Patna High Court - Orders
Patna Sahib Infrastaructure And ... vs The Patna Municipal Corporation ... on 13 February, 2019
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2399 of 2019
======================================================
Patna Sahib Infrastaructure and Developers Pvt. Ltd. a company incorporated
under the Indian Companies act, 2013 having registered office at 5A-D,
Chandi Vyapar Bhawan, Exhibition Road, Patna-800001 through one of its
Director and authorised signatory Mr. Pratik Sinha aged about 47
years(Male),son of Sri Pravin Kumar Sinha, resident of M2/14 Road no. 10E,
Rajendra Nagar, Patna-800016.
... ... Petitioner
Versus
1. The Patna Municipal Corporation through the Municipal Commissioner
through the Municipal commissioner, Maurya Lok complex, Buddha
Marg,Patna-800001
2. The Municipal Commissioner cum Chief Municipal Officer, Patna Municipal
Corporation, Maurya Lok complex, Buddha Marg,Patna-800001
3. The Executive Engineer, Patna City Division, Patna Municipal
corporation,having office located at Meena Bazar, Shershah Path,
Gulzarbagh , Patna 800007
4. The Police Inspector cum Officer In Charge, Chowk Police Station, Patna
City Bihar
5. The Railway Land Development Authority, a Statutory Authority under
Ministry of Railways, Having Office at Near Safdarjang, Railway Station,
Motibagh-1 New Delhi-110021 represented through its Joint General
Manager/S.D
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr. Y.V. Giri, Sr. Advocate
Mr.Ashish Giri, Advocate
Mr. Sumit Kr. Jha, Advocate
Mr. Rajat Kr. Tiwary, Advocate
For the Respondent/s : Mr.Anil Kumar Sinha, Advocate
Mr. Prasoon Sinha, Advocate
Mr. yash Raj Bardhan, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL ORDER
2 13-02-2019Petitioner, in the present case, is praying for a writ of certiorari to quash the notice vide letter no. 706 dated 19.01.2019 issued under the signature of the Municipal Commissioner, Patna Municipal Corporation issued under Section 324(1) and 323(1) of the Bihar Municipal Act, 2007 (hereinafter referred to as the 'Act of 2007'). Patna High Court CWJC No.2399 of 2019(2) dt.13-02-2019 2/6 By the impugned notice (Annexure-5), the petitioner has been called upon to show cause as to why a direction be not issued to demolish the unauthorized construction done by the petitioner. The construction work has also been stopped till further order.
Mr. Y.V. Giri, learned senior counsel representing the petitioner submits that land in question admittedly belongs to the Railways and the Central Government has in exercise of it's power under Section 4A to 4-I of the Railways Act established the Rail Land Development Authority (in short 'R.L.D.A.'). The purpose of such establishment of the authority is to do commercial development of the vacant Railways land so that the revenue may be generated by non-tariff measures.
Learned senior counsel submits that the authority decided to construct a Multi-Functional Complex (in short 'MFC') on the land in question, a tender was invited for the same from the willing and interested persons. This petitioner participated in the tender and through the bid process he entered into a lease agreement with the R.L.D.A. on 12.01.2016. Petitioner has paid an amount of Rs. 1,03,05,095/- on account of first installment of the lease premium together with certain portion of interest amount. The total lease premium is Rs. Patna High Court CWJC No.2399 of 2019(2) dt.13-02-2019 3/6 2,35,54,747.00. Petitioner has already invested a sum of Rs. 20 Crores on the construction work after obtaining loan from the financial institutions to the tune of Rs. 11 Crores.
It is further pointed out that according to Railways the 'MFC' buildings are covered under Section 11 of the Railways Act, 1989. It is considered as "operational buildings of Railways" and in terms of Railway Board Circular No. 2008LML/2/13 dated 26.07.2012, the Railway/R.L.D.A. officials are empowered to accord approval of the drawings for MFCs, developed by a Certified Architect of the concerned Municipal Corporation in adherence to Local Building Bye Laws.
It is submitted that in the present case also the R.L.D.A. has approved the map, drawings and designs which have been prepared by an Architect which is in the panel of the Municipal Corporation and the approved map by the Railway Authorities is in tune with Building Bye Laws prepared by the Municipal Corporation.
Learned senior counsel submits that all of a sudden while the building has already been completed to the extent of 90%, on 16.01.2019, a team of Engineers from the Patna City Division of Patna Municipal Corporation came on the site and Patna High Court CWJC No.2399 of 2019(2) dt.13-02-2019 4/6 conducted an inspection. They took a prima facie view that the complex has been constructed in violation of the building Bye Laws. A copy of the inspection report is Annexure-5 to the writ application. A vigilance case has also been registered on that basis and then the impugned letter as contained in Annexure-5 & 7 have been issued. No prior notice or show cause was given to the petitioner.
Learned senior counsel has further submitted that the Railways has vide letter dated 24.01.2019 addressed to the Municipal Commissioner, Patna Municipal Corporation made the things clear saying that the drawings of the MFC at Patna Saheb Railway Station has been prepared by the certified Architect of the Patna Municipal Corporation in adherence to the Bihar Building Bye Laws and subsequently these drawings were also approved by the competent authority of Railway/R.L.D.A. A copy of the letter dated 24.01.2019 written by Member/Project R.L.D.A. to Municipal Commissioner, Patna Municipal Corporation is Annexure-11 to the writ application.
While making submission learned senior counsel has also pointed out that the manner in which inspection has been carried out after 2 ½ years of start of construction and then on one fine morning the petitioner has been asked to stop the work Patna High Court CWJC No.2399 of 2019(2) dt.13-02-2019 5/6 and show cause has been served upon him as to why the buildings should not be demolished has to be examined from another angle also as to how long the authorities of the Patna Municipal Corporation would keep on fastening the responsibilities of unauthorized construction only upon the occupier or owner of the premises. There are certain responsibilities upon the authorities created under the Bihar Municipal Act to carry on inspection of the area where the unauthorized construction is going on and to report the same. If they are not acting in terms of their statutory duties and are allowing alleged unauthorized construction to come upon over the years together, why they should also not be proceeded along with the beneficiary.
Mr. Prasoon Sinha assisted by Mr. Yashraj Bardhan, learned Advocates for the Patna Municipal Corporation submits that this aspect of the matter will be looked into by the Municipal Commissioner and appropriate steps shall be taken, if required, in the facts and circumstances of the case.
Mr. Anil Kumar Sinha, learned counsel representing the Railways has drawn the attention of this court towards Section 100 of the Bihar Municipal Act, 2007 to submit that the land belonging to the Railways would not come within the Patna High Court CWJC No.2399 of 2019(2) dt.13-02-2019 6/6 limits of the Municipal area, and, therefore, the exercise of power by the Municipal Commissioner, Patna Municipal Corporation in the present case is bad in law.
In the given facts and circumstances of the case since this court finds that the petitioner has raised some contentious issues, 90% of the building is said to have already been constructed, this writ application will be finally decided after completion of pleadings by the parties.
Let a counter affidavit on behalf of respondent Nos. 1, 2 & 3 as well as respondent No. 5 be filed within a period of three weeks from today.
Till then, the petitioner may carry on the remaining construction work at his own risk and subject to final decision in the writ application.
In the meantime, the Municipal Commissioner, Patna Municipal Corporation will not pass any consequential order.
Let the matter be listed on 7th of March, 2019.
(Rajeev Ranjan Prasad, J) Rajeev/-
U