Om Prakash Shrivastava v. The State of Bihar

Patna High Court CR. WJC No.350 of 2013 (2) dt.24-04-2013 2 No. 165, situated at Mauza Mustafapur, Thana No. 36, Police Station Khagaul in the district of Patna over which the respondent nos. 11 to 13 are illegally constructing an apartment. The contention of the learned Senior counsel for the petitioner is that in a proceeding under Section 145 of the Code of Criminal Procedure in Case No. 381 (M) 2011, the Sub Divisional Magistrate, Danapur, Patna has restrained the private respondents from making any construction over the land in question. It is also contended that the private respondents had fraudulently obtained a sanction plan vide Plan Case No. 17 of 2009 which stood cancelled under order dated 11.1.2012 upon an application made by the petitioner when he cam to know that the private respondents have managed to get the plan sanctioned by Executive Officer, Nagar Prishad, Khagaul, Patna. Learned senior counsel further contended that the Executive Officer, Nagar Parishad, Khagaul, Patna had directed the private respondents to stop the ongoing construction and submit a show cause in terms of Section 323(1) of the Bihar Municipal Act, 2007. However, the private respondents failed to abide by the order passed by the Executive Officer, Nagar Parishad, Khagaul and continued with the ongoing construction of apartment over the land in question. Patna High Court CR. WJC No.350 of 2013 (2) dt.24-04-2013 3 Learned counsel appearing for the State submitted that from the pleadings of the petitioner made in the writ petition itself it would transpire that the private respondents have preferred an appeal arising out of Plan Case No. 17 of 2009 being Appeal Case No. 4 of 2012 before the Municipal Building Tribunal in terms of Section 323(3) of the Bihar Municipal Act, 2007 and the said appeal is pending adjudication before the Tribunal. Learned counsel further contended the petitioner had earlier approached this Court vide CWJC No. 1962 of 2013 making a prayer for issuance of a direction upon the Municipal Building Tribunal , Patna Division, Patna to dispose of the Appeal Case No. 4 of 2012 filed against the order passed in Plan Case No. 17 of

2009. A Bench of this Court vide order dated 04.02.2013 directed the Municipal Building Tribunal, Patna Division to dispose of the appeal pending before it at an early date without allowing any party to cause any delay. Learned counsel appearing for the Executive Officer, Nagar Parishad, Khagaul, Patna submitted that the dispute between the parties is pending adjudication before a statutory Tribunal and, as such, the prayer made in the present application would not be maintainable. He further contended that the Sub Divisional Magistrate concerned cannot pass any order restraining Patna High Court CR. WJC No.350 of 2013 (2) dt.24-04-2013 4 the private respondents from construction in exercise of powers conferred under Section 145 of the Code of Criminal Procedure. Be that as it may, taking into consideration the rival submissions made on behalf of the parties, I am of the view that since the matter is already pending before the Statutory Tribunal, constituted under the Bihar Municipal Act, 2007, which has all the powers vested in it to pass any order as desirable in the facts and circumstance of the case, I an not inclined to entertain the present application. It is dismissed, accordingly. Md.S./- (Ashwani Kumar Singh, J)