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2008 DIGILAW 1143 (PAT)

Ramdeo Prasad v. State of Bihar

2008-08-11

AJAY KUMAR TRIPATHI

body2008
ORDER : Petitioner is seeking quashing of the ORDER :s dated 6.5.2003 as well as 11.1.2003 contained in Annexures-18 and 19 by virtue of which the respondents Patna Regional Development Authority (hereinafter referred to as PRDA) has rejected his claim for allotment of a plot of land in Rajendra Nagar area under the displaced person category. The respondents by the above two impugned ORDER :s have refused the demand of the petitioner in this regard. The reasons indicated therein are being seriously assailed in the present writ application. 2. It is a long litigation which the petitioner has been carrying on against the respondents and therefore some factual aspects are being taken note of. Petitioner's father late Ram Das Pandit owned a piece and parcel of land which was acquired by then Patna Improvement Trust. In terms of the policy existing at the relevant time, all such persons whose lands were acquired were entitled to allotment of a piece and parcel of land for building their own residence. Somewhere in the year, 1973 mother of the petitioner filed an application alongwith the prescribed deposit in terms of an advertisement called by the then Patna Improvement Trust. Petitioner's mother thereafter pursued the matter before various forum but except for assurance and excuses no decision in this regard was taken. The Patna Improvement Trust thereafter got replaced by Patna Regional Development Authority (in short PRDA). The matter therefore came within the ambit of consideration of PRDA. In the year, 1980 mother of the petitioner passed away and the daughter of Basumati Devi namely, Jeera Devi thereafter started pursuing the matter. She even filed a writ application in the year, 1992 which was CWJC No. 2262 of 1992. In the said writ application itself for the reasons indicated the present petitioner, namely, Ram Das Prasad was substituted as a legal heir. The matter got finally heard and the writ application was disposed of vide ORDER :dated 6.9.1999. The learned Single Judge of the High Court held in favour of the petitioner on the stand taken by the respondents (PRDA) that petitioner shall be offered a flat in lieu of the land and it was open to the petitioner to accept the said offer. But it seems from the ORDER :that the right of the petitioner to claim a piece and parcel of land at Rajendra Nagar area was not extinguished. But it seems from the ORDER :that the right of the petitioner to claim a piece and parcel of land at Rajendra Nagar area was not extinguished. It was left open to the petitioner to pursue his matter. 3. When nothing came out of the ORDER :and direction of the Court passed in CWJC No. 2262 of 1992 a contempt application was filed. The contempt ORDER :dated 10th November, 2003 is annexed as Annexure-20 to the writ application. It seems that the contempt application was heard as a writ application virtually on the basis of the parties agreeing to the same and the Court went into the merit of the claim itself. It is a very detailed ORDER :running into many a paragraphs and pages. The Court held against the petitioner after taking note of various provisions under the Act and Rules. Rule, 17 of the PRDA (Disposal of Land) Rules 1978 was the primary rule on which the claim of the petitioner was tested. The Court noted that the claim for a piece and parcel of land for residential purpose was permissible only when if the person or his dependent did not own residence of his own at Patna or did not own or have a share in any land in Patna suitable for construction of a residential house. It seems and it is not in dispute that the petitioner does own a residential house of his own in Kankarbagh Colony at Patna. The Court in its wisdom therefore with its detailed reasoning dismissed the contempt also on merit. 4. Petitioner challenged this ORDER :contained in Annexure-20 by filing LPA 1199 of 2003. The ORDER :passed in LPA has been brought on record as Annexure-21 and is dated 30.7.2004. The Division Bench observed that since the ORDER :in question appealed against was an ORDER :passed in contempt therefore decision on merit of the matter should be read to mean a decision in the contempt jurisdiction only. In this background the petitioner was given liberty to challenge the ORDER :which was passed on representation of the petitioner. It was in this background the petitioner has filed the present writ application challenging the ORDER :dated 6.5.2003 contained in Annexure-18 as well as ORDER :dated 1.11.2003 which came to be passed pursuant to the observation made in the contempt application which is Annexure-19. 5. It was in this background the petitioner has filed the present writ application challenging the ORDER :dated 6.5.2003 contained in Annexure-18 as well as ORDER :dated 1.11.2003 which came to be passed pursuant to the observation made in the contempt application which is Annexure-19. 5. Learned Senior Counsel appearing on behalf of the petitioner submits that the reasoning given by the respondents in the impugned ORDER :dated 6.5.2003 Annexure-18 is erroneous on the face of it. In this ORDER :the then Vice-Chairman of the PRDA held that the petitioner had no locus in view of the fact that it was Jeera Devi who was pursuing her claim and the claim lodged by Jeera Devi came to an end on her death. It was to dispel this reasoning that the Court's attention was drawn to the ORDER :dated 22.10.97 passed in CWJC No.2262 of 1992 which is Annexure-12 to the writ application where the petitioner was substituted as a legal heir in the writ application and a final ORDER :in this regard in his favour came to be passed in terms of Annexure-14. Even misdescription of the name of the parties made in the ORDER :dated 6.9.1999 of Annexure-14 stood corrected vide ORDER :dated 1.11.1999 contained in Annexure-17. 