IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17196 of 2010 AMOD KUMAR . Versus PATNA MUNICIPAL CORPORATION & ORS . ----------- 6/ 11/01/2011 Heard learned counsel for the petitioner and the Patna Municipal Corporation. The petitioner seeks mandamus against the Corporation for issuance of necessary certificate under Section-21(4) of the Bihar Apartment Ownership Act, 2006 (hereinafter referred to as the Apartment Act) to enable him to produce the same before the Registration Authorities for registration of the flat in his name under the Registration Act. The petitioner states to have purchased an apartment located on the third floor of “R.D. Tower” Phase-2 situated at East Nehru Nagar, Patna constructed by M/s. Magadh Colonizers Private Limited. The Managing Director of the Company died in course of the construction of the apartment. His wife then stepped into the shoes of the Managing Director. The apartment complex was built on private lands under an agreement between the land owner and the builder consisting of 16 flats of which 12 were in the builder‟s share and 6 in the land owner‟s share. Four flats on each floor fell to the builder‟s share and two to the land lord. - 2 - The petitioner was issued a possession letter, no dues certificate and also a deed of agreement with the builder in pursuance of the power of attorney given by the land owner. The possession letter and agreement mentioned the flat number as „35‟ while the allotment letter mentioned „32 N.E.‟. The expression N.E. signifying the location of the flat as North East on the third floor. The flat was mutated by the Municipal Authorities granted holding No.1195/11 in Mutation Case No.1045/01-02, flat No.35. Property Tax is stated to have been paid and received till September, 2010. On 10.4.2010 the petitioner applied to the Municipal Corporation for issuance of the necessary certificate under Section-21(4) of the Apartment Act. Nothing transpired on the same. Then he filed the present writ application on 1.10.2010 after serving two copies on the counsel for the Corporation. That did not impress upon the officers of the Corporation their obligation and duty to discharge their statutory duties under the Apartment Act. The writ petition was taken up for consideration first on 26.11.2010. The Court noticed that the petitioner required the registration urgently to enable him to secure a bank loan for his daughter‟s education. It was also noticed that other flats in the building have - 3 - been registered without any problems and that an objection of a trivial nature was being raised by the Municipal Corporation with regard to the petitioner‟s flat. Despite the same, no counter affidavit was still filed by the Municipal Corporation. The Court on 6.12.2010 granted one more indulgence to file a counter affidavit. On 13.12.2010 also no counter affidavit was filed by the Municipal Commissioner. He confronted the Court with his own conclusions of having rejected the petitioner‟s application, unmindful of his duty to place all materials including his orders before the Court, leaving it for the Court to adjudicate upon it. The Court was therefore constrained to direct his personal appearance. On 14.12.2010 the Municipal Commissioner appeared in person, but again did not file any counter affidavit. It was stated that he had passed a draft order and then upgraded it. None of the two orders were placed before the Court. On 14.12.2010 the Court had directed the Municipal Commissioner, present in person, to file an affidavit placing on record both, the draft order and the final order. On 3.1.2011 the Municipal Commissioner again confronted the Court with his own decisions, disobeying Court directions by filing on affidavit annexing only the final order dated 14.12.2010 and not the draft - 4 - order as directed by the Court. After he was questioned on his conduct, the draft order dated 27.11.2010 was brought on record by affidavit on 7.1.2011. It bears a clear interpolation correcting the date to 26.11.2010. A fresh order has again been passed by him on 11.1.2011 seeking to add to the earlier order dated 14.12.2010. There are thus three orders dated 27.11.2010, 14.12.2010 and 11.1.2011 of the Municipal Commissioner under consideration. The aforesaid discussion of the conduct of the Municipal Commissioner severely disappoints the Court leaving it satisfied that he was deliberately and consciously adopting an attitude of defiance and confrontation in the proceedings and with regard to Court orders. His duty as a Government functionary exercising statutory powers was to place proper materials before the Court for dispensation of justice and to assist the Court. Section-21(4) of the Apartment Act reads as follows:- “(4) The application under Sub-section-(2) and (3), as the case may be, shall be given in prescribed form in writing in the office of the competent authority of the area for certificate to be produced before the Registration Officer for enforcing the registration of the transfer. After making such enquiry as may be necessary and satisfying itself that the applicant has done what he is required to do under the agreement, the competent authority shall issue a certificate to the concerned Registration Officer within a period of two months from the date of application - 5 - that it is a fit case for enforcing registration and shall further direct the applicant to present the deed of apartment though not executed by the other party for unilateral execution and registration. The Registering Authority shall register the instrument. Notwithstanding anything contained in the Transfer of Property Act, 1882 or the Registration Act, the registration of the instrument made under this Section shall be sufficient to vest the property with the applicant. Service charges of Rs.2,500/- with each application shall be charged by the competent authority whoever is defaulter i.e. promoter/ owner/ allottee. The petitioner admittedly applied