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2000 DIGILAW 517 (PAT)

Mohan Kumar Singh v. State Of Bihar

2000-04-03

S.N.JHA

body2000
Judgment S.N.Jha, J. 1. The petitioner seeks quashing of the order of the Vice- Chairman, Patna Regional Development Authority (PRDA) dated 23.7.99 in Vigilance case No. 97B of 1997 directing him to demolish the building in question, and the consequential notice dated 28.7.99. Copies of the said order/notice are annexures 6 and 7 to the writ petition. The petitioner also seeks quashing of the order of Appellate Tribunal dated 13.8.99 in Appeal no.9 of 1999 upholding the aforesaid order of the Vice-Chairman. Copy of the said order is annexure-9 to the writ petition. 2. The facts of the case are as follows. On 21.5.97 the petitioner filed an application before the Vice-Chairman, PRDA complaining of the ongoing construction by respondent no.3 Ratneshwar Prasad Singh on the main Boring Road, opposite A.N. College, in contravention of the bye-laws of the PRDA. On the basis of the said application case No. 97B/97 was registered. On 27.6.97 notice was issued under orders of the Vice-Chairman asking respondent no. 3 to immediately stop the construction work and submit the sanctioned plan with respect to the proposed building failing which the construction would be demolished. The notice was duly received by the respondent on 27.6.97 itself. Another notice to the same effect was issued on 15.9.97. It appears that in the meantime a detailed enquiry had been held by the Junior Engineer and Assistant Engineer, PRDA on 14.7.97 and a proceeding under Section 39(1) of the Bihar Regional Development Authority Act had been formally initiated. The aforesaid notice dated 15.9.97 was also duly received by respondent no. 3 on 19.9.97. In the returned copy of the notice he made endorsement that in response to memo no.834 dated 29.5.97 of the Vigilance Officer, he had already submitted his reply on 30.6.97. Notwithstanding the service of the notices, respondent no.3 did not enter appearance in the proceeding i.e. case no. 97B/97. He did so only on 22.3.99, after a general notice was published in the newspaper. On that day he filed an application to furnish copy of the enquiry report. On 18.6.99 he filed a detailed reply. The matter was thereafter heard on 23.7.99 and the impugned order was passed on the same day. 3. 97B/97. He did so only on 22.3.99, after a general notice was published in the newspaper. On that day he filed an application to furnish copy of the enquiry report. On 18.6.99 he filed a detailed reply. The matter was thereafter heard on 23.7.99 and the impugned order was passed on the same day. 3. The grievance of the petitioner is that though the case was instituted on his complaint, it is he who has been asked to demolish the building which was not the subject-matter of the proceeding while no order was passed with respect to construction which was subject-matter of the case. In any view, according to the petitioner, in terms of the proviso to Section 54 of the Bihar Regional Development Authority Act, he was entitled to opportunity of filing show cause which was not given and therefore-, the impugned order must be set aside on the ground of violation of express provisions of Section 54 as well as the general principles of natural justice. It is said that though the impugned order was initially passed against respondent no.3, which is evident from the use of the word Prativadi in the order dated 23.7.99, the said word was scored out and in its place the name of petitioner was inserted/substituted which shows bad motive or non-application of mind on the part of the Vice-Chairman, and in either case the order cannot be sustained. 4. Shri Navniti Prasad Singh, learned counsel for the petitioner, assailing the impugned order, inter alia, submitted that even if the construction of the building to which the impugned order relates, is held to be illegal for want of sanction of a building plan, the petitioner has submitted application for post-facto sanction and therefore, the PRDA should be directed to first dispose of the said application. 5. On behalf of the PRDA, Shri Sidheshwari Prasad Singh submitted that the respondent no.3 had filed application to treat his show cause as complaint against the petitioner and therefore, it is not correct to say that there was no complaint against the petitioner. 5. On behalf of the PRDA, Shri Sidheshwari Prasad Singh submitted that the respondent no.3 had filed application to treat his show cause as complaint against the petitioner and therefore, it is not correct to say that there was no complaint against the petitioner. Further, as the reports submitted by the Junior Engineer/Assistant Engineer, clearly show, the building belonging to the petitioner described as G + 2 (Ground + 2 stories) had been illegally constructed as there was no sanction plan for it, and as the petitioner was fully aware of the said report and with full awareness participated in the hearing of the case, it cannot be said that he suffered any prejudice and therefore, complaint regarding violation of rules of natural justice or proviso to Section 54 of the Act is unfounded. He pointed out that in the year 1996 itself, the PRDA had put red mark on the building in token of the building being unauthorised, and the petitioner therefore, knew that the building was liable to be demolished. He submitted that in S.K.Puri Boring Road Vypari Sangh vs. State of Bihar, 1995(1) PLJR 418, this Court has held that the persons were entitled to 72 hours of notice. Counsel explained the reasons and the circumstances in which the word, Prativadi was deleted and the name of the petitioner was mentioned in the order dated 23.7.99. As regards the application filed by the petitioner for grant of post-facto sanction, counsel stated that the application was submitted only on 30.7.99. after the Vice- Chairman passed the impugned order on 23.7.99 and the same was communicated on 28.7.99. In any view, it was stated that as the land on which the building stands comes within 90 ft. width of the road, no building plan can be sanctioned as per the approved Master Plan with respect to Boring Road Shri Krishna Puri area and in view of the Judgment of this Court in S.K.Puri Boring Road Vyapari Sangh vs. State of Bihar (supra). 