Patna High Court
Reliance Jio Infocomm Ltd vs The State Of Bihar on 16 August, 2023
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12423 of 2019
======================================================
Reliance Jio Infocomm Ltd. A Company incorporated under the Companies
Act, 1956 having its registered office at 101, Saffron, Near Centre Point,
Panchwati 5 Rasta, Ambawadi, Ahmedabad- 380006, Gujarat, having its
circle office at B.D. Complex, Rupaspur, Baily Road, Near Gola Road,
Danapur, Patna Bihar Through its Authorized Signatory, Sh. Nand Kishore,
male, age about 49 years S/o Late Jamadar Rai working as General Manager.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Urban
Development and Housing, Government of Bihar, Patna.
2. Patna Municipal Corporation Maurya Lok Complex, Buddha Marg, Patna,
Bihar- 800001.
3. The Municipal Commissioner Patna Municipal Corporation, Maurya Lok
Complex, Buddha Marg, Patna, Bihar- 800001.
4. The Principal Secretary Department of Information Technology,
Government of Bihar, 2nd Floor, Technology Bhawan, Vishweswaraiya
Bhawan Campus, Bailey Road, Patna- 800015.
5. The Director General Department of Telecommunications, Ministry of
Communications, Government of India, Sanchar Bhawan, 20 Ashoka Road,
New Delhi- 110001.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Mrigank Mauli, Sr. Advocate
Mr. Rajesh Ranjan, Advocate
Mr.Ratnakar Pandey,Advocate
For the Respondent/s : Mr.Yogendra Pd. Sinha (AAG-7)
For the PMC : Mr. Bindhyachal Singh, Sr. Advocate
Mr. Vipin Kumar Singh, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
Date : 16-08-2023
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This order be read in continuation of the order
dated 25.07.2023.
2. The petitioner has challenged the letter nos.
4517 dated 08.04.2019 & 6853 dated 27.05.2019 passed by the
Municipal Commissioner, Patna Municipal Corporation
(henceforth for short 'the PMC') by which taking into account
the fact that without any permission, for laying out optical
fibers, 3060 poles were erected in Patna and as such, an order was
passed under Section 429 read with Section 435 and 438 of the
Bihar Municipal Act, 2007 (henceforth for short 'the Act')
read with relevant sections of Indian Telegraph Act, 1885 with
a further direction to the company to pay penalty of Rs.
1,21,80,000/- within a period of 15 days and to remove their
installations and submit compliance report failing which the
company will attract more penalty and action under section
399 of 'the Act'
3. The facts of the case has already been
incorporated in the order dated 25.07.2023 and it is also clear
that there was no answer from the learned Senior Counsel for
the petitioner on query whether the mandatory 60 days period
which the company ought to have waited for, was violated or
not.
4. The matter then zeroed down to the issue
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relating to application of Section 429 of 'the Act' read with
Sections 435 and 438.
5. Section 429 of 'the Act' read as follows:
"CHAPTER XLIII
Offences and Penalties
429. Punishment for certain offences
Whoever-
(a) contravenes any provision of any of
the Sections, sub-sections, clauses, provisos or
any other provision of this Act, or
(b) fails to comply with any order
lawfully given to him or any requisition
lawfully made upon him under any of the said
Sections, sub-sections, clauses, provisos or
other provisions, shall be punishable-
(i) with fine which may extend to rupees
five thousand, or with imprisonment which may
extend to six months, or both:
(ii) in the case of continuing
contravention or failure, with an additional
fine which may extend to rupees one hundred
for every day during which such contravention
or failure continues after conviction for the
first such contravention or failure subject to a
maximum of rupees five thousand.
Comments & Case Laws
Construction of building defying
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prohibitory order - Provisions prescribed
under Sections 323 and 324 of the Act are
public regulatory laws. They provide for the
manner in which Municipal authorities or
person aggrieved may proceed in case of any
dispute relating to construction of any
structure or building in contravention of any
building bye-laws. There are various sections
prescribed under different chapters of the Act
which provides for specific punishment for a
specific act of omission or commission.
Sections 325 and 435 of the Act, both cannot
be reconciled together. Punishment prescribed
under Section 429 of Act cannot be imposed on
a person who is found guilty of committing an
offence punishable under Sections 325 or 435
of the Act. Provision prescribed under Section
429 of the Act is sweeping in nature and is too
vague and, it is difficult to comprehend that
punishment prescribed therein would be
applicable to alleged contraventions under
Sections 323 and 324 of the Act. Pratik Sinha
vs. State of Bihar, 2016 (3) PLJR 274.
