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2013 DIGILAW 1418 (PAT)

Asterisk Home Pvt. Ltd. v. State of Bihar

2013-12-10

NAVANITI PRASAD SINGH

body2013
ORDER The petitioner has a very serious grievance. He complains violation of constitutional right provided under Article-300 A of the Constitution, whereby his right to construct on his own property has been virtually taken by the Station House Officer of Gardanibagh Police Station, Patna who has absolutely no authority in law in this regard. Attention is drawn to the impugned order, as contained in Annexure-4, issued by the Inspector of Police-cum-Officer-in-Charge of Gardanibagh Police Station, Patna to the petitioner, stating that as per the order of this Court in C.W.J.C. No.8152 of 2013 and as per Memo No.2262 dated 24.05.2013 issued by the Town Commissioner, Patna, the petitioner should stop construction of apartment and multistoried building where the lane is less than 20 feet. It is not alleged that the petitioner is constructing building higher than 11 meters or the road abutting petitioner’s plot is less than 20 feet. 2. Petitioner’s assertion is that firstly that so far as the Police Officer is concerned, he has no authority in law either under the Patna Municipal Corporation Act or under any other law, for the time being enacted and in force to pass such an order. He could at best pass such an order only if the Municipal Authorities had come to a finding that petitioner’s building was in contravention to either any provisions under the Patna Municipal Corporation Act or Building Bye-laws framed thereunder or was in violation of any order of any competent Court. Therefore, the first query is whether there is any order specific to the petitioner passed by the Patna Municipal Corporation in this regard. 3. Mr. H.S. Himkar, learned counsel for the Patna Municipal Corporation and the Town Commissioner, Patna Municipal Corporation, frankly concedes that there is no such order or evaluation done by the Corporation in this regard. There is no order of the competent Municipal Authority at all in respect of the petitioner. Municipal Authority cannot and have not delegated their statutory authority to the police. In my view, that is sufficient to dispose of this writ petition. There is no order of the competent Municipal Authority at all in respect of the petitioner. Municipal Authority cannot and have not delegated their statutory authority to the police. In my view, that is sufficient to dispose of this writ petition. However, attention of this Court has been drawn to the Division Bench order passed by this Court in C.W.J.C. No.8152 of 2013 wherein the Division Bench has held thus:– “….We therefore direct that till further orders no apartment Complex or multistoried building can be constructed beyond 11 meters and up to 15 meters in height unless the entire stretch and length of road in front abutting the building is uniformly and throughout 20 feet in width….” 4. A plain reading of what the Division Bench has held is that the land available in front of the building being constructed, in the shape of the road, must not be less than 20 feet all along the boundary of the plot. It does not mean and it cannot mean that if at any other point someone has encroached or reduced the road, petitioner would suffer. Further, the restriction is that no building beyond 11 meters in such constricted lane can be constructed and not that no building at all can be constructed. Petitioner’s building is G+3, less than 11 meters. The order of this Court, however, directs the civil authorities and the police authorities to assist the municipal authorities in enforcement of the bye-laws. This Court never directed or invested the police officer to act as a Municipal Commissioner to assess the validity of plans or construction. For this, the Legislature has specifically conferred this power only on the Municipal Authorities. In the garb of assisting the Municipal Authorities without any order from the Municipal Authorities, the police cannot take upon itself the onus of becoming guardian of law and start enforcing the Municipal Act without appropriate order in this regard by the Municipal Authorities who in law are the competent authority in that matter. 5. As exemplified by this case, there is no order of Municipal Authority directing petitioner to stop the construction. Petitioner’s sanctioned plan is not of a building exceeding 11 meter. Petitioner’s plan has been sanctioned by the certified Architect taking in view the road in front 20 feet all along the plot. These facts are not at all controverted by the Municipal Authority. Petitioner’s sanctioned plan is not of a building exceeding 11 meter. Petitioner’s plan has been sanctioned by the certified Architect taking in view the road in front 20 feet all along the plot. These facts are not at all controverted by the Municipal Authority. In this background, all I can say is the impugned order of the Officer-in-Charge, as contained in Annexure-4, is clearly an abuse of law and authority. It is not in consonance with the direction of the Division Bench of this Court. Annexure-4 is thus quashed and set aside. The petitioner would be at liberty to construct according to the plan subject to any order that may be passed by the Municipal Authorities in accordance with law. 6. Mr. Himkar, learned counsel for the Patna Municipal Corporation submits that petitioner against the order of the Officer-in-Charge of Gardanibagh Police Station must file a representation before the Town Commissioner who would decide it in accordance with law. Firstly, I am amazed at this submission. Allowing this would be investing the police officer with the authority which law has not been given him. Secondly, under what provision, under what rule and under what bye-laws would such a representation be filed and under what law the Town Commissioner would consider it. 7. Mr. Himkar draws attention of this Court to Sections-313 & 315 of the Bihar Municipal Act, 2007. For his satisfaction, the two provisions are quoted hereunder:– “313. Prohibition of construction without sanction.–No person shall construct, or commence to construct, any building or any structure of a permanent nature or execute any of the work relating to construction of building including addition, alteration or modification of an existing building in any municipal area, save and except in accordance with building bye-law. 315. Prohibition of construction without sanction.–No person shall construct, or commence to construct, any building or any structure of a permanent nature or execute any of the work relating to construction of building including addition, alteration or modification of an existing building in any municipal area, save and except in accordance with building bye-law. 315. Construction of building in contravention of building bye-law.–Any building or structure of permanent nature which has been constructed or construction has commenced in contravention or breach or deviation of building bye-law shall be liable to be demolished, notwithstanding that it may have been approved by a registered Architect: Provided further that the owner or occupier or any person responsible for construction of a building or structure of permanent nature or commencement of construction in contravention, breach, or deviation of building bye-law shall further be liable to pay a penalty of minimum of Rupees one lac, which may extend up to Rupees 10 lacs depending upon size of the building or structure and extent of deviation: Provided further that the penalty under this Section shall be in addition to any other fine provided under this Act including fine for compounding as may be provided under building bye-law.” 8. In my view, Section-313 of the Bihar Municipal Act, 2007 prohibits a person to construct any building save and except in accordance with building bye-laws. That does not either confer power to Police Officer to stop the construction. This does not stop a person from building according to sanctioned plan. We may then refer to Section-315 of the Act which provides that any building constructed in violation of building bye-laws can be demolished notwithstanding it has been approved by the registered Architect. No one has challenged the authority of the Corporation in this regard. But, the question is do these two Sections at all contemplates any Tom, Dick and Herry to go and order stoppage of construction. Then, the Town Commissioner would say that kindly represent against the illegal order and I will consider whether there is deviation or not. I am afraid, that is not the law as made by the Legislature which is the law of land. The law envisages that if any construction is made in deviation of bye-laws then the Municipal Commissioner under Section-319 of the Act has to notice that person, hear the objections and pass necessary order. I am afraid, that is not the law as made by the Legislature which is the law of land. The law envisages that if any construction is made in deviation of bye-laws then the Municipal Commissioner under Section-319 of the Act has to notice that person, hear the objections and pass necessary order. No authority is given to any other person under the statute or the bye-law. That is why the petitioner’s contention that the actions taken are in violation of Article-300 A of the Constitution. These provisions do not contemplate filing of any representation by the petitioner to the Town Commissioner or any municipal authority. Such an unconstitutional, illegal and order without jurisdiction is a dead letter fit to be ignored. If citizens have to abide by laws, for an orderly society then so do authorities have to abide by the same law to show and exercise their authority. Let the rule of law prevail. 9. This writ petition is, accordingly, allowed.