IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8791 of 2007 1. RAJESH KUMAR VERMA, son of Late Gouri Shankar Verma 2. ANJANI KUMAR VERMA,son of Late Captain Arunjai Sahay Verma 3. ABINASH KUMAR, son of Late Suresh Chandra Prasad, All residents of Mohalla-Khajanchi Road, Post Office- Bankipur, Police Station- Pirbahore, Town and District- Patna ………… Petitioners Versus 1. THE PATNA MUNICIPAL CORPORATION, THROUGH The Municipal Commissioner, Budha Marg, Patna 2. The Appellate Tribunal, the then Patna Regional Development Authority and now under the Patna Municipal Corporation Patna through its President. 3. Shri Anand Kumar Verma 4. Shri Rishi Kumar Verma 5. Shri Madan Mohan Verma, all sons of Late Balram Das Verma 6. The State of Bihar through the Secretary, Urban Development Department, Bihar, Patna. ……… Respondents. ----------- For the petitioners:- M/S Tara Kant Jha, Sr. Advocate & Arun Prasad Ambastha, Advocate For Respondent No.1:- M/S J.S. Arora & Ajay Kumar, Advocates For Resp. Nos.3,4&5:- M/S Binod Kumar Kanth, Sr. Advocate & Dr. Amrendra Kumar, Advocate For the State :- Mr. Sant Kumar Mishra, Advocate, J.C. to Government Advocate No.2. ----------- 6. 26.09.2008 Heard learned counsel for the petitioners, learned counsel for respondent nos. 3 to 5, learned counsels for the Patna Municipal Corporation and also for the State of Bihar. The petitioners have approached this Court for quashing the order dated 11.10.2006 (Annexure-3) passed by the Appellate Tribunal of the Patna Regional Development Authority (PRDA) in Appeal No. 14 of 2003 by which the order dated 2.12.2002 - 2 - passed by the Vice-Chairman, Patna Regional Development Authority in Misc. Case No. 98 of 2002 was set aside and the appeal was allowed and also for consequential directions. The private-respondent Nos. 3 to 5 had applied for approval of a plan with respect to the land situated at Khajanchi Road, Patna in which they had shown the width of the land as 51 feet on the western end touching the Khajanchi Road which was approved and construction started. The petitioners filed an application under Section 38 of the Act before the Vice-Chairman of the Patna Regional Development Authority claiming that the private respondents were entitled only to 46 feet land. The claim of the petitioners against the respondents is based on a map which forms part of the award which in its turn formed the basis of the decree in a partition suit which was decreed in the year 1949. It was claimed that the private respondents had deliberately not produced the said map along with a copy of the award when they had approached the PRDA for sanction of the plan and thus the most important document had been suppressed. A map purporting to be annexed to the award was produced by the petitioners before the Vice-Chairman, PRDA who on the basis of the said map and report of the Amin came to the conclusion that the respondent-applicants of Plan Case no. 1065/2000 did not submit the map at the time of sanction giving rise to suspicion that they obtained sanction of the said plan under concealment of facts and accordingly came to the conclusion, after measuring the map produced by the petitioners that - 3 - since the same was in the scale of 16’ = 1” then as per the scale, the front portion of the land allotted to the share of the respondents is of 46’ width while the sanction had been obtained for 51’ in the front. For the said reasons the Vice-Chairman, PRDA found it to be a fit case for cancellation of the sanction under Section 38 of the PRDA Act and accordingly cancelled the sanction of Plan Case no. 1065/2000 giving liberty to the opposite party-respondents to take sanction from the PRDA as per the allotment of land in their favour by the partition of 1949 as per the dimension of the land on the basis of findings recorded by him. Against the same the respondent nos. 3 to 5 along with builder filed Development Appeal No. 14 of 2003 before the Appellate Tribunal, PRDA, which by its order dated 11.10.2006 set aside the order of the Vice-Chairman, PRDA on the ground that non-submission of map is not fraud and thereby allowed the appeal leaving it open to the petitioners of this case to take appropriate step sanctioned by law. Before this Court learned counsel for the petitioner has contended that the appellate Court has not applied its mind to any facts and without assigning any reason in the impugned order it has come to a conclusion that there was no fraud whereas the finding of the Vice-Chairman was only regarding concealment of fact. It is contended that the order passed by the Vice-Chairman is a just and fair order and the impugned order does not show that the Vice- Chairman has committed any mistake either on fact or law. It is further submitted that it was the duty of the Tribunal to satisfy itself as - 4 - to whether the finding recorded by the Vice-Chairman was correct or not but the same was not done. It was lastly contended that the impugned order should be set aside since it has been left open to the respondents to get a sanction. Learned counsel for the respondents, on the other hand, has sought to show in this Court that the map produced by the petitioners before the Vice-Chairman as well as by way of Annexure-1 to the writ application is not as per the scale stated therein and the same may be verified. He has also produced a scanned copy of a map forming part of the plan admittedly approved by the Patna Water Board vide its letter dated 6.5.1954 of the Secretary, Patna Water Board, annexed as Annexure-C to the supplementary counter affidavit of respondent nos. 3 to 5; the original of the same was also produced in the Court. On the basis of the same it is stated that the respondents were in possession of 51’ of the land. It is strongly contended by him on the basis of the said facts that the map produced by the petitioners is not the map which was annexed to the award. For the said reasons, it is urged that the order of the Vice-Chairman is unsupportable and even if this Court is inclined to set aside the order of the Appellate Tribunal, then the said order also should not be allowed to stand as it would revive an unjust order. On a consideration of the entire facts and circumstances of the case, this Court is in agreement with learned counsel for the petitioners that the order dated 11.10.2006 of the Appellate Tribunal shows complete non-application of mind as it sets - 5 - aside an order on the ground which was not even the case of the parties before the Vice-Chairman; no such allegation of fraud was made before him and the finding was that of concealment of facts. In any case, there is no consideration of the facts while setting aside the order of the Vice-Chairman dated 2.12.2002 and thus the appellate order is fit to be quashed and it is accordingly quashed. However, the order of the Vice-Chairman also appears to have been passed on the basis of a document which does not appear to be as per scale and thus not necessarily a facsimile of the map annexed to the award; hence the measurement taken by the Vice-Chairman on the basis of the said map for his coming to the finding that the width of the land allotted to the share of the opposite party before him was only 46’ also cannot stand unless it can be shown that the map in question is the same as the original map annexed to the award. For the said reasons, the order dated 2.12.2002 of the Vice-Chairman, PRDA is also set aside. The writ application is accordingly allowed. The matter is remanded to the Town Commissioner, Patna Municipal Corporation, who is now the competent authority in the matter after the repeal of the Bihar Regional Development Authority Act, 1981 by the Bihar Municipal Act, 2007. The parties are free to place all the materials before the Town Commissioner who shall consider the same and pass an appropriate order in accordance with law within a period of two months from the date of receipt/production of a copy of this order. It is made clear that the Town Commissioner is free to - 6 - pass any order which he deems fit in accordance with law including any interim order as to whether the status quo is to be maintained or not. S.Pandey (Ramesh Kumar Datta, J.)