IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.15963 of 2023

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Shyam Chandra Sharma, Son of Late Ramnaresh Sharma, Resident of

Mohalla- Dakbungalow Road, Dahiyanwa, P.S.- Chapra Nagar, Chapra,

District- Saran- 80113, Bihar.

... ... Petitioner/s

Versus

1.The State of Bihar through the Additional Chief Secretary, Urban

Development and Housing Department, Government of Bihar, Patna.

2.The Additional Chief Secretary, Urban Development and Housing

Department, Government of Bihar, Patna.

3.The Additional Chief Secretary, Revenue and Land Reforms Department,

Government of Bihar, Patna.

4.The Additional Chief Secretary, Registration, Excise and Prohibition

Department, Govt. of Bihar, Patna.

5.The Assistant Inspector General, Registration, Excise and Prohibition

Department, Govt. of Bihar, Patna.

6.The Collector, Saran at Chapra.

7.The Additional Collector, Saran at Chapra.

8.The Municipal Corporation, Chapra Saran through its Municipal

Commissioner.

9.The Municipal Commissioner, Municipal Corporation, Chapra, Saran.

10.The Junior Engineer, Municipal Corporation, Chapra, Saran.

... ... Respondent/s

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Appearance :

For the Petitioner/s: Mr. Mrigank Mauli, Sr. Advocate.

Mr. Pratik Kumar Sinha, Advocate

For the State : Mr. Subhash Prasad Singh, GA-3.

For the PMC : Mr. Indu Bhushan Singh, Advocate.

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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH

ORAL JUDGMENT

Date : 01-04-2024

Heard Mr. Mrigank Mauli, learned senior counsel

along with Mr. Pratik Kumar Sinha, learned counsel appearing

on behalf of the petitioner; Mr. Subhash Prasad Singh, learned

GA-3 for the State and Mr. Indu Bhushan Singh, learned

counsel for the Patna Municipal Corporation.

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2. The petitioner has sought for the following reliefs

in Para-1 of the writ petition:

(i) To issue order / orders or writ / writs or

direction / directions preferably a writ of mandamus upon the

respondent no.4, Municipal Commissioner, Chapra Municipal

Corporation directing him to forthwith sanction the Building Plan

(Map) for construction of a residential-cum-commercial building

on his piece of land having an area of 5586 sq. feet bearing

holding no. 716, under Circle no. 16 and Ward No. 22 as in

absence of the same, the petitioner is not able to construct his

residential-cum- commercial building and thereby is not only

being deprived of his inalienable and inviolable right of "Right to

Shelter" guaranteed under Article 21 but is also being deprived of

his fundamental right of right to carry occupation, trade or

business guaranteed under Article 19 (1) (g) of the Constitution

of India;

(ii) To issue an appropriate writ/writs or order/orders

or direction/directions, preferably a writ of certiorari quashing

and setting aside the decision of the respondent no. 9, Municipal

Commissioner, Chapra as contained in letter no. 2823 dated

14/9/2023 by which on an application filed by the petitioner

seeking sanction of Building Plan (Map) for a piece of land

having an area of 5800 sq. feet bearing holding no. 716 under

Circle no. 16 and Ward No. 22 has been rejected on the non est

ground that the respondent no. 10, Junior Engineer, Municipal

Corporation, Chapra did not find the rent receipt, land possession

certificate and other documents pertaining to the said land to be

in consonance with the check list;

(iii) To issue further order/orders or writ/writs or

direction/directions directing the respondent authorities to grant

him further relief as the petitioner may be entitled to in the

attending fact and circumstances of the case to see the ends of

Justice.

ARGUMENT

3. Learned counsel appearing on behalf of the

petitioner submitted that the petitioner is coming into

continuous possession of land measuring total area of 5800 sq.

feet (12.823 dec.) falling under Chapra Municipal Corporation

bearing holding no. 716, situated in ward no.2, under circle no.

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16 in the district of Saran. The aforesaid piece of the land was

purchased by the petitioner and his wife, namely Bibha Sharma,

by two registered sale-deeds. By the first registered sale-deed

dated 22.06.2006, the petitioner purchased a part of the

aforesaid piece of land measuring an area of 200 sq. feet from

one Smt. Pratibha Verma. Similarly, the remaining area of the

aforesaid piece of land, ad-measuring to an area of 5586 Sq. feet

equivalent to 12.823 dec., was purchased by the wife of the

petitioner, namely Bibha Sharma, from the same vendor i.e.

Smt. Pratibha Verma, vide registered sale-deed dated

20/11/2006. The petitioner applied for transfer of name in

requisite application form along with the copies of the registered

sale-deeds dated 22.06.2006 and 20.11.2006, including other

relevant documents before the Chapra Municipal Corporation.

The Municipal Authorities after being satisfied had transferred

the holding number in their names. The above piece of land had

a dilapidated house on part of the aforesaid land i.e. 1000 sq.

feet which became inhabitable. The petitioner and his wife

submitted an application before the respondent no. 4, for

issuance of building plan (map) in regard to construction of

residential-cum-commercial building, on the aforesaid land,

along with, the duly filled Form-II (Building Plan Application

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Form), Form-IV (Certificate of Structural Stability), Form-V

(Form of Supervision), Form VI Check List, Form-X (Form of

Notice for Commencement of Work) containing the signature of

Authorized Engineer of the Chapra Municipal Corporation,

along with the proposed building plan on 26.06.2023. The

petitioner also deposited requisite fees expenses amounting to

Rs. 1,51,500/- and Rs. 35,513/-, by two cheques, alongwith an

undertaking, in form of an affidavit, dated 29.08.2022 as per the

requirement under the Building Bye Laws, 2014.

4. Learned counsel submitted that the authorities of

the Chapra Municipal Corporation is required to issue building

plan, on the basis of the holding number, in accordance with the

statutory requirement of Building Bye-Laws, 2014. However,

the application and the Building Plan of the petitioner were

rejected vide letter no. 2823 dated 14.09.2023 by the respondent

no. 9 (The Municipal Commissioner, Chapra) on the ground that

land in question is an un-surveyed land and in view of the

prohibition imposed by the State Government, transfer of

ownership of such land cannot take place.

5. Learned counsel submitted that the rejection of the

application of the petitioner vide memo no. 597 dated 29/9/2022

is in clear violation of law when the land is un-surveyed land in

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the urban area, then transfer of ownership and holding shall be

carried out on basis of holding number by the concerned

Municipal Corporation.

6. Learned counsel has emphatically submitted that

out of the same piece of land, a portion of land area has been

purchased by 4 to 5 persons and amongst them, heirs of Harihar

Sharma has even entered into development agreement with a

developer and is constructing shopping complex after grant of

building plan. Similarly, building plan has been sanctioned by

the Corporation and construction work is going on for the

commercial building also in the vicinity of the petitioner’s plot.

7. Learned counsel submitted that the petitioner, in

support of his claim has brought on record recent photographs

from which it would appear that in front side of the petitioner's

land, there is a shop of Motorcycle in the name and style of

"Prabhu Automobiles" and in the right-hand side of the Prabhu

Automobiles, a G+2 shopping complex has already been

constructed.

8. Learned counsel further submitted that in the state

of Bihar, there are some districts, including the district of Saran,

wherein, large area of the lands is still un-surveyed land, due to

which, time to time disputes do occur in regard to the ownership

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of such land, particularly when one transfers the ownership of

the land to others or such land is acquired for laying of projects.

On basis of the decision dated 03.06.2017, taken under the

Chairmanship of the Principal Secretary, Revenue and Land

Reforms Dept., Govt. of Bihar, Patna, the Registration Excise

and Prohibition Dept., Govt. of Bihar, Patna, earlier had issued a

letter no. 3113 dated 20.07.2017, directing the respective

Collector-cum-District Registrar, including the sub-registrars of

concerned office, to prohibit the registration of sale-deed or any

document, through which the ownership of un-surveyed lands is

being transferred to others.

