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2023 DIGILAW 903 (PAT)

Shailja Vajpei v. Patna Municipal Corporation

2023-08-13

K.VINOD CHANDRAN, PARTHA SARTHY

body2023
K. Vinod Chandran, CJ.—Read order of even date passed at 10.45 A.M. 2. As directed in the said order, the Commissioner, Patna Municipal Corporation and the S.H.O., Kotwali Police Station are before us. Sri Anjani Kumar, learned AAG-IV is also present with learned counsel appearing for the appellant and the respondent- Patna Municipal Corporation. The printed copy of the WhatsApp communication received by the Commissioner as extracted from his Mobile Phone is produced herewith as Court Exhibit-C-1. We examined the Commissioner on oath, which deposition is annexed to the instant order as Court Exhibit-C-2. 3. The writ petition was filed alleging that the petitioner had been in possession of a land by virtue of sale deed dated 02.06.1987 produced as Annexure-5. The land on which the petitioner claimed title as per Annexure-5, was having Municipal Survey Plot No. 8, Ward No.34, Circle No.235, Holding No. 124/175 admeasuring 1989 sq.ft., the boundaries of which land are as below:— North : P.A.C. 10 feet wide service road and Pearl Cinema House. South : Proposed P.A.C. Road East : Plot No. 9 West : Plot No. 4 & 7 4. The allegation was that, despite her continued possession, based on title, the respondent Patna Municipal Corporation was proceeding for demolition of the building and has already demolished a portion of the commercial building situated over the land. The writ petition was dismissed by judgment dated 31.08.2022. 5. Learned Single Judge initially observed that there were disputed questions of fact, which would not be possible of resolution under Article 226. However, on the learned Senior Counsel appearing for the petitioner emphatically requesting for an adjudication, the matter was considered, based on the materials on record. 6. On the brief history of the transactions with respect to the subject land, it is to be noticed that the Secretary of the State, the predecessor of the State of Bihar had granted a lease of 125190 sq.ft. land to the Patna Administrative Committee for a term of 50 years, renewable for a further period of 50 years. The Patna Administrative Committee was superseded by the Patna Municipal Corporation. The said land was sub-leased in favour of Sri Dharma Das Sarkar with effect from 20.10.1951 for a period of 30 years, with the option of renewal, restricted to the period of lease granted by the State. The Patna Administrative Committee was superseded by the Patna Municipal Corporation. The said land was sub-leased in favour of Sri Dharma Das Sarkar with effect from 20.10.1951 for a period of 30 years, with the option of renewal, restricted to the period of lease granted by the State. The lease granted required erection of a building on the land within one year, as per specification available in the sanction letter of the Government. Sri Dharma Das Sarkar transferred the holding bearing Plot No.19, Holding No. 119/151, Circle No. 235 in favour of Sri Jagar Nath Prasad as on 27.12.1973. It is asserted on the strength of Annexure-2 that Patna Municipal Corporation had also permitted the transfer. 7. Here, it is to be specifically noticed that though the petitioner claimed title and possession over Plot No.8, the transfer as seen from Annexure-2 was of Plot No. 19 though No. ‘8’ is also interpolated; which is in hand. 8. Be that as it may, Sri Jagar Nath Prasad was conveyed the subject land with permission from the Patna Municipal Corporation, as evident from Annexure-2 and he transferred it to the petitioner, both of whom have obtained mutation of the land in their respective names. The petitioner is in uninterrupted possession, continuing from the date of Annexure-5, holding the land and also the commercial building situated thereon. 9. The immediate cause of action arose for the petitioner when the Patna Municipal Corporation demolished a portion of the building existing in the land and there was an interim order passed on 25.06.2019. Learned Single Judge, who heard the matter finally, looked into the records and found that the petitioner has not come with clean hands and hence, she was not entitled to the discretionary remedy under Article 226. The said observation of the learned Single Judge rested mainly on the interpolation made in Annexure-2 and the typed agreement brought on record as a true copy of the original, having indicated the lease to have been extended from ‘20.10.1981’ with the option of renewal, which