Om Prakash Sinha v. The State Of Bihar

Versus 1. The State Of Bihar Through The Secretary, Department Of Urban Development Govt. Of Bihar, Patna 2. Patna Municipal Corporation, Budh Marg, Patna Through The Municipal Commissioner 3. The Municipal Commissioner, Patna Municipal Corporation, Budh Marg Patna 4. The Additional Municipal Commissioner, Patna Municipal Corporation, Budh Marg, Patna 5. The Executive Engineer, Division-'C', Patna Municipal Corporation At Maurya Lok Complex, Patna 6. Om Prakash Sinha S/O Sri Yogendra Singh R/O Mohalla-Nand Gaon (Sherullahpur), P.O. & P.S.- Shastri Nagar, Distt.- Patna 7. Syed Imam Ahamd S/O Late Wasi Ahmad R/O Mohalla-Samanpura, Raja Bazar, P.S- Shastri Nagar, Distt.- Patna .... .... Respondent/s 2 Patna High Court LPA No.317 of 2011 dt.21-01-2013 =========================================================== Appearance : (In LPA No. 317 of 2011) For the Appellant/s : Mr. Yugal Kishore, Sr. Adv. Mr. Ujjawal Kumar, Adv. Mr. Prashant Sinha, Adv. Mr. Ashok Kumar Verma, Adv. For the State : Mr. Rajesh Kumar Mishra, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) Date: 21-01-2013 Navin Sinha, J. Heard counsel for the appellants and the Shivaji Pandey, J. private respondent in both the Appeals. No one appears on behalf of the Patna Municipal Corporation. We waited for reasonable time in the hope that it would be represented. Prima facie, we are convinced that the present matter has to be remanded to the writ Court for reasons to be enumerated hereinafter. C.W.J.C. No. 7643 of 2009 giving rise to L.P.A. No. 317 of 2011 was filed by the private respondent questioning the ex parte cancellation of his building plan by the Corporation without issuance of a show cause notice. The writ petition was allowed on that premise. It was further held that the writ petitioner had not misrepresented or concealed pendency of Title Suit No. 443 of 2008, by the appellant as notice had been issued on 25.2.2009 while he had submitted his building plan for approval on 7.2.2009. It was further held that the appellant in 3 Patna High Court LPA No.317 of 2011 dt.21-01-2013 L.P.A.317/11 had failed to appear and contest despite valid service of notice when he was deemed to have been served. It was lastly observed that the law would take its own course in the title suit. L.P.A. No. 890 of 2011 has been filed with the leave of the Court by the two other plaintiffs in Title Suit No. 443 of 2008. The common order dated 22.7.2011 recorded in L.P.A. No. 317 of 2011 manifests that both the Corporation and the private respondents have accepted notice in the latter Appeal also and had entered appearance. Learned counsel for the appellants in the two Appeals submitted that the order was obtained from the writ Court by misrepresentation of correct facts and address of one appellant and the other two appellants were not even impleaded as parties in the writ petition, while all three were plaintiffs in Title Suit No. 443 of 2008. The parentage of the appellants and their address was mentioned in the plaint as “all sons of Shri Yogendra Singh, resident of Mohalla- Sherullahpur, P.O and P.S.-Shastri Nagar, District-Patna”. Notice of the suit was validly served on the writ petitioner and he had filed his written statement on 18.3.2009. The writ petition was filed on 7.7.2009. Despite knowledge only plaintiff no. 1 was impleaded as respondent no. 6. Parentage of the appellants was not mentioned. Both were deliberate representations. 4 Patna High Court LPA No.317 of 2011 dt.21-01-2013 Furthermore, the address of the sole respondent was mentioned as “Nand Gaon” and not “Sherullahpur”. The registered notice issued by the writ Court was therefore returned unserved. The service of notice by ordinary process is irrelevant in view of the wrong address. Mr. Raju Giri for the private respondent submits that the error, if any, was inadvertent. Once we find that the address mentioned in the writ petition of the sole respondent was incorrect and the other two plaintiffs were not impleaded as respondents, the very edifice of the order of the writ Court that respondent no. 6 had chosen voluntarily not to enter appearance despite valid service of notice collapses. We do not consider it proper to say anything more on the merits of the matter so as not to prejudice either party, as we are satisfied for the need of remand on facts as they have unfolded. The order under Appeal dated 26.8.2010 is therefore held to be not sustainable. The matter is remanded to the writ Court for fresh consideration and disposal on merits after hearing the parties. We are further satisfied to observe and clarify the interim order dated 19.11.2009 of the writ Court that any construction raised and/or dealing with the property in any other manner by the private respondent after 7.7.2009, 5 Patna High Court LPA No.317 of 2011 dt.21-01-2013 the date of institution of the writ application, for its sustainability shall depend on the final order that may be passed in the writ petition. The appeal is allowed. (Navin Sinha, J) (Shivaji Pandey, J) P. Kumar/NAFR