9. Per-contra, learned counsel appearing on behalf of

the Municipal Corporation stated that the writ petition is not

maintainable, because the petitioner's application for sanction of

map has been rejected vide letter no.2823 dated 14.09.2023, by

the Municipal Commissioner, Nagar Nigam Chapra, because the

petitioner did not fulfill the requirement of the Rule 6 of Bihar

Building Bye-Laws, 2014 and failed to submit Land Possession

Certificate, Jamabandi Number, Entry in Records of Right, etc.

which is required for sanction of map.

10. He further submitted that the writ application is

also fit to be dismissed on the ground that whenever application

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for sanction of map is rejected in view of Rule 6 of the Bihar

Building Bye Laws, 2014, then an appeal against the order

under Sub Clause (6) shall lie with Municipal Building Tribunal

under Section 329 of the Municipal Act or Tribunal constituted

under the Act. The petitioner without exhausting alternative

remedy has directly filed the present writ petition, which is not

maintainable. Section 329 of the Bihar Municipal Act, 2007 is

reproduced hereunder:

“329. Municipal Building Tribunal. (1) The State

Government may appoint one or more Municipal Building

Tribunals (hereinafter referred to in this section as the

Tribunal) as may be considered necessary to hear and

decide appeals arising out of sanctioning of building plans

by the Municipality in accordance with such procedure, and

to realize such fees in connection with such appeals, as may

be prescribed by the government.”

11. He further submits that no infirmity has been

pointed out by the petitioner in Memo No.2823 dated

14.09.2023 that there is any violation of Rule 6 of the Bihar

Building Bye-Laws, 2014, since the petitioner has failed to

furnish Jamabandi and revenue rent receipt duly generated by

the State Government, the application of the petitioner has been

rejected.

12. At this stage, learned counsel appearing on behalf

of the petitioner further submitted that the petitioner is also

aggrieved by the illegal action of the Circle Officer, who is

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adamant not to grant Jamabandi and the rent receipt with respect

to Holding No.716, in spite of the fact that the petitioner is

ready to deposit the requisite rent/fee to the State Government.

13. The Additional Chief Secretary, Revenue and

Land Reforms Department is directed to personally appear

before the Court today (i.e. on 01.04.2024) at 03.00 P.M. to

clarify the status of the topo land and jurisdiction of the Circle

Officer.

14. The matter will be heard at 03.00 P.M. today (i.e.

on 01.04.2024) so that the Additional Chief Secretary, Revenue

and Land Reforms Department, Government of Bihar can

clarify the situation at circle level taking into consideration the

fact that the people are facing difficulty at the circle level due to

inaction of the Circle Officer in the State of Bihar.

Later on at 03:00 P.M .

15. In compliance of the direction of this Court in pre-

recess session, the Additional Chief Secretary, Revenue and

Land Reforms Department, Government of Bihar has appeared

before this Court and is represented by the learned Advocate

General and Mr. Subhash Prasad Singh, learned GA 3, who have

informed that the land in question is an un-surveyed topo-land.

16. He further submitted that as per the existing law,

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all un-surveyed lands in the State belong to the Government. No

individual can claim ownership over un-surveyed land. But

Government is contemplating to announce a policy in regard to

topo land on which topographic survey has not been carried out.

The state government is bound to give ownership rights to all

citizen who have been living or carrying out agricultural

activities on the topo lands in districts such as Khagaria,

Lakhisarai, Saran, Samastipur and other district for the last

several decades for which they have also been paying taxes for

the land to the concerned department since then. Soon a policy

decision in regard to creating Jamabandi in the name of the

persons, who are inhabiting the topo lands by constructing their

dwelling house or are agriculturists and running their business

and earning their livelihood, once the ongoing survey of topo

land in the State is completed, the policy is to reduce the cases

of land disputes in the state arising out of unsurveyed land.

ANALYSIS

17. The dispute in the present writ petition relates to

unsurveyed land in Bihar which is almost 20 percent of its area.

The land surveys in Bihar were carried out by the British

between 1905 and 1915 and left out lands that subsequently

emerged from the river. Unsurveyed lands in Bihar are called

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‘topo’ lands and mostly situated on the banks of the Ganga and

Koshi. The ‘topo land’ in Ganga basin are perennial in nature

formed due to alluvion and diluvion of the river. At times the

land emerges and at times it is eroded by the streams of the river

or by the rain and other natural calamities due to which land

survey could not be carried during cadastral or revisional

survey. Now, the Government has decided to carry out another

land survey, but that too could not be completed.

18. In the State of Bihar, there are some districts,

including the district of Saran, wherein a large area of the lands

is still un-surveyed land, due to which, time to time disputes do

occur in regard to the ownership of such land, particularly when

one transfers the ownership of the land to others or such land is

acquired for laying of projects.

19. The record reveals that the petitioner along with

his wife had submitted an application dated 26.06.2023 before

the respondent no.8 for issuance of building plan (Map), for the

construction of residential-cum-commercial building, on land

appertaining to holding No. 716 accompanying therewith the

duly filled from (ii) (building plan application form-(iv),

(Certificate of Structural Stability), Form-(v) (Form of

Supervision), Form-(vi) Check list, Form-(x) (Form of notice

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for commencement of work) containing the signature of

authorized engineer of the Chapra Municipal Corporation along

with building plan, besides those documents, fees, expenses

amounting to Rs.1,51,500/- and Rs.35,513/- through different

cheques, along with undertaking in the form of an affidavit

dated 29.08.2022 under Bihar Building Bye Laws, 2014.

20. The petitioner then filed representation dated

05.07.2023 before the Municipal Commissioner – respondent

no.9, seeking sanction of building plan. The petitioner received

a letter no. 2823 dated 14/9/2023 from the office of the

respondent no. 9 who had forwarded the same to the Junior

Engineer, who upon verification of check list attached with the

Form for grant of approval of building plan had found that the

same did not contain the rent receipt, Land Possession

Certificate and other documents, pertaining to the said land duly

issued by the concerned Circle Officer and had recommended

for rejection. The Municipal Commissioner, Chapra,

accordingly, rejected the claim for sanction of building plan

without giving notice to the petitioner and providing opportunity

to produce the additional documents required for passing of

building plan which were not found in the check list, which

related to submission of Jamabandi, rent receipt and L.P.C,

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issued in favour of the petitioner. The petitioner has shown his

inability to submit the same as the land in question is un-

surveyed land and in view of the specific direction of the State

Government to the revenue authorities vide memo no. 597 dated

29/9/2022, which prohibit to grant rent receipt and L.P.C.and

refusal to mutate the sale deed by the Circle Officer. It has been

informed that the Circle Officer concerned has refused to issue

the same till the exercise of survey is completed (Annexure- 8 to

the writ application).

21. The record reveals that on the basis of the

decision dated 03.06.2017 taken under the Chairmanship of the

Principal Secretary, Revenue and Land Reforms Dept., Govt. of

Bihar, Patna, the Registration Excise and Prohibition Dept.,

Govt. of Bihar, Patna had earlier issued letter no. 3113 dated

20/7/2017, directing the respective Collector-cum-District

Registrar including sub-registrars of concerned office to prohibit

the registration of sale-deed or any document, through which the

ownership of un-surveyed lands is being transferred to others, as

per the decision contained in letter no. 3113 dated 20/7/2017.