6. Further in 2019, the section 435 of 'the Act' as
it then was (when the order was passed) read as follows:
"435. Encroachment on streets.
No person shall cause any encroachment or
obstruction on any municipal property such as
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a street or footpath or park without specific
permission of an officer of the Municipality
duly authorized to grant such permission. Any
person causing such encroachment or
obstruction on any municipal property as
aforesaid shall, on conviction, be punishable
with fine which may extend to one thousand
rupees.
Comments & Case law
Construction of building
defying prohibitory order- In absence of any
other definition given under the Act, word
"offence" under the Act shall have same
meaning as given under Section 40 of IPC,
wherein definition of word "offence" has been
given in three parts. Sections 323 and 324 of
Act provide for demolition, stoppage,
alteration and sealing of work not in
accordance with sanction of building plan
and set out specific procedure for the same
including provisions for appeal to the
Municipal Building Tribunal against order of
Chief Municipal Officer. In view of definition
of "offence" as defined under IPC and
considering infraction of law as described
under Sections 323 and 324 of Municipal Act,
infraction cannot be termed as an offence.
Pratik Sinha vs. State of Bihar, 2016 (3)
PLJR 274.
Removal of encroachment.
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Authorities while passing administrative
orders involving civil consequence have to
act in consonance with principles of natural
justice. Once Magistrate issued notice to
petitioners to show cause and petitioner did
file show cause, he should have also
considered materials produced on behalf of
petitioners in support of his case that he
had not made any unauthorised
encroachment and constructions which he
had made were in accordance with plan
approved by Municipal authorities.
Bishwanath Prasad vs. Municipal Board,
Chapra, 1977 BLJR 256."
7. It is further necessary to incorporate Section
438 of 'the Act' also which read as follows:
438. Offences by companies. - (1) Where
an offence under this Act has been
committed by a company, every person who,
at the time the offence was committed, was
in charge of, and was responsible to, the
company for the conduct of the business of
the company, as well as the company, shall
be deemed to be guilty of the offence and
shall be liable to be proceeded against and
punished accordingly:
Provided that nothing
contained in this sub-section shall render
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any such person liable to any punishment
provided in this Act if he proves that the
offence was committed without his
knowledge or that he exercised all due
diligence to prevent the commission of such
offence.
(2) Notwithstanding anything
contained in sub-section (1), where an
offence under this Act has been committed
by a company and it is proved that the
offence has been committed with the
consent or connivance of, or is attributable
to any neglect on the part of, any director,
manager, secretary or other officer of the
company, such director, manager, secretary
or other officer shall also be deemed to be
guilty of that offence and shall be liable to
be proceeded against and punished
accordingly.
Explanation. - For the purposes of
this Section,-
(a) "Company" means a body
corporate, and includes a firm or other
association of individuals, and
(b) "Director", in relation to a firm,
means a partner in the firm."
8. The case of the learned Senior Counsel for
the petitioner-company has that it has no jurisdiction to pass
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an order under Section 429 of 'the Act' which is in the
exclusive domain of the Magistrate.
9. According to him, the section 429 of 'the Act'
comes under Chapter XLIII which deals with the offences
and penalties and Section 429 (b)
(i) clearly speaks about fine
which extend to Rs. 5,000/-
(ii) or with imprisonment which
extend to six months or both.
10. According to him, the fine and the
imprisonment are intertwined inasmuch as the authority
dealing with this section has the power either to impose fine or
to pass an order for imprisonment or both. As such, this power
has to be exercised only by a Magistrate authorized for the
said purpose and the Municipal Commissioner, of 'the PMC'
had no authority to pass the same.
11. It is his further case that even the section 435
of 'the Act', as it then was, speaks that any person causing
encroachment or obstruction on any municipal property, on
conviction will be punishable with fine which may extend to
Rs. 1000/-. He as such submits that the word conviction has
been used and as such it could be used only in accordance
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with law for which the Municipal Commissioner is not
authorized.
12. Learned Senior Counsel has straightway taken
this Court to an order of Patna High Court in the case of
Pratik Sinha vs. The State of Bihar & Ors. reported in 2016
(4) PLJR 274. He wanted the Court to take note of paragraph
nos. 20 and 21 of the said order which read as follows:
"20. The word "offence" has not been
defined under the Act.