6. The basic facts of the case do not appear to be in dispute. It is not in dispute that the construction over an area of 3.87M x 3.06M with respect to which the petitioner had made complaint, was being made without any sanctioned plan. 6. The basic facts of the case do not appear to be in dispute. It is not in dispute that the construction over an area of 3.87M x 3.06M with respect to which the petitioner had made complaint, was being made without any sanctioned plan. It is also not in dispute that there is no sanctioned plan with respect to the petitioners building (G + 2) which has been ordered to be demolished. I do not wish to go into the question as to whether it is per-misssible to accord post facto sanction with respect to that building. In the case of S.K.Puri Boring Road Vypari Sangh vs. State of Bihar (supra) undertaking was given on behalf of the respondents to the effect that "no boundary-wall shall be demolished if it is not an encroachment on the Boring Road which has presently a width of 54 (feet). The owners are entitled to enclose their holdings by erecting boundary walls without encroaching on the road, even if it is within 90 (feet) width of the road envisaged under the Master Plan, but they shall not erect any structure thereon" (emphasis supplied). Though it has been incorporated in the judgment as an undertaking on behalf of the respondents, there can be little doubt that it is part of the judgment and therefore, except the boundary wall, beyond the 54 ft. width of Boring Road, no building can be constructed. Whether this would apply to existing buildings situated beyond 54 ft. width but within 90 ft. width of the road as per the Master Plan, I do not wish to express my opinion, for an application for post-facto sanction has been filed and it is for the PRDA to consider and dispose of the same at this stage. 7. I, however, find substance in the contention of the petitioner as to denial of opportunity to file show cause. It may be mentioned at this stage that while Section 39 of the Bihar Regional Development Authority Act contains provisions relating to stoppage of ongoing construction of building, Section 54 contains provisions regarding the demolition of building in existence-completed or under construction. It may be mentioned at this stage that while Section 39 of the Bihar Regional Development Authority Act contains provisions relating to stoppage of ongoing construction of building, Section 54 contains provisions regarding the demolition of building in existence-completed or under construction. It may be useful to quote the said two provisions, so far as relevant, together as under : "39.(1) Where the erection of any building or addition or alteration thereto has been commenced or is being carried on (but has not been completed) without or contrary to the sanction referred to in Section 37 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any provisions of this Act, or regulations made thereunder the Vice-Chairman may, in addition to any other action that may be taken under this Act, by order, require the person at whose instance the building or the work has been commenced or is being carried on, to stop the same forthwith. xxx xxx xxx 54. xxx xxx xxx 54. (1) Where any development or erection of building has been commenced or is being carried on or has been completed in contravention of the Regional Plan, Master Plan or Zonal Development Plan or without the permission, approval or sanction referred to in Sections 35, 36, 37 or in contravention of any conditions subject to which such permission, approval or sanction has been granted, any officer of the Authority empowered by it in this behalf may, in addition to prosecution that may be instituted under this Act, make an order briefly stating the reasons therefor directing that such erection or development work shall be removed by demolition, filling or otherwise by the owner thereof or by the person at whose instance the erection or development work has been commenced or is being carried out or has been completed within a period of thirty days from the date on which a copy of the order of removal has been delivered to the owner or that person, as may be specified in the order, and on his failure to comply with the order, any officer of the Authority may remove or cause to be removed the erection or development work and the expenses of such removal shall be recovered from the owner or the person at whose instance the erection or development was commenced or was being carried out or was composed, as arrears of land revenue:" A significant distinction between the two provisions is that for passing an order for stoppage of construction of building under Section 39(1) the Act does not provide for giving any opportunity to file show cause while in Section 54 such a provision has been expressly incorporated in the shape of proviso to sub-section (1) as under : "Provided that no such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to show cause why the order should not be made." 8. It may be that the petitioner was aware of the reports submitted by the Junior Engineer and the Assistant Engineer suggesing that the building in question (G + 2) was also unauthorised because there is no sanctioned plan with respect to it. It may also be that in his application the respondent no. 3 had made allegation against the petitioner of having unauthorisedly constructed the building. It may also be that in his application the respondent