under Section-21(4) of the Apartment Act in the prescribed manner on 10.4.2010 under proper receipt granted to him bearing No.2620 of the same date. Contrary to the records and without denying the same, the Municipal Commissioner in his order dated 14.12.2010 wrongly states that the petitioner had applied only on 17.7.2010. The application of the petitioner under Section-21(4) of the Apartment Act was required to be disposed by the Municipal Commissioner within a period of 2 months from the date of the application. Nothing transpired on his application from 10.4.2010 till the order of the Court dated 26.11.2010 referred to hereinbefore. The third affidavit of the Municipal Commissioner discloses that an enquiry under Section- 21(4) of the Apartment Act was done by the Executive - 6 - Engineer and the Additional Town Commissioner (Planning) as late as on 21.10.2010 only after the writ application was filed on 7.10.2010 serving copies on the counsel for the Municipal Corporation making them aware of the pendency of the present proceeding. The three affidavits of the Municipal Commissioner do not contain any statement much less even the semblance of an explanation why contrary to the statutory requirement the application of the petitioner was kept aside for six months contrary to the statutory provisions. A statutory functionary holds the power in trust on behalf of the State Government. It is not an independent and absolute power in the individual functionary. If a citizen challenges his actions, quite distinct from the answerability of the State Government the individual functionary vested with the statutory power in trust by the State Government becomes answerable not only to the Government but also to the citizen and the Court individually and personally. The draft order of the Municipal Commissioner dated 27.11.2010 notices the enquiry report 21.10.2010 referred to above. The enquiry report confirms that the petitioner had submitted the necessary no dues certificate, the affidavit and application. The agreement with the builder and allotment letter was also - 7 - available mentioning-B-32(N.E.) as the flat number. No objection Certificate, proof of payment of municipal tax and proof of possession mentioned the Flat Number as-B- 35. The petitioner was found in possession of a flat in Block-B on the third floor in the north-east corner. No flat number was mentioned on any flat. Without any consideration of the enquiry report the Municipal Commissioner wrote in the file that an ex parte registration would destroy the purpose of registration, the Registration Act was clear in this regard. He had just joined as the Commissioner and disapproves as no notice had been given after death to the other title holders and their heirs can have mala fide intention after death. There can be no two opinions that the Municipal Commissioner exceeded his powers under Section-21(4) of the Apartment Act by taking into consideration irrelevant factors and ignoring relevant issues. The builder was no more a relevant party under Section-21(4) of the Apartment Act after the petitioner had submitted the necessary papers. The Municipal Commissioner was required to deal with the enquiry report submitted by his officers on 21.10.2010 opining that the papers were in order for issuance of certificate. If the Municipal Commissioner proposed to differ, he was required to state what requirements under Section-21(4) - 8 - of the Apartment Act were not being fulfilled and which documents remained to be submitted and/or why the enquiry report was not acceptable. In that event he was required to carry out or direct a fresh enquiry. Though the file notings may not be sufficient for the Court to take notice of, the Municipal Commissioner has opted of his own volition to place the same before the Court. The file noting clearly suffers from mala fides in law. The next order dated 14.12.2010 notices that mutation has been done in the name of the petitioner for flat No.35. Noticing the controversy with regard to the flat number, whether it be 32N.E. or 35, it proceeds to hold the mutation to be wrong which was not an issue before him at all. The mutation has not even been cancelled much less any show cause issued for the same, if it could be so done. There is no finding with the reasons of the wrong committed in mutation having been done. Conscious of the fact that the application for issuance of certificate was in order otherwise and that there was a very minor issue with regard to the correct flat number to be recorded, the Municipal Commissioner himself records that the rejection was “Not on merits, but on technical grounds”. These words amply demonstrate the satisfaction of the Municipal Commissioner of the claims - 9 - of the petitioner on merits and an abuse of statutory powers by the Municipal Commissioner without taking any steps in light of the enquiry report dated 21.10.2010. In an exercise of self defence he then states that he is not responsible for the delay and had no intentions. The builder was dead and that the no objection certificate was very old. His wife, the new Managing Director, must also be heard. These were again issues beyond the requirement of Section-21(4) of the Apartment Act displaying mala fide abuse of the statutory powers. The Municipal Commissioner cannot and does not dispute the purchase of the apartment by the petitioner and his possession along with consequent mutation on the third floor of the building in the north- east direction. The controversy is only with regard to the flat number to be allotted and for which the certificate is to be issued. Of the 12 flats in the builder‟s share, the statutory certificate has been issued by the Corporation to 11 others which includes the three other flats in the builder‟s share on the same floor causing hostile and gross discrimination to the petitioner. If at all there was any error in the numbering of the flats on the third floor alone clearly