date ought to have been ‘29.10.1951’. This was found to be an apparent attempt on the part of the petitioner to obtain relief by misleading this Court. The ground raised by the petitioner that the lease of the Municipal Corporation had expired and if at all the State has to proceed for eviction, was noticed, but negatived. This was found to be an apparent attempt on the part of the petitioner to obtain relief by misleading this Court. The ground raised by the petitioner that the lease of the Municipal Corporation had expired and if at all the State has to proceed for eviction, was noticed, but negatived. It was found that the petitioner herself had approached the Municipal Authority for permission to carry out agricultural operations in the vacant space lying adjacent to the building in 1991 and to put up fences, which was granted on 07.03.1992. The petitioner after thus acquiescing to the authority of the Corporation cannot later challenge the Corporation’s right over the property, held the learned Single Judge. The writ petition stood dismissed. 10. The present appeal was filed in which order dated 02.02.2023 was passed. The Division Bench of this Court prima facie observed that if there were disputed questions of fact, then despite the insistence of the petitioner, learned Single Judge ought to have relegated the petitioner to appropriate proceedings; since the authoritative finding under Article 226 would settle the matter once and forever and the parties would not be able to agitate their claims before the appropriate forum. The Division Bench elaborately considered the contentions on both sides and noticed that the property was originally leased out to the Municipal Corporation for 30 years, in 1951, which lease would have expired in 1981. Though the transfer from Sri Dharma Das Sarkar to Sri Jagar Nath Prasad was in 1973, within the lease period, the alleged sale to the petitioner was after the lease period. The Division Bench also noticed disparity in the numbers of the subject property, the leased property bearing no.19; while the possession asserted of the petitioner was on No.8. 11. Be that as it may, it was also opined that the Corporation was required to be questioned as to how the mutation was allowed to Sri Jagar Nath Prasad in 1983 and also the request of the appellant to register her name as the owner in 1989; in mutation proceedings, allowed. The Division Bench raised a question as to whether the property remained as a lease hold property or whether it was converted into a free hold one. The Division Bench raised a question as to whether the property remained as a lease hold property or whether it was converted into a free hold one. There were also municipal rent receipts produced with respect to the building with effect from 1978 onwards and the application for permitting fencing and plantation on the adjacent property was allowed by the Corporation on monthly/yearly rental. The Division Bench expressed surprise on the manner in which the Corporation had taken up action for demolition. It was found that the petitioner was in occupation for the last three decades and the partial demolition was brought about after drawing a red line on the part of the building which was styled as an encroachment; without taking appropriate proceeding under the Bihar Public Land Encroachment Act, 1956. Prima facie, it was found that the Corporation had acted in a hasty manner. Learned Senior Counsel appearing for the Corporation then, submitted that he shall make an attempt to debunk the claim of the appellant regarding title over the land in question and facts shall be placed on record by the next date. The Division Bench had restrained the Corporation from taking precipitate action and posted the matter on 02.03.2023. 12. We cannot understand the Division Bench having stayed the order only till 02.03.2023. Even before posting the case to 02.03.2023, the Division Bench noticed the submission of the learned Senior Counsel appearing for the Corporation that he shall make an attempt to debunk the claim of title of the appellant and he was specifically directed to place necessary facts on record, by the next date. The interim order of stay was not till the necessary facts are placed on record but till there is a final decision taken by the Court as to the title of the property. 