TARUN KUMAR Vs. PATNA MUNICIPAL CORPORATION

JUDGEMENT

(1.) This application under Article 227 of the Constitution of India has been filed for quashing the order dated 31.05.2017 passed in Appeal Case No.44(N) of 2015 by the Municipal Building Tribunal, Patna (for short 'Tribunal') whereby and whereunder the appeal preferred by the respondent 3 rd set against the order dated 24.11.2015 passed by the Municipal Commissioner, Patna Municipal Corporation (for short 'PMC') in Vigilance Case No.30B of 2015 has been allowed.

(2.) Mr. Jitendra Singh, learned Senior Advocate appearing for the petitioner submitted that the appeal filed by the land owner before the Tribunal against the order dated 24.11.2015 passed by the Municipal Commissioner was not maintainable. He contended that the Municipal Commissioner had passed the said order in exercise of powers under the Bihar Municipal Act, 2007 (for short the 'Act') and the building bye laws. The said order was based on facts not in dispute. Thus, there was no occasion for the Tribunal to have set it aside. The Municipal Commissioner had the jurisdiction and power to condone and compound the deviations. He contended that finding of the Municipal Commissioner in his order dated 24.11.2015 i.e. ongoing construction of ramp was illegal, without conceding and for the sake of argument cannot be stretched by the Tribunal to hold that the entire construction made by the petitioner was illegal on the claim that it was made in violation of the order of stay issued vide letter dated 30.03.2015 and in turn for the same to be a ground to set aside the order dated 24.11.2015 of the Municipal Commissioner. He urged that the Tribunal has erred in holding that the order of the Municipal Commissioner was bad as it did not return a finding on the quality of material used by the petitioner is not correct and not sustainable. He pleaded that after the map of 12 katha of land was sanctioned on 17.02.2012 Surya Nest Build Ltd. as managing partner was to develop 9 katha under the deed of reconstituted partnership dated 12.07.2013 and Surya Nest Build Ltd. as developer was to develop the 3 katha of land under development agreement dated 12.07.2013. Thus, the validity of a map can not be questioned on the basis of development agreement. Further there was no illegality in the map of 12 katha of land having been sanctioned and thus there was never an occasion for the Municipal Commissioner to have exercised his powers under Section 336 of the Act to cancel the same and the finding to the contrary by the Tribunal is bad in law.

(3.) Per contra, Mr Aditya Narain Singh, learned counsel appearing on behalf of respondent no.3 has submitted that the petitioner has filed the present writ petition suppressing the material facts. He contended that respondent no.3 has executed development agreement dated 12.07.2013 believing that the said agreement is in favour of the firm, namely, S.R.M. Builders. Later on, when a dispute arose for use of low quality material then it was detected in respect of 3 katha of land a development agreement had been executed in favour of M/s Surya Nest Build Ltd. and not in favour of M/s S.R.M. Builders, which led to filing of Title suit no. 148 of 2015 by respondent nos. 4 and 5 and M/s S.R.M. Builders for dissolution of partnership and other consequential relief against the petitioner. He contended that neither respondent no.3 nor respondent nos.4 and 5 were satisfied with the work and quality of the construction by the petitioner. When the dispute arose between the parties the petitioner in connivance with the officials respondents proceeded with the construction in utter haste violating the building laws and direction given by letter dated 27.6.2013. He pleaded that the contention of the petitioner that there was no order of stay of construction is incorrect and misleading. He has urged that crack in roof was detected and on complaint inspection was done by a team of NIT on 19.12.2014, who submitted report on 18.2.2015 from which it would be evident that crack appeared at the top to the bottom in second floor, which was visual. He contended that even otherwise there was no error in the order passed by the Tribunal.