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2003 DIGILAW 209 (PAT)

Gautam Prasad v. State Of Bihar

2003-02-21

R.S.GARG

body2003
Judgment R.S.Garg, J. 1. Heard learned counsel for the parties, learned counsel for the petitioner, learned counsel for the State and learned counsel for the Respondent No. 2. 2. The petitioner after purchasing certain properties made an application on 8-3-2000 in accordance with sec. 186 of Bihar and Orissa Municipal Act, 1922 giving a notice to the municipality that he proposes to raise construction in accordance with the map and the plan. As any objection or rejection was not communicated to the petitioner, presuming a deemed sanction under the provisions of sec. 188(3) of the Act the petitioner started raising construction. After the petitioner raised construction the authorities came out of slumber and started raising objections, one such objection communicated to the petitioner is contained in Annexure-3 letter No. 384 dated 8-5-2000. The petitioner was informed that without getting the map/plans sanctioned he was raising construction and alongwith his map he did not submit the application for mutation and the document which he had annexed with his application/ notice was a receipt issued by the Circle Officer in favour of the seller. The petitioner was required to stop the construction immediately. On 22-5-2000 vide Annexure-3-A the Special Officer, Lakhisarai Municipality issued a notice to the Station House Officer, Police Station, Lakhisarai that despite notices to the petitioner he was not staying the construction, therefore, proper action be taken against the petitioner. The petitioner taking an exception to Annexure-3 submitted a representation on 14-9-2000 raising certain plea that as his map was not rejected within a period of one month the map was deemed to be sanctioned and he was justified in raising construction. 3. It appears that despite representation nothing was done in favour of the petitioner therefore, he was required to come to this Court. 4. Learned counsel for the petitioner submits that before raising construction an application u/s. 186 of the Act is required to be made and as the application should be in accordance with the requirements and if no objections are raised and no orders adverse to the applicants are passed then after lapse of one month the said applicant would be entitled to presume a deemed sanction. He submits that the notices contained in Annexure-3 and 3-A are illegal and non-consideration of his representation is bad. 5. On the other hand learned counsel for the Municipality submitted that in accordance with sec. He submits that the notices contained in Annexure-3 and 3-A are illegal and non-consideration of his representation is bad. 5. On the other hand learned counsel for the Municipality submitted that in accordance with sec. 186(2) of the Act when a notice is issued to the applicant to submit some better and further details or documents then so long as the requirement is not answered the notice submitted by the applicant shall not be deemed to be valid. He submits that as the application submitted by the applicant was incomplete it was not annexed with the mutation order the officers were justified in issuing the notice and requesting the petitioner to stay the construction. 6. sec. 186 of the Act requires that before raising construction or erecting a building a notice of intention is to be given to the Commissioner of the Municipality within whose limits the property situates. Sub-sec. (2) of Sec. 186 provides that the Commissioners may by a bye-law exempt any class of buildings or wells within the whole or any part of the Municipality from the provisions of Sub-sec. (1). Under the Act every Municipality is entitled to frame its own bye-laws, the bye-laws may relate to building construction and other subjects. Undisputedly the Municipal Counsel of Lakhisarai for the reasons best known to it has not framed any building bye-laws. In absence of the building bye-laws which may provide for submission of the application in a standard form alongwith a particular document, every applicant is governed by the provisions of law. Not only such applicant but even the municipality, its officers and employees would also be governed by law and would be obliged to act in accordance with law. 7. In absence of the bye-laws a simple application with the plans and maps is required to be submitted to the Municipality. Such application is required to be dealt with by the Commissioner within a period of one month. sec. 187(1) provides that when bye-laws have been made prescribing and requiring any information and plans in addition to a notice, no notice u/s. 186 shall be considered to be valid until the information, if any required by such bye-law has been furnished to the satisfaction of the Commissioners. sec. 187(1) provides that when bye-laws have been made prescribing and requiring any information and plans in addition to a notice, no notice u/s. 186 shall be considered to be valid until the information, if any required by such bye-law has been furnished to the satisfaction of the Commissioners. In absence of the bye-laws prescribing and requiring information and plans in addition to a notice the only requirement would be submission of the plans and a simple notice because no other information as required or required have been so prescribed by framing the bye-law. 8. Sub-sec. (2) of sec. 187 provides that in any other case (presumably a valid application) Commissioner may, within 15 days of the receipt of the notice required by sec. 186 require the applicant by notice to furnish a plan and specifications of any existing or proposed building etc. So long as the notice issued by the Commissioner is not observed the notice submitted under Section 186 shall not be deemed to be valid. 9. Learned counsel for the Municipality though placed very strong reliance on Sub-sec. (2) of sec. 187 but in the opinion of this Court without appreciating the necessity of the requirement. Sub-sec. (2) of sec. 187 in clear terms provides that if within 15 days of the receipt of the notice under Sec. 186, if certain better and further particulars and other documents are needed then so long as the requirement is not observed the notice submitted under sec. 186 would not be deemed to be valid. The foundation or application of sec. 187 (2) is a notice within 15 days from the date of receipt of the notice of intention u/s. 186. In absence of such a notice within 15 days by the Commissioner or the sanctioning authority the running of the limitation as provided under Sub-sec. (3) of sec. 188 shall not stop nor shall ensure to the benefit of the Municipality or the Officer. These provisions which require the proposed builder/applicant to observe the law strictly do require the authorities to understand and observe the law. The provisions of 30 days and thereafter deemed sanction have been made to remind the authorities that they should not sit tied over the subject but should take action in accordance with law and should not unnecessarily harass or cause harassment to such proposed builder. The provisions of 30 days and thereafter deemed sanction have been made to remind the authorities that they should not sit tied over the subject but should take action in accordance with law and should not unnecessarily harass or cause harassment to such proposed builder. If the authority fails in doing something within the prescribed period then the construction after the period is over would not be allowed to work as an eye-opener requiring the Officer to come out of his hibernation and reach the spot to stop the construction. 10. In view of the clear legal position this Court has no hesitation in observing that notice Annexure-3 and direction contained in Annexure-3-A are bad in law, they deserve to and are accordingly quashed. The petitioner is free to proceed with the construction. It is, however, clarified that the petitioner however, shall not be allowed to make any construction which is absolutely contrary to law. The respondents are directed to pay a sum of Rs. 500.00 (Five Hundred) towards cost to the petitioner.