22. Reliance has been placed on a decision of a

Division Bench of this Court in C.W.J.C. No. 9937 of 2020

(Satyendra Kr. Singh vs. The State of Bihar & Ors.), wherein

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also the land involved was un-surveyed land of Chapra town

within the district of Saran, the petitioner was aggrieved by the

action of the Sub-Registrar, who had refused to register the

mortgaged deed without assigning any reason. The Division

Bench by a reasoned order had directed the State Government

and the concerned Sub-Registrar, Chapra to register the deed of

mortgage. The State Government against the said order had

preferred S.L.P. vide Diary No. 11958/2023 before the Hon'ble

Apex Court, which was dismissed at the very threshold vide

order dated 10.04.2023.

23. A co-ordinate Bench of this Court had also

occasion to decide the similar issue in the case of Rakesh Gupta

vs. The State of Bihar & Ors. (C.W.J.C. No. 2524 of 2018),

wherein also, un-surveyed land of Chapra town, coming under

the territorial jurisdiction of Chapra Municipal Corporation was

involved. This Hon'ble Court after having discussed the

governing law and also taking into consideration the case of

Satyendra Kumar (supra) declared the minutes dated 3/6/2017,

as contained in memo dated 7/6/2017 of the Revenue and Land

Reforms Department and also consequential letter dated

20/7/2017 of the Deputy Inspector, General of Registration,

Bihar, Patna to be invalid and non-est.

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24. As a consequence of the Courts order, the

Assistant Inspector General, Bihar, Patna vide letter no. 4087

dated 16.08.2022 withdrew the earlier memo no. 3113 dated

20.07.2017, by which the department had stopped the sale and

purchase of topo-land.

25. A meeting was conveyed regarding the ownership

transfer of Topo lands on 12.09.2022 under the Chairmanship of

Additional Chief Secretary, Revenue and Land Reforms, Govt.

of Bihar, wherein, it was decided to constitute a committee for

survey of Topo lands located in the urban areas, where

sale/purchase of such land is taking place on the basis of

holding number. It was decided in the meeting that the change

of ownership or transfer of holding by the Municipal

Corporation/Nagar Parishad/Nagar Panchayat, whether the

Circle Officer has been authorized to create Jamabandi and fix

rent can only be done after completion of survey and not

otherwise. A copy of the decision is contained in memo no. 597

dated 29.09.2022 of Urban Development and Housing

Department, Government of Bihar, Patna.

26. It is admitted by the parties that vide sale deed

dated 22.06.2006 and 20.11.2006, the petitioner came in

possession of the land measuring total area of 5800 sq. feet

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(12.823 dec.) falling under Chapra Municipal Corporation

bearing holding no. 716, situated in ward no.2, under circle no.

16 in the district of Saran. The application was made for

transferring the holding number along with the dilapidated

building existing on the plot mentioned in the sale deed falling

in the city of Chapra which is also an un-surveyed land and

bears no Khata and Khesra numbers relating to the holding

number 716. The main ground of rejecting the claim of

petitioner for grant of building plan by the respondent no. 9

(The Municipal Commissioner, Chapra) vide order dated

14.09.2023 appears to be that rent receipt, L.P.C. and other

documents were not annexed with the check list, due to non-

issuance of the same by the Circle Officer and the concerned

officer of the Municipality refused to sanction building plan to

be not in accordance with the 2014 Building-bye Laws. .

27. On perusal of the rejection order contained in

Letter No. 2823 dated 14/9/2023, it appears that the authorities

admits that the petitioner fulfills the conditions, as laid down in

the Building Bye-Laws of 2014. The rejection of the building

plan on the ground of non-submission of the up-to-date rent

receipts and land possession certificate duly issued by the Circle

Officer in view of the decision contained in Letter No. 597

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dated 29/9/2022 restricting the Circle Officer/L.R.D.C. not to

exercise power of cancellation/creation of Jamabandi including

fixation of rent of un-surveyed land can be held to be in

consistence with the order of this Hon’ble Court and

government decision contained in Letter No. 4087 dated

16.08.2022 by which ban was lifted on sale and purchase by the

Registration and Prohibition Department.

28. The prohibitory order of the State Government

was subject matter of CWJC No. 9937 of 2020 (Satyendra

Kumar Singh vs. The State of Bihar), wherein Hon’ble Court

had occasion to determine as to whether an authority can refuse

to register documents which otherwise comply with the

statutory requirements and formalities. This Court inter alia

made the following observations:-

“ 7. Having considered rival submission advanced

on behalf of the parties as noted above, in the

background of the aforesaid facts, we find substance

in the submission made on behalf of the petitioner

that if a document otherwise complying with the

statutory requirement and formalities is presented

for registration, the registering authority is duty

bound to register it. We may usefully notice the

Supreme Court’s decision in case of State of

Rajasthan Vs. Basant Nahata reported in (2005) 12

SCC 77 wherein it has been laid down that the aim

of the Registration Act is to govern the documents

and not the transactions embodied therein. The

Supreme Court has noted that by registration of a

document, only notice of the public is drawn.

8. The Division Bench of this Court in case of Bihar

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Deed Writers Association (supra) has laid down in

paragraph 3 as under :-

“3.……..In our view, if a document

otherwise complying with the

statutory requirements and

formalities is presented for

registration, the registering authority

is bound to register it. It is not for the

registering authority to enquire and

ascertain the title to its own

satisfaction. Under the provisions of

the T.P. Act, 1888, if the transferor

does not have any title or has

transferee on transfer will either get

no title or he will get an imperfect

title. This will be to the prejudice of

the transferee and is not of any

concern to the registering authority.”

9. The submission advanced on behalf of the State of

Bihar that registration of the document in the

present case will defeat public policy in the light of

the decision taken by the Revenue and Land

Reforms Department, Government of Bihar, is not

acceptable to this Court as the said decision, in the

nature of executive instruction cannot be said to be

laying down any public policy. Subsection (1) of

Section 22 A of the Registration Act confers upon

the State Government of power to declare that

registration of any document or class of document is

oppose to public policy. Subsection (2) of Section 22

A is a non-obstante clause which mandates the

registering officer to refuse to register any document

to which a notification issued under Subsection (1)

is applicable. In case of Basant Nahata (supra) a

notification issued under Subsection (1) of Section

22 A of the Act, whereby registration of power of

attorney authorising the attorney to transfer any

immovable property for a term or irrevocable or

without prescribing any term, had fallen for

consideration. Rejecting the plea, dealing

extensively with the phraseology “opposed of public

policy” the Supreme Court in case of Basant Nahata

(supra) held in paragraph 61 and 64 as under :-

“61. Hence, it becomes amply clear that

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it is not possible to define public policy with

precision at any point of time. It is not for the

executive to fill these grey areas as the said power

rests with judiciary. Whenever interpretation of the

concept “public policy” is required to be considered

it is for the judiciary to do so and in doing so even

the power of the judiciary is very limited.

64. A thing which itself is so uncertain

cannot be a guideline for any thing or cannot be

said to be providing sufficient framework for the

executive to work under it. Essential functions of the

legislature cannot be delegated and it must be

judged on the touchstone of Article 14 and Article

246 of the Constitution. It is, thus, only the ancillary

and procedural powers which can be delegated and

not the essential legislative point.”

10. In view of the above, the plea taken on behalf of

the State of Bihar that the denial by the respondents

to register the document is in terms of a public

policy is hereby rejected. In view of the Division

Bench decision in case of Bihar Deed Writers

Association (supra) and the Supreme Court’s

decision as noted above, we have no hesitation in

recording our conclusion that once a document,

which is required to be registered, is presented for

registration in compliance with the Registration Act,

the registering authority is under obligation to

register a document presented before it.”

29. Section 22A of the Registration Act, 1908

mandates sale of land recorded in the Record of Right, which is

reproduced hereinbelow:

“22-A. Registration of document which is against

the public policy.- (1) The State Government may by

notification in the Official Gazette, declare that the

registration of any document or class of documents

is against the public policy.

