Arun Kumar Mukherjee & Ors. v. The State Of Bihar & Ors.

We have heard counsel for the P.R.D.A and Additional Advocate General III in presence of the District Magistrate, Patna, the Administrator, Patna Municipal Corporation, the Senior Superintendent of Police, Patna, Superintendent of Police, Traffic, Patna, the Vice Chairman, P.R.D.A, the Managing Director, BISWAS BOARD and its Chief Engineer.

2. So far as the removal of encroachments is concerned, we have always emphasised the fact that the encroachments which we wish to be removed in the first instance are the encroachments which are on the roads or its flanks, because they tend to obstruct the free flow of traffic on public street. Initially, the P.R.D.A took up the job in right earnest, and some of the encroachments were removed. An atmosphere prevailed whereunder even the citizens realised the fact that removal of encroachment was in their own interest as also in the larger interest of the community. The result was that many house owners voluntarily removed the encroachments from the roads, and the task of the P.R.D.A became easier. For reasons unknown there was sudden slump in the activities of the P.R.D.A and for months together portions marked for removal remained as they were, and in many cases there was tampering with the markings, and in some cases the markings were obliterated. It appears that the P.R.D.A slackened its pace, and things came virtually to a standstill. The ostensible excuse given is that on account of Puja seasons coercive action was not taken. The real reason appears to be that the P.R.D.A never intended to carry out the orders of this Court in their true spirit, which was further aggravated by the fact that there has been frequent change of Vice Chairman of the P.R.D.A Lack of direction and initiative and proper appreciation of the purpose for which this Court has passed numerous orders appear to be the reason why good work which was being done has virtually come to a standstill.

3. There is another aspect which we must highlight, namely, the partisan attitude of the authorities of the P.R.D.A in removing encroachments. In the case of ordinary citizens, who did not claim to be V.I.Ps and could not approach the authorities, the vigour and the rigour of the P.R.D.A was noticeable. However, when it came to deal with more important people, who had perhaps violated the building bye-laws to a greater extent than some others, the authorities of the P.R.D.A developed cold feet, and as an excuse shifted to some other corners of the city on the pretext that their activities were now confined to different parts of the city. We have been idle spectators to these things, and we thought at an appropriate moment we may caution the P.R.D.A that the manner in which it has been carrying on, and the manner in which our orders are being executed leave much to be desired, and we cannot help expressing our anguish in view of the manner in which the P.R.D.A has acted. There may, perhaps, be a design to implement the orders of the Court in such a manner as to make the orders look ridiculous, and denigrade the judiciary by making it appear that judicial orders favoured those who are prosperous but ruthlessly dealt with those who were not. To remove this impression from the minds of the people, we reiterate today that law must fall on all with equal weight and force, and it does not matter that a person, who is a wrong doer is highly placed, either officially or otherwise. It he is a wrong doer, he must be treated in the same manner as other wrong doers. The common complaint is that high officials, who have encroached the public roads have not been touched, whereas others who have even slightly deviated have been dealt with ruthlessly. We warn the P.R.D.A that this attitude on its part gives a wrong impression to the people. The P.R.D.A is functioning under directions issued by us from time to time and, therefore, there can be no arbitrariness or selectiveness in implementation of the orders. We, therefore, direct the P.R.D.A that it shall not bother about the importance of the person who has encroached upon public road, and that the P.R.D.A shall deal with him in the same manner as any other person, who has encroached upon the road or its flanks.

4. The other difficulty which we have faced is about the manner of implementation of our orders. After removing the encroachments for a few days in a particular locality, the P.R.D.A shifts its venue of action to some other locality, in many cases, because it comes across V.I.P encroachments and are prevented from proceeding further. In most cases the encroachers are high ranking Government officials. We, therefore, approve of the schedule proposed by the P.R.D.A itself, whereunder dates have been fixed within which encroachment drive will be carried out in the localities mentioned in the schedule. We keep on record a copy of the time schedule dated 26-11-1996 which lays down the programme for the period 2-12-1996 to 16-12-1996 and 17-12-1996 to 31-12-1996. The P.R.D.A will concentrate on the localities mentioned in the programme and complete the-work within the same period. After the work has been completed in these localities, the P.R.D.A will shift its venue of action to other localities for which the programme should be announced on or before 15th December, 1996. We wish to make it clear that apart from those structures in respect of which there is any order of court, which amounts to an order of restraint all other encroachments on roads and its flanks must be removed.

