Petitioner challenged a Rs.1,25,000 fine imposed by the Begusarai Municipal Commissioner under section 315 of the Bihar Municipal Act, 2007 for erecting two iron poles on a municipal road without sanction. Court upheld the penalty, holding the Commissioner acted within his powers.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12398 of 2024
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Abhay Kumar Jha Son of Nand Kishore Jha, Resident of Mohalla Biswanath Nagar, Gali No.06, Ward No.23, P.S. Kotwali, District Begusarai
... ... Petitioner/s
Versus
... ... Respondent/s
====================================================== Appearance :
For the Petitioner/s : Mr.Ashok Kumar Verma, Advocate For the Respondent nos.1 and 2 : Mr. Kinkar Kumar, SC-9 For the respondent no.3 : Mr. Prasoon Sinha, Advocate (on the request of the Court)
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CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
2 20-08-2024 Heard Mr. Ashok Kumar Verma, learned counsel for the petitioner and the State.
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Municipal Commissioner, Begusarai has no power to pass such order, it is in exclusive domain of the Empowered Standing Committee. He took this Court to section 22 of ‘the 2007 Act’ in support of his case which read as follows:
22. Executive power of Municipality to be exercised by Empowered Standing Committee. Subject to the provisions of this Act and the Rules and the Regulations made thereunder, the executive power of a Municipality shall be exercised by the Empowered Standing Committee.
10. The Executive Powers of the Municipality shall vest in the
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Empowered Standing Committee. Executive Powers shall be used collectively:
Provided that administrative control on the Staffs of Municipality shall vest in Chief Executive Officer/ Executive Officer. Resolution shall be
passed in the light of orders directions issued time to time by the State Government.
Officially brought agenda shall contain the following-
(a) Items relating to the establishment as per provisions of the Act, which includes appointments, promotions, benefits, transfers, disciplinary actions etc of
the employees of the Municipality.
(b) Items relating to the collection of taxes and fees.
(c) Items relating to the financial position of the Municipality. (d)
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Development activities undertaken and to be undertaken by the Municipal body. (e) Items necessary for effective implementation of the provision of the Act:
Provided that all items are to be placed before the Committee by the Chief Municipal Officer and shall be in the form of memorandum which will include the subjects, the status and the proposal to be approved by the Committee. A separate sheet is to be attached under the signature of the Chief Municipal Officer specifying the period by which the proposal approved by the Committee shall be implemented.
(4) The Empowered Standing Committee shall not discuss and pass a resolution in (a) any matter/issue which is against the Rules, laws and directives of the State Government;
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(b) any issue which is sub-judice in any court of law and which may affect the interest of Municipality adversely.
(5) All issues passed by the Committee shall be placed before the Municipality in its next meeting.
“ 313. Prohibition of construction
without sanction .—No person shall construct, or commence to construct, any building or any structure of a permanent nature or execute any of the work relating to construction of building including addition, alteration or modification of an existing building in any municipal area, save and except in accordance with building
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bye-law.”
2007 Act’ which read as follows:
435. Encroachment on streets.
No person shall cause any damage to any property belonging to the Municipality. Any person causing any damage to any property belonging to the Municipality shall, on conviction, be punished with fine which may extend to one thousand rupees.
315. Construction of building in
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contravention of building by-law.
Any building or structure of permanent nature which has been constructed or construction has commenced in contravention or breach or deviation of building bylaw shall be liable to be demolished, notwithstanding that it may have been approved by a registered Architect. Provided further that the owner or occupier or any person responsible for construction of a building or structure of permanent nature or commencement of construction in contravention, breach, or deviation of building by-law shall further be liable to pay a penalty of minimum of Rupees one lac, which may extend up to Rupees 10 lacs depending upon size of the building or structure and extent of deviation. Provided further that the penalty under this Section
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shall be in addition to any other fine provided under this Act including fine for compounding as may be provided under building bye-law.
the things which are clear:
(i) without any application/approval, the petitioner erected two iron poles on the road;
(ii) Lalan Kumar (respondent no.5) made a complaint before the Begusarai Municipal Corporation;
(iii) Upon inspection, the complaint was found to be true;
(iv) the Municipal Commissioner, Begusarai Municipal Corporation thereafter constituted three members Committee to enquire and submit report;
(v) the Committee also gave the same report that the petitioner has violated the different sections of ‘the Act’ as has been stated above by erecting poles on the road without approval.
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Commissioner, Begusarai invoked section 315 of ‘the Act’ which allows him to impose fine after having been convinced that the different sections of ‘the 2007 Act’ has been violated.
(Rajiv Roy, J)
Ravi/-
U
1 issue framed by the court
Whether the Municipal Commissioner could impose a fine under section 315 of the Bihar Municipal Act, 2007 for unauthorised construction, or whether this lay with the Empowered Standing Committee.
6 provisions across 3 enactments
Abhay Kumar Jha
The State of Bihar through Chief Secretary of Bihar, Patna
The District Magistrate, Begusarai
The Nagar Ayukat, Nagar Nigam, Begusarai
The Police Officer Incharge, Nagar Thana, Begusarai
Lalan Kumar
Rajiv Roy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
