IMPORTANT POINT
The Municipal Commissioner did not have the authority to pass orders under Sections 429, 435, and 438 of the Bihar Municipal Act, 2007, and the Indian Telegraph Act, 1885.

JUDGMENT :

RAJIV ROY, J.

1. This order be read in continuation of the order dated 25.07.2023.

2. The petitioner has challenged the letter nos. 4517 dated 08.04.2019 & 6853 dated 27.05.2019 passed by the Municipal Commissioner, Patna Municipal Corporation (henceforth for short ‘the PMC’) by which taking into account the fact that without any permission, for laying out optical fibers, 3060 poles were erected in Patna and as such, an order was passed under Section 429 read with Section 435 and 438 of the Bihar Municipal Act, 2007 (henceforth for short ‘the Act’) read with relevant sections of Indian Telegraph Act, 1885 with a further direction to the company to pay penalty of Rs. 1,21,80,000/- within a period of 15 days and to remove their installations and submit compliance report failing which the company will attract more penalty and action under section 399 of the Act.

3. The facts of the case has already been incorporated in the order dated 25.07.2023 and it is also clear that there was no answer from the learned Senior Counsel for the petitioner on query whether the mandatory 60 days period which the company ought to have waited for, was violated or not.

4. The matter then zeroed down to the issue relating to application of Section 429 of ‘the Act’ read with Sections 435 and 438.

5. Section 429 of ‘the Act’ read as follows:

“CHAPTER XLIII

Offences and Penalties

429. Punishment for certain offences

Whoever:

(a) contravenes any provision of any of the Sections, sub-sections, clauses, provisos or any other provision of this Act.

(b) fails to comply with any order lawfully given to him or any requisition lawfully made upon him under any of the said Sections, sub-sections, clauses, provisos or other provisions, shall be punishable:

(i) with fine which may extend to rupees five thousand, or with imprisonment which may extend to six months, or both.

(ii) in the case of continuing contravention or failure, with an additional fine which may extend to rupees one hundred for every day during which such contravention or failure continues after conviction for the first such contravention or failure subject to a maximum of rupees five thousand.

Comments & Case Laws

Construction of building defying prohibitory order -Provisions prescribed under Sections 323 and 324 of the Act are public regulatory laws. They provide for the manner in which Municipal authorities or person aggrieved may proceed in case of any dispute relating to construction of any structure or building in contravention of any building bye-laws. There are various sections prescribed under different chapters of the Act which provides for specific punishment for a specific act of omission or commission. Sections 325 and 435 of the Act, both cannot be reconciled together. Punishment prescribed under Section 429 of Act cannot be imposed on a person who is found guilty of committing an offence punishable under Sections 325 or 435 of the Act. Provision prescribed under Section 429 of the Act is sweeping in nature and is too vague and, it is difficult to comprehend that punishment prescribed therein would be applicable to alleged contraventions under Sections 323 and 324 of the Act. Pratik Sinha vs. State of Bihar, 2016 (3) PLJR 274.”

6. Further in 2019, the section 435 of ‘the Act’ as it then was (when the order was passed) read as follows:

“435. Encroachment on streets - No person shall cause any encroachment or obstruction on any municipal property such as a street or footpath or park without specific permission of an officer of the Municipality duly authorized to grant such permission. Any person causing such encroachment or obstruction on any municipal property as aforesaid shall, on conviction, be punishable with fine which may extend to one thousand rupees.

Comments & Case law

Construction of building defying prohibitory order-In absence of any other definition given under the Act, word “offence” under the Act shall have same meaning as given under Section 40 of IPC, wherein definition of word