6. There seems to be some force in the submission of the learned counsel for the petitioner and therefore the Court has no hesitation in quashing the ORDER :dated 6.5.2003 contained in Annexure-18 to be erroneous because the reasoning stated therein is de hors the records of the case. It is too late in the day for the respondent to say that the petitioner has no right or claim to pursue. 7. The Court has been thereafter addressed on the validity of the ORDER :dated 1.11.2003 contained in Annexure-19 which is the second impugned ORDER :. By this ORDER :the respondents have again rejected the claim of the petitioner where a doubt over the claim of the petitioner to be valid legal heir of the original claimant Basumatl Devi has been raised. Not only this they have also stated that the petitioner was offered a flat by the respondents in terms of the ORDER :and direction of the Court but he refused to accept it. They also took a stand that there are no land available in Rajendra Nagar area which could be made available to the petitioner. Not only this they have also stated that the petitioner was offered a flat by the respondents in terms of the ORDER :and direction of the Court but he refused to accept it. They also took a stand that there are no land available in Rajendra Nagar area which could be made available to the petitioner. Even the Rule 17 in this regard is a bar to the claim made by him for allotment of a piece and parcel of land to him. 8. As noted above in earlier part of the ORDER :it is too late in the day for the respondents to raise serious objection to the petitioner's right to claim himself to be the legal heir and pursue his claim against the respondents. It may not be permissible for the respondents to go behind the ORDER :s passed by the High Court which has already recognized the petitioner as the legal heir which would be evident from Annexures-12 and 17 of the writ application. 9. The Court now has to test the other reasoning whether Rule 17 of the PRDA (Disposal of Land) Rules, 1978 framed under the Act comes as bar to the claim of the petitioner for a piece and parcel of land. For a ready reference Rule 17 of 1978 is quoted hereinbelow:- Rule 17. Preference in settlement of lease of residential plots.-In case of plots to be leased for residential purposes, preference will be given to one— (a) who is ordinarily a resident of Patna or is engaged in Patna in some profession, e.g., medical, teaching, journalism, legal, engineering, architecture, town planning, etc., trade, commerce, business or service; (b) who or whose dependants do not own a residential house or his own at Patna; (c) who does not own, or has a share in any land at Patna suitable for construction of residential house; and (d) any other category as may be directed by the State Government or considered expedient by the Authority: (e) Provided that the plot or land owned by the applicant is very small in size and is situated in a slum area notified as such by the appropriate authority, where a residential building of a size suitable as per the income group to which the applicant belongs, cannot be constructed or reconstructed. 10. 10. On a plain reading of the above rule would clearly lead to a conclusion that all those categories of persons who have been indicated in the Rule 17(b) to (c) do not have a right to claim. The reason is evident from the provision of rule itself. 11. But the learned Senior Counsel appearing on behalf of the petitioner submits that the claim of the petitioner is based on Rule 8 of the Patna Improvement Trust Act, 1957 and not on 1978 Rules. 12. A detailed counter affidavit has been filed on behalf of the respondents in which they have explained the various factual position as well as the legal one. One of the primary contentions is that the claim of the petitioner will have to be judged in the light of the prevalent rule. If the Patna Improvement Trust stood abolished and by virtue of a new legislation a new Act and Rule has been brought into place then the case of the petitioner will have to be judged in the light of prevalent law as enforced. If the present rule which is binding upon respondents does create an impediment for making allotment of a piece and parcel of land for residential purpose because the petitioner is the owner of a residential property in the town of Patna then the matter ought to be allowed to rest at that and the petitioner cannot be permitted to claim a right on an extinct law and rule which no longer occupies the field. 13. The Court seems to be in agreement on the submission made on behalf of the respondents that the decision has to be taken in the light of the current and prevalent Rules and Acts. If the same does create an impediment against the petitioner which is also one of the reasons for refusing the claim then the respondents have done no wrong. To that extent Annexure-19 need not be interfered with. 14. In view of the above the Court does not find any merit in the writ application and the same is accordingly, dismissed.