Patna High Court - Orders
Suresh Prasad Gupta vs The Patna Municipal Corporation Patna on 11 July, 2024
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10124 of 2024
======================================================
Suresh Prasad Gupta
... ... Petitioner/s
Versus
The Patna Municipal Corporation Patna
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Rajendra Narain, Sr. Advocate
Mr. Birendra Sharma, Advocate
For the Respondent/s : Mr. Prasoon Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
2 11-07-2024Heard Mr. Rajendra Narain, learned Senior Counsel for the petitioner and Mr. Prasoon Sinha, learned Counsel for the Patna Municipal Corporation.
2. The present petition has been preferred for the grant of following reliefs:-
(i) issuance of an appropriate writ including a writ in the nature of writ of certiorari quashing the Letter No. 4457 dated 13/04/2023 issued by the Respondent, Estate Officer Patna Municipal Corporation (as contained in annexure P. 4) by which he has illegally and erroneously demanded a sum of Rs- 1,39,85,892/- for mutating the names of the Petitioners with regard to the purchase made by them of the property situated on Plot No -55 C Block B of Mohalla Srikrishna Puri Patna within 15 days failing which a threat has been given to initiate the legal action against the Patna High Court CWJC No.10124 of 2024(2) dt.11-07-2024 2/10 Petitioners;
(ii) issuance of writ in the nature of writ of certiorari quashing the Letter No. 7684 dated 20/04/2024 issued by the Respondent, Estate Officer Patna Municipal Corporation (as contained in annexure- P. 6) whereby and where under he has referred to certain letters written to the Petitioner's Vendors and to the Letter No- 4457 dated 13/04/2023 as mentioned/referred above (Annexure P. 4) and illegally and erroneously stated that the sale made by the vendors to the vendee Petitioners on 16/08/2022 was in violation of law as the lease deed of 1966 under which the Vendors had got the right, title and interest to execute any such deed clearly contained in clause -
12 of lease deed that no such transfer / alienation could be possible within 10 Yrs of the indenture without previous consent of the First Party of the lease i.e. Patna Improvement Trust (whose successor is the Patna Municipal Corporation).
Such threat given by the Respondent is patently illegal as 10 Yrs of period had expired in 1976 itself and therefore the sale taking place in 2022 was not at all hit by it which the Respondent have fail to appreciate and they have also fail to abide by the judgment of this Hon'ble Court in C.W.J.C. No. 13886/2011 given on 10/07/2013 which remain in act up to the Apex Court and further recent judgment in C.W.J.C. No -
14908/2012 delivered on 05/02/2019. Even the Patna High Court CWJC No.10124 of 2024(2) dt.11-07-2024 3/10 threat given by Respondent that they would re- enter and resume their possession is totally illegal and unsustainable and it is fit to be set aside with exemplary cost;
(iii) issuance of an appropriate writ including writ in the nature of mandamus commanding the Respondents to forthwith do / complete the mutation of the Petitioners in respect of the property aforementioned i.e. Plot No -55 C of Block B Srikrishna Puri, Patna;
(iv) issuance of a further direction upon the Respondent not to issue / write such threatening letter to the Petitioners or other such innocence citizens.
3. The matter relates to Plot No.- 55C of Block B situated in Mohalla-Srikrishna Puri, Patna under the erstwhile Patna Improvement Trust (later Patna Regional Development Authority and now Patna Municipal Corporation) on 26.12.1966 through its Chairman executed a deed in favour of Prafulla Sarkar for a period of 99 years (Annexure-P.1 to the writ petition).
4. The terms and conditions in the lease deed is/are there and Clause-12 read as follows:-
"12. That except with the previous consent of the First Party in writing and subject to the such terms and conditions as may be Patna High Court CWJC No.10124 of 2024(2) dt.11-07-2024 4/10 prescribed by the First Party the Second Party shall have no right within 10 years of the date of this indenture to transfer by way of sale, exchange or otherwise the aforesaid plot including the structure constructed thereon or the right, title or interest herein, but, no such consent shall be required in matters of gift in favour of an heir or relation or of will in respect of said properties."
5. Prafulla Sarkar and his wife are no more and the property has been inherited by their heirs who are in possession and have also got their names mutated. They intended to sell the property which the petitioners wanted to purchase.
6. They accordingly purchased the property on 16.08.2022 and subsequently preferred application before the respondent Patna Municipal Corporation for mutation of property.
7. However, the P.M.C. came out with the letter no. 4457 dated 13.04.2023 (Annexure-P/4 to the writ petition) demanding Dividend (LABHANSH) of Rs. 1,39,85,892/-. This demand is being made in terms of Clause 12 of the agreement.
8. Learned Senior Counsel submits that a bare perusal of the said Clause 12 would show that it was restricted to ten years and no further but even after lapse of ten years, the authorities sitting in the P.M.C. kept on demanding dividend and Patna High Court CWJC No.10124 of 2024(2) dt.11-07-2024 5/10 the owners were forced to pay through their noses till one Sanjay Singh preferred C.W.J.C. No. 13886 of 2011 pointing out the fact that it was restricted to ten years but still the respondents are continuing with the demand.
