Patna Sahib Infrastaructure And ... vs The Patna Municipal Corporation ...
2023 Latest Caselaw 2727 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.2399 of 2019
     ======================================================

Patna Sahib Infrastaructure and Developers Pvt. Ltd. a company incorporated under the IndianCompanies act, 2013 having registered office at 5A-D, Chandi Vyapar Bhawan, Exhibition Road, Patna-800001 through one of its Director and authorised signatory Mr. Pratik Sinha aged about 47 years(Male),son of Sri pravin Kumar Sinha, resident ofM2/14 Road no. 10E, Rajendra Nagar, Patna-800016

... ... Petitioner/s Versus

1. The Patna Municipal Corporation through the Municipal Commissioner and Ors through the Municipal commissioner, Maurya Lok complex, Buddha Marg,Patna-800001

2. The Municipal Commissioner cum Chief Municipal Officer,Patna Municipal Corporation, ,Maurya Lok complex, Buddha Marg,Patna-800001

3. The Executive Engineer, Patna city Division, Patna Municipal corporation,having office located at Meena Bazar, Shershah Path, Gulzarbagh , Patna 800007

4. The Police Inspector cum Officer In Charge, Chowk Police Station, Patna City Bihar

5. The Railway Land Development Authority, a Statutory Authority under Ministry of Railways, Having Office at Near safdarjang, Railway Station, motibagh-1 New Delhi-110021 represented through its Joint General Manager/S.D

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Y.V. Giri, Sr. Advocate with Mr. Ashish Giri, Advocate Mr. Sumit Kumar Jha, Advocate Mrs. Riya Giri, Advocate For the Railways : Mr. Anshay Bahadur Mathur, Advocate For the P.M.C. : Mr. Prasoon Sinha, Advocate with Mr. Yashraj Bardhan, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT Date :- 05-07-2023

Heard Mr. Y.V. Giri, learned Senior Counsel

for the petitioner, Mr. Anshay Bahadur Mathur, learned Counsel

for the Railways as also Mr. Yashraj Bardhan, learned Counsel Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

appearing on behalf of the Patna Municipal Corporation. Later

this Court also took assistance of Mr. Prasson Sinha, Retained

Counsel for the Patna Municipal Corporation.

2. The present petition has been preferred for

the following reliefs :-

i) to issue an appropriate writ

/order/directions in the nature of certiorari for quashing the

notice vide letter no. 706 dated 19.01.2019 issued under the

signature of the Municipal Commissioner, Patna Municipal

Corporation (henceforth for short 'the PMC') issued under

sections 324(1) and 323(1) of the Bihar Municipal Act, 2007 by

(henceforth for short 'the 2007 Act') which he has been directed

to stop the construction of the multifunctional complex at Patna

Sahib Railway Station till next order and further asked to reply

as to why necessary action under section 323 of 'the 2007 Act'

be not be taken for demolition of the said construction on

ground of violation of its sections 313 & 315 (Annexure-5);

ii) to issue an appropriate writ

/order/direction in the nature of certiorari for quashing the site

verification report vide letter no. 19 dated 16.01.2019 by which

it has been held that prima facie the construction made by the

petitioner is in violation of Bihar Building Bye Laws Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

(Annexure- 5A);

iii) to issue an appropriate writ

/order/direction in the nature of certiorari for quashing the letter

no. 170 dated 19.01.2019 issued by the Police Inspector- cum-

Officer In-charge, Chowk Police Station, Patna City by which in

the light of notice no. 706 dated 19.01.2019, the petitioner has

been directed to stop any further construction till next order

(Annexure-6);

iv) to issue an appropriate writ

/order/direction in the nature of certiorari for quashing the

notice no. 26 dated 21.01.2019 issued under the signature of the

Executive Engineer, Patna City Division, Patna Municipal

Corporation, Patna by which in terms of notice no. 706 dated

19.01.2019, the petitioner has been directed to stop the

construction work and to respond within 15 days before the

Municipal Commissioner, Patna (Annexure-7);

v) to issue an appropriate interim/ex-parte

interim order during the pendency of the writ petition allowing

the petitioner to proceed with the development and construction

of the multi-functional complex located at Patna Sahib Railway

Station and prevent the respondent from taking any further

coercive action.

Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

3. The matrix of facts giving rise to the writ

petition is/are as follows:-

4. As per the writ petitioner, the Parliament

has enacted a law to consolidate and amend the law relating to

the Railways called the Railways Act, 1989 (henceforth for short

"the Central Act").

5. Chapter-II A has been inserted in the said

'Central Act' by amendment Act, 47 of 2005 with effect from

30.08.2006 and in terms of section 4A therein, and the Central

Government has been empowered to establish an authority by

notification to be called the Rail Land Development Authority

(henceforth for short "the RLDA") to exercise the powers and

discharge the functions conferred on it by or under this Act.

6. The Central Government thus constituted

"the RLDA" in exercise of power under section 4A read with

section 198 of 'the Central Act' vide notification dated

04.01.2007 called the Rail Land Development Authority

(Constitution) Rules, 2007 (henceforth for short the "2007

Rules").

7. In terms of Rule 2(e) of 'the 2007 Rules',

"the RLDA" has been defined to mean Rail Land Development

Authority established under section 4A of the Central Act. Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

8. Further, in terms of Rule 5 of "the 2007

Rules", 'the Authority' is entrusted with the property by the

Central Government for development of railway land as it may

deem fit. Section 11 (d) read with (da) & Section 4D(2)(1) of

'the Central Act' empowers the Railway Administration for the

purpose of constructing or maintaining a railway develop any

railway land for commercial use.

9. Further, in terms of Rule 5(d) of 'the

Rules, 2007', in relation to commercial development of site to

the authority which is 'the RLDA', detailed plans for such

developments is to be approved by a committee consisting of

one Nodal Officer each from "the RLDA" and the railway

administration.

10. Accordingly, 'the RLDA' decided for

commercial developments/ developments of multi-functional

complex (MFC) over a land area of approximately 4110.85

sq.m. of railway land at Patna Sahib Railway Station for which a

competitive bidding process was initiated vide bid notice dated

15.07.2014.

11. M/s Balaji Infra Projects consortium (of

Mr. Pratik Sinha, Mr. Pravin Kumar Sinha and Mrs. Renu Sinha)

was the successful bidder and thus was issued the letter of Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

acceptances dated 22.10.2014 and revised letter of acceptance

dated 18.03.2015 by 'the RLDA'. The said selected bidder in

terms of the letter of acceptances promoted and incorporated the

present petitioner to be the lessee and requested 'the RLDA' to

accept him as the entity which shall undertake and perform the

obligations and enjoy the rights as specified therein.

12. Accordingly, the lease agreement was

entered into between 'the RLDA' and the petitioner on

12.01.2016 in terms of which it paid an amount of Rs.

1,03,05,095.00 towards the first installment of the lease

premium as specified in the letter of acceptances. The total lease

premium was Rs. 2,35,54,747.00 while the annual lease rent was

Rs. 10,35,953.00 every year to be increased by 15% every 3

years. The lease period was for 44 years 2 months 6 days ( i.e.

upto 2060).

13. The petitioner thereafter proceeded with

the construction of the MFC and invested (till the filing of the

writ petition) approximately Rs. 20 Crores.

14. According to the petition, the petitioner

also took loans from financial institutions to the tune of Rs. 11

Crores bearing the interest liability and has mortgaged the

leasehold right of the property in question alongwith other non- Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

movable assets such as office and flat of the Director of the

company.

15. Accordingly, the construction was done

in terms of the designs as certified by the architect registered

under the Bihar Municipal Act, 2007 which was in accordance

with the requirement of the Bihar Building Bye Laws

2014/National Building Code and the drawings were duly

approved by 'the RLDA' and also by the railway officers. One

of the approved map is on record as illustration.

16. 'The RLDA' vide its letter dated

04.07.2018 has informed the petitioner that the revised drawings

of parking was examined and approved by its competent

authority.

17. While the petitioner was constructing the

MFC in accordance with the approved drawing, it received a

notice vide letter no. 706 dated 19.01.2019 by the Patna

Municipal Corporation (henceforth for short 'the PMC') under

the signature of its the Municipal Commissioner by which it

was informed that the construction of the said MFC was in

violation of sections 313 & 315 of 'the 2007 Act' and thus,

notice under section 324(1) was issued with the direction to stop

the construction till the next order with further direction to reply Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

as to why action of demolition of the same be not undertaken.