(2) Notwithstanding anything contained in the Act,

the Registering Officer shall refuse to register any

document to which the notification issued under

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sub-section (1) is applicable.”

30. Furthermore, Section 71 and 72 of the

Registration Act, 1908 contains the provisons of law which is as

follows:-

“71. Reasons for refusal to register to be recorded.

—(1) Every Sub-Registrar refusing to register a

document, except on the ground that the property to

which it relates is not situate within his sub-district,

shall make an order of refusal and record his

reasons for such order in his Book No. 2, and

endorse the words “registration refused” on the

document; and, on application made by any person

executing or claiming under the document, shall,

without payment and unnecessary delay, give him a

copy of the reasons so recorded.

(2) No registering officer shall accept for

registration a document so endorsed unless and

until, under the provisions hereinafter contained, the

document is directed to be registered”

“72. Appeal to Registrar from orders of Sub-

Registrar refusing registration on ground other

than denial of execution.—(1) Except where the

refusal is made on the ground of denial of execution,

an appeal shall lie against an order of a Sub-

Registrar refusing to admit a document to

registration (whether the registration of such

document is compulsory or optional) to the

Registrar to whom such Sub-Registrar is

subordinate, if presented to such Registrar within

thirty days from the date of the order; and the

Registrar may reverse or alter such order.

(2) If the order of the Registrar directs the document

to be registered and the document is duly

presented for registration within thirty days after the

making of such order, the Sub-Registrar shall obey

the same, and thereupon shall, so far as may be

practicable, follow the procedure prescribed in

sections 58, 59 and 60; and such registration shall

take effect as if the document had been registered

when it was first duly presented for registration.”

31. The Bihar Land Mutation Act, 2011 deals with

the regulation of the process of mutation of land and provides

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for the filing of petition of mutation under Section 3, enquiry

and report under Section 4 and disposal of mutation cases under

Section 6. Under Section 3 (3A) inserted by Bihar Amendment

Act 22 of 2017 , the Circle Officer is required to take suo moto

cognizance for mutation after registration of land. The provison

of law is reproduced herein below:-

“ [(3A) After registration of land, the Circle

Officers of those notified Anchals will take

suo motu cognizance for Online Mutation

and start mutation case record within three

working days. The Circle Officer shall issue

general notice and particular notice in

prescribed form. After issuing general notice

and also particular notice, the Circle Officer

shall abide by the prescribed procedure for

disposal of the mutation case records.]”

32. The provisions regarding the sanction of

building plans has been provided in Bihar Municipal Act, 2007,

Building Bye-Laws (Old) and Bihar Building Bye-Laws, 2014.

Section 313 of the Act, 2007 mandates that no construction can

be carried out without following the procedure of the building

bye-laws, and Section 314 necessitates prior approval of

building plan by Competent Authority as per the bye-laws

before any construction could be carried out.

33. The Building Bye-laws of 1993 are in the form

of regulations and, in case, the same provides for submission of

certain necessary documents along with the application for

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building permit under Rule 5 sub-rule 5.3, for better

appreciation is reproduced herein under:-

“5.3. Application for building permit. The following shall

accompany the application for building permit in the case

of permission for erection, re-erection or making material

alteration.-

(i) Site Plan- Plan sent with an application shall be drawn

to a scale of not less than 1:500 for areas upto 10 hectare

and not less than 1: 1000 for areas more than 1 hectare and

shall show-

(a) the boundary of the site with the contiguous land around

it;

(b) the position of site in relation to neighbouring street

along with the municipal plot number and revenue plot

number;

c) the name of the street in which the building is proposed to

be situated, if any;

(d) all existing buildings standing on, over or under the site;

(e) the position of the building or of all other buildings (if

any) which the the applicant intends to erect upon his

contiguous land to in (a) in relation to:

1. the boundaries of the site and in case where the site has

been partitioned, the boundaries of the portion owned by

the applicant and also of the portion owned by others;

2. All adjacent streets, buildings (with number of storeys)

and premises within a distance of 15m. of the site of the

contiguous land (i any) referred to in (a); and 3. if there is

no street within a distance of 15m. of the site, the nearest

existing street.

(f) the means of access from the street to the building and

all other buildings which the owner intends to erect upon

his contiguous land referred to in (a);

(g) dimensions of the spaces to be left in and around the

building to secure a free circulation of air, admission of

light and access or scavenging purposes and details of

projection (if any) on to open spaces;

(h) the width of the street (if any) in front of any street (if

any) at the site or rear of the proposed building;

(i) Scale used and direction of north point relating to plan

of the building;

(j) Any existing physical features, such as walls, drains etc;

(k) sewerage and drainage lines upto discharge point and

water supply lines; and

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(1) such other particular as may be prescribed by the

authority.

(ii) Building plan-The plan of the buildings and two

elevations (front and side) and sections accompanying the

application shall be drawn to a scale not less than

1:100). The plan shall:-

(a) include the floor plans of all floors together with the

covered area clearly indicating the size and spacings of all

framing members and sizes of rooms and the position of

staircase, ramps and lift wells;

(b) show, the use or occupancy of all parts of the building:

(c) show exact location of essential services, for example,

WC, sink, bath and the like including the water supply and

drainage line;

(d) include two elevations (front and sides) and sectional

drawings showing clearly the size of footings, thickness of

basement wall, wall construction size and spacing of

framing members, floor slabs windows and other openings.

The section shall indicate the heights of buildings and

rooms and also the height of the parapet and the drainage

and slope of the roof. At least one section should be taken

through the staircase;

(e) show all street elevations (levels);

(f) indicate details of compound walls (including height and

sections) around the boundary;

(g) give dimensions of the permissible projected portions

within open spaces;

(h) include terrace plan indicating the drainage and the

slope of the roof;

(i) give indications of the north point relative to the plan

and scale used; and

(j) any other particulars as desired by the Authority.

(iii) Services plan- Plans, elevations and sections of private

water supply and sewerage disposal system Independent of

the municipal services if any drawn to a scale of 1:10 shall

also be included.,

(iv) Specification. General specifications giving type and

grade of materials to be used shall accompany the

application.-

(v) Ownership title: Every application for building permit

shall be accompanied by the following for verifying proof

of ownership.

(a) attested copy of the original sale/lease deed; and

(b) attested copy of the Revenue survey sheet/Municipal

survey sheet with Khesra no, or mutation record.

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Or

affidavit or other documents acceptable to the Authority.

(vi) Building permit for special Building. The proposals for

building permit for all buildings more than 15 metre in

height and other buildings with more than 500 sq.m.

grounds coverage and all other buildings of industrial

(warehouse, factory workshop etc.) storage, assembly and

hazardous use group shall be subjected to the joint scrutiny

of the Authority and Director of fire services before the

building permit is given. To that extent, one additional copy

of plans may be made available to the Authority for scrutiny

by Fire Service Directorate.”

34. It will be gainful to take note of the provision

of Rule 6 of the Bihar Building Bye Laws, 2014, which is

reproduced herein below:-

6. Signing the Plans.-(1) All the plans shall be

prepared and duly signed by a registered/empanelled

technical person as specified in Annexure-I (viz. Architect,

Engineer, Structural Engineer, Town Planner, Supervisor,

Draftsman) and Builder who shall indicate their names,

addresses, registration numbers on the body of the plan and

in all other relevant documents. The concerned owner of the

land shall also sign the plans.

(2) All plans, drawings, statements, design

details shall bear the signature of the applicants and shall

be duly countersigned by an empanelled Architect/Technical

person. All documents and plans related to structural

designs shall bear the full name and full signature of a

Structural Engineer. Plans and documents related to

sanitary arrangements shall bear the full name and full

signature of a technical person.