21. Thus, in absence of any other definition
given under the Act, the word "offence"
under the Act shall have the same meaning
as given under Section 40 of the IPC,
wherein the definition of the word "offence,
has been given in three parts. In the first
part, an act or a series of acts, or an illegal
omission or series of illegal omissions
which is made punishable by the IPC is an
"offence". In the second part, some chapters
and sections have been specifically
mentioned in which the word "offence"
denotes a thing which the IPC or any
"Special law" or "Local law punishable. In
the third part, certain sections of the IPC
have been mentioned wherein the word
"offence" means the same thing punishable
under the "Special law" or "Local law" with
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a minimum period of six months with or
without fine."
13. He further took this Court to paragraph- 30 of
the case cited by him which read as follows :
"30. The fallacy in the argument of the
counsel appearing for Respondents No. 5 &
6 can further be demonstrated from looking
at the issues from another perspective. The
argument preferred by the counsel of the
PMC is based on the premise that Section
429 covers the entire spectrum of
violation/contravention of the provisions of
the Act and that Sections 323 and 324 is
with regard to violation by the builder of the
norms prescribed by Municipal Act. To the
contrary, the said two sections are about
empowerment of the Chief Municipal
Officer with regard- as to how and to the
extent he can stop further infraction of the
norms of the Municipal Bye-laws and the
remedy that a person aggrieved may have
against the order of the Chief Municipal
Officer. If there can be any contravention of
the said section or its sub-sections, it can be
by Municipal Authorities alone and not by
a builder".
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14. He lastly drew the attention of this Court to
paragraph -31 to point out that in terms of section 429, the
criminal justice system can be moved only with the
permission of the competent Magistrate.
15. Paragraph 31 of the order read as follows:
"31. This Court is of the further opinion
that if the alleged offence is about mere
disobedience of the orders then the only
punishment that has been prescribed is 6
months of imprisonment or fine or both and
thus, in terms of CrPC is a non- cognizable
offence for which no FIR can be instituted
and the criminal justice machinery can be
moved only with the permission of the
competent Magistrate".
16. He as such submits that the Municipal
Commissioner has no authority to pass such order and
according to learned Senior Counsel:
(i) he could have approached the Designated
Officer in terms of chapter - V of the Gazette Notification
dated 15.11.2016 issued by the Ministry of Communication,
Govt. of India, New Delhi which deals with the dispute
resolution and/or
(ii) alternatively, he could have approached the
Magistrate duly authorized for the said purpose.
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17. Thus according to him, the order in question
has to go.
18. Mr. Bindhyachal Singh, learned Senior
Counsel representing 'the PMC' and defending the order has
taken this Court to Section 2 of 'the Act' which deals with the
definition.
19. He has further drawn attention of this Court to
Section section 2(21) which deals with the Chief Municipal
Officer and read as follows:
2(21) "Chief Municipal Officer" means-
(i) in relation a Municipal Corporation, the
Municipal Commissioner, and
(ii) in relation to a Municipal Council or
Nagar Panchayat, the Municipal Executive
Officer:"
20. He further took this Court to section 2(62) of
'the Act' which defines Municipal Magistrate and read as
follows:
2(62) "Municipal Magistrate"
means the Municipal Magistrate apointed
under Section 398"
21. This Court perused Section 398 of 'the Act'
which defines the Municipal Magistrate and read as follows:
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398. Municipal Magistrate.- (1) The
State Government may, in consultation with the
High Court of the State, designate one or more
Judicial Magistrates for the trial of offences
against-
(a) this Act, and
(b) the Rules and the Regulations
made thereunder, and may prescribe the time
within which, and the place at which, such
Judicial Magistrate or Judicial Magistrates shall
sit for such trial of offences.
(2) Every such Judicial Magistrate
shall exercise all other powers, and discharge all
other functions, of a Magistrate as provided in this
Act.
(3) Every Judicial Magistrate
appointed under sub-section (1) shall be called
Municipal Magistrate.
(4) Each Municipal Magistrate shall
have jurisdiction over such municipal area or
areas as may be specified by the State Government
by notification.
(5) The procedure in the court of a
Municipal Magistrate shall, except where
otherwise specifically provided in this Act, be in
accordance with the provisions of the Code of
Criminal Procedure, 1973.
22. This Court further deems it appropriate to
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incorporate section 399 of 'the Act' which deals with certain
offences to be cognizable:
399. Certain offences to be
cognizable.- The offences mentioned in Section
313, Section 323, Section 324, Section 370 and
Section 435 shall be cognizable within the
meaning of the Code of Criminal Procedure, 1973.