13. We heard the matter on 11.08.2023. Both learned Senior Counsel appearing for the appellant and learned Senior Counsel appearing for the Patna Municipal Corporation were heard and the matter was reserved for judgment. This Bench also raised doubts about the veracity of the claims raised by the petitioner. However, this Court was of the opinion that even dehors a lease or a finding of its renewal or also a valid title; with uninterrupted possession there should be appropriate proceedings taken in accordance with law for evicting a person in possession, even if he/she be a rank trespasser. However, this Court was of the opinion that even dehors a lease or a finding of its renewal or also a valid title; with uninterrupted possession there should be appropriate proceedings taken in accordance with law for evicting a person in possession, even if he/she be a rank trespasser. We reserved the matter for judgement after making it clear to both parties that after going through the records once more and the conflicting orders passed by the learned Single Judge and the Division Bench, we would either dismiss the application or direct proceedings to be initiated in accordance with law. It is after the matter was reserved that the demolition was carried out by the Corporation and even now the appeal is shown as pending, with the judgement reserved, in the Website of the High Court. 14. We are prima facie of the opinion that there is deliberate contempt made out from the facts noticed above and the demolition carried out on Saturday is without any further notice to the appellant and is in total violation of the interim orders. We also arrive at the finding after having questioned the Commissioner of the Patna Municipal Corporation, whose deposition is annexed herewith. We further reckon the statement made by the respondent in the appeal that he had specific orders from ‘above’. Howsoever high the order came from, it cannot be from one above the law. 15. We again sat to deliver the order at 5.15 P.M.. The 4th respondent, who carried out the demolition, was present before us. We examined the 4th respondent, who is an Executive Officer, New Capital Circle, Patna Municipal Corporation, Patna and his deposition is annexed as Exhibit- C-3. He denied that he talked to the appellant or that the appellant’s husband informed him of the pendency of the LPA. However, he admits that he carried out the demolition on the verbal orders of the Commissioner of the Patna Municipal Corporation. 16. We would have ourselves taken further proceedings, but both the Judges, who were Members, of the Division Bench which passed the interim order, are present and sitting in the High Court of Patna. Hence, judicial discipline and decorum requires us to refer the matter for consideration by that Division Bench. 17. 16. We would have ourselves taken further proceedings, but both the Judges, who were Members, of the Division Bench which passed the interim order, are present and sitting in the High Court of Patna. Hence, judicial discipline and decorum requires us to refer the matter for consideration by that Division Bench. 17. We appoint Sri Prashant Sinha, Advocate, as the Court Commissioner to inspect the site cordoned off by the police on our directions and file a report before the Court by Wednesday, i.e. 16.08.2023. The Court appointed Commissioner shall be paid a remuneration of Rs.25,000/- by the Patna Municipal Corporation and memo filed by the next date of hearing. 18. The files of the Patna Municipal Corporation produced before us by the Commissioner shall be in the safe keeping of the Registry to be placed before the Court on Wednesday, i.e. 16.08.2023. 19. We direct the Registry to initiate a contempt case as against the following contemnors who are respondent nos. 2 to 6 in the LPA, namely, (1) Animesh Kumar Parashar, son of Sri Madheshwar Prasad Singh, resident of Mohalla- Shivam Health Club, Opposite P.C. Jewellers, Boring Road, Patna, Municipal Commissioner, Patna Municipal Corporation, Maurya Lok, Dak Bunglow Road, P.S. Kotwali, District-Patna, (2) Sheela Irani, daughter of Sri Lal Bahadur, the Additional Municipal Commissioner, Patna Municipal Corporation, Maurya Lok, Dak Bunglow Road, P.S. Kotwali, District-Patna; (3) Prabhat Ranjan, son of Sri Ravindra Nath Pathak, the Executive Officer, New Capital Circle, Patna Municipal Corporation, Patna; (4) Sri Vijay Kumar, son of Sri Bachchu Prasad Singh, the Executive Engineer, Patna Municipal Commissioner, Patna; and (5) Md. Shamsad, son of Md. Jakir Hussain, the Project Director, Patna Smart City, Patna, enclosing the two orders passed by us in LPA before the Bench, who passed the interim order dated 02.02.2023, on Wednesday, i.e. 16.08.2023. 20. The LPA be released from our Bench and placed along with the contempt case.