the issue was one of marking of numbers only for purposes of identification. The fresh order of the Municipal - 10 - Commissioner annexed to the affidavit dated 11.1.2011 again raises issues that the mutation was wrong taking into consideration irrelevant issues while exercising power under Section-21(4) of the Apartment Act. He now enters into a discussion to test the validity of the municipal receipts granted. While the enquiry report dated 21.10.2010 of the two officers is reasoned and speaking in nature, he deliberately decides to pick up the only line suggested by them that in the controversy with regard to the flat number and the site inspection carried out the petitioner did have a case, and that his case may be considered sympathetically, to conclude that he could not pass orders on sympathy alone. Had there been any rival claims for issuance of the registration certificate before the Corporation for the same flat number or even on the same floor, matters may have been entirely different. There is no such case of the Municipal Commissioner. Learned counsel for the Municipal Corporation submitted that the deed of apartment under Sectiion-3(M) had not been submitted by the petitioner. This submission is completely belied from the enquiry report submitted by the two officers dated 21.10.2010 which at item-1 itself states that it had been submitted. The last submission on behalf of the Corporation was - 11 - that the petitioner had the remedy of an appeal available to him under Section-33 of the Act. The availability of an alternative remedy is certainly a bar to the maintainability of a writ petition. This is more a rule of discretion to prevent litigants from adopting short-cut remedies and burdening the Writ Court unnecessarily. But when the facts are glaring, speaking for themselves, and shocking the conscience of the Court, the availability of an alternative remedy is no bar to the maintainability of a writ application. The bar is self-imposed by the Court and in a suitable case it retains the discretion to lift the bar. The Court, in the entirety of the discussion, unhesitatingly arrives at the conclusion that the Municipal Commissioner has acted more in abuse of his statutory powers rather than in trust and for the purpose for which the Government vested him with the powers. He has not only abused his powers, betrayed the trust placed in him by the Government, subjected a citizen to unnecessary harassment, but has also wasted the time of the Court. The liability for abuse of the statutory power must rest upon him alone. The present is a clear case of mala fides in law. The conduct of the Municipal Commissioner is best symptomized from the observations of the Supreme Court in the case of Secy., Jaipur - 12 - Development Authority v. Daulat Mal Jain, (1997) 1 SCC 35, at page 46 at paragraph 13 as follows: “13. All purposes or actions for which moral responsibility can be attached are actions performed by individual persons composing the department. All government actions, therefore, means actions performed by individual persons to further the objectives set down in the Constitution, the laws and the administrative policies to develop democratic traditions, social and economic democracy set down in the Preamble, Part III and Part IV of the Constitution. The intention behind the government actions and purposes is to further the public welfare and the national interest. Public good is synonymous with protection of the interests of the citizens as a territorial unit or nation as a whole. It also aims to further the public policies. The limitations of the policies are kept along with the public interest to prevent the exploitation or misuse or abuse of the office or the executive actions for personal gain or for illegal gratification. The Supreme Court has further held in Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243, at page 262 as follows: “Misfeasance in public office is explained by Wade in his book on Administrative Law thus: “Even where there is no ministerial duty as above, and even where no recognised tort such as trespass, nuisance, or negligence is committed, public authorities or officers may be liable in damages for malicious, deliberate or injurious wrong-doing. There is thus a tort which has been called misfeasance in public office, and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury.” The orders dated 27.11.2010, 14.12.2010 and 11.1.2011 are set aside. Mandamus is issued for - 13 - grant of the certificate to the petitioner under Section- 21(4) of the Apartment Act on allotment of an appropriate number admittedly located on the third floor in the north east direction as per the flat numbers allotted to the other five flats on that floor. Let such certificate be issued within a maximum period of two weeks from today. This order has been passed in presence of the Municipal Commissioner and there shall be no need for the petitioner to place a copy of the present order before him. The Court has already held hereinabove that the conduct of the Municipal Commissioner has shocked the conscience of the Court. An issue as small as issuance of a statutory certificate has been turned into a wholly unnecessary and unwarranted litigation by the intelligence of the Municipal Commissioner dribbling on frivolous issues rather than acting in the true spirit of his powers. The present is a fit case where the Court could have imposed exemplary costs upon the Municipal Commissioner. He remains answerably individually for the trust reposed in him by the Government and the State cannot be held liable for his actions. The Court, however, refrains from imposing costs. The Court, however considers it proper to - 14 - refer the matter to the Chief Secretary of the State of Bihar for placing before the State Government the desirability of the continuance of the present Municipal Commissioner in his present position. The writ application is allowed. KC ( Navin Sinha, J.)