IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8407 of 2011 NAINTARA SHARMA & ANR . Versus THE STATE OF BIHAR & ORS . For the Petitioner : Mr. Chittaranjan Sinha, Sr. Adv. With Ms.Soni Shrivastava, Mr. Amit Prakash, Advocates. For the P.M.C. : Mr. Sanjay Prakash Verma, Adv. ----------- 3/ 20/05/2011 Heard the Learned Senior Counsel for the petitioner and the Patna Municipal Corporation (hereinafter called the Corporation). Shri Arun Kumar, Advocate, submitted that he appears on behalf of the original complainant at whose behest the Corporation has passed the impugned order. No Vakalatnama has been filed by Sri Kumar. Nonetheless the Court permitted him to address. The Patna Regional Development Authority (hereinafter called the P.R.D.A.) on 12.3.1984 granted a lease for plot no. 12 C measuring 3200 square feet situated in the prime location of Srikrishnapuri area of Patna town for construction of commercial cum residential building to the Alaknanda Co-operative Housing Society Limited, registered under the Bihar and Orissa Cooperative Societies Act bearing Reg. No.257 dated 29.12.1951( hereinafter called the Co-operative Society). The Co-operative society on 7.5.1985 transferred the lands to the petitioners described as members of the Society in the transfer deed. Constructions are stated to have been raised upon the lands. The P.R.D.A was superseded by the Corporation on enactment of the Bihar Municipal Act, 2007. The Corporation by 2 the impugned order dated 6.4.2011 cancelled the lease granted by the P.R.D.A. to the Co-operative Society. The Society was neither noticed nor heard. The Corporation questioned and adjudicated the status of the petitioners to membership of the Society holding the transfer made to them as being contrary to conditions of the lease and failure to complete construction within three years. Symbolic possession is stated to have been taken by the Corporation on 6.5.2011 by putting a lock on the gate. Learned counsel for the petitioners submitted that no part of the lease agreement has been violated. The lease deed permitted transfer by the Co-operative Society to its members. Due intimation was made for transfer to the P.R.D.A on 8.5.1985. Completion of construction within three years was not mandatory but extendable and which has been complied with. Building plan No.116/85 applied on 14.3.1985 was sanctioned on 14.10.1985. The petitioners raised constructions and mutation was done in their favour. Rent receipts were granted and taxed vide Case No.553/97-98 by the D.C.L.R. Subsequently revised building plan was filed on 17.1.2001 numbered as 202/01 after the existing structure was demolished. Certain objections were raised on behalf of the P.R.D.A. at site inspection done on 17.1.2002. A fresh building plan was submitted numbered as S.K.Puri P.R.N.- 47/2010. The impugned order wrongly contends that the constructions had not been raised within the time fixed in the lease. The impugned order seeks to question the actions of the 3 Society in transferring the lands to its members. The Corporation lacks jurisdiction to decide the issue which vests in the Registrar Co-operative Societies alone. The Society has not been noticed or heard. The petitioners are unnecessarily being hounded by interested persons for oblique purposes. Counter affidavit has been filed on behalf of the Corporation. Learned counsel for the Corporation submitted that the Co-operative Society could not have transferred the lands to the petitioners without permission. The petitioners were not bona fide members of the Co-operative Society but were the wife and daughter of the Secretary. A clarification had been sought from the Secretary of the Co-operative Society under which provision of the lease the Society had transferred the lands to the individual persons. A status report had been sought from the Co-operative Society. The Society had indulged in a lot of wrong doings. At a stage an Administrator had to be appointed. The transfers to the petitioners were in contravention of the Co-operative laws and the Secretary of the Co-operative Society was not competent to do so. The Corporation had written to the Co-operative authorities vide letter No.2306 dated 24.9.2010. The construction was not raised within three years as required under the lease deed. Learned counsel for the Corporation next submitted that a show cause notice was issued to the Secretary of the Co- operative Society vide letter No.2728 dated 23.6.1985 for transfer of the lands without permission. No copy of the show cause has 4 been annexed to the counter affidavit. If the document was available with the Corporation it ought to have been annexed to the Counter affidavit. In a proceeding under the writ jurisdiction the pleadings are to be supported by documentary evidence as proof which consists of annexures. A party cannot plead a fact and then withhold evidence in support of it and still insist that the Court accept the statement of fact. The Supreme Court in (1988) 4 SCC 534 (Bharat Singh v. State of Haryana), at paragraph 13 has held :- “13……..In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable……” Unable to demonstrate that the Co-operative Society had been noticed or heard before the impugned order was passed, Learned counsel for the Corporation submitted that notices may be issued to the Society and it may be heard. The Cooperative 5 Department vide letter No.2396 dated 24.9.2010 had been requested to furnish details of the office-bearers of the Co- operative Society. The impugned order contains no such recital. Even if it were to be so, it is only a confirmation that the Corporation was fully conscious of the need to notice and hear the Society and yet it proceeded in hot haste ignoring the requirement of the law. Assuming that a show cause was sent, as pleaded, it was a show cause notice with regard to transfer of the lands and not for cancellation of the lease. The lease does not prohibit or put an embargo on transfer. To the contrary, Clause-8 of the lease permits the Society to transfer the lands. The Transferee would acquire no better rights than the original lessee. A transfer done prohibited by the Lease shall be an illegality. A transfer done permitted under the Lease questioning violation of procedures can be an irregularity subject to corrective action and a determination of alleged violation after hearing the original Lessee. If a show cause notice was given on 23.6.1985 for alleged violation of the terms of the Lease contract right and it was not pursued by the authorities, even if the respondents had an enforceable right, they consciously waived it. Waiver can be express or implied. Implied waiver can be inferred from conduct also. The Court has serious reservations if a show cause notice given on 23.6.1985 can sustain an order passed pursuant thereto in the year 2010. 