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2000 DIGILAW 1188 (PAT)

Devendra Narayan Gupta v. State Of Bihar

2000-10-18

D.P.S.CHOUDHARY, NAGENDRA RAI

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Judgment Nagendra Rai, J. 1. This appeal is directed against the judgment dated 5.7.2000, passed by a learned Single Judge, by which the writ application filed by the appellant challenging the order of the Vice Chairman of the Patna Regional Development Authority (for short P.R.D.A.) cancelling the building plan and taking steps for removal of the unauthorised construction has been dismissed. 2. Necessary facts for disposal of the present appeal are that one Manki Sah had three sons, namely, Sauki Lal, Nandu Lal and Laxmi Narayan Gupta (father of the appellant and Surendra Narayan Gupta). They formed a joint family, which acquired plot nos. 188 and 330 (wrongly mentioned in the documents as 191), situate in Muhalla Mithapur in the town of Patna, by registered documents in 1918 and constructed residential house giving rise to different holding numbers. In a partition between the co-sharers, a portion of the same was allotted to the appellant. 3. The dispute in the present case is with regard to a part of the portion of the land of plot no. 177. Admittedly, a road passes from Agam Kuan to Danapur (Khagaul) through Mithapur and the land appertaining to it belonged to the District Board. The total width of the road including the land of plot no. 177 was 140 feet. The appellant claimed that plot no. 177 was used by the family since long and the said land was settled by the District Board to one Pragash Mistri in 1898, who transferred it to one Sahukar Das in 1925. In a partition in the family of Sahukar Das, the same fell in the share of his cousin Mathura Das, who transferred it in favour of father of the appellant and his uncle. Later on, one Maina Sah got settlement of the said plot from the District Board and, therefore, the father of the appellant and his uncle Nandulal Gupta filed a suit, which was dismissed. Later on, the aforesaid persons filed Title Appeal No. 315/38 of 1953/1954 and a compromise was entered into between the District Board and the appellants of the said appeal on 14.6.1955, on the basis of which the suit was decreed on 13.9.1955. In the said case, the State of Bihar was previously a party, but its name was deleted and, therefore, it was not a party to the aforesaid compromise. In the said case, the State of Bihar was previously a party, but its name was deleted and, therefore, it was not a party to the aforesaid compromise. The terms of the compromise have been quoted in paragraph no. 6 of the judgment of the learned Single Judge and one of the terms of the compromise was that a lease to be executed by the District Board in favour of the appellant. Admittedly, no lease deed was executed in favour of the appellant. On 29.6.1955, the State Government issued a notification under section 3 of the Bihar Provinciaiisation of Roads and Hospitals Act, 1947, according to which the road and the land appertaining to it including plot no. 177 belonging to the District Board vested in the Government. In terms of proviso to section 3 of the said Act, a notice was issued by the State Government declaring its intention to issue notification under section 3 and inviting objections from the local authorities and other interested persons and, thereafter, the aforesaid notification was issued vesting the land in the State Government. As stated above, the suit was decreed thereafter. 4. The appellant filed a map along with relevant documents for sanction of the same for construction of a building over the land, including the land of plot no. 177 under section 37 of the Bihar Regional Development Authority Act, 1981 (hereinafter referred to as the Act) and the same was sanctioned. Later on, the authorities came to know that the appellant by misrepresentation has got the map sanctioned with regard to plot no. 177, which is a part of the road without having a semblance of title over the said land. Thereafter, the officer of the P.R.D.A. visited the spot and it was brought to the notice of the appellant that he had got the map sanctioned on misrepresentation of fact and four days time was given to him to file documents in support of his title and ownership with regard to plot no. 177. Thereafter, the officer of the P.R.D.A. visited the spot and it was brought to the notice of the appellant that he had got the map sanctioned on misrepresentation of fact and four days time was given to him to file documents in support of his title and ownership with regard to plot no. 177. Thereafter, the appellant produced the relevant documents before the officer of the P.R.D.A. on 8.9.1989 and the officer having considered the documents submitted a report that the sanctioned plan was obtained on misrepresentation of facts and, thereafter, the Vice Chairman of the P.R.D.A., by order dated 12.9.1989, cancelled the sanctioned plan and directed the authorities to take steps restraining the appellant from making any unauthorised construction. He also directed for taking appropriate action against the concerned authorities. 5. The said order of the Vice Chairman of the P.R.D.A. appears to be a provisional one as, thereafter, it appears that the notice was issued to the appellant and again an opportunity was given to him and he appeared and after having considered his objection, the Vice Chairman by order dated 23.9.1989 directed for issuance of notice giving therein the grounds for taking action under section 38 of the Act, which provides for cancellation of the sanctioned plan obtained on misrepresentation of facts or on fraudulent statement. A copy of the said notice has been annexed with the counter-affidavit as Annexure A. The said notice was served upon the appellant and he did not appear despite service of notice on several dates and the Vice Chairman adjourned the matter and before final order was passed by him on the basis of the notice served upon the appellant, he filed the present writ application suppressing the fact that the matter was pending before the Vice Chairman for final decision and obtained a stay order on 21.12.1989 and the construction was allowed subject to the result of the case. By the judgment impugned, the learned Single Judge has dismissed the writ application. Hence, the present appeal. 6. Learned counsel appearing for the appellant raised three points. Firstly he submitted that the adverse order cancelling the sanctioned plan in exercise of the power under section 38 of the Act has been passed without giving an opportunity to the appellant of being heard, which is in violation of the proviso to the said section. Hence, the present appeal. 