Note: 1. The Empanelled Architect/Technical

Person who has prepared the plan shall put the

empanelment number/CoA Registration No. and seal on all

plans and documents signed by him and shall also furnish a

certificate to the effect that he shall supervise the

construction of the building and shall be responsible for

any deviation from the approved plan except if the

Owner/Architect/Technical person intimates that their

agreement has been mar Building Bye-Laws terminated. 2.

Wherever required under these bye-laws, the empanelled

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Structural Engineer, who has prepared the structural

design, shall put his seal, and address on all the documents

signed by him and shall also furnish a certificate to the

effect that he shall supervise the structural part of the

construction and shall be responsible for any structural

failure except caused by unprecedented natural calamities

in Form-IV and except if the owner intimates that his

services have been terminated.

2. Wherever required under these bye-laws, the

empanelled Structural Engineer, who has prepared the

structural design, shall put his seal, and address on all the

documents signed by him and shall also furnish a certificate

to the effect that he shall supervise the structural part of the

construction and shall be responsible for any structural

failure except caused by unprecedented natural calamities

in Form-IV and except if the owner intimates that his

services have been terminated.

3. All aspects related to structural design,

building surface, plumbing, electrical installation, sanitary

arrangements, fire protection shall adhere to the

specification, standards and code of practice recommended

in the National Building Code of India, 2005 and any

breach thereof shall be deemed to be a breach of the

requirements under these Bye laws.

(3) The technical personnel and builder as

specified in sub-bye law (1) & (2) above shall have to be

registered/empanelled with the Authority. Their

qualifications and competence shall be as per Annexure I.

The application form shall be as per Form-VII A & Form-

VII В.

(4) No plans for construction of apartment

building, group housing and commercial building shall be

entertained unless the builder is registered by the Authority

in accordance with the competence as specified in the

Annexure 1. However for built up area less than 500 sq.m,

registration of builder is not mandatory.

(5) When it comes to the notice of the

Planning Authority/ Municipalities/ Urban Local Bodies

or any other person that a plan signed by technical

personnel or builder referred to under sub-bye law (1) &

(2) is in violation of the norms of these byelaws he shall

bring this to the notice of the Authority.

(emphasis

supplied)

(6) The Authority shall issue a notice asking

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for a show cause within fifteen days as to why such

technical personnel or builder shall not be disqualified/

black listed and legal action taken against him. After

receipt of the show cause if any, the matter shall be placed

before the Concerned Authority for a decision on such

disqualification/ black listing/legal action. The decision of

the Concerned Authority on disqualification/black listing

shall be published in the notice Board of the Authority.

(emphasis supplied)

(7) An appeal against an order under sub-clause (6) above

shall lie with Municipal Building Tribunal under Section

329 of the Municipal Act or Tribunal constituted under

the Act.” (emphasis supplied)

35. So far as the Building Bye-laws, 2014 is

concerned, sub-rule (1) of Rule 4 therein clearly provides that

the construction of any building in respect of which permission

has been issued before coming into force of 2014 bye-laws,

shall, so far as it is not inconsistent with the provisions of the

old bye-laws, continued to be validly made and the said

permission shall be deemed to have been issued under the

corresponding provision of those bye-laws. Sub-rule (2) of the

aforesaid Rule 4 provides that where any building has been

constructed before the notification of the 2014 bye-laws with

deviation of an approved plan, the provision of old bye-laws

shall be insisted upon and sub-rule (3) of Rule 4 provides that

when any building has been constructed without approved plan,

the provision of 2014 bye-laws shall be insisted upon.

36. Therefore, to mean that sale deed cannot be

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registered unless the land proposed to be sold stands recorded in

favour of the transferor in the “Record of Rights” is not a

document of title and the Record of Rights can whether create

or extinguish title. Moreover, preventing a person from getting

the land mutated in ‘Records of Right’ at the strength of valid

transfer / sale deed would be contrary to provisions under

Section 8 of the Transfer of Property Act, 1882.

37. It is also to be taken note of that Article 300A

of the Constitution of India tends to safeguard the invaluable

right to property.

“300-A. Persons not to be deprived of property

save by authority of law

No person shall be deprived of his property save by

authority of law.”

38. The State cannot dispossess a citizen of his

property except in accordance with the procedure established by

law. In other words, to forcibly dispossess a person of his

private property, without following due process of law, would be

violative of a human right, as also the constitutional right under

Article 300 A of the Constitution.

39. The question arises, whether in a situation as of

present, the State Government after allowing the topo land/un-

surveyed land to be registered after registration of the land in

favour of the petitioner can at the same time by a policy

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decision prohibit the mutation and direct the Circle Officer to

not create Jamabandi and issue L.P.C. and as a consequence of

same in absence of required documents the Municipal

Authorities can refuse to sanction building plan till the State

Government takes a policy decision, in regard, as informed by

the learned Advocate General.

40. The prohibitory order has not been issued under

any authority of law.

41. It is not open to respondents to imagine facts

contrary to record and with a prejudiced mind come to wrong

conclusions that sanction building plan cannot be granted in

favour of the petitioner. The state of affairs is presumed to

continue under Section 114(d) of the Evidence Act, 1872 and if

the State claims to have the possession of the land in question

then iot must prove by what means and process/ procedure it

secured such possession. A coordinate bench of this Hon’ble

Court, in the case of Amar Nath Pandey & Ors. vs The State

of Bihar & Ors. (CWJC No. 906 of 2014), has inter alia made

following observations :-

“In so far as the issue of availability of alternative

remedy of appeal under Section 11 is concerned, it

is seen that the proceedings has been conducted by

the Circle Officer, Patna Sadar and thus the

appellate forum against the order would be the

Collector of the District which in the present case is

the District Magistrate, Patna. Considering that

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under the orders of this Court, the District

Magistrate, Patna has filed his affidavit expressing

his opinion on the issue, in my opinion relegating

the petitioner to exhaust the forum of appeal in such

circumstances would be a mere completion of

formality. In the special circumstances of the present

case, I am not persuaded by the argument of Mr.

Choudhary to relegate the petitioner for exhausting

the statutory remedy of appeal. …. In terms of the

provisions underlying the Bengal Alluvion and

Diluvion Act, 1847 as finds interpreted in the

judgment of the Privy Council relied upon by Mr.

Singh, it is not on plain emergence and upon

accretion of a submerged land that such land

automatically becomes a Government land in

absence of any document supporting such position,

rather a declaration to such effect has to be there.

But until such time that it is established by the

respondents that the land in question is a

Government land and/or falls within the definition

of a ‘public land’under ‘the Act’, no proceedings

can be initiated under ‘the Act’ by terming the

possession of the petitioners thereon, as

‘encroachment’.

It is rather strange that even when the legal position

stands settled in a catena of judgments that where a

dispute goes to the root of the matter and involves

complicated issues of title and possession then a

summary proceedings under ‘the Act’ would not be a

correct recourse, yet the statutory authorities have

kept themselves oblivious to the legal position and

unaware of their obligations…”

42. Law does not contemplate performance of

impossible conditions/obligations from any individuals. The

Hon’ble Supreme Court has dealt with the doctrine of

impossibility in plethora of cases. In the case of Industrial

Finance Corpn. of India Ltd. v. Cannanore Spg. and Wvg.