18. The notice was on the basis of a site

inspection report vide letter no. 19 dated 16.01.2019 as per

which, it was found that the construction of the work was on the

land belonging to the Railways and the design has been

approved by the railway architect as per the information given

by the people there. However, no objection certificate for the

construction was not shown on the site and hence, it was

concluded that prima facie the construction was in violation of

the Building Bye Laws.

19. The contention in the writ petition is that

in the show cause notice and/or the inspection report, the

respondents have not narrated on the regulation of the Bye Laws

that had not been followed/violated or as to what has been the

departure from the approved sanctioned map. In short, it was

vague and the action was initiated only on the basis of surmises

and conjectures without verifying any document regarding

compliance of the requirement in law.

20. Further, in terms of the notice dated

19.01.2019, the respondent Police Inspector-cum-officer in-

charge, Chowk Police Station, Patna City also issued a notice

no. 170 dated 19.01.2019 directing it to stop the construction till Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

next order.

21. Similar notice to stop the work/

construction in terms of letter no. 706 dated 19.01.2019 was

issued by the Executive Engineer, Patna city Division, 'of the

PMC' vide letter no. 26 dated 21.01.2019.

22. As per the writ petition, the construction

in question is on the land of the railway located at Patna Sahib

Railway Station and it is 'the RLDA' which in terms of the Act

as explained earlier, has been vested with the property for

carrying out its development for commercial use and public

amenities and is thus operational building of railway as notified

by the Railway Board, Government of India, Ministry of

Railway vide letter dated 26.07.2012.

23. Further, the multifunctional complex is

an extension of the station building and is next to platform no.1

of Patna Sahib Railway Station to be used for daily amenities

like daily needs items, medicine, luggage, book store, ATM, etc.

for the passengers. The multifunctional complex is having a

multilevel car parking facility of three floors having built-up

area of approx 25000 sq.ft. for the use of train passengers and

general public as per the instruction of 'the RLDA'.

24. Further, in terms of section 11 read with Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

Rule 5 of 'the 2007 Rules' and the Circular dated 26.07.2012,

it is apparent that 'the RLDA' alone is the authority for the

development/approval of plans and thus the approval of the

same is not required from 'the PMC' The only requirement

being that the map/design should be in accordance with the Bye

Laws.

25. In the light of notices so issued, the

petitioner represented before 'the RLDA' vide letter dated

21.01.2019 bringing to its notice the action being taken by the

Patna Municipal Commissioner with request to take necessary

steps.

26. 'The RLDA', in turn vide letter dated

24.01.2019 informed the petitioner that railway / RLDA officials

are empowered to accord approval of the drawings for MFCs,

developed by a certified architect of the concerned Municipal

Corporation. It has also been certified that the drawings for

MFC at Patna Sahib Railway Station are prepared by certified

architect of 'the PMC', Sri Sachin Kumar (registration no.

CA/2013/61209) in adherence to Bihar Building Bye Laws and

subsequently these drawings were approved by competent

railway/RLDA with a provisions of 15% extra parking facility

and 18.30 meters access road on western side of MFC to satisfy Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

Bihar Building Bye Laws.

27. 'The respondent RLDA' vide letter dated

24.01.2019 also informed 'the PMC' regarding the same with a

request to withdraw the notice issued by it to the petitioner so

that the construction work can be completed.

28. However, as the damocles sword (of 'the

PMC') was hanging over the petitioner, he has been forced to

file the present writ petition.

29. Heard learned Counsels for the parties.

30. Mr. Y.V. Giri, learned Senior Counsel

appearing for the petitioner has taken this Court to 'the 2007

Rules' with specific reference to para 5(d) which read as

follows:-

"5(d) Where commercial development of site entrusted to the Authority under clause (ii) of sub-section (2) of section 4(D), involves construction or redevelopment or modifications to railway station building and/or yards, the detailed plans for such development shall be got approved by a Committee consisting of one nodal officer each from Authority and railway administration and the Central Government shall ask the railway administrations to nominate one nodal Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

officer for such purpose."

31. He further took the Court to its para 27

(4) which again read as follows:

"27 (4) A committee appointed by the Board shall holistically scrutinize all schemes for commercial development of railway land, including aspects of safety, aesthetics vis-a-vis surroundings and user amenities."

32. Mr. Giri also took this Court to the letter

dated 24.01.2019 (Annexure 2 to the writ petition) issued by

'the RLDA' and addressed to the Municipal Commissioner, of

'the PMC' in which it was specifically stated that the Railways/

RLDA Officials are empowered to accord approval of the

drawings. Further request was made to withdraw the notice

issued.

