Allowed

Hari Prasad v. the Chairman,Nagar Panchayat B

Patna HC25 Apr 2013CWJC/11212/2011

Case brief

AI extract

What is this about?

This single judge bench quashed a demolition notice issued under Sections 313, 315, and 317 of the Bihar Municipal Act, 2007. The court held the notice unsustainable as it was issued without a preceding final order or an opportunity of hearing under Section 319. The matter was remitted for a fresh decision.

What did the court decide?

Impugned demolition notice quashed and set aside; matter remitted for fresh decision after hearing.

Hari Prasad Vs the Chairman,Nagar Panchayat B — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.11212 of 2011

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====================================================== Hari Prasad Late Amrit Yadav Ward No. 18, Bodh Gaya Care Of Hotel Tathagat, P.S. Bodh Gaya, Dist. Gaya. .... .... Petitioner Versus 1. The Chairman,Nagar Panchayat Bodh Gaya, Dist. Gaya. 2. The Executive Officer, Nagar Panchayat Bodh Gaya, Dist. Gaya. 3. The District Magistrate, Dist. Gaya. .... .... Respondents ====================================================== Appearance : For the Petitioner : M/s Mrigank Mauli and Samir Kumar, Advocate For the Respondent : Mr. Ashok Kumar, Advocate Nos. 1 and 2 For the State : Mr. Naresh Prasad, A.C. to S.C. 20 ======================================================

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CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN ORAL ORDER

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5 25-04-2013 I have heard learned counsel for the petitioner, the respondent nos. 1 and 2 and the State.

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Petitioner is aggrieved by the notice issued to him under Sections 313, 315 and 317 of the Bihar Municipal Act, 2007 directing him to demolish his illegal construction over the plot and Holding mentioned in the notice within 15 days failing

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Patna High Court CWJC No.11212 of 2011 (5) dt.25-04-2013

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which it to be carried out by the authority and the expenditure of doing that would be recovered from the landowner as unpaid land revenue.

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Learned counsel for the petitioner raises a short question that without considering the reply to the show cause notice and without passing any final order recording reasons for rejecting his ground and without affording opportunity of hearing to him in terms of Section 319 of the Bihar Municipal Act, the notice for demolition for structure could not have been issued by the municipal authority.

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A counter affidavit has been filed on behalf of the respondent nos. 1 and 2. It has been stated that despite several earlier notices the petitioner did not respond. However, after final notice dated 13.10.2010 he has responded by filing a reply thereof which has been appended to the counter affidavit as part of Annexure B series. However, learned counsel submits that the grounds taken therein are not tenable and since the petitioner has constructed the building within the Core Zone that has to be demolished. Though the respondent has taken a stand that the petitioner has constructed a building without any sanctioned map but from the impugned notice it appears that same has been issued for constructing a building deviating from the

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Patna High Court CWJC No.11212 of 2011 (5) dt.25-04-2013

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approved map.

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Be that as it may the concerned authority can not pass any adverse order against the owner or any person responsible for construction without affording reasonable opportunity. Sub Section 319 (2) of the Bihar Municipal Act, 2007 further mandates that before passing any adverse order opportunity of hearing should be provided to such person or party. In the present case it does not appear that even order has been passed prior to issuance of impugned notice for demolition (Annexure 4) rejecting the claim of the petitioner and it also does not appear that any opportunity of hearing was accorded to the petitioner. A Division Bench of this Court in M/s Umesh Chandra Kumar v. The State of Bihar and others [1999(1) B.L.J., 548] has held that if an order is to be passed by the authority concerned visiting civil consequence upon a party, a show cause notice would be must and if any adverse order is going to be passed then reasons must be recorded after consideration of reply to the show cause notice for rejection of the ground raised in such reply.

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In the present case it appears that without passing any final order for demolition the impugned notice has been issued which is not sustainable in law. Accordingly, this writ

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Patna High Court CWJC No.11212 of 2011 (5) dt.25-04-2013

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application is fit to be allowed. The impugned notice as contained in Annexure 4 is quashed and set aside. However, the matter is remitted back to the authority concerned to take a fresh decision on its own merit and in accordance with law after granting reasonable opportunity as per the statute and by passing a speaking and reasoned order and thereafter the consequential steps, if that is required, can be taken. Let the petitioner appear before respondent no. 2 within ten weeks along with a copy of this order. Thereafter a date should be fixed and the authority concerned should proceed further. It is expected that the whole exercise should be completed within four months from date of the production of a certified copy of this order. If the petitioner does not appear before the authority within ten weeks then the authority concerned would be required to proceed in accordance with law even in absence of the petitioner.

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(Dr. Ravi Ranjan, J)

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Spd/-

Hari Prasad v. the Chairman,Nagar Panchayat B

Case brief

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Hari Prasad v. the Chairman,Nagar Panchayat B

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