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2011 Supreme(Pat) 62
PATNA HIGH COURT
Navin Sinha, J.
Amod Kumar
Versus
Patna Municipal
CWJC No. 17196 of 2010
Decided On : JANUARY 11, 2011
The main legal point established in the judgment is the abuse of statutory powers by the Municipal Commissioner, leading to mala fides in law and misfeasance in public office.
Headnote:
Apartment Act - Issuance of Certificate - Section 21(4) - [Section 21(4) of the Bihar Apartment Ownership Act, 2006] - The court discussed the provisions of Section 21(4) of the Apartment Act, emphasizing the statutory requirement for the Municipal Commissioner to issue a certificate within two months of application and the consequences of registration under the Act. The court highlighted the abuse of statutory powers by the Municipal Commissioner, his failure to act in trust for the purpose vested by the government, and the mala fide abuse of powers in considering irrelevant factors and ignoring relevant issues.
Fact of the Case:
The petitioner sought mandamus against the Patna Municipal Corporation for the issuance of a certificate under Section 21(4) of the Bihar Apartment Ownership Act, 2006 to enable registration of a flat. The Municipal Commissioner's conduct in handling the application and court orders was found to be deliberate and confrontational.
Finding of the Court:
The Court found that the Municipal Commissioner had abused his statutory powers, acted in defiance of court orders, and caused unnecessary litigation. The conduct of the Municipal Commissioner shocked the conscience of the Court, and the Court set aside his orders and directed the issuance of the certificate within two weeks.
Issues: The issues included the delay in processing the petitioner's application, the Municipal Commissioner's abuse of powers, and the wrongful rejection of the petitioner's application on technical grounds.
Ratio Decidendi: The Court held that the Municipal Commissioner's actions amounted to mala fides in law and misfeasance in public office. The availability of an alternative remedy did not bar the maintainability of the writ application, and the Court refrained from imposing costs but referred the matter to the Chief Secretary of the State for consideration.
Final Decision: The writ application was allowed, the Municipal Commissioner's orders were set aside, and mandamus was issued for the grant of the certificate to the petitioner within two weeks. The Court refrained from imposing costs but referred the matter to the Chief Secretary for consideration.
1. Heard learned counsel for the petitioner and the Patna Municipal Corporation.
2. 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.
3. 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 landowner and the builder consisting of 16 flats of which 12 were in the builders share and 6 in the landowners share. Four flats on each floor fell to the builders share and two to the landlord.
4. 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 landowner. 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.
5. 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.
6. 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 daughters education. It was also noticed that other flats in the building have been registered without any problems and that an objection of a trivial nature was being raised by the Municipal Corporation with regard to the petitioners 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.
7. 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 petitioners 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.
8. 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 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
