Patna High Court
Atul Kumar Singh vs The State Of Bihar on 9 January, 2020
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13681 of 2019
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Atul Kumar Singh (Male) aged about 47 years, son of Sri Sheo Nandan
Prasad Singh, Resident of Village- nathupur Near Parsa Bazar, P.S.- Parsa
Bazar, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Urban Development
Department, Govt. of Bihar, Patna.
2. The Patna Municipal Corporation, Maurya Lok Complex, P.S.- Kotwali,
Town and Distt- Patna through its Municipal Commissioner.
3. The Municipal Commissioner, Patna Municipal Corporation, Maurya Lok
Complex, P.S.- Kotwali, Town and Distt. Patna.
4. The Director, Town Planning, Patna Municipal Corporation, maurya Lok
Complex, P.S.- Kotwali, Town and Distt. Patna.
5. The Estate officer, Patna Municipal Corporation, Maurya Lok complex, P.S.-
Kotwali, Town and Distt. Patna.
6. The Executive Engineer, Patna Municipal Corporation, maurya Lok
complex, P.S.- Kotwali, Town and Distt. Patna.
7. Satyendra Kumar@Satendra Kumar, aged about 34 years (Male), son of late
Suresh Prasad Singh, resident of village-Nathupur, PS Parsa Bazar, District
Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Alok Kumar Choudhary with
Mr. Binod Kumar Sinha, Advocates
For the State : Mr. Kinkar Kumar, SC 9 with
Ms. Deepika Sharma, AC to SC 9
For the Corporation : Mr. Prasoon Sinha, Advocate
For the Respondent No. 7 : Mr. Ashok Kumar Choudhary with
Mr. Akshansh Ankit, Advocates
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date : 09-01-2020
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Heard learned counsel for the petitioner; learned AC to
SC 9 for the State; Mr. Prasoon Sinha, learned counsel for the
Patna Municipal Corporation (hereinafter referred to as the
'Corporation') and Mr. Ashok Kumar Choudhary, leaned counsel
for the respondent no. 7.
2. The petitioner has moved the Court for the following
reliefs:
"A. A writ in the nature of certiorari for quashing the
letter no. - 7353 dated 8.6.2019 issued by the Director
town Planning, Patna Municipal Corporation by which
the Director, Town Planning has directed the petitioner
to demolish and remove his Kiosk no. 8 situated at
Maurya Lok Commercial Complex within a week and if
it has not been removed then it will be demolished by
the department and expenses would be recovered from
him.
B. For a writ in the nature of mandamus commanding
the Respondents to restore and reconstruct the Kiosk no.
08 of the petitioner which has been demolished by the
order of the Director, Town Planning Patna Municipal
Corporation vide letter no. 7353 dated 8.06.2019.
C. For a writ, order or direction to the respondents to
rehabilitate the petitioner for the illegal demolition of
his Kiosk No. 08 by the Patna Municipal Corporation.
D. For any other appropriate writ/writs, order/orders,
direction/directions which may be fit in the facts and
circumstances of the cases."
3. The issue relates to demolition of Kiosk No. 8 located
on the premises of Maurya Lok Complex in the city of Patna by
the Corporation, which was originally allotted to one Onkar Nath
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Singh. The petitioner in the writ petition has claimed to be the
allottee and at various paragraphs he has stated with regard to the
steps he took at the time of allotment of the Kiosk on lease basis in
the year 1995. Counter affidavit has been filed on behalf of the
Corporation on 20.09.2019, after service of copy on learned
counsel for the petitioner on 19.09.2019. In the said counter
affidavit, a categorical stand has been taken that the petitioner was
a non-entity and had no locus to maintain the present writ
application as he was never an applicant, muchless, allottee of the
aforesaid Kiosk No. 8. It was stated that the original allottee was
Onkar Nath Singh and after that the Kiosk has not been allotted to
any other person. It appears that the petitioner thereafter filed a
rejoinder which has been affirmed on 09.12.2019 in which he has
admitted that he is not the original allottee and also the fact that
Onkar Nath Singh was the original allottee. However, his stand is
that he has been given Power of Attorney by Onkar Nath Singh to
deal with the Kiosk in question. Copy of the said General Power of
Attorney has been registered on 29.04.2013 before the Deputy
Registrar, Ranchi City Area-2. Copy of another document has also
been brought on record which is revocation of General Power of
Attorney executed in favour of the intervenor (respondent no. 7).