Mills Ltd., (2002) 5 SCC 54, the Apex Court has held as under:-

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“30.The Latin maxim referred to in the English judgment

lex non cogit ad impossibilia also expressed as impotentia

excusat legem in common English acceptation means, the

law does not compel a man to do that which he cannot

possibly perform. There ought always thus to be an

invincible disability to perform the obligation and the same

is akin to the Roman maxim nemo tenetur ad impossibile. In

Broom’s Legal Maxims the state of the situation has been

described as below:

“It is, then, a general rule which admits of ample

practical illustration, that impotentia excusat legem;

where the law creates a duty or charge, and the

party is disabled to perform it, without any default

in him, and has no remedy over, there the law will in

general excuse him (t): and though impossibility of

performance is in general no excuse for not

performing an obligation which a party has

expressly undertaken by contract, yet when the

obligation is one implied by law, impossibility of

performance is a good excuse. Thus in a case in

which consignees of a cargo were prevented from

unloading a ship promptly by reason of a dock

strike, the Court, after holding that in the absence of

an express agreement to unload in a specified time

there was implied obligation to unload within a

reasonable time, held that the maxim lex non cogit

ad impossibilia applied, and Lindley, L.J., said: ‘We

have to do with implied obligations, and I am not

aware of any case in which an obligation to pay

damages is ever cast by implication upon a person

for not doing that which is rendered impossible by

causes beyond his control.’

31.This effort to search out the meaning of the Latin

maxim has been only to identify the situation which

prompted the learned Judge of the Queen’s Bench to

come to the conclusion as above. There, thus, has to

be an impossibility of performance of the obligation.

The fact situation presently under consideration

before us thus has to be assessed whether in fact

there was any such

impossibility or not. Let us be quite candid about

laying down the principles that rights created under

statute cannot stand obliterated

without cogent reasons and not on mere frivolity. In

any event, the right conferred in terms of a deed of

guarantee cannot but be stated to be an independent

right which stands recognised by the statute and

thus cannot in any manner be whittled down without

a just cause.Baily decision[(1869) 4 QB 180 :

(1861-73) All ER Rep 332 : 38 LJQB 98] in our

view does not lend any assistance in the fact

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situation of the matter under consideration. There

was in fact an impossibility of performance which

prompted the Court to excuse the guarantor from its

performance by reason of the impossibility of the

situation and for reasons that the same stood beyond

the control of the guarantor. The situation presently,

however, is not so.”

43. In the case of State of M.P. v. Narmada

Bachao Andolan, (2011) 7 SCC 639, Hon’ble Supreme Court,

has made the following observations:

“39.The court has to consider and understand the

scope of application of the doctrines of lex non cogit

ad impossibilia(the law does not compel a man to

do what he cannot possibly perform);impossibilium

nulla obligatio est(the law does not expect a party to

do the impossible); and impotentia excusat

legem in the qualified sense that there is a necessary

or invincible disability to perform the mandatory

part of the law or to forbear the prohibitory. These

maxims are akin to the maxim of Roman law nemo

tenetur ad impossibilia(no one is bound to do an

impossibility) which is derived from common sense

and natural equity and has been adopted and

applied in law from time immemorial. Therefore,

when it appears that the performance of the

formalities prescribed by a statute has been

rendered impossible by circumstances over which

the persons interested had no control, like an act of

God, the circumstances will be taken as a valid

excuse. (Vide Chandra Kishore Jha v.Mahavir

Prasad [(1999) 8 SCC 266 : AIR 1999 SC 3558]

,Hira Tikkoo v. UT, Chandigarh [(2004) 6 SCC

765 : AIR 2004 SC 3649] and HUDA v. Dr.

Babeswar Kanhar [(2005) 1 SCC 191 : AIR 2005

SC 1491] .)

40.Thus, where the law creates a duty or charge,

and the party is disabled to perform it, without any

fault on his part, and has no control over it, the law

will in general excuse him.Even in such a

circumstance, the statutory provision is not denuded

of its mandatory character because of the

supervening impossibility caused therein.”

44. In the case of LIC v. CIT, (1996) 7 SCC 524,

Hon’ble Supreme Court has held as under :-

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“9. This legal fiction enacted in Section 7(2)

includes within the assets transferred and vested in

the Corporation of all such insurers any amounts

which were due to the predecessor-insurer and

which remained to be recovered. Section 9(2)

enabled the Corporation to prosecute any legal

proceeding of whatever nature for the purpose of

recovering amounts due to the predecessor on the

appointed day. There is no dispute that any liability

of the insurer also stood transferred similarly to the

Corporation. Accordingly, if any amount remained

due towards taxes to be recovered from the

predecessor, it was a liability transferred to the

Corporation and the Corporation became liable to

discharge the same. It is also not in dispute that it is

only by virtue of this character of the Corporation

that the amount refunded as excess tax paid prior to

the appointed day by the predecessor came to be

refunded to the Corporation to whom all the assets

of the predecessor stood transferred and vested from

the appointed

day in 1956. It is also not disputed that the opening

balance inherited by the Corporation from the

predecessor on the appointed day had to be

deducted under Rule 2(1)(b) and the amount shown

as such was so deducted. It is further not disputed

that if this excess amount of tax paid by the

predecessor had not been so paid and the question

of refund did not arise, then this extra amount would

have formed a part of the inherited opening balance

with the Corporation and deduction of the same

would have been given under Rule 2(1)(b). The

question is: Whether, the refund having been made

to the Corporation only because of the provision in

Section 7 of the LIC Act, the same result should not

follow on the wording of Rule 2(1)(b)

10. Rule 2(1)(b) of the First Schedule to the Income

Tax Act, 1961 is as under:

“2. Computation of profits of life insurance

business.— (1) The profits and gains of life

insurance business shall be taken to be the greater

of the following:

(a)***

(b) the annual average of the surplus arrived at by

adjusting the surplus or deficit disclosed by the

actuarial valuation made in accordance with the

Insurance Act, 1938 (4 of 1938), in respect of the

last intervaluation

period ending before the commencement of the

assessment year, so as to exclude from it any surplus

or deficit included therein which was made in any

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earlier intervaluation period and any expenditure or

allowance which is not deductible under the

provisions of [Sections 30 to 43-A] [ Subs. by

Finance (No. 2) Act of 1967 (w.e.f. 1-4-1967)] in

computing income chargeable under the head

‘Profits and gains of business or profession’.”

11. It is obvious that in the surplus or deficit in any

intervaluation period relating to the Corporation

which came to be formed only on the appointed day

in 1956, this amount could not be reflected since it

related to a period prior to the formation of the

Corporation. The law does not contemplate or

require the performance of an impossible

act — lex non cogit ad impossibilia. It is now to be

seen whether the expression “included therein” in

Rule 2(1)(b) is alone sufficient to negative the

logical legal effect of Section 7 of the LIC Act. “

45. Hence, the law shall not expect performance of

the impossible conditions and any insistence upon performance

of impossible condition is required to be excused.

46. It is a settled preposition of law that a writ

petitioner is not barred from invoking the extra-ordinary

jurisdiction of this Court under article 226 of the constitution

although there may exist an alternate remedy.

47. The Apex Court in the Case of State Of U.P. &

Anr. versus Ehsan & Anr. reported in 2023 LiveLaw (SC) 887,

has made the following observations:-

“28. We are conscious of the law that existence

of an alternative remedy is not an absolute bar on exercise

of writ jurisdiction. More so, when a writ petition has been

entertained, parties have exchanged their pleadings/

affidavits and the matter has remained pending for long. In

such a situation there must be a sincere effort to decide the

matter on merits and not relegate the writ petitioner to the

alternative remedy, unless there are compelling reasons for

doing so. One such compelling reason may arise where

there is a serious dispute between the parties on a question

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of fact and materials/evidence(s) available on record are

insufficient/inconclusive to enable the Court to come to a

definite conclusion”

48. The Apex Court in the Case of M/s Magadh

Sugar & Energy Ltd. Versus The State of Bihar & Ors.

reported in LL 2021 SC 495, has held as follows:-

“ 19. While a High Court would normally not

exercise its writ jurisdiction under Article 226 of the

Constitution if an effective and efficacious alternate remedy

is available, the existence of an alternate remedy does not

by itself bar the High Court from exercising its jurisdiction

in certain contingencies. This principle has been

crystallized by this Court in Whirpool Corporation v.

