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2000 DIGILAW 1104 (PAT)

Subrato Ghosh v. State Of Bihar

2000-09-13

RADHA MOHAN PRASAD

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Judgment 1. Heard learned counsel for the parties. 2. In this writ petition, petitioner is aggrieved by the orders of the Vice- Chairman as well as Appellate Tribunal, P.R.D.A., contained in Annexures 6 & 7 with respect to Vigilance Case started against the petitioner for the alleged unauthorised construction of two floors situated at Rajendra Path (Station Road), whereby and whereunder the order of the Vice-Chairman to execute the demolition has been affirmed. 3. From the facts narrated before this Court, it appears that there was afready construction of ground floor and first floor made on the plot in question before the same was purchased by the petitioner and apparently there appears to be confusion as regards the construction of 2nd and 3rd floor. From the order of the Appellate Tribunal also it appears that the Tribunal was under the impression that the petitioner has already made construction of 2nd and 3rd floor without necessary sanction of the authority. According - to the case of the petitioner, he has only constructed 2nd floor after deemed approval as per Section 37(5) of the B.R.D.A. Act, 1981 as despite expiry of the period of notice, no order on the application filed by the petitioner for sanction was passed. The Respondent-authorities have, however, contended that the petitioner started construction even before expiry of the period of notice as specified in the provision for deemed approval for which vigilance case was initiated on 27,6.1989. 4. It appears that the petitioner also filed an application for post-facto sanction on payment of requisite fee and fine which has also been rejected vide order dated 31.5.2000, the validity of which has been challenged by the petitioner in l.A. No. 3528 of 2000 being annexed as Annexure-2 to the said petition, on the sole ground that the construction of 2nd and 3rd floor of the building in question was without any sanction by the P.R.D.A. and are unauthorised construction. However, the authority has not considered the request made by the petitioner for post- facto sanction as per the provisions contained in the bye-laws. The petitioner has also annexed the copies of photograph of the building in question to show that there was only one floor constructed since after the purchase of the premises in question which had ground floor and first floor. 5. The petitioner has also annexed the copies of photograph of the building in question to show that there was only one floor constructed since after the purchase of the premises in question which had ground floor and first floor. 5. From the said facts it appears that the authority were in error that the petitioner has constructed 2nd and 3rd floor of the building in question unauthorisedly. However, without going into the question as to whether any construction was made by the petitioner before the expiry of the period of notice in terms of the provisions relating to deemed approval, this Court after hearing the learned counsel for the parties finds that in the facts and circumstances, the authorities have not acted fairly in rejecting the application of the petitioner for post-facto sanction on payment of requisite fee and fine. It is not the case of the Respondents that the entire construction made by the petitioner was not permissible within the limit/norms for such construction. As such, even assuming that the said construction was made before the expiry of the period for deemed approval, the Respondent-authorities should have considered the application of the petitioner for post-facto sanction on payment of requisite fee and fine, if any, in accordance with the provisions of the bye-laws. 6. Accordingly, this writ petition is disposed of with a direction that the authority shad not proceed with the impugned orders and consider the application of the petitioner for post-facto sanction in accordance with law within three months. However, as suggested by the learned counsel for the P.R.D.A., the petitioner is given liberty to file fresh petition with requisite fee for post-facto sanction, which, if filed within two weeks, shall be considered and disposed of within the aforesaid time.