The said revocation has been made on 08.06.2005 with regard to
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the General Power of Attorney executed in favour of the
respondent no. 7 on 25.12.2004. However, such revocation
document is only on Rupees 100 Non Judical stamp paper and
neither notorised nor registered.
4. In such view of the matter, when the application has
been filed by the petitioner namely Atul Kumar Singh
misrepresenting himself to be the original allottee and even later in
his rejoinder having been filed after almost three months after
receiving the counter affidavit of the Corporation, in which it is
admitted that he is only the Power of Attorney holder, and till date
the said Onkar Nath Singh neither coming before the Court nor
there being anything to indicate that he has knowledge of filing of
the present case, in the considered opinion of the Court, the
petitioner cannot maintain the present writ application. It is only
Onkar Nath Singh, who was the allottee of Kiosk No. 8, who could
have instituted and pursued any proceeding, may be through his
Power of Attorney, but it had to be in the name of the original
allottee, i.e., Onkar Nath Singh, which has not been done. Even in
the cause title, the petitioner has not claimed that he was acting as
a Power of Attorney holder on behalf of Onkar Nath Singh.
Thereafter, even in the rejoinder, no such prayer has been made or
amendment sought to modify the application to describe the
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petitioner as Power of Attorney holder on behalf of Onkar Nath
Singh.
5. In the aforesaid factual background, the Court has no
hesitation to hold that the present application is not maintainable.
6. However, in view of the blatant misrepresentation and
falsity stated by the petitioner in the writ petition claiming himself
to be the allottee of the Kiosk in question, the Court had two
options. Firstly, to direct the Registrar General of the Court to file
a complaint before the competent Court for stating such falsity on
oath in the present judicial proceeding or to impose cost, or both.
The Court would go for the second option.
7. Accordingly, cost of Rs. 50,000/- is imposed on the
petitioner for filing the present writ petition in the manner as has
been discussed earlier in the order. The same be deposited in the
Juvenile Justice Fund of the State Social Welfare Department
within two weeks and receipt filed, failing which the matter shall
be placed before the Bench for appropriate orders.
8. Coming to the issue with regard to respondent no. 7,
who also claims that in his favour Onkar Nath Singh had executed
General Power of Attorney, copy of which has been brought on
record in the Interlocutory Application by way of Annexure-IA/1,
the Court is required to deal with the issue.
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9. Mere perusal of the contents of the aforesaid General
Power of Attorney which is dated 25.12.2004 reveals that it is, in
effect, an absolute sale deed where right to sale, transfer etc. of the
Kiosk has also been given to the respondent no. 7. The said being
in the teeth of the right which exists to a lessee and most
importantly, neither notorised nor registered nor with consent of
the Corporation/PRDA, clearly has to be held to be a fraud on the
system. Further, in terms of the Deed of Lease-cum-Agreement
executed by Onkar Nath Singh with the PRDA, the predecessor-in-
interest of the Corporation, no such Power of Attorney was legally
permissible. If Onkar Nath Singh had executed the said Power of
Attorney, he would equally be responsible for having done that
and this itself would be sufficient to cancel the allotment of the
Kiosk in favour of Onkar Nath Singh. Further, on a query of the
Court as to why the respondent no. 7 had not moved before the
Court, if at all he was responsible for running of the Kiosk and was
given a Power of Attorney and even after demolition of the Kiosk
he has not moved before the Court or the authorities, learned
counsel for the respondent no. 7 fairly submitted that it may have
been on realisation of the ground realities that the challenge to
such action of the Corporation may not be sustained before a court
of law.
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10. Be that as it may, the Court finds that the respondent
no. 7 equally has no basis for any grievance and, most importantly,
he never chose to assail any action of the Corporation till date and,
thus, as far as he is concerned, no cognizance can be taken by the
Court on his pleadings in the present matter.
11. Even otherwise, on merits, as the notice dated
08.06.2019clearly speaks of there being difficulty in plying of traffic and that the area was required for making provision for Rain Water Harvesting System, the Court finds that the cause is in public interest which shall override private/ individual right. Further, in the notice dated 08.06.2019, it was indicated that the allottees of the Kiosk were encroaching upon the land in front of the Kiosk by keeping on it chairs, tables and other things. Thus, the Court would also refrain from interfering in the matter in its extraordinary, prerogative writ jurisdiction under Article 226 of the Constitution of India.
12. The application, accordingly, stands dismissed in the aforementioned terms.
(Ahsanuddin Amanullah, J) Anjani/-
AFR/NAFR AFR U