LOKNATH GOENKA Vs. MUNICIPAL COMMISSIONERS OF THE SAMASTIPUR MUNICIPALITY

JUDGEMENT

(1.) This writ application has been filed on behalf of the petitioner for quashing a notice dated 28th November, 1973 issued by the Executive Officer, Samastipur Municipality saying that the petitioner has constructed a platform over the drain and a portion of Road belonging to the Municipality, which has caused inconvenience. By that very notice the petitioner was asked to dismantle the same within three days of the receipt of the notice failing which the Municipality would get it dismantled and removed and the costs therefore would be realised from the petitioner. A copy of the said notice is Annexure 1 to the writ application.

(2.) In the writ application it has been stated that the petitioner filed for sanction, a plan of his house and shop to the respondent-Municipality. In that plan the platform and the projections over the road were shown. In due course this plan was sanctioned. No objection was taken at any stage during the constructions of the platform and projections in question and after a lapse of several years now the aforesaid notice has been issued, which is in contravention of the provisions of the Bihar and Orissa Municipal Act, 1922 (hereinafter to be referred to as the Municipal Act). This writ application was filed in this court on 6th December, 1973 and was admitted on 10th December, 1973. At the time of admission, the operation of the notice (Annexure 1) was stayed during the pendency of the writ application. The respondents were also restrained from demolishing the platform and the projections of the petitioner during this period.

(3.) A counter-affidavit has been filed on behalf of the respondent-Municipality (respondents Nos. 1 and 2) saying that the Municipal Board of the Municipality in question received public complaints regarding the obstructions on public road and then it was unanimously resolved that platforms constructed over roads and drains which were causing inconvenience to public should be removed forthwith, and in pursuance of that resolution notices were issued to different persons including the petitioner. It has been further stated that after the issue of the notice, the petitioner himself removed the platform before 4th December, 1973, i.e., before filing of the writ application in this Court. It has been asserted that it was well within the authority of the Municipality to issue the notice in question to the petitioner.