33. He also took this Court to the

supplementary affidavit which includes the completion

certificate dated 26.07.2019 (Annexure 13 ). It is appropriate to

incorporate the same too for the proper appreciation: Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

"No. RLDA/2010/Project/ MFC/ Patna Sahib July 26, 2019

To.

Patna Sahib Infrastructure & Developers Pvt. Ltd. 5A-D, Chandi Vyapar Bhawan, Exhibition Road, Patna-800 001.

Subject: Completion Certificate for Development of

MultiFunctional Complex (MFC) at Patna Sahib Railway

Station.

Ref: (i) LOA No. RLDA/2010/ Project/ MFC/Patna Sahib

dated 18.03.2015

(ii) Lease Agreement no. RLDA/2016/LA/14 dated

12.01.2016.

(iii) Your application no. nil dated 08.07.2019.

Completion Certificate

With reference to your application dated

08.07.2019 it is hereby certified that completion plan No.

RLDA MFC PATNA SAHIB 01 OF 12 /CP to 12 OF 12/CP of

MFC Building at Patna Sahib Railway Station has been

checked as per the checklist and documentary evidences

submitted along with your application and is permitted for

commercial operation and sub- leasing subject to fulfillment

of terms and conditions laid down in the lease agreement. The Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

completion certificate is hereby issued in terms of submittals

and undertaking of the Lessee. However, in no event, the

completion certificate amount to certification of conformity

with the approved drawings, applicable laws or discharge the

Lessee from its responsibility of complying with the

requirement of the Lease Agreement, applicable laws and

applicable permits.

(GS. Prasad)

Jt. General Manager/SD"

34. Mr. Giri as such submits that the

development took place on the land of the Railways after

approval of its authorities, who were competent to do the same,

'the PMC' had no role to play in the matter but it tried to put

spoke in the wheels forcing the writ petitioner to knock the

doors of the High Court.

35. The last submission of the learned Senior

Counsel is that "the PMC' demanded and is/are being paid the

holding tax by the petitioner (Annexure 25 series to the

supplementary affidavit) under protest.

36. He as such averred that in the aforesaid

backdrop, the writ petition is fit to be allowed.

37. It is to be noted that a co-ordinate bench Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

of this Court vide an order dated 13.02.2019 while directing the

respondents to file reply had given interim protection and it is

important to incorporate the concluding part:-

"Let a counter affidavit on behalf of respondent Nos. 1, 2 & 3 as well as respondent No. 5 be filed within a period of three weeks from today.

Till then, the petitioner may carry on the remaining construction work at his own risk and subject to final decision in the writ application.

In the meantime, the Municipal Commissioner, Patna Municipal Corporation will not pass any consequential order.

Let the matter be listed on 7th of March, 2019."

38. Pursuant thereto, the work continued and

as per supplementary affidavit, completion certificate has also

been issued by the Railways.

39. The respondent no. 5 (Railway

Authority) also filed counter affidavit and supported the case of

the writ petitioner and the paragraph 7 of its reply read as

follows:

7. That the land in question is a Railway land as described in Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

the Section 2 (32A) of the railways Act. The Municipal Corporation under the provisions of the Section 100 of the Bihar Municipal Act, 2007 has been vested with the all public land not belonging to any government department or statutory body or corporation. The instant land indisputably belongs to the Railways and Railways has full authority over and ownership rights it and hence the provisions of the Section 11 of the Railways Act will apply on the said Railway Land."

40. It is the contention of Mr. Mathur,

learned counsel appearing for the Railways that it has the

authority to develop the land, approve the drawings/map and the

work having been done, completion certificate has already been

issued. So far as the responsibility of obtaining other

approvals/licenses/permissions are concerned, that lies with the

developer as already clarified in letter dated 24.01.2019.

41.The learned Counsel appearing on behalf

of 'the PMC' submitted that the petitioner jumped the ship and

filed writ petition only on the notice issued by it instead of

appearing and filing show cause. His contention is that no order

was passed necessiating this writ petition. Thus, according to

them, the writ petition being premature is fit to be dismissed. Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

42. The further submission is that as per

section 314 of 'the 2007 Act', unless approved by the

Competent Authority (of PMC), no construction work can be

done within the jurisdiction of municipal area.

