IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2868 of 2008 RUMANA NUMAN @ BIBI RUMANA NUM & ANR. Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner:- Mr. Y.V.Giri, Sr. Adv. Mr. Anil Kumar Sinha, Adv. For the G.R.D.A. :- Mr. Rabindra Kumar Priyadarshi, Adv. For the State:- Mr. Sanjay Prakash Verma, J.C. to G.A. 5 For the Intervenor :- Mr. Abbas Haider, Adv. ----------------------- 9. 21.8.2008 I.A. No. 3904 of 2008 The interlocutory application has been filed by Mumtaz Alam for being added as party respondent in the writ petition. Considering the fact that the land in dispute with respect to which order of demolition has been passed belonged to the intervenor- applicant and he had executed the sale deed with respect to the same in favour of the petitioners, his prayer for adding him as respondent is allowed and he is directed to be added as party respondent no. 5 to the writ petition. I.A. No. 3904 of 2008 is, accordingly, allowed. I.A. No. 4639 of 2008 The interlocutory application has been filed with a prayer for amendment of the writ petition for adding certain facts which have come to the knowledge of the petitioners after filing of the counter affidavit and supplementary counter affidavit that the plan for post facto sanction of construction has been rejected and also for challenging the order dated 24.4.2007 annexed as Annexure- G series in the supplementary counter affidavit. In the facts and circumstances of the case, the prayer for - 2 - amendment is allowed. I.A. No. 4639 of 2008 is accordingly disposed of. Heard learned counsel for the petitioners and learned counsels for the Gaya Municipal Corporation for the State and for the intervenor -respondent no. 5. The petitioner in the present writ petition seeks quashing of the notice dated 11.6.2007 bearing memo no. 187(Annexure-5) and also for quashing the order of demolition after calling for it from the respondent Municipal Corporation pertaining to the residential- cum- commercial building of the petitioners. The prayer is to quash the order dated 24.4.2007 (Annexure- G) by which the plan for post facto sanction filed by the petitioner has been rejected. The facts relevant for the determination of the controversy in the case is that the petitioners had on the basis of a building plan sanctioned by the Gaya Regional Development Authority constructed a building in accordance with the said sanctioned plan. Subsequently, the petitioners claimed to have purchased adjoining piece of land having an area of 100 square feet, 10 feet X10 feet in Khata No. 568, Plot No. 11752/128 belonging to intervenor respondent no. 5 Md. Mumtaz Alam by a sale deed executed by him on 13.3.2004 and claimed to have been put in possession of the land. It is alleged that the respondent no. 5 did not appear before the District Sub-Registrar to admit the execution as a result of which the same was rejected by the District Sub Registrar against which the petitioner filed an appeal under Section 72 of the Registration Act before the District Registrar- - 3 - cum-Collector which is pending. With respect to the petitioners having made construction over the 100 square feet area of land also as an extension of their own building a complaint was made by respondent no. 5 before the authorities of G.R.D.A. which was registered as case no. 1C/05/2004 and in the said case an order dated 16.10.2006 (Annexure- D) passed under Section 54(1) of the Bihar Regional Development Authority Act for removing the illegal construction failing which the same would be demolished. Subsequently, it appears that the petitioners had appeared before the authorities of G.R.D.A. and had also filed a plan on 9.1.2007 for post facto sanction of the construction made by him. The Vice Chairman of G.R.D.A. thereafter made a spot inspection with respect to the said case no. 1C/05/2004 and passed an order on 16.1.2007 (Annexure-4). The said inspection was made in presence of petitioners as well as respondent no. 5 and after taking into account all the aforesaid facts including the fact that during the course of spot inspection, the respondent no. 5 had admitted that he had a talk with the petitioner no. 2 for sale of the land and he had also received the amount for the same but for certain reason he did not admit the same in the Registration Office, as a result of which the document had not been registered. He also noted the fact that an appeal had been preferred against the said order refusing the registration under Section 72 before the Collector. He also took note of the fact that the Municipal Corporation had made mutation in the name of the petitioner with respect to the said land and the municipal receipt had also been issued in his name. He further - 4 - found the peaceful possession of the petitioners over the land but came to the conclusion that the map had not been got approved by the authorities for which the authorities had informed him to remove the illegal construction. Thereafter, he made note of the fact that a map for post facto sanction of construction had been presented by the petitioner on 19.2.2007 and accordingly he had directed the Junior Engineer to give the report through the Assistant Engineer and the Executive Engineer within three days. Learned counsel for the petitioners submit that thereafter no further hearing was given to the petitioners and suddenly on 11.6.2007 (Annexure- 5) he received the notice for removing the construction failing which it would be demolished. It is further submitted that the petitioner had no knowledge about the order dated 24.4.2007 and only in the supplementary