no. 3 had made allegation against the petitioner of having unauthorisedly constructed the building. This however, in my opinion is not a point in issue. For initiating any proceeding under Section 54 of the Act there need not be a formal complaint by a private complainant. The action can be initiated by the Authority on its own on receipt of information. The real point is that the proceeding having been initiated at the instance of the petitioner, if the Vice-Chairman proposed to pass any order against him with respect to the building (G + 2), in all fairness, he should have given an opportunity to him to show cause why the building should not be demolished. The rules of natural justice are not fixed rules and their application depends on facts and varies from case to case. Where a person files a complaint against another person but action is proposed to be taken against the applicant himself, it would only be proper to inform him in advance. There may be adverse materials on record and that may justify such action but if action is taken and adverse order is passed, without informing him that the particular action is proposed to be taken, he can certainly complain of violation of principles of natural justice. There cannot be any doubt that demolition of building is bound to visit the person concerned with serious evil consequences and therefore, the requirements of natural justice must be strictly observed. 9. I do not find any substance in the contention that as red mark had been put on the building in the year 1996 itself, the petitioner was not entitled to any further opportunity. It is true that after the red mark was put on the building, the petitioner was required to remove the unauthorised portion and in the event of his failing to do so, it was open to the PRDA to demolish the same. However, the PRDA too did not take any further steps for three years. On the ground that three years ago red mark was put, order of demolition should not be all of a sudden passed while disposing of a quasi judicial proceeding relating to another construction. The requirement of giving notice is not an empty formality. However, the PRDA too did not take any further steps for three years. On the ground that three years ago red mark was put, order of demolition should not be all of a sudden passed while disposing of a quasi judicial proceeding relating to another construction. The requirement of giving notice is not an empty formality. The object is to make the person aware of the eventuality which is likely to visit him and where such eventuality does not take place and the status quo is allowed to continue for three years, the so called opportunity given three years ago may be said to have become stale. 10. The submission that 72 hours notice was sufficient as held by this Court in the case of S.K.Puri Boring Road Vyapari Sangh (supra) is also devoid of substance. The point at issue in that case was whether the tenants/shopkeepers were entitled to opportunity of hearing in terms of proviso to Section 54. Rejecting the contention this Court held that only owners or builders had right to object to the proposed demolition under the proviso to Section 54(1). But taking compassionate view of the matter, in order to mitigate the hardships of the tenants/shopkeepers, the Court observed that reasonable time should be given to them to remove their belongings and accordingly directed the authorities to give at least 72 hours time to time to enable them to remove their belongings. The above observation/direction given in the context of tenants/shopkeepers cannot be applied in the case of owners. 11. As the matter stands of now, the construction over the area of 3.87M x 3.06M with respect to which the petitioner had filed the complaint as well as the building (G + 2) belonging to the petitioner with respect to which the order has been passed, are unauthorised being violative of the provisions of Section 35 of the Bihar Regional Development Authority Act, and therefore, both of them are liable to be demolished, and neither the petitioner nor respondent no.3 can claim any legal right. The only right which they can claim in law is to file show cause. I have already pointed out that for passing an order in terms of Section 39 no opportunity of filing show cause is required but for passing order of demolition under Section 54, such opportunity is required to be given. The only right which they can claim in law is to file show cause. I have already pointed out that for passing an order in terms of Section 39 no opportunity of filing show cause is required but for passing order of demolition under Section 54, such opportunity is required to be given. So far as respondent no.3 is concerned, action as envisaged in both Sections 39 and 54 was required to be taken. Not only the ongoing construction had to be stopped, but the construction already made also had to be demolished which required opportunity to file show cause. Such opportunity was given to him. However no order has been passed with respect to him. So far as the petitioner is concerned Section 54 alone was attracted and he was also entitled to opportunity of show cause but without doing so, the order of demolition has been passed. I have therefore no option but to direct the Vice-Chairman PRDA to pass fresh order with respect to both respondent no.3 as well as the petitioner. It will be open to the petitioner to file his show cause within two weeks treating the two reports of the Junior Engineer/Assistant Engineer dated 14.7.97 as the basis of the proposed demolition and the impugned order of the Vice-Chairman dated 23.7.99 as the show cause notice. The impugned order dated 23.7.99 is quashed in the meantime. As a result of quashing of the original order, the appellate order as well as the impugned notice also stand quashed. 12. This writ petition is disposed of in the above terms.