43. He further took this Court to para 17 of

the reply which read as follows:

17. That it is submitted that if there is requirement of confirmation to local building bye-laws, the petitioner cannot abdicate its obligation to obtain sanction/permission/no objection from the Municipal Corporation.

44. The last submission is that acceptance of

holding tax from the petitioner does not mean that a ' no

objection certificate' is not required.

45. Having heard the learned Senior Counsel

for the petitioner as also the learned counsel appearing on behalf

of the Railways and 'the PMC' as also after perusing the

documents/annexures on record , the Court finds force in the

submissions put forward by the learned Senior Counsel for the

petitioner.

46. 'The 2007 Rules' in Clause 5 (d) clearly

envisages approval of plans by a committee constituting

amongst other 'the RLDA'' and the Railway Administration. Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

47. Further as per Clause 27(4), the

Committee scrutinizes the schemes relating to the

development/construction. Also, 'the RLDA' in its letter dated

24.01.2019 clarified that they are empowered to develop the

railway for its commercial use and accord approval of the

drawings of MFCs.

48. Further, it was also clarified in the said

letter dated 24.01.2019 that the railway development of the

MFC at Patna Sahib is being undertaken by the lessee as per the

approved drawing (Annexure-11).

49. This Court took note of the letter dated

26.07.2019 issued by 'the RLDA' by which completion

certificate has been issued to the petitioner firm (Annexure-13

to the supplementary affidavit).

50. This Court is thus fully convinced that

the petitioner firm has acted strictly in lines with the directions

issued by the Railways from time to time, under which the

construction work took place.

51. The Court later also took assistance of

Mr. Prasoon Sinha, learned Retained Counsel for 'the PMC'

who (supporting the notice issued) made the following

submissions :

Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

(i) rushing to Patna High

Court on mere notice was premature as no

order was passed;

(ii) acceptance of

holding tax does not amount to approval;

(iii) in any case, the

petitioner is duty bound to take 'no objection

certificate from 'the PMC'.

52. This Court accepts the last submission

made by Mr. Prasoon Sinha, as the same is in the line with the

letter dated 24.01.2019 (Annexure-11 to the writ petition) issued

by 'the RLDA' to 'the PMC'and the paragraph -8of the said

letter states as follows:

"8. Further as per Railway Board Circular No. 2008LML/2/13 dated 26.07.2012 (Copy annexed in Annexure-1), MFCs building are covered U/S 11 of Railways Act, 1989 and Paragraph No-201 of Indian Railway Works Mannual, 2000 and considered as "Operational Buildings" of Railways. Accordingly Railway/RLDA officials are empowered to accord approval of the drawings for MFCs, developed by a Certified Architect of the concerned Municipal Corporation in adherence to Local Building Bye Laws, however the responsibility of obtaining other Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

approvals/licenses/permissions lies with the developer."

(underline mine)

53. Admittedly, when the Railways have

accorded approval, the construction has been carried out and the

completion certificate also granted by it, 'the PMC' cannot arm

twist the petitioner to get a map sanctioned by it when the entire

formalities have been completed by the Railways (as it was

legally entitled to) and the construction was also

done/completed under its eagle eyes.

54. However, in line with the letter dated

24.01.2019 issued by 'the Railways', it need to get a 'no

objection certificate' from the local authorities, (in this case, 'the

PMC') and the petitioner is duty bound to submit all the

documents (issued by the Railways from time to time) before

'the PMC' with requisite fees so that it can issue the necessary

'no objection certificate'

55. This Court thus directs the petitioner to

approach 'the PMC' within four weeks from today with its

application for grant of 'no objection certificate' alongwith all

the supporting documents and requisites fee.

56. If the petitioner approaches 'the PMC'

within four weeks from today for grant of 'no objection Patna High Court CWJC No.2399 of 2019 dt.05-07-2023

certificate', 'the PMC' shall be duty bound to consider the same

and take decision for grant of the 'no objection certificate'

within a period of three months thereafter.

57. Since the petitioner firm has been

directed to present its application alongwith relevant documents

before 'the PMC' for the grant of 'no objection certificate' , all

the previous notices issued by the respondent authorities to the

petitioner firm stand quashed.

58. The writ petition is disposed of with the

aforesaid observations.

(Rajiv Roy, J) Jagdish/Neha/-

AFR/NAFR                   AFR
CAV DATE                26.06.2023
Uploading Date          05.07.2023
Transmission Date