Registrar of Trademarks, Mumbai19 and Harbanslal Sahni

v. Indian Oil Corporation Ltd20. Recently, in Radha

Krishan Industries v. State of Himachal Pradesh & Ors21 a

two judge Bench of this Court of which one of us was a part

of (Justice DY Chandrachud) has summarized the

principles governing the exercise of writ jurisdiction by the

High Court in the presence of an alternate remedy. This

Court has observed:

“28. The principles of law which emerge are

that: (i) The power under Article 226 of the Constitution to

issue writs can be exercised not only for the enforcement of

fundamental rights, but for any other purpose as well; (ii)

The High Court has the discretion not to entertain a writ

petition. One of the restrictions placed on the power of the

High Court is where an effective alternate remedy is

available to the aggrieved person; (iii) Exceptions to the

rule of alternate remedy arise where (a) the writ petition

has been filed for the enforcement of a fundamental right

protected by Part III of the Constitution; (b) there has been

a violation of the principles of natural justice; (c) the order

or proceedings are wholly without jurisdiction; or (d) the

vires of a legislation is challenged; (iv) An alternate remedy

by itself does not divest the High Court of its powers under

Article 226 of the Constitution in an appropriate case

though ordinarily, a writ petition should not be entertained

when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself

prescribes the remedy or procedure for enforcing the right

or liability, resort must be had to that particular statutory

remedy before invoking the discretionary remedy under

Article 226 of the Constitution. This rule of exhaustion of

statutory remedies is a rule of policy, convenience and

discretion; and (vi) In cases where there are disputed

questions of fact, the High Court may decide to decline

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jurisdiction in a writ petition. However, if the High Court is

objectively of the view that the nature of the controversy

requires the exercise of its writ jurisdiction, such a view

would not readily be interfered with.” (emphasis supplied)

The principle of alternate remedies and its

exceptions was also reiterated in Assistant Commissioner of

State Tax v. M/s Commercial Steel Limited (Civil Appeal No.

5121 of 2021). In State of HP v. Gujarat Ambuja Cement Ltd

& Anr., reported in (2005) SCC 6 499 this Court has held that a

writ petition is maintainable before the High Court if the taxing

authorities have acted beyond the scope of their jurisdiction.

This Court observed:

“23. Where under a statute there is an allegation of

infringement of fundamental rights or when on the

undisputed facts the taxing authorities are shown to have

assumed jurisdiction which they do not possess can be the

grounds on which the writ petitions can be entertained. But

normally, the High Court should not entertain writ petitions

unless it is shown that there is something more in a case,

something going to the root of the jurisdiction of the officer,

something which would show that it would be a case of

palpable injustice to the writ petitioner to force him to

adopt the remedies provided by the statute. It was noted by

this Court in L. Hirday Narain v. ITO [(1970) 2 SCC 355:

AIR 1971 SC 33] that if the High Court had entertained a

petition despite availability of alternative remedy and heard

the parties on merits it would be ordinarily unjustifiable for

the High Court to dismiss the same on the ground of non-

exhaustion of statutory remedies; unless the High Court

finds that factual disputes are involved and it would not be

desirable to deal with them in a writ petition.”

The above principle was reiterated by the Apex

Court in the case of Executive Engineer, Southern Electricity

Supply Company of Orissa Limited (Southco) and Anr. v/s.

Sri Seetaram Rice Mill reported in (2012) 2 SCC 108. In that

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case, a show cause notice/provisional assessment order was

issued to the assessee on the ground of an unauthorized use of

electricity under Section 126 (1) of the Electricity Act 2003 and

a demand for payment of electricity charges was raised. The

assessee contended that Section 126 was not applicable to it and

challenged the jurisdiction of the taxing authorities to issue such

a notice, before the High Court in its writ jurisdiction. The High

Court entertained the writ petition. When the judgment of the

High Court was appealed before this Court, it held that the High

Court did not commit any error in exercising its jurisdiction in

respect of the challenge raised on the jurisdiction of the revenue

authorities. This Court made the following observations:

“81. Should the courts determine on merits of the case or

should they preferably answer the preliminary issue or

jurisdictional issue arising in the facts of the case and remit

the matter for consideration on merits by the competent

authority? Again, it is somewhat difficult to state with

absolute clarity any principle governing such exercise of

jurisdiction. It always will depend upon the facts of a given

case. We are of the considered view that interest of

administration of justice shall be better subserved if the

cases of the present kind are heard by the courts only where

they involve primary questions of jurisdiction or the matters

which go to the very root of jurisdiction and where the

authorities have acted beyond the provisions of the Act.

82. It is argued and to some extent correctly that the High

Court should not decline to exercise its jurisdiction merely

for the reason that there is a statutory alternative remedy

available even when the case falls in the above stated class

of cases. It is a settled principle that the courts/tribunal will

not exercise jurisdiction in futility. The law will not itself

attempt to do an act which would be vain, lex nil frustra

facit, nor to enforce one which would be frivolous—lex

neminem cogit ad vana seu inutilia—the law will not force

anyone to do a thing vain and fruitless. In other words, if

exercise of jurisdiction by the tribunal ex facie appears to

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be an exercise of jurisdiction in futility for any of the stated

reasons, then it will be permissible for the High Court to

interfere in exercise of its jurisdiction. This issue is no

longer res integra and has been settled by a catena of

judgments of this Court, which we find entirely unnecessary

to refer to in detail…” (emphasis supplied)”

49. In view of the above observations of the Hon’ble

Supreme Court, it can be said that the contention of the

respondents that an alternate remedy under Section 329(n) of

the Act, 2007 already exists, does not hold good being pure

question of law.

50. We may take into consideration the Supreme

Court’s decision in case of State of Rajasthan Vs. Basant

Nahata reported in (2005) 12 SCC 77, wherein, it has been laid

down that the aim of the Registration Act is to govern the

documents and not the transactions embodied therein. The

Supreme Court has noted that by registration of a document,

only notice of the public is drawn.

51. A Division Bench of this Hon’ble Court in the

case of Satyendra Kumar (Supra) has already declared the

minutes dated 03.06.2017 contained in Memo dated 07.06.2017

to be not in accordance with law, thereafter, the State

Government preferred SLP, which also got dismissed. Learned

counsel further proceeded to submit that the action of the Circle

Officer cannot be sustained considering the fact that as on date

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as no policy or any specific amendment has been brought by the

State Government to stop mutation of the sale deed executed on

the basis of the rejection of the petitioner’s application for

sanction of map vide letter no. 2823 dated 14.09.2023, allegedly

on the ground that the petitioner did not fulfill the requirement

of Rule 6 of Bihar Building Bye-Laws, 2014 in want of

Certificate/clearance, Jamabandi, L.P.C. etc.

52. It is admitted fact that the entire city of Chhapra is

situated on the topo-land. The State Government has notified the

township of Chapra under Chapra Municipal Area more than

100 years ago, during the pre-independence era and the citizens

are paying municipal rent to the Municipality after creation of

the Municipal holding in their respective names.

53. The State Government is contemplating to take a

policy decision in regard to creating Jamabandi in the name of

the persons, who are inhabiting on the topo lands by

constructing their dwelling house or are running their business

and earning their livelihood. According to the information given

by learned Advocate General, the survey of topo land is

ongoing in the State of Bihar and when the exercise is

completed, prescribed procedure for creating zamabandi will be

followed in accordance with law. The final survey will result

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into reduction of land disputes in the state. Learned Advocate

General and the Additional Chief Secretary, Revenue

Department have informed that the State Government has not

issued any direction to the Municipal Corporation in the State

that they are restrained from carrying their statutory duties and

concern of the petitioner can well be considered by the

Municipal Commissioner.

