Santoshi Devi vs The State Of Bihar
2023 Latest Caselaw 4140 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.5959 of 2023
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Santoshi Devi, Wife of Late Dhananjay Kumar Singh, Resident of Village- Dhanpurva, Ward No.34, Sasaram, Rohtas.

... ... Petitioner/s Versus

1. The State of Bihar

2. The Department of Urban Development and Housing through its Principal Secretary, Bihar.

3. The Principal Secretary, the Department of Urban Development and Housing, Bihar.

4. The District Magistrate, Rohtas.

5. The Municipal Commissioner, Sasaram.

6. Suman Devi Wife of Mahendra Singh Resident of Village-Dhanpurva, Ward No.34 (Presently Ward No.18), Sasaram, Rohtas.

... ... Respondent/s

====================================================== Appearance :

     For the Petitioner/s   :      Mr. Alok, Adv.
     For the Resp-State     :      Mr. Syed Hussain Majeed, Adv.
     For the Resp No.5      :      Mr. Bajarangi Lal, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT Date : 29-08-2023

Heard Mr. Alok, learned counsel for the petitioner and

Mr. Syed Hussain Majeed, learned counsel for the State. The

respondent no.5 is represented by Mr. Bajarangi Lal, learned

counsel.

2. The petitioner being aggrieved by the letter no.780

dated 06.03.2023, passed by the Municipal Commissioner,

Sasaram, has preferred the present writ application commanding

a direction upon the respondents not to usurp the jurisdiction of Patna High Court CWJC No.5959 of 2023 dt.29-08-2023

the civil court and pass any order restraining the petitioner from

his construction work and suspend the permit of building

construction work.

3. Learned counsel representing the petitioner

contended that the impugned notice issued in terms of Section

319 of the Bihar Municipal Act, 2007 (for brevity 'the Act of

2007') is not justifiable for the simple reason, as the Municipal

Commissioner, Sasaram by issuing the notice passed an adverse

order against the owner/occupier by restraining him to make any

further construction and, as such, the same is per se illegal. He

would thus submit that Section 319 of the Act of 2007 clearly

suggests that no action to be taken without affording any

opportunity to the person affected.

4. While refuting the contention of the petitioner,

learned counsel for the respondent no.5 submits that by the

impugned notice, the petitioner was only called upon to file her

reply along with the documents in support of her claim

regarding lis pendens in relation to the land in question. He

further submits that the petitioner in response to the aforesaid

notice has entered her appearance and filed her reply and after

having been accorded proper opportunity of hearing, the final

order has already been passed by the Municipal Commissioner, Patna High Court CWJC No.5959 of 2023 dt.29-08-2023

Sasaram, as contained in Annexure-8. He also drew the attention

of this Court to Annexure-1/A, referred as Building Permit.

Clause (e) of the aforenoted Building Permit clearly stipulates

that the land in question must be in lawful ownership and

peaceful possession of the applicant. Further Clause (h) thereof

speaks that after its approval, the plan shall be treated

automatically cancelled during the period of dispute. He next

submits that, in fact, as per the approved Building Permit, it has

been made clear to the parties that in case of any litigation in

relation to the construction site, the sanctioned map shall be

deemed to be cancelled.

5. Learned counsel for the State also reiterates the

submissions made on behalf of the learned counsel for the

respondent no.5.

6. This Court finds substance in the submission of the

respondents that by the impugned notice cause has been shown

to the petitioner asking her to file reply along with necessary

evidence in support thereof, failing which action would be taken

for cancellation of her sanctioned map. Be that as it may,

considering the fact that the final order has already been passed

by the respondent no.5, Municipal Commissioner, Sasaram, and

the petitioner has statutory remedy under Section 323(3) of the Patna High Court CWJC No.5959 of 2023 dt.29-08-2023

Act of 2007 before the Municipal Building Tribunal, the present

writ application stands disposed of with a liberty to the

petitioner to assail the order before the Municipal Building

Tribunal, if he feels so aggrieved.

rohit/-                                           (Harish Kumar, J)
AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          30-08-2023
Transmission Date