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2007 DIGILAW 1735 (PAT)

Third Eye, Communications Private Ltd. v. State Of Bihar

2007-11-06

NAVANITI PRASAD SINGH

body2007
Judgment 1. The petitioner has come to this court challenging the order of District Magistrate, as contained in Memo no. 2167, dated 15.6.2007 and Memo no. 2710 dated 3.8.2007 whereby and whereunder he has directed the petitioner to remove the electric poles erected around the Gandhi Maida.n in the town of Patna and on which the petitioner has a right to erect hording and advertisement. 2. State has filed a counter affidavit. A rejoinder thereto has also been filed. 3. Heard the parties and with their consent this writ petition is being disposed of at the stage of admission itself. 4. Under Articles 243W and 243X read with Schedule XII of the Constitution certain exclusive powers have been conferred on Municipalities. Municipalities are units now form of Local Self Government, where exclusive authorities have been given to the Municipal authorities to plan their development and raise finance by imposition of tax, fee etc. as provided in the Constitution. 5. The petitioner is a private limited company and it had negotiated with Patna Municipal Corporation for the right of putting up street light, maintaining them and paying for them. In return for this they negotiated with the Corporation that they would be permitted to put up skysine thereon and lease the same out thereby raised money to be paid for the electricity bills and for maintaining the same and to, meet the liability of tax on advertisement. It is not in dispute that the municipal authority granted the said permission. In certain parts the petitioner executed the work but when it came to Gandhi Maidan and they started the work the respondent-District Magistrate, Patna issued the impugned order directing them to restore the electric poles to their original position as no permission from the District Magistrate had been taken. The authority of the Disctrict Magistrate to issue such an order has been questioned. 6. The stand of the State is notwithstanding vesting of property with the Municipal Corporation, the District Magistrate being the head of the district had inherent authority to interfere in the matter, and more so, because the District Magistrate was heading the Patna Beautification Committee. Regrettably for neither the two positions asserted by the District Magistrate any constitutional provision, statutory authority or legal sanction was shown. The question this is simple. Regrettably for neither the two positions asserted by the District Magistrate any constitutional provision, statutory authority or legal sanction was shown. The question this is simple. Is the Municipal Corporation, the master of its property or is a subordinate to the District Magistrate, who has no authority in such matter in law. To my mind, the answer is obvious. The District Magistrate may be the seniormost officer in the district of the State but unless he has statutory authority to interfere with the decision of the Municipal Corporation the Corporation remains its own master but is not subordinate to the District Magistrate. 7. A decision of the Corporation cannot be interfered with or set at naught by the District Magistrate except in so far as he may be permitted by the authority of law. On this short issue the impugned orders passed by the District Magistrate, Patna cannot be sustained and are hereby quashed. The District Magistrate is restrained from interfering with the working of the petitioner without authority of law. 8. With the aforesaid observation and direction this writ petition is allowed. 9. When the Court has finished dictating the judgment the learned counsel for the State drew the attention of the Court to the averments made in paras 4 and 5 of the counter affidavit of the State and wanted the Court to deal with those averments. The Court was not persuaded to deal with those averments for the obvious reason that the order which the District Magistrate seeks to rely is of May, 2006 passed by the Corporation withdrawing the work of the petitioner whereas in July, 2006 and thereafter work orders have been issued in favour of the petitioner by the Corporation. The letter issued in May, 2006 loses its all significance in the matter.