initiating a vigilance case for raising construction beyond the height prescribed on roads less than 20 feet in width with regard to the 21 constructions stopped by it in Kankarbagh Area, Patna, and the 51 constructions stopped by it in Bankipur Area, Patna. 8. Put up on 2nd of September, 2013. Order dt. 2.9.2013 Learned Principal Advocate General No. 3 submits that the affidavit filed today by one Dr. Rajeev Kumar, Deputy Secretary, Urban Development and Housing, Govt. of Bihar is on behalf of the Principal Secretary of the Department. The Municipal Commissioner by letter dated 8.8.2013 had requested for services of Engineers and Administrative Officers. The Urban Development Department deputed four Executive Engineers for one month and two Junior Engineers in the Municipal Corporation. The Secretary, Road Construction Department and also the General Administration Department had been requested to provide service of adequate officers to the Municipal Corporation. 2. The letter of the Municipal Commissioner dated 20.8.2013 mentions the number of sanctioned posts of Chief Town Engineers, Chief Engineers, Superintending Engineers, Executive Engineers, Assistant Engineers and Junior Engineers. From a comparative chart it shows 150 vacancies. Deployment of four Executive Engineers for one month and two Junior Engineers is an apology to say the least especially when the need relates to urgency for compliance of Court order. 3. Our earlier orders have more than adequately noticed that there has been a virtual epidemic of constructions contrary to the law in Patna. Under duress of Court order's the authorities have now been compelled to look into the same and enforce the law. Given the magnitude of the problem as disclosed from the counter affidavit of the Corporation, it is the responsibility of the Corporation and the Department of Urban Development to act together and in unison for enforcing the Rule of Law in matters relating to urban planning and construction. Given the magnitude of the problem as disclosed from the counter affidavit of the Corporation, it is the responsibility of the Corporation and the Department of Urban Development to act together and in unison for enforcing the Rule of Law in matters relating to urban planning and construction. One legal construction cannot be allowed to suffer just as one illegal construction cannot be allowed to stand. Identification of both has an urgency as already indicated by us with reasons in more than order in the present proceedings itself. 4. We are informed that the letter dated 8.8.2013 has been issued by the Urban Development Department without any across the table consultation with the Municipal Commissioner who has primarily been entrusted the task for enforcing our orders. Not only the Principal Secretary, Department of Urban Development but even the State Government is obliged to render all necessary assistance to the Municipal Commissioner for enforcing our orders. 5. We therefore direct that the Principal Secretary Department of Urban Development shall hold a discussion with the Municipal Commissioner across the table, and then ensure availability of adequate man power considering the magnitude of the exercise to be carried out. The opinion of the Municipal Commissioner with regard to deputation of personnel has to be given primacy by the Principal Secretary, Urban Development Department as ultimately it is the' Municipal Commissioner who may be held answerable if even after deployment of man power the law is not enforced because of the callousness or negligence of persons sent on deputation. 6. Mr. Himkar, counsel for the Municipal Corporation submits that the Corporation is serious about enforcing the orders of the Court and any misgiving the Court may have on the issue shall be fully allayed no sooner that adequate man power is made available to it by the State Government for which repeatedly request has been made. 7. List on 5th of September, 2013. Order dt. 19.9.2013 A counter affidavit is stated to have been filed on behalf of the Department of Urban Development on 9.9.2013. The original affidavit is not on record. We therefore requested learned Additional Advocate General-3, to make available his copy for perusal. The office shall place the original on file. 2. The affidavit states that pursuant to order dated 2.9.2013, a meeting was held under the Chairmanship of the Chief Secretary on 3.9.2013. The original affidavit is not on record. We therefore requested learned Additional Advocate General-3, to make available his copy for perusal. The office shall place the original on file. 2. The affidavit states that pursuant to order dated 2.9.2013, a meeting was held under the Chairmanship of the Chief Secretary on 3.9.2013. The Secretary, Building Construction Department, has made available two Assistant Engineers to the Patna Municipal Corporation. The Secretary, Rural Works, has been directed to depute four Assistant Engineers and four Junior Engineers to the Corporation. The Road Construction Department has provided the services of 6 Junior Engineers to the Corporation. 3. The aforesaid personnel are required by the Corporation for compliance of orders passed by the Court. We therefore direct that such Engineers deputed to the Corporation and who failed to join within four days from today, shall be substituted by replacements immediately so that there is no delay in the availability of personnel to the Corporation. If the Municipal Commissioner opines that he requires more personnel, he shall approach the Chief Secretary for the needful. 4. The affidavit filed today by the Municipal Commissioner states that in the Kankarbagh Circle, out of the 21 offending constructions identified, after inspection and measurement, 20 have been found to be in contravention of building bye-laws and one is at the foundation level. Vigilance proceedings have been initiated against these 20 constructions registered as Complaint Case Nos. 16A/13 to 35A/13. Statutory notices have been issued to all of them by memo numbers 710-729 on 30.8.2013 and 1.9.2013. We are assured that with the availability of additional manpower now, simultaneously survey shall be carried out of the 51 identified constructions in the Bankipore Circle and appropriate steps taken in accordance with law. The Corporation is directed to proceed in seriatim for inspection and measurement in other circles and shall not take shelter for awaiting any specific directions from the Court. 