BISHWANATH PRASAD Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) This is an application on behalf of the petitioner under Articles 226 and 227 of the Constitution for quashing an order dated the 29th May, 1970, passed by the learned Magistrate, Chapra in purported exercise of powers conferred upon him by Section 198 of the Bihar and Orissa Municipal Act, 1922 (hereinafter referred to as 'the said Act'), a copy of the said order is Annexure 2 to the writ application.

(2.) According to the petitioner, he received a notice under Sections 187 and 196 of the said Act from the Chapra Municipality under the signature of the Special Officer of the said Municipality di- recting the petitioner to remove re-inforc-ed concrete slabs which the petitioner had put over the drain of the Municipality. It is alleged that after having received the said notice the petitioner filed an application before the respondent Special Officer of the said Municipality saying that the said construction had been made in ac- cordance with the plan which had been approved by the Municipal authorities concerned. It is further the case of the petitioner that later a report was submitted on behalf of the said Municipality before the aforesaid Magistrate, on the basis whereof the learned Magistrate took cognizance under Sections 187 and 198 of the said Act on the 26th July, 1969 and transferred the said case to his file for disposal. I have not been able to appreciate as to what the learned Magistrate meant by saying that he has taken cognizance under Sections 187 and 198 of the said Act'. The report on the basis of which the aforesaid case was registered was not for prosecution of the petitioner, but it was only for an order for removal of the encroachment in accordance with the provisions of Sections 187 and 198 of the said Act. A copy of the application filed on behalf of the Municipality is Annexure 1 to the writ application.

(3.) It appears that a notice was issued by the learned Magistrate to the petitioner to show cause as to why the encroachment should not be removed and in pursuance of the said notice the petitioner appeared and filed his show cause. The said show cause is not annexed to the writ application, but it is on the records of the case. In the said show cause the petitioner asserted that practically there was no drain by the side of the house of the petitioner and that he was constructing his house in accordance with plan which was duly approved by the Municipality in the year 1954 and as such there was no encroachment as alleged. Along with the said show cause the petitioner also annexed the plan of the house which is said to have been approved by the Municipal Board of the said Municipality. The learned Magistrate, however, by the impugned order observed that as a notice under Sections 196 and 197 of the said Act had already been issued to the petitioner asking him to remove the encroachment in question and to stop the casting of slab over the Municipal drain and as the petitioner had failed to comply with the said direction, he was ordering the petitioner to remove the said encroachment in exercise of the powers conferred upon him by Section 198 of the said Act. The learned Magistrate has further directed that in case the order was not carried on by the 15th June, 1970, then it will be open to the Municipality concerned to get the encroachment removed and the cost for such removal shall be recovered from the petitioner in ac- cordance with Section 199 of the said Act.