6. Learned counsel appearing for the appellant raised three points. Firstly he submitted that the adverse order cancelling the sanctioned plan in exercise of the power under section 38 of the Act has been passed without giving an opportunity to the appellant of being heard, which is in violation of the proviso to the said section. Secondly, he submitted that the appellant is the owner of plot no. 177 and he produced all the relevant documents and as there was no misrepresentation of fact, the provision of section 38 of the Act is not attracted in the present case. Lastfy, he submitted that the law does not require that the person submitting a plan for construction of the building in terms of the provisions of the Act should be the owner of the land and as such the authorities were not justified in cancelling the sanctioned plan on the ground that the appellant was not the owner. 7. The Bihar Regional Development Authority Act has been enacted to provide for development of various regions of the State of Bihar, according to plan and for matters antillary thereto. Section 35 of the Act provides that no person shall erect or commence to erect any building, or make any addition or alteration to any building except with the previous sanction of the Vice Chairman and in accordance with the provisions of the Act and regulations made thereunder. It further provides that if the proposed erection, alteration etc. would be in contravention of any provision of the Act, or any regulation made in this behalf of under any other law, the sanction of the plan shall be refused. Section 38 provides that if at any time after the sanction to erection of any building or addition or alteration thereto has been accorded, the Vice-Chairman is satisfied that such sanction was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under section 37, he may by order in writing and for reasons to be recorded cancel such sanction and erection of any building etc. shall be deemed to have been done without such sanction. According to the proviso to section 38, before making any such order, the Vice-Chairman shall give reasonable opportunity to the person affected to explain as to why such order should not be made. 8. shall be deemed to have been done without such sanction. According to the proviso to section 38, before making any such order, the Vice-Chairman shall give reasonable opportunity to the person affected to explain as to why such order should not be made. 8. Thus, once the erection of the building has been sanctioned under section 37, the same can be cancelled under section 38 under two circumstances only, namely, when there is material misrepresentation or fraudulent statement after giving opportunity of hearing to the person affected. 9. The materials on the record show that when the erection was being done by the appellant, the officer of the P.R.D.A. visited the spot and found unauthorised construction over plot no. 177, which is a part of the road, in front of a house and the width of the road and the land appertaining to it was reduced from 140 feet to 126 feet. He was informed about the same. He appeared and filed documents, which were perused by the authorities and, thereafter, the Vice-Chairman on 12,9.1989 cancelled the sanctioned plan. However, later on the appellant complained before the Vice Chairman that the notice in terms of section 38 was not served on him and, thereafter, by order dated 23.9.1989, which has been challenged, the Vice-Chairman directed to serve notice in proper form on the appellant and fixed 30th September, 1989 as the next date for his appearance. Thereafter, a notice dated 26.9.1989 in terms of section 38 giving grounds for cancellation of the sanctioned plan was sent to the appellant. On 30.9.1989, the appellant again filed a petition stating that the detailed notice was not served upon him and he did not appear on that date. Thereafter, his case was adjourned to other dates but he did not appear and in the meantime filed a writ application in this court. Thus, it is clear that after service of notice on the appellant in terms of section 38 of the Act, no final order was passed by the Vice-Chairman and the appellant rushed to this court and by misrepresentation of fact obtained a stay order. Enough opportunity was given to the appellant and he should have availed of that opportunity, but instead of availing that opportunity and appearing before the Vice-Chairman, he has rushed to this court without giving an opportunity to the authority to take a final decision in the matter. Enough opportunity was given to the appellant and he should have availed of that opportunity, but instead of availing that opportunity and appearing before the Vice-Chairman, he has rushed to this court without giving an opportunity to the authority to take a final decision in the matter. 10. The admitted fact is that plot no. 177 is a part of the main road, which passes through the town of Patna from Agam Kuan to Danapur (Khagaul). It has already vested in the State of Bihar. In such a situation, the question for consideration is as to whether the authorities can pass an order sanctioning the plan for erection of a building on the part of the road and allow construction over the same. According to the terms of the compromise also, a lease deed was to be executed but the same has not been executed by the District Board and as such the appellant has no title over the land. However, I am not expressing any final opinion about the ownership of the appellant over the land or on the point as to whether the appellant has misrepresented the facts or not at the time of sanction of the plan for erection of the building as the Vice-chairman has to take a final decision in the matter. 11. However, I am of the view that no fresh notice is required to be served on the appellant for the reason that a notice in terms of section 38 of the Act has already been issued to him and he has knowledge about the same. Accordingly, the appellant is directed to appear before the Vice Chairman on the 6th of November, 2000, who will fix a firm date and on which date the Vice-Chairman will hear the parties and will pass a final order. In case, it is found that the appellant has no ownership and title over the land is question and the sanctioned plan is cancelled under section 38 of the Act, then the unauthorised construction should be immediately removed within a period of fifteen days from the date of passing of the order by the Vice-Chairman. 12. In the result, the appeal is allowed and the matter is remanded to the Vice-Chairman of the P.R.D.A. to take a final decision in the matter as directed above. D.P.S.Choudhary, J. 13 I agree.