5. Section 329 of the Bihar Municipal Act, 2007, provides for the Constitution of a Municipal Building Tribunal. Orders passed in Vigilance Cases are amenable to challenge before it. We are informed by the members of the Bar that at present the Tribunal is not functioning. Learned Counsel Sri Himkar, appearing for the Corporation submits that premises are available for the Tribunal and it is for the State Government to take necessary steps to constitute the same. 6. Orders passed in Vigilance Cases are amenable to challenge before it. We are informed by the members of the Bar that at present the Tribunal is not functioning. Learned Counsel Sri Himkar, appearing for the Corporation submits that premises are available for the Tribunal and it is for the State Government to take necessary steps to constitute the same. 6. Learned Additional Advocate General-3, submits that he requires to take instructions on the aspect. 7. We are of the opinion that in the present facts and circumstances, the constitution of the Tribunal immediately is an absolute imperative. The inevitable result will be that in absence of the Tribunal all aggrieved persons shall be left with no option but to file writ applications directly. We therefore direct the State Government to place on affidavit before us on the next date the steps taken for constitution of the Tribunal and the date from which it shall be functional. 8. The 2nd counter affidavit filed on behalf of the Registrar of Co-operative Societies pursuant to our order dated 2.7.2013 states that teams were constituted for survey of erring constructions in Co-operative Housing Societies. It encloses a report with regard to 4 societies only where apartments are being constructed in violation of our orders. To our utter surprise, it contains no statement with regard to action taken for compliance of the aforesaid order by stopping such constructions. 9. In our order dated 2.7.2013 we had noticed the order of the Registrar himself in Appeal Case No. 75/06 [Nandan Co-operative Housing Construction Society Ltd. vs. Sumitra Shukla] and the decision in AIR 1989 Bombay 392 [Kaarvenagar Shakari Grih Rachana Sansthan Maryadit, Pune vs. State of Maharashtra] affirmed in (2000)9 SCC 295 [State of Maharashtra vs. Kaarvenagar Shakari Grih Rachana Sansthan Maryadit, Pune]. We have completely prohibited construction of multi-storied apartment complex and commercial/non-residential constructions on plots allotted to members by the Society for, construction of a residential house. The order was to be complied with by the Registrar, Co-operative Societies. Noticing that he had no police powers we had ordered that the S.H.O. of the concerned police station shall remain answerable in our contempt jurisdiction. We require the Registrar, Co-operative Societies to file an affidavit if our order has been strictly enforced by him and all offending constructions stopped. Noticing that he had no police powers we had ordered that the S.H.O. of the concerned police station shall remain answerable in our contempt jurisdiction. We require the Registrar, Co-operative Societies to file an affidavit if our order has been strictly enforced by him and all offending constructions stopped. If despite intimation, the concerned S.H.O. has paid no heed to it that also shall be brought to our attention. The matter is passed over today for informing us by when the necessary affidavits shall be filed. 10. List on Monday 23rd of September, 2013. Order dt. 23.9.2013 On the previous date it had been brought to our attention that notwithstanding our order dated 10.5.2013 prohibiting new commercial/non-residential user and commercial construction on a residential plot from that date, a new shop was being constructed on a residential plot M-2/29 Srikrishnapuri (Boring Road). We requested counsel for the Corporation Mr. Himkar, Mr. Sandeep Shahi, Advocate appearing for the intervenor Builders' Association and Shree Prasoon Sinha, Government Advocate No. 2 to visit the site and inform us. Having visited the site, they confirm that construction of a new shop is going on upon the residential plot. 2. Issue notice to the Executive Officer, Incharge of New Capital Circle, the Assistant Engineer and the Junior Engineer Incharge for the New Capital Circle as also the Station House Officer, Srikrishnapuri Police Station, to appear in person and show cause why proceedings be not drawn up against them for willfully flouting our order by taking no action to stop the illegal construction and actively permitting the same. 3. An affidavit has been filed on behalf of the Patna Municipal Corporation today. Annexure-C/1 is a letter of the District Magistrate, Patna addressed to the Senior Superintendent of Police, Patna informing that notwithstanding the order of the Court the Special Executive Officer, New Capital Circle, Patna Municipal Corporation on 14.9.2013 had informed that construction of an apartment contrary to law was going on in the zone of the Patliputra Police Station contrary to the order of this Court in C.W.J.C. No. 8152 of 2013 and the SHO was taking no steps to stop the same. 4. 4. Issue notice to the Station House Officer, Patliputra Police Station to appear in person and show cause why charges be not framed against him for willfully flouting our order and actively permitting illegal construction declining to implement the orders of the Court. 5. Mr. Himkar for the Corporation submits that local inspection-cum-measurement of 51 constructions located in Bankipur Circle has been completed and vigilance cases have been lodged bearing Complaint Case Nos. 38A/13 to 79A/13 against them. Statutory notices have been issued to the concerned vide Memo No. 845 to 886. 6. Our orders are to be obeyed and complied by the Corporation. Removing obstacles in enforcing the rule of law is the responsibility of the Corporation. We have already issued adequate directions. Responsibility for non-compliance shall rest with the Municipal Commissioner. 7. Counsel for the State states that whatever assistance is required by the Corporation for enforcing the rule of law shall be provided to them notwithstanding the status of any person. 8. Counsel for the State next submits that he has received instructions with regard to the Constitution of the Municipal Building Tribunal and shall be putting it in affidavit. He also submits that fresh affidavit on behalf of the Registrar, Co-operative Society with up to date inspection report shall be brought on record. We direct that in absence of a proper counter affidavit with up to date inspection report, the Registrar shall remain present in person to show cause. 9. List on the 8th of October, 2013.