23. Learned Senior Counsel for 'the PMC'
thereafter took this Court to Section 126(c) of 'the Act' which
deals with the internal revenues of the Municipality which
read as follows:
"126 (c) fees and fines levied for
performances of regulatory and other
statutory functions."
24. Similarly, he took this Court to Section 127(l)
of 'the Act' which deals with power to levy taxes on
communication towers and related structure/Discantennas.
25. Learned Senior Counsel wanted the Court to
also go through section 129(b) which deals with the issue of
municipal licenses for various non-residential uses of lands
and buildings as also section 129(c) (vi) which deals with such
other activities which requires a license or permission under
the provision of this Act.
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26. According to him, an amendment took place
vide Bihar Municipal (amendment) Act, 2021 and referred to
amendment in section 435 of Bihar Act 11, 2007 with specific
reference to Clause-3 which read as follows:
435. Encroachment on streets. No
person shall cause any encroachment or
obstruction on any municipal property such as a
street or footpath or park without specific
permission of an officer of the Municipality duly
authorized to grant such permission. Any person
causing such encroachment or obstruction on any
municipal property as aforesaid shall, on
conviction, be punishable with fine which may
extend to one thousand rupees.
27. At this stage, learned Senior counsel for the
petitioner pointed out that the order in question is of 2019 and
as such, the amendment that took place in 2021 is not
applicable in this particular case.
28. The sum and substance of the argument of
learned Senior Counsel for 'the PMC' is that the Municipal
Commissioner has not passed any order for imprisonment and
as such, he was well within his power to impose fine upon the
petitioner-company in the light of the aforesaid provisions as
narrated/submitted by him.
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29. According to him, when this Court has come
to the conclusion that there was violation on the part of the
petitioner-company, in view of the fact that a decision has been
taken by the Municipal Commissioner under Section 429 of
'the Act' with the only direction to pay the fine, the same need
not be interfered with.
30. It is his further submission that in absence of
any order of imprisonment, it would be futile to stretch the
matter further to decide whether the Municipal Commissioner
was within his domain to pass the said order or not.
31. To the question put by the Court on when the
section 429 of 'the Act' defines fine or imprisonment or both
and are intertwined and as such whether the Municipal
Commissioner could have instead referred the matter to the
Magistrate duly authorized for the aforesaid purpose or not,
the answer was evasive.
32. To another question as to whether the
Municipal Commissioner could have taken the route of
approaching the Authorized Officer as earlier pointed out by
a learned Central Government Counsel ( in line with Chapter -
V of the Gazette notification of the Ministry of
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Communication, Government of India dated 15.11.2016), it
was the submission of the learned Senior counsel that once the
Court has come to a conclusion that there has been violation
by the petitioner-company, it should not harp on the said
section of 'the Act' that has been used by the Municipal
Commissioner while passing the order in question.
33. Learned Central Government Counsel on the
other hand submits that either of the parties could have moved
before the Authorized Officer, the Principal Secretary as per
the notification dated 19.06.2017 issued by the Ministry of
Communication, Govt. of India, New Delhi to resolve the
dispute, which they failed to do.
34. Having gone through the rival submissions
put forward by the parties; this Court finds force in the
submission advanced by the learned Senior Counsel for the
petitioner. It would be appropriate to go through the order
passed by the Municipal Commissioner of 'the PMC in its
letter no. 4517 dated 08.04.2019 (Annexure-9 to the petition).
35. The order starts with the following two lines
[ u/s 429 read with sections 435 and 438 of
the Bihar Muncipal Act, 2007 and read with
the relevant sections of the Indian
Telegraph Act, 1885]"
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36. Further paragraph nos. 5 and 6 needs to be
quoted herein below:
"5. As it is apparent from the
record that Reliance Jio Infocomm Limited
has not only violated the provisions of the
Indian Telegraph Act 1885 but also
contravened the provisions of the Bihar
Municipal Act, 2007 in general and the
section 435 in particular, the company is
liable for penalty under the provisions of
Chapter-XLIII of the Act. Section 435,
offences under which is cognisable within
the meaning of the Code of Criminal
Procedure, 1973 under section 399,
stipulates that
"No person shall cause any
encroachment or obstruction on any
municipal property such as a street or
footpath or park without specific permission
of an officer of the Municipality duly
authorized to grant such permission. Any
person causing such encroachment or
obstruction on any municipal property as
aforesaid shall, on conviction, be
punishable with fine which may extend to
one thousand rupees."
