KASHI PRASAD KATARUKA Vs. BIBI ALLAY FATMA

JUDGEMENT

(1.) In this case the petitioner, Sri Kashi Prasad Kataruka, obtained a rule from the High Court calling upon the respondents to show cause why a writ in the nature of certiorari or mandamus should not be issued to quash the order of the Patna Municipal Corporation dated the 2nd February, 1955, renewing the sanction of the building plan of respondent No. 1 and also the order of the District Magistrate of Patna dated the 6th October, 1954, approving the same building plan under Section 6 of Bihar Act XXIII of 1948.

(2.) The petitioner is the owner of a building on the southernside of the Gandhi Maidan in the town of Patna, The holding of the petitioner is holding No. 283 of circle No. 6, and respondent No. 1, Eibi Allay Patma alias Bibi Sofia Khatoon, is the owner of the adjacent holding no. 283A/3 of circle No. 6. Respondent No. 1 obtained the sanction of the Patna City Municipality for her building plan on the 6th of January, 1951. A copy of this plan is annexure A of the Engineer's affidavit, dated the 15th of February, 1956. The affidavit is sworn by the Engineer Mr. Bhattacharjee, who made an inspection of the building of respondent No. 1 on behalf of the petitioner Sri Kashi Prasad Kataruka. It is stated that respondent No. 1 completed the construction of a portion of the building according to the plan by the end of the year 1952. It is alleged on behalf of the petitioner that the plan of respondent No. 1 contravened bye-laws 21, 22 and 23 framed by the Patna City Municipality under Section 195 of Bihar and Orissa Act VII of 1922 and published on the 26th of September, 1935, -by a notification in the Bihar and Orissa Gazette dated the 2nd of October, 1935. The petitioner contends that the sanction of the Municipality dated 6th of January, 1951, is null and void because certain bye-laws have been violated and that under Section 188 of the Bihar and Orissa Act VII of 1922 the Municipality has no power to dispense with the operation of the bye-laws or to grant sanction to a building plan which contravenes the bye-laws. About the end of 1953 respondent No. 1 started construction of the rear portion of the building, and the Town Planner made a complaint to the District Magistrate on the 8th of April, 1954. A notice was issued by the District Magistrate against respondent No. 1 who showed cause and on the 6th of October, 1954, the District Magistrate renewed the plan of respondent No. 1 without imposing restrictions under Section 6 of the Bihar Restriction of Uses of Land Act 1948 (Bihar Act XXIII, of 1948). It appears that the Patna Municipal Corporation Act (Bihar Act XIII of 1952) came into operation on the 15th of August, 1952. By this Act the provisions of the Bihar and Orissa Municipal Act, 1922 were withdrawn from the local areas comprised in the Patna City Municipality with effect from the date of commencement of Bihar Act XIII 1952. But Sections 2 and 3 of Bihar Act XIII of 1952 contained saving provisions With regard to the obligations and liabilities which accrued under the previous Act, namely, Bihar and Orissa Act VII of 1922. The petitioner made an objection to the build-tog plan of respondent No. 1 on the 21st of December, 1954. An enquiry was made by the Corporation authorities with regard to the objection and on the 2nd of February, 1952, the Assistant Administrator of the Corporation rejected the objection of the petitioner and renewed the sanction of the respondent's plan. The case of the petitioner is that the order of the District Magistrate dated the 6th of October, 1954, made under Section 6 of Bihar Act XXIII of 1948 the order of the Patna City Municipality sanctioning the plan on the 6th of January, 1951, and the order of the Corporation dated the 2nd of February, 1955, renewing the sanction to the building plan were illegal and ultra vires and should be quashed by a writ in the nature of mandamus or ceritorari.

(3.) Cause has been shown by the Government Advocate. Mr. Lal Narain Sinha, on behalf of respondent No. 1 Bibi Allay Fatma alias Bibi Sofia Khatoon. Respondents 3, 4 & 5 have not shown cause.