9. By a reasoned order dated 10.07.2013, learned Single Judge of this Court after taking note of the entire facts observed as follows:
"Thus, in my opinion, the requirement of payment of 50% of the profit earned would only arise when permission is also required to be taken from the authority concerned. Where such permission is not required, in my considered opinion, requirement of payment of mutation fee equivalent to 50% of the earned profit would also not be required. That apart, it is well settled that the parties would be bound by the terms and conditions of the agreement. In such situation when the deed of lease does not disclose any requirement of payment of 50% of amount earned by the concerned person on making transfer of the plot concerned even within ten years, in my opinion, by operation of rule introduced subsequently, such condition cannot be changed compelling the lessee to pay such amount. Section 93 of the Bihar Regional Development Authority, 1974/81 would be relevant for understanding the aforesaid proposition. Section 93(1)(d) clearly discloses that Patna High Court CWJC No.10124 of 2024(2) dt.11-07-2024 6/10 notwithstanding the repeal of Bihar Town Planning and Improvement Trust Act, 1951 in view of the provisions contained in Section 93(1) of the Act, anything done or any action taken in the exercise of any power conferred by or under the said Ordinance, presently the Act, shall be deemed to have been done or taken in exercise of powers conferred by or under the present Act. Similarly Section 93(2) provides that anything done or any action taken under the Bihar Town Planning and Improvement Trust Act. 1951, so far as it is not inconsistent with the provisions of the present Ordinance or Act, would be deemed to have been done or taken under those provisions itself. Sub Section 2(c) of the aforesaid Section provides that all debts, obligations and liabilities incurred, all contracts entered into and all matters to be done by, with or for the improvement Trust or Town Planning Authority and the Controlling Authority shall be deemed to have been incurred, entered into or engaged to be done by, with or for the authority. Not only that, Sub Section 2(i) provides that any plot held by any person as lessee from the Improvement Trust under a registered deed of lease for residential purpose shall be deemed to have been vested in him as perpetual lease from generation to generation on payment of fee to the authority at the rate of one rupee per square meter.
From conjoint reading of the aforesaid provisions, one would come to a definite Patna High Court CWJC No.10124 of 2024(2) dt.11-07-2024 7/10 conclusion that the deed of lease executed by the Patna Improvement Trust would be considered to have been executed by the P.R.D.A. itself and, thus, it would also be bound by the terms and conditions set forth in the deed of lease, i.e.. Annexure-1.
Thus, in my opinion the PRDA cannot ask the allottee to part with 50% of the earned amount even in view of the Rule 20 of PRDA (Disposal of Land) Rules 1978 also as that would be required only if the transfer is being made within ten years from the date of execution of deed of lease in favour of the allottee, which is admittedly not been done in the case in hand.
Accordingly, the issue no.(i) is answered in affirmative and issue no.2 is answered in negative. The writ petition stands allowed and the impugned communication contained in Annexure-5 is quashed."
10. This order was passed on 10.07.2013 in the presence of the learned Counsel appearing on behalf of the Patna Municipal Corporation. Still they sat over the matter for three years and in the year 2016, L.P.A. No. 512 of 2016 (The Commissioner, Patna Municipal Corporation vs. Sanjay Singh & Ors.) was preferred. It was dismissed on 13.12.2017 by a Division Bench and the short order read as follows:-
" A delay of 2 years and 6 days is being Patna High Court CWJC No.10124 of 2024(2) dt.11-07-2024 8/10 explained away as routine bureaucratic delay.
There is no special privilege for any organization sans the rule and the law with regard to time fixed for preferring the appeal. A modest and a reasonable kind of delay is always condonable but no delay of such kind where there is no cogent and valid explanation coming as to what took them so long in preferring the appeal. Obviously, someone in the Corporation was geared up to help the petitioners to beget the benefits of the judgment, that anyway he will beget since the limitation petition is dismissed along with the appeal for obvious extended delay on their part.
The fall out of the decision and the liability, which may be created upon the Corporation, can be recovered from the people, who were responsible in delaying the process in preferring the appeal."
11. As usual, the Patna Municipal Corporation again waited for one year and thereafter preferred S.L.P. (C) No. 12463 of 2018 (The Commissioner, Patna Municipal Corporation & Anr. Vs Sanjay Singh & Ors.).
12. The S.L.P. (C) No. 12463 of 2018 met with the same fate inasmuch as on 14.05.2018, the Special Leave petition was dismissed with that the issue so far as demand of dividend is concerned, should have been consigned to file. However, even Patna High Court CWJC No.10124 of 2024(2) dt.11-07-2024 9/10 after lapse of five years, the present letter no. 4457 dated 13.04.2023 has been issued by the Estate Officer, Patna Municipal Corporation (Annexure-P.4) demanding Rs. 1,39,85,892/- for mutation of the land, as discussed above.
13. This Court has gone through number of such cases where the Patna Municipal Corporation [which fought the writ petition of Sanjay Singh (supra), after losing the same, preferred Letters Patent Appeal itself and followed it up by filing Special Leave Appeal before the Hon'ble Apex Court and failed everywhere but despite being a responsible authority] is/are still continuing with the demand and have succeeded in even making some of those desirous of mutation pay the same.
14. This Court can safely presume that if the records of the Patna Municipal Corporation after dismissal of its Special Leave Petition (The P.M.C. vs. Sanjay Singh) dated 14.05.2018 is summoned, this fact can be fully endorsed. However, the Court for the present does not want to precipitate the matter further and would only like the Patna Municipal Corporation to answer as to how the demand is/are being made from those who want to transfer the land and/or prefer an application for the mutation of the property despite the fact that it has lost the case almost a decade ago. Certainly every individual is not required Patna High Court CWJC No.10124 of 2024(2) dt.11-07-2024 10/10 to get an order by challenging the demand and it is high time the authorities refrain from doing so. However, it would like to hear the P.M.C./peruse its reply before passing the order.
15. Mr. Prasoon Sinha, learned Counsel appearing on behalf of the Patna Municipal Corporation seeks four weeks time which is allowed. It is made clear that para-wise reply to the writ petition should come on record after service of copy to the petitioner within the aforesaid time frame failing which a cost of Rs. 5,000/- is to be deposited by the Patna Municipal Corporation to the Patna High Court Legal Services Committee.
16. List this case on 12.08.2024.
(Rajiv Roy, J) Neha/-
U