5. So far as the demolition of a structure in Sabjibagh is concerned, the P.R.D.A has been directed by a writ of mandamus issued by this Court to demolish that structure. In fact, this Court has taken action under the Contempt of Courts Act, and the matter is still pending before this Court. The P.R.D.A is required to remove the structure and for this the P.R.D.A has sought help from the District Magistrate and the Superintendent of Police, Traffic, because the area has to be cordoned off before the demolition commences. The Superintendent of Police, Traffic as well as the District Magistrate, are present in Court, and they have assured that necessary help will be rendered. Counsel for the P.R.D.A states that the operation will take about a week because the house has several storeys and is a Pucca structure which will require considerable effort on the part of the demolition squad.

6. So far as other localities of the city are concerned, we shall pass directions later after going through the programme. That should be submitted by the P.R.D.A for the month of January, 1997. The programme should be submitted to this Court on 20th December, 1996.

7. The District Magistrate informs that though proceedings have been taken under the Land Acquisition Act for acquisition of land with a view to broaden the Bhattacharjee Road, to her knowledge no amount has been deposited in the office of the Land Acquisition Officer for payment of compensation to the land owners. We were under the impression that the amount over a crore, has been deposited, but this will require verification. Additional Advocate General No. 3 states that he will verify this fact and give us further information on the next date. If the amount has not already been deposited, it should be deposited forthwith. The Land Acquisition Officer will send a reminder to the Road Construction Department demanding the amount, which has been allocated for the purpose, and within a week of the receipt of the demand, the amount shall be deposited in the account of the Land Acquisition Officer.

8. In our last order we had directed the P.R.D.A to stop further construction of the buildings, which were on roads less than 40 feet wide beyond the third floor. This was because many constructions have been undertaken either without sanctioned plan or in deviation of the sanctioned plan or by getting sanctioned plan contrary to the provisions of the building bye-laws, rules, norms, etc. We now direct the P.R.D.A to examine each case by sending a team to verify all facts on the site of the construction and pass appropriate orders. Wherever it is found that building plan has been duly sanctioned in accordance with the bye-laws and the rules, and the construction also is being carried out in accordance with the sanctioned plan, they shall permit the builder to carry on the construction. Wherever it is found that a sanctioned plan has been obtained, but the construction is not in accordance with the sanctioned plan, it shall stop the builder from constructing any further till he removes the offending part of the construction and proceeds to construct in accordance with the sanctioned plan. There may still be cases where a sanctioned plan has been obtained contrary to the relevant building bye-laws, rules etc. This may have been done deliberately by exercising some influence over the concerned authority or even by inadvertence. Such building plans, which have been sanctioned, should be modified and corrected, so that they are brought in accordance with the building bye-laws. The P.R.D.A will take all necessary steps in this direction in accordance with law. It is stated that there are as many as 61 such constructions, which have been stopped by the P.R.D.A The verification of the sanctioned plan and the actual construction being carried out may take a little time and we, therefore, direct the P.R.D.A that in case any builder seeks permission to resume construction and produces before the Vice Chairman, P.R.D.A the sanctioned plan, on prima facie satisfaction the P.R.D.A may permit him to continue with the construction subject to the ultimate result after verification of the building plan and actual construction work. A petition has been filed on behalf of the Builders Association being I.A No. 256. This direction disposes of that application. It is, however, made clear that if on final verification of the sanctioned plan and the actual construction work done, it is found that there's any deviation, the builder shall not object to the demolition of such structure on the mere ground that he was permitted to raise the construction provisionally. In the case of compoundable deviations the P.R.D.A may exercise its discretion and in case where the deviation is not compoundable, the P.R.D.A will direct the builder not to construct. This direction shall be read as a grant of approval by this court in terms of the earlier order dated 15-11-1996. The P.R.D.A will submit a report to this Court as to the decisions taken by it in different matters.

9. We shall hear the application of Mr. T.K Jha on the next date with regard to the acquisition of Bhattacharjee road.

10. Let this matter come up on 6th December, 1996, when we shall deal with the problems relating to traffic and Patna Municipal Corporation. On that date Superintendent of Police, Traffic, Administrator, Patna Municipal Corporation and the Managing Director, BISWAS BOARD and its Chief Engineer shall remain present.

11. Let a copy of this order be given to counsel for the P.R.D.A and A.A.G III.