====================================================== Md.Shafique Khan v. The P.R.D.A. & Ors
Case Details
Patna High Court CWJC No.13042 of 2001 (24) dt.16-01-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13042 of 2001 ====================================================== Md.Shafique Khan .... .... Petitioner/s Versus The P.R.D.A. & Ors .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Chitranjan Sinha, Sr. Advocate. Mrs. Namrata Mishra, Advocate. For the Respondent/s : Mr. Sanjay Prakash Verma, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 24 16-01-2013 Heard learned counsel for the petitioner and learned counsel for the respondent Patna Municipal Corporation. No one appears for the private respondent Nos. 4 and 5 even after the notices were duly served upon them and they had entered appearance. On account of absence of learned counsels for the respondent Nos. 4 and 5, this Court did not find it appropriate to dispose of the matter on 12.9.2012 and gave them one last opportunity to appear. The petitioner has approached this Court for quashing the order dated 20.2.2001 passed by the Vice Chairman, Patna Regional Development Authority ( in short “P.R.D.A.”) (which has since been abolished and merged in the Patna Municipal Corporation) in Vigilance Case No.52-B/98, by which the direction has been given by the Vice Chairman, P.R.D.A. to
Legal Reasoning
Patna High Court CWJC No.13042 of 2001 (24) dt.16-01-2013 2 dismantle and remove a portion of the building so as to ensure sanctioned front set back of 23 feet, sanctioned rear set back of 10 feet, sanctioned side set back of 5 feet each and to submit a map for post facto sanction after complying with the aforementioned direction for dismantling and removing the portion of the building. Further prayer has been made for quashing of the order dated 23.7.2001 passed by the Appellate Tribunal, P.R.D.A. in Appeal No.27 of 2001 dismissing the appeal of the petitioner and for consequential reliefs. The short facts of the case are that the petitioner being the owner of Plot Nos. 479 and 480 in Mohalla-Karbigahiya had constructed the building on the said land after getting the plan approved by P.R.D.A. being Plan Case No.469 of 1976. It is the contention of the petitioner that at the relevant time the requirement of front set back was only 10 feet and the side open space was 5 feet and there was no provision for rear set back. It is the stand of the petitioner that several complaints were made against him from time to time but nothing came out of them. Ultimately, in July, 1998, respondent No.4 filed an application before the Vice Chairman, P.R.D.A. alleging that the petitioner had constructed a house without sanctioned plan and prayed for an enquiry to be made. The said case was registered as Vigilance Case No.52-B/1998. Prior to that the petitioner had also filed a Patna High Court CWJC No.13042 of 2001 (24) dt.16-01-2013 3 complaint case against the said complainant, who was his neighbour which had been registered as Vigilance Case No. 51- B/1998. In the vigilance case filed by the petitioner, the order dated 10.3.2000 was passed informing the respondent Nos. 4 and 5 that an inspection would be made on their land on 18.3.2000. Pursuant to the inspection, the report was submitted by the concerned officer in which it is stated that he had not only made inspection of the lands of the house of respondent No.5 but also of the petitioner and found that both had made certain deviations from their sanctioned plan. The further contention of the learned counsel for the petitioner is that no such inspection of the house of the petitioner had been ordered in the case filed against him and the so called inspection of his house on 13.4.2000 had been carried out without any authority and behind his back. It is pointed out that as late as on 11.5.2000, the private respondent had filed an application stating that the petitioner had till that date not appeared in Vigilance Case No.52-B/1998 filed by them, which clearly goes to show that there was no occasion for holding an inspection along with the house of respondent No.5 that of the petitioner also and no further steps could have been taken on the basis of such illegal inspection that too by holding the inspection behind the back of the petitioner. Patna High Court CWJC No.13042 of 2001 (24) dt.16-01-2013 4 It is, therefore, contended by learned counsel for the petitioner that both the impugned orders of the Vice Chairman and the Appellate Tribunal of P.R.D.A. are fit to be quashed.
Legal Reasoning
Learned counsel for the petitioner further submits that he has no objection if a fresh inspection is made of his house in his presence and appropriate orders are passed in view of the regulations prevailing at the relevant time when the petitioner’s plan was sanctioned and the house was constructed. Neither learned counsel for the petitioner nor learned counsel for the Patna Municipal Corporation has been able to produce the original sanctioned plan of the petitioner and what is on the record is only a sketch map purportedly containing the signature of the petitioner which is also denied by him. Learned counsel for the Patna Municipal Corporation submits that the original records have been obtained by him but they do not contain the original sanctioned plan. On a consideration of the aforesaid facts and circumstances of the case, this Court is of the view that no inspection could have been made on 13.4.2000 without there being any specific order of the competent authorities to make the inspection and thus there appears to be sufficient force in the submission of learned counsel for the petitioner that the inspection with respect to his house was conducted behind his back and the Patna High Court CWJC No.13042 of 2001 (24) dt.16-01-2013 5 impugned orders being based upon the said inspection are fit to be quashed. In the light of the aforesaid discussions, this Court is of the view that the ends of justice would be met if the impugned order dated 20.2.2001 passed by the Vice Chairman, PRDA and the order dated 23.7.2001 passed by the Appellate Tribunal of P.R.D.A. in Appeal Case No. 27/2001 are both quashed and the matter is remanded to the competent authority of the Patna Municipal Corporation to pass an appropriate order in accordance with law after getting an inspection made on a date and time to be informed to the petitioner. It is so ordered. The Municipal authority while passing order shall also keep in mind the regulations prevailing at the relevant time and the sanction that may have been accorded in view of the earlier original records which are in their possession and pass an appropriate order in accordance with law. Let the petitioner appear before the Municipal Commissioner, Patna on 11.2.2013 at 11 A.M. and thereafter appropriate orders and directions will be issued by the Commissioner.
Decision
The writ application is, accordingly, disposed of in terms of the aforesaid observations and directions. V.P.Sinha/- (Ramesh Kumar Datta, J) Patna High Court CWJC No.13042 of 2001 (24) dt.16-01-2013 6