54. Learned counsel has made specific allegation that

the Circle Officer is not issuing rent receipt in spite of the fact

that the circle officer having been granted unbridled power to

create Jamabandi and the Record of Rights which has been

carried out on the basis of the Registered sale deed produced

before him, when already Municipal Holding number is

existing, which also calls for interference. The Bye-laws

requires, for sanction of building plan, duly filled form along

with documents included fees, expenses, etc. as well as

documents pertaining to Jamabandi, rent receipts and L.P.C.

issued by the Circle Officer.

55. In the facts and circumstances of the case, I don’t

find that the petitioner may be made to relegate to first exhaust

the statutory remedy of appeal. In so far as the concern of the

State Government is concerned and in view of the admitted

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position that the land in question is a topo land, in want of legal

position settled in that regard and ratio laid down in Ashwani

Kumar Gupta Vs. The State of Bihar & Ors., reported in 2000

(2) PLJR 221, in which, it has been observed that the nature of

such topo/un-surveyed lands are yet to be established by

authority. I find that no prohibitory order could have been

directed to the Circle Officer for not entertaining sale deed in

respect of the topo land which has been registered pursuant to

the Letter No. 3113 dated 20.07. 2017. Once the transfer of land

has been registered, it gives legal title to the petitioner in

accordance with Section 8 of the Transfer of Property Act to get

the land mutated.

56. Section 135 of the Act, 2007 mandates that annual

value of holding shall be payable by the persons in actual

occupation of the holding within the municipality. A full Bench

judgment of this Court in Nripendra Nath Roy Choudhary

Vs. Commissioer of Chaibasa Municipality reported in 1981

BLJR 154 (FB) has held that title of a person does not get

affected in any way by change of his name in records of

municipality. Title flows from transfer as devolution of holding

which can only be adjudicated in a properly framed title suit.

However, a person who is in possession of a holding is liable to

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pay holding tax under Section 135 (2) of the Act, 2007 while

adjudication of title can simultaneously be decided in a title suit

without affecting the right of any of the parties to the title suit in

any manner whatsoever.

57. In this regard, the Form-VI prescribed as per the

Rule 5 (6) (x) of the Bihar Building Bye-Laws, 2014 prescribes

the content of the check list, which is reproduced hereinafter:

FORM VI

CHECK LIST

BYE LAWS NO.5(6) (X)

1. Name of the Applicant:

2. Name of the Owner:

3. Name of the Builder / Developer and Name of the Project:

4. Ownership documents: Established / Non established

5. Land Area

AS per Document As per Building PlanAs per Possession

6. Tenancy:- Lease hold / Free hold.

If lease hold

(i) Name of lesser:

(ii) Purpose of lease:

(iii) Duration of lease:

7. Existing off site Physical infrastructure:

a) Road

b) Sewerage

c) Drainage

d) Water Facility

e) Availability of drain

f) Telephone

g) Electricity

8.Nature of Construction: New Construction/

Reconstruction/Addition/Alternation

9.

(i) Amount of fee deposited

(ii) Covered area on all floors

10.

Use appliedPrescribed Land use in

the development plan

(if any)

Whether permissible

/not permissible/special

consideration

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11. (i) Whether first permission / Revised permission /

Revalidation ………………..

(ii) No of floor(s)……………….

12. Contents of Building Plan:

(i) Site Plan

(ii) Lay out plan

(iii) All floor plan

(iv) Elevation Front / Rear / Right / Left / Cross Section

(v) Plan of foundation

(vi) Septic tank and Soak pit

(vii) Recharging pit & Rain Water harvesting Plan

(viii) Drain Section

(ix) Area Statement

(x) Schedule of doors and windows

13.

Approach road:-

(i) Nature of road

(ii) Width of road:-

As per site / key plan

Site inspection report

(iii) Whether the approach road as shown

connected to an existing public road in the

site plan………………

(iv) Whether such connection is available in

settlement sheets or Cadastral Map: Yes/No

(v) If private, whether

a) transferred to the Authority:

Yes/No

b) indicated in the final settlement plan:

Yes/No.

c) mentioned in the ownership document: Yes/No

14.

Whether the plot is affected by proposed road / proposed

drain / proposed lake / any other public use…..

15.

Whether the plot is within 100 meter/100-300 meter of

State/ A.S.I. protected monuments……………….

Whether the plot is within 200 meter radius of important

buildings (i.e. Governor House, High Court, State

Secretariat, Legislative Assembly)

16.

Building Parameters:

Category Requirement

as per norm

Approved

building

plan

ProposalRemark

s

1 2 3 4 5

Basement/Stiltsqmt

1st floorsqmt

2

nd

floorsqmt

3

rd

floorsqmt

4

th

floorsqmt

Other Floors

Society room

Front set back

Rear set back

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Left / Right side set

back

FAR

Parking

Height

No. of dwelling unit

Population density

No. of staircase

No. of lift

Recharging Pit

Fee deposited

Any other item

Exemptions

(i) height

(ii) setback

(iii) FAR

17. Whether falls in the Airport funnel zone……………………

18. Provision of proposed on site physical infrastructure

(i) Water Supply:-

(ii) Sewerage:-

(iii) Drainage:-

(iv) Electrical Installation:-

19. Clearance / Certificate produced:

(i) General Affidavit:-

(ii) Structural Stability Certificate:-

(iii) Form of Supervision

(iv) NOC from Fire Authority:-

(v) Undertakings with regard to quality construction / Water

supply / Sewerage / Drainage / Waste disposal / firefighting

(wherever applicable)

Any other (specify)

N:B: (RS: Required and Submitted, RNS: Required not

Submitted, NR: Not Required)

20.

Involvement of Technical Person & Builder:

(i) Architect / Engineer -

Name:- CoANo

(for Architect)

Empanelment No:

(ii) Engineer / Structural Engineer:-

Name :

Empanelment No.:

(iii) Builder:

(iv) Any other:

Name: Empanelment No.:

Name-

Signature of Technical person

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58. The ground of rejection is that the Junior

Engineer, who upon verification of check list attached with the

Form for grant of approval of building plan had found that the

same did not contain the rent receipt, Land Possession

Certificate and other documents, pertaining to the said land duly

issued by the concerned Circle Officer and had recommended

for rejection. On perusal of the Form II and conditions of Clause

5(4) of the Bye Laws, 2014 and the Check List contained in

Form VI and conditions of Clause 5(6)(x) of the Bye Laws, I

don’t find that the objection raised by the Junior Engineer that

the petitioner has not produced LPC, Zamabandi, Rent Receipt

duly issued by the Circle Officer are not required. The

Commissioner has also not given any consideration of the Form

II and VI and in a most mechanical manner, has accepted the

recommendation of the Junior Engineer.

59. I, accordingly, hold that the building plan of the

petitioner having not been sanctioned in the name of the

petitioner by the Municipal Authorities as contained in

Annexure-4 to the writ petition, is without authority of law

which calls for interference under facts and circumstances of the

case and law laid down by this Hon’ble Court and the Apex

Court, and as such the order contained in letter no.2825 dated

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14.09.2023 is hereby set aside and quashed for the reason

recorded hereinabove.

60. Taking into consideration the information given

by the learned Advocate General that steps have already been

taken, the same be done expeditiously within a reasonable

period of time, at least, in respect of Chapra Town where the

township is existing since more than 100 years and perennial

alluvion and diluvion has stopped due to the change of the

course of the river.

61. With the aforesaid direction/observation, the

present writ petition stands disposed of.

62. There shall be no order as to costs.

mantreshwar/-

(Purnendu Singh, J)

AFR/NAFR A.F.R.

CAV DATE N.A.

Uploading Date 29.04.2024

Transmission Date N.A.