ASTERISK HOME PVT LTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner has a very serious grievance. He complains violation of constitutional right provided under Article-300 A of the Constitution, whereby his right to construct on his own property has been virtually taken by the Station House Officer of Gardanibagh Police Station, Patna who has absolutely no authority in law in this regard. Attention is drawn to the impugned order, as contained in Annexure-4, issued by the Inspector of Police-cum-Officer-in-Charge of Gardanibagh Police Station, Patna to the petitioner, stating that as per the order of this Court in C.W.J.C. No.8152 of 2013 and as per Memo No.2262 dated 24.05.2013 issued by the Town Commissioner, Patna, the petitioner should stop construction of apartment and multistoried building where the lane is less than 20 feet. It is not alleged that the petitioner is constructing building higher than 11 meters or the road abutting petitioner's plot is less than 20 feet.

(2.) Petitioner's assertion is that firstly that so far as the Police Officer is concerned, he has no authority in law either under the Patna Municipal Corporation Act or under any other law, for the time being enacted and in force to pass such an order. He could at best pass such an order only if the Municipal Authorities had come to a finding that petitioner's building was in contravention to either any provisions under the Patna Municipal Corporation Act or Building Bye-laws framed thereunder or was in violation of any order of any competent Court. Therefore, the first query is whether there is any order specific to the petitioner passed by the Patna Municipal Corporation in this regard.

(3.) Mr. H.S. Himkar, learned counsel for the Patna Municipal Corporation and the Town Commissioner, Patna Municipal Corporation, frankly concedes that there is no such order or evaluation done by the Corporation in this regard. There is no order of the competent Municipal Authority at all in respect of the petitioner. Municipal Authority cannot and have not delegated their statutory authority to the police. In my view, that is sufficient to dispose of this writ petition. However, attention of this Court has been drawn to the Division Bench order passed by this Court in C.W.J.C. No.8152 of 2013 wherein the Division Bench has held thus:-