IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15438 of 2005 SRI NIWAS SINGH Versus THE STATE OF BIHAR & ORS ----------- 3. 29.4.2009 Heard counsel for the petitioner, counsel for the State, who represents Nagar Panchayat, Bikramganj and the counsel for respondent no.9. The prayer in this writ application by the petitioner for demolition of certain illegal constructions made by respondent no.9 in violation of the provisions of Bihar Municipal Act, 1922 (hereinafter referred to as ‘the Act’) in the facts and circumstances of this case has to be in the first instance considered by the Commissioners (Ward members) of the said Nagar Panchayat. The writ application was filed on 16.12.2005 whereafter a counter affidavit came to be filed by the Executive Officer of Nagar Panchayat in which it was stated that on 1.8.2006 an order has been passed holding the construction made by respondent no.9 to be illegal and as such, a direction was issued to respondent no.9 to remove the structures constructed by him without a sanctioned plan. From the reading of the 2 aforementioned order dated 1.8.2006 (Annexure ‘A’) it would be clear that the said order was passed in anticipation of approval of the Commissioners, inasmuch as in the last line of the order it was mentioned that the said order directing removal of construction by respondent no.9 should be placed for approval in the meeting of the Commissioners of Bikramganj Nagar Parishad. The petitioner himself has filed a supplementary affidavit wherein an information, on being requisitioned by the petitioner, has been given to him that the said order of the Anchal Adhikari, working as Executive Officer of Nagar Panchayat, has not been acted upon due to pendency of this writ application. Counsel for the petitioner, therefore, submits that the Executive Officer had tried to mislead this Court by taking a plea in his counter affidavit that the writ application had become infructuous on account of his passing the order dated 1.8.2006. On the other hand, Mr. Surendra Kumar Singh, learned counsel appearing on 3 behalf of respondent no.9, would submit that the Executive Officer of Nagar Panchayat in person has got no power of his own to direct demolition/ removal of a structure raised without sanction of a plan. He would also place reliance on section 192 to submit that the only consequence of not complying an order passed by the Commissioners for removal of such structure made in violation of the Municipal law and without sanction plan would be imposition of fine. He would finally submit that the Respondent no. 9 has already submitted plan for sanction by the Commissioners and no final order has been passed thereon only due to pendency of this writ application. Counsel for the Executive Officer having supported the stand taken in the counter affidavit also submits that the issue with regard to respondent no.9 having made certain construction without approval of plan by the Nagar Panchayat in the first instance had to be decided by the Nagar Panchayat itself in accordance with the provisions of Municipal Act and therefore, any direction issued by this Court would be 4 pre-empting the provisions of the Municipal Act. In the opinion of this Court counsel for the State seems to be correct. It has to be only noted here that the power under section 193 of the Municipal Act, directing demolition/ removal of structure in violation of an approved plan or without there being a sanction and approved plan, lies in the Commissioners (Ward Members of the Nagar Panchayat). Such power, therefore, cannot be exercised either by the Chairman or by the Vice Chairman or by the Executive Officer in person unless a proper delegation has been made under the resolution of the Commissioners. This Court cannot loose sight of the fact that the defence of respondent no.9 that he had taken permission from the Chairman who had got the matter referred to the Vice Chairman. The Executive Officer in the order dated 1st August, 1996 has however held such action of the Chairman/ Vice Chairman to be wholly unauthorized in terms of the Municipal Act. In fact the Executive Officer to that extent seems to be correct but then as the last line of his own order 5 would itself indicate he too was circumscribed by the same law and therefore he too has committed an error in directing demolition without an order of the Commissioners in terms of section 193 of the Municipal Act. Considering the aforementioned aspects of the matter, this Court would direct that the whole issue relating to either sanction or approval of the plan of respondent no.9 or removal of construction already made by respondent no.9 without there being a sanctioned plan in his favour should be placed before the Commissioners (Ward members) of Nagar Panchayat who would decide the issue keeping in view the requirement of sanction of plan for the nature of construction being raised by respondent no.9. In the event it is found that respondent no.9 has raised certain construction for which post facto sanction can be given, an order will be passed to this effect and respondent no.9 will be required to restrict his construction only as per approved sanctioned plan. If however the Commissioners come to a decision and 6 pass a resolution that the construction made by respondent no.9 is not permissible and thus not condonable in terms of the Municipal Act and no plan can be sanctioned for that purpose, they will also pass a clear order to this effect and communicate to respondent no.9 whereafter the offending portion of construction either in whole or in part raised by the respondent no.9 will be removed by him within a period of one month from the date of such order, failing which the same will be demolished by the Bikramganj Nagar Panchayat in next one month. It is, however, made clear that till a final decision, as indicated above, is taken, respondent no.9 would not make any further construction on the plot in question. With the aforementioned observation and direction this application is finally disposed of. (Mihir Kumar Jha,J.) Surendra/ 7