IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10905 of 2006 Bhagirath Prasad Singh son of late Ram Bilash Singh, resident of MIGH No. Q/360, “Vidya Bhawan”, Lohianagar, P.O. & P.S. Kankarbagh, Patna-800020… … … Petitioner Versus 1. Patna Municipal Corporation through its Commissioner-cum-Chief Executive Officer, Budh Marg, Patna-800001, 2. The Executive Officer, Kankarbagh Circle, Patna Municipal Corporation, Patna-800001, 3. The Bihar State Housing Board through its Managing Director, Patna-800015, … … Respondents For the Petitioner: Mr. Basant Kumar Choudhary, Sr. Adv. With Mr. Anil Kumar Singh, Advocate For the Patna Municipal Corporation:Mr. H.S. Himkar,Adv. For the Intervenor: Mr. Harsh Anuj, Advocate ----------- 14 18.07.2011 By filing this writ application the petitioner seeks quashing of letter dated 18.08.2006, which is a notice issued by respondent no. 2 upon him to remove certain encroachments within 72 hours as it has been found upon verification that the drainage/sewerage line has been encroached by making Kuchcha/pucca construction. Counter affidavits have been filed on behalf of the respondent nos. 1 and 2 and also on behalf of the respondent no. 3, the Bihar State Housing Board. Interlocutory Application bearing I.A. No. 4794 of 2006 has been filed on behalf of one Hari Kishore Prasad 2 Sinha to be impleaded as party-respondent in this case to oppose the writ application, as, according to him, he would be directly affected by the result of the same. I have heard the parties and perused the record of this case. Learned counsel for the petitioner submitted that MIG No. Q/360 has been allotted to him by the respondent no. 3-the Bihar State Housing Board in the year 1978 itself and after completion of all the formalities and payment, the petitioner came in possession over the same and had made certain constructions. Subsequently, one adjacent portion was also allotted to him. However, on 10.01.2006 a notice was issued by the Kankarbagh Circle of Patna Municipal Corporation for removal of the encroachment from over the said land within fifteen days as it had appeared them that he had encroached upon the sewerage line between MIG Nos. 108 and 162 by making construction over MIG No. 360 leading to obstruction in sewerage line and water-logging in the locality. Learned counsel challenged the aforesaid notice by filing C.W.J.C. No. 5050 of 2006. A prayer for restraining the respondents-authorities from taking any action to demolish the residential building of the petitioner 3 bearing MIG No. Q/360 was also made. However, at the time of hearing of the aforesaid application learned counsel for the Patna Municipal Corporation had informed that the Corporation, had decided to withdraw the aforesaid notice and assured that no action would be taken pursuant thereof. Thus, it was submitted that in the said circumstances, no grievance of the petitioner remained to be redressed rendering the writ application infructuous. Considering the facts and circumstances of the case, the aforesaid writ application was disposed of taking into notice that the impugned notice dated 10.01.2006 was being withdrawn. Learned counsel submitted that the aforesaid notice stood withdrawn, however, on 18.08.2006 a similar notice was again issued against the petitioner granting 72 hours’ time for removing the encroachment obstructing sewerage line, compelling the petitioner to file the present writ application. Learned counsel submitted that the Patna Municipal Corporation after withdrawing the earlier notice of similar nature upon the undertaking given by P.M.C., could not have issued selfsame notice again after a lapse of about one month from the date of passing of the order dated 07.07.2006 in C.W.J.C. No. 5050 of 2006. 4 That apart, a supplementary affidavit has also been filed on behalf of the petitioner bringing on record certain orders passed by a Division Bench of this Court in relation to the writ petition bearing C.W.J.C. No. 15742 of 2001 filed by one Hari Kishore Prasad Sinha, the intervenor in this case, with respect to the same issue, which was dismissed on 9th of September, 2008, i.e. during the pendency of this writ petition. Learned counsel submitted that in its decision the Division Bench, after considering the various reports and maps and sewerage plans produced by the authorities and the documents produced on behalf of the petitioner, has come to the conclusion that the sewerage line does not pass beneath the plot allotted to the petitioner. Therefore, the matter stands settled by the aforesaid decision of the Division Bench. Learned counsel submitted that the petitioner thereof, namely, Hari Kishsore Prasad Sinha, who claimed that his plot was adjacent to the plot of the petitioner, challenged the aforesaid order by filing Special Leave to Appeal (Civil) No. 6562 of 2009, however, the same was also dismissed. Thereafter again Review Petition No. 1022 of 2009 was filed for review of the aforesaid order passed by the Apex Court, but that was also dismissed. 