counter affidavit it has been filed for the first time and before passing that also no opportunity was given to the petitioners. It is also urged by learned counsel for the petitioners that the authorities of the Gaya Municipal Corporation (formerly, Gaya Regional Development Authority) have acted in a most unreasonable and arbitrary manner even after learning about the entire facts of the case which are noted in the order dated 16.1.2007 (Annexure-4) of the Vice Chairman of the G.R.D.A. It is submitted that at the very least since the petitioners are not trespassers or encroachers upon the land in question but had purchased the same through a valid sale deed with respect to the registration of which the appeal before the Collector - 5 - under Section 72 of the Registration Act is still pending the Municipal authorities ought not to have either rejected the plan for post facto sanction submitted by the petitioner or issued any order for demolition of the building in question which can only put the petitioner to irreparable loss. It is submitted that the entire problem is on account of dishonesty of respondent no. 5 as to his knowledge the entire construction had been made after execution of the sale deed by him and only on account of his intransigence the same could not be registered and the entire problem has cropped up. It is further submitted that the order dated 11.6.2007 and 24.4.2007 have been passed behind the back of the petitioners and the same have no leg to stand and are fit to be quashed. The petitioners not being strangers to or encroachers upon the land, it is not expected of the authorities of the Gaya Municipal Corporation to act at the behest of respondent no. 5 for settling the scores on his behalf. Learned counsel for the Gaya Municipal Corporation on the other hand sought to support the stand of the authorities stating that since the registration of the petitioner over the land in question had been refused the authorities had no option but to reject the plan for post facto sanction filed by him and further take steps for demolition of the unauthorized construction. It is further submitted that the order had been passed long time back on 15.10.2006 itself and there is no illegality in the same and in the order for demolition. Learned counsel for the respondent no. 5 also supports the action of the Gaya Municipal Corporation authorities stating that - 6 - since the registration of the land has not been completed hence the title continued to subsist with the respondent no. 5 and the petitioner having made construction without approval of the Regional Development Authority/Municipal Corporation, he should not be permitted to be continue with the illegal construction made. On a consideration of the entire facts and circumstances of the case and also the rival submissions of the parties, this Court finds that in view of the peculiar facts of the case, there was no occasion for the authorities of the Gaya Municipal Corporation to have proceeded in the manner as they have done. It is evident from the order dated 16.1.2007 of the Vice-Chairman of the Gaya Regional Development Authority that all the facts in this regard including the dispute between the petitioners and respondent no. 5 were well within the knowledge of the authorities and they have also found that the petitioners were in peaceful possession over the land in question. It is evident that the petitioners are not encroachers over the land and only on account of certain dispute between the petitioners and the respondent no. 5, the registration could not be completed with respect to which an appeal is still pending under Section 72 of the Registration Act before the District Magistrate, Gaya. That being the situation it cannot be said as to which way the order of the District Magistrate-Cum-District Registrar will go. If the District Magistrate decides the matter in favour of the petitioners then the District Sub-Registrar has no option under the Registration Act but to register the document in question. In that eventuality, if the municipal authorities are permitted to demolish - 7 - the structure in question, there can hardly be any doubt that the petitioners will be put to irreparable injury on that account. The authorities of the Gaya Regional Development Authority/Gaya Municipal Corporation ought to have considered this aspect of the matter before proceeding to issue order of demolition or even rejecting the plan for post facto sanction by the petitioners. They have not only done that but it also appears from the materials on the record that no opportunity was granted to the petitioner before the final order has been passed by them on 11.6.2007 and 24.4.2007 respectively. In the aforesaid circumstances the impugned notice dated 11.6.2007 ordering demolition and the previous orders on which it is based and also the order dated 24.4.2007 rejecting the plan for post facto sanction submitted by the petitioners, cannot be permitted to stand and they are, therefore, quashed. The writ application is, accordingly, allowed with the direction that the authorities of the Gaya Municipal Corporation shall await the result of the appeal filed by the petitioners under the Registration Act and thereafter pass appropriate orders in accordance with law. The District Magistrate- cum- District Registrar is directed to expedite Appeal Case No. 48 of 2004-05 filed by the petitioners under Section 72 of the Act and preferably dispose of the same within a period of three months from the receipt/production of a copy of this order. P. Kumar (Ramesh Kumar Datta, J.)