Further, the offence made by
the company is also covered under Section
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429 which provides that: Whoever.
(a) contravenes any provision
of any of the sections, sub-sections, clauses,
provisos or any other provision of this Act,
or
(b) fails to comply with any
order lawfully given to him or any
requisition lawfully made upon him under
any of the said sections, sub-sections,
clauses, provisos or other provisions, shall
be punishable-
(i) with fine which may extend
to rupees five thousand, or with
imprisonment which may extend to six
months, or both:
(ii) in the case of a continuing
contravention or failure, with an additional
fine which may extend to rupees one
hundred for every day during which such
contravention or failure continues after
conviction for the first such contravention
or failure subject to a to a maximum of
rupees five thousand.
6. The report of Additional
Municipal Commissioner (Enforcement)
dated 05.04.2019 mentions a total
installation of 3060 poles within the
jurisdiction of Patna Municipal
Corporation. Accordingly, the company is
table for a penalty of INR 1000 per pole,
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treating installation of a pole as an
occurrence of offence, and thus for a total
penalty of INR 30,60,000. The company is
also liable for a penalty for the continuing
contravention for 30 days since the date of
the notice that is 07.03.2019 under section
429 of the Act. This attracts the penalty of
INR 100 per day per pole for 30 days
resulting in a penalty sum of INR 91,80,000.
Hence, the company is directed to pay the
total penalty sum of INR 1.21,80,000 within
fifteen days of the service of this order. Also,
the company is directed to immediately
remove their installations and submit a
compliance report to the authority failing
which will attract more penalty and also
action under the provisions of section 399
of the Act. Also, the directors of the
company Reliance Jio Infocomm Limited-
shall explain under section 438 of the Act
that why a separate penal proceeding
should not be initiated against them for
violating the provisions of the Act".
37. A perusal of the aforesaid order demolishes
the submissions put forward by the learned Senior Counsel
for 'the PMC' that there may be error in the use of section
which can be ignored. The Municipal Commissioner
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specifically incorporated in paragraph-5 the chapter XLIII of
'the Act' which deals with the offences and penalties and has
incorporated the entire section 429 of 'the said Act'. This
clearly shows that he was fully conscious of the fact that he is
passing an order under Section 429 of 'the Act'. Whether he
had the power to do so; in the words of learned Senior Counsel
for the petitioner which the Court is also in agreement; he did
not had such power.
38. This gets enforced by the case cited by the
learned Senior Counsel for the petitioner in Pratik Sinha
(supra) in which paragraph nos. 30 and 31 clearly deal with
the section 429 of 'the Act' which hold that when the
punishment that has been described is six months of
imprisonment or fine or both, the criminal justice machinery
can be moved only with the permission of the competent
Magistrate.
39. Learned Senior Counsel for 'the PMC'
himself took this Court to section 2 (62) which speaks about
the Municipal Magistrate to be appointed under Section 398
and we have already dealt with section 398 and in that
background, the Municipal Commissioner ought to have
referred the matter to the Municipal Magistrate for needful.
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40. To cut short the matter, the Municipal
Commissioner of 'the PMC' could have filed complaint before
the Magistrate authorized for the said purpose for an
appropriate action which was not done.
41. Admittedly, the Municipal Commissioner had
another option of approaching the Authorized Officer in line
with the Gazette notification dated 15.11.2016 issued by the
Ministry of Communication, Govt. of India, New Delhi.
42. Having gone through the facts of the case, the
rival submissions put forward by the respective counsels and
the case cited by the learned Senior counsel for the petitioner
of Pratik Sinha (supra); this Court holds that the Municipal
Commissioner of 'the PMC' was not authorized to pass an
order under Section 429 read with section 435 and 438 of the
Bihar Municipal Act, 2007 and as such, the orders in question
i.e. the letter no. 4517 dated 08.04.2019 and 6853 dated
27.05.2019issued by him have to go.
43. Accordingly ordered.
44. The letter no. 4517 dated 08.04.2019 (Annexure-9) and letter no. 6853 dated 27.05.2019 (Annexure-
12) passed by the Municipal Commissioner, Patna Municipal Corporation stand quashed.
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45. 'The PMC' is free to take fresh steps against the petitioner-Company in accordance with law for the alleged violations so made by it.
46. The writ petition stands disposed of with the aforesaid observations.
(Rajiv Roy, J) Jagdish/-
AFR/NAFR AFR CAV DATE 08.08.2023 Uploading Date 17.08.2023 Transmission Date