5 Thus, it is contended on behalf of the petitioner that in view of the final finding that no sewerage line passes through the plot of the petitioner and construction has not brought any hindrance to the passage of sewage, a subsequent notice for the self same purpose, i.e. for removal of encroachment upon the sewerage line, as contained in Annexure 1 is liable to be set aside. Mr. H.S. Himkar, learned counsel appearing on behalf of the Patna Municipal Corporation, submitted that though a counter affidavit has been filed on behalf of the Patna Municipal Corporation defending the action of the respondent, however, he further submitted that the same matter was considered in detail by the Division Bench in C.W.J.C. No. 15742 of 2001 and upon perusal of all the documents as well as sewer plan, the Division Bench has come to the conclusion that plot no. MIG Q/360 of the petitioner did not come over the sewer line. In above view of the matter, since the order having been affirmed by the Apex Court, S.L.P. (Civil) as the Review Petition has also been dismissed, the order has attained finality and the Patna Municipal Corporation has accepted the finding of the Division Bench, thus, the impugned notice definitely has to 6 go. However, learned counsel for the intervenor, namely, Hari Kishore Prasad Sinha, has vehemently argued that the construction of the petitioner over the plot in question has obstructed the sewer line and, thus, the construction has to be removed, however, he admits that he had filed C.W.J.C. No. 15742 of 2001, which was subsequently converted into Public Interest Litigation and thereafter the same was decided by a Division Bench. But, according to him, the issue in question was not with respect to the entire plot no. Q/360, rather the extra land, which was allotted subsequently by the Bihar State Housing Board in favour of the petitioner and that was adjacent to the main plot no. Q/360. He claims that he has only claimed in the writ application that sewer line passes beneath the extra land allotted to the petitioner and only that issue has been decided by the Division Bench and not the issue of sewer line beneath the entire plot over MIG No. Q/360. However, from perusal of the order dated 09.09.2008 passed in C.W.J.C. No. 15742 of 2001, it appears that even though the case of the petitioner was that the extra land to the west and south of plot No. Q/360, later on allotted to the petitioner, 7 came under sewer line, however, the Division Bench has also held that the sewer plan goes to suggest that the same passes beneath the road and not beneath any plot, i.e., the MIG No. Q/360 and also the extra land later on allotted on the western side of MIG No. Q/360. It has further been submitted on behalf of the intervenor that though the aforesaid order was challenged before the Supreme Court and the S.L.P. as well as the review application were dismissed, however, he had again filed a review petition before this Court for review of the order passed by the Division Bench in C.W.J.C. No. 15742 of 2001, however, the same was also dismissed by order dated 06.04.2010 passed in Civil Review No. 268 of 2009 and, thereafter, he has again moved before the Supreme Court against the dismissal of the review application. In support of his submission he has produced the information gathered from the website of the Supreme Court regarding Diary No. 26122 of 2010 wherefrom the date of filing appears to be 18.08.2010, however, the same shows that a defective petition was filed before the Supreme Court. On being asked to produce any stay order passed by the Apex Court in this regard, learned counsel submitted that since the 8 petition filed on 18.08.2010 is still defective, no stay order could be obtained till date. It is apparent from the order passed by the Division Bench of this Court that the matter in issue was considered in detail and certain findings have been recorded therein, which are quoted hereunder:- “Since, Annexure-7/1 was a plan copy, we permitted the petitioner to file a certified copy of the original sewer plan. Accordingly, copy of the certified copy of Annexure-7 had been filed. They are almost identical. The same suggests that the sewer passes beneath the road and not beneath any plot of land.” xxx xxx xxx “Be that as it may, by visually comparing Annexure-7 with Annexure-7/1, it would be evident that plot No. Q60 did not come over the sewer and it is also not the case of the petitioner that plot no. Q60 is over the sewer. It is the case of the petitioner that the extra land later on allotted on the West and South of plot No. Q60 came over the sewer. As per the finding of P.R.D.A., no construction has been made over the extra allotted land and in such view of the matter considering all the 9 papers and documents produced by the petitioner, it does not appear that construction made on plot No. 360 did at all damage any sewer………..” Even if it is assumed that in the writ application filed by the intervenor, he had not raised the issue of sewer line passing through the entire plot no. Q 360, rather his case was regarding the same passing through the additional allotted plot only, even then again it was open for him to raise the aforesaid larger issue. In the absence of that it would not be open for him to raise such issue as an intervenor in this case. However, it appears that the Division Bench has clearly recorded a finding that neither the plot no. Q/360 nor the subsequently allotted additional plot is over the sewer line. It is also quite clear from above decision that no construction made over plot no. Q/360 has damaged any sewer or come over the sewer line and the S.L.P. and Review Petition challenging the same have been dismissed by the Apex Court as also the review application to the original order stands dismissed by a Division Bench of this Court. Thus, this Court would also follow the finding recorded by the Division Bench and it would not be proper 10 to reopen the matter once again. That being the situation, in the opinion of this Court the notice dated 18.08.2006, as contained in Annexure 4, has to go and is, accordingly, quashed in view of the aforesaid facts and circumstances. Accordingly, the writ petition stands allowed. SC ( Dr. Ravi Ranjan, J.)