6 Waiver has been explained in ,(2008) 12 SCC 401 (Babulal Badriprasad Varma v. Surat Municipal Corpn) at paragraph 29 and 43 as follows:- : “29. A person may waive a right either expressly or by necessary implication. He may in a given case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation. 43. In Halsbury’s Laws of England, Vol. 16(2), 4th Edn., Para 907, it is stated: “The expression „waiver‟ may, in law, bear different meanings. The primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example whether or not to exercise a contractual right... Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular knowledge on the part of the person making the representation, and the estoppel may be suspensory only... Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it.” The original lease was to the Co-operative Society. The petitioners are transferees. The original lease has been cancelled for alleged violation by transfer of lease hold rights. The Co- operative Society has not been noticed or heard. That alone is sufficient to vitiate the impugned order dated 6.4.2011. The legal 7 effect of such an order akin to a still born child has been explained in (1974) 2 SCC 121 (Nawabkhan Abbaskhan v. State of Gujarat), at paragraph 19 as follows -: “19……So the Court quashed it — not killed it then but performed the formal obsequies of the order which had died at birth…..” The petitioners contend that permission for transfer was duly applied for by the Co-operative Society on 8.5.1985 under clause 8 of the lease deed annexing the acknowledgement in receipt of the application granted by the P.R.D.A. The pleading in paragraph 7 of the writ petition that transfer was in fact approved under Rule 21(2) of the P.R.D.A.(Disposal of Land) Rules, 1978, is not denied in paragraph 22 of the counter affidavit. The onus is discharged in the negative by the respondents contending that no document had been shown that permission was granted. It is not the case of the respondents that permission was formally declined. Clause 8 of the lease deed makes transfer without permission voidable at the option of the respondents and not void. The respondents cannot shift the blame for their own lapses and inaction upon the Co-operative Society or the petitioners. The respondents cannot take advantage of their own wrongs as held in (2010) 3 SCC 274 (State of Bihar v. Kalyanpur Cement Ltd), at paragraph 88 as follows :- “88……It was no longer open to the appellant not to issue the notification on the ground that the Policy had lapsed on 31-8-2000. The second reason that the exemption could not be granted to the Company as no notification had been issued under Clause 24 cannot be accepted as the appellant State cannot be 8 permitted to take advantage of its own wrong…..” Whether the petitioners were validly enrolled as members or not, the Secretary was competent to transfer the lands or not, are matters exclusively amenable to the jurisdiction of proceedings before the Registrar under the Bihar Co-operative Act alone. Adjudication, affirmation and /or cancellation of membership and transfer to members by the Society could be done by the Statutory authority alone. Any opinion or finding of the Corporation on the issue is therefore coram non judice and ex facie illegal. The Bihar Municipal Act, 2007 does not vest any jurisdiction in the Corporation to meddle into the affairs of a Co- operative Housing Society assuming unto itself the role of the Registrar, Cooperative Societies, and adjudicate decisions of a Co- operative Society qua its members, only because the Co-operative Society may be situated on lands leased by the Corporation or be within Municipal limits. If the dealing was between the Co- operative Society and a member, the dispute has to be resolved in that arena. The fact that a member or a person claiming through the Co-operative Society may have a right to be heard because he may get affected thereby, shall not create a right in the Corporation to assert that it can bypass the Society. If the Corporation issued notice to the Society and the latter refused to respond, matters may be entirely different. Presently that is not the case of the Corporation. The admission by the Corporation that it is not even aware 9 who are the office-bearers of the Society and was seeking information from the Registrar of Co-operatives satisfies the Court that the cancellation of the lease without notice to the original Lessee Society is unsustainable. If the original order was unsustainable, it cannot be ratified at this stage by issuing notice to the Society. There had to be an adjudicatory cancellation of the original grant. Once that was complied with the, the transferee would have acquired no better rights than the original lessee. An order illegal in its inception is incapable of ratification has been explained in ,(2010) 10 SCC 677 (Ritesh Tewari v. State of U.P), at paragraph 32 as follows :- “32. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits.” The condition contained in the original lease to complete construction within three years was not mandatory. The clause contained no punitive consequences for breach. On the contrary, it provided that the period was extendable. To read it as expropriatory of property rights shall be violative of Articles 14 and 300A of the Constitution adding conditions which the parties never intended. If the event was intended to severe the relationship determining the lease hold rights nothing prevented the parties 10 from stating so. In (1971) 2 SCC 489 (Prakash Chand Maheshwari v. Zila Parishad), at paragraph 17 the Court held as follows : - “17. The next argument of counsel that the time schedule mentioned in Rules 4 and 5 in the notification of January 28 not having been adhered to, the assessment was illegal, must be rejected on the face of it. These rules laying down certain dates by which the work was directed to be taken in hand and completed were merely directory and not mandatory. There was nothing in these rules to suggest that if the dates were not strictly observed any prejudice would be caused to the assessee.” It is not denied that the petitioners did obtain sanction of building plans in 1985 and modifications thereafter. Attempting to raise disputes without foundational facts it was submitted on behalf of the respondents that mere payment of electricity or water bills does not lead to the conclusion that any construction had been raised. The Court finds it difficult to comprehend by common sense for what purpose electricity was supplied and water consumed if there were no constructions existing. Once the petitioners have furnished details of the rent fixation case vide Case No.553/97-98 which is not denied by the Corporation the issue is concluded. The Corporation appears to be labouring under a complete misconception of its powers with regard to a Co-operative Housing Society upon lands leased by it or within municipal limits. The jurisdiction of the Corporation shall cease with the statutory 11 provisions of the Municipal Act and it cannot enter into the arena of the Co-operative Act. Learned counsel for the Corporation acknowledged that the Corporation could not ignore the identity of the Co-operative Society as a body corporate. This distinction is best illustrated from the example that even a building plan cannot be sanctioned by the Corporation for construction upon lands belonging to a Housing Co-operative Society unless and until the Society has first given a No Objection Certificate. The Corporation or the land owner cannot claim that merely because the Corporation had sanctioned the building plan the construction was permissible or legal and no approval was required from the Co-operative Society. The Corporation is required to act in accordance with the law and not contrary to law at the whims of its officers or agents. The Supreme Court in (2008) 9 SCC 694 (New India Co- operative Housing Society Limited Vs Municipal Corporation of Greater Mumbai And Another) in this context has held at paragraph-19 and 21 as follows:- “19. In our opinion, when there is a specific stipulation in the lease deed dated 31-5-1973 that NOC from the lessor has to be obtained for the purpose of obtaining sanction of the building plan from the Municipal Corporation such NOC from the lessor would also be necessary for an amended building plan before the Municipal Corporation can sanction the building plan. To take a contrary view would make the said stipulation in the lease deed, which in this case is in Clause 3(6) of the said lease deed, redundant.” 12 “21. In the present case, it may be noticed that the original plan of the lessee for which NOC had been obtained from the appellant had been sought to be materially changed by the lessee without taking a fresh NOC from the lessor i.e. the appellant Society. In our opinion, a fresh NOC had to be taken from the appellant Society by Respondent 2 (lessee) if she wanted to change the original building plan. The matter was not between the lessee and the Municipal Corporation alone, there was a third-party interest which intervened i.e. of the lessor. We, therefore, agree with Mr V.A. Mohta, learned Senior Counsel for the appellant that Respondent 1, the Municipal Corporation cannot sanction the modified plan unless a fresh NOC had been obtained by the lessee from the appellant Society. The tenacity of purpose with which the original complainant pursues the petitioner even before this Court is not difficult to appreciate. He is not privy to the contract between the Respondents and the Co-operative Society or the petitioners. But any cancellation by the Corporation of the property situated at a prime location in the town of Patna shall undoubtedly lead to fresh settlement. That is where he has his eyes engineering events. Once his complaint was acted and settlement cancelled he should have rested on his laurels patiently. His conduct in engaging a Counsel and then not providing him a Vakalatnama pursuing the matter from the sidelines, the Court is satisfied of his complete absence of bona fides. Strenuous argument were made that the very transfer to the Society was wrong even before its registration. The document of Lease states to the contrary mentioning the registration number. It is acknowledged that he has taken out no 13 legal proceedings for any alleged settlement wrongly made to the Society in the year 1984 and a transfer made by it to the members in 1985. Clause 22 of the P.R.D.A.(Disposal of land)Rules,1978, provides for revocation of the lease at the “option” of the respondents. The clause is therefore not mandatory. Section 488 of the Bihar Municipal Act,2007 is the Repeal and Savings clause to the P.R.D.A. Act. The lease was for lands. The impugned order itself acknowledges applicability of the Transfer of Property Act to the relationship between the parties. There shall have to be a determination of the lease under Section 111 of the Transfer of Property Act. Any resumption of possession of the leased lands can only be through the process of law necessitating an eviction decree and execution thereof. There can be no forcible dispossession contrary to law by assuming powers that the law does not vest in the Corporation in a relationship of lessor and lessee or sub-lessee. The Indian law permits dispossession of the Lessee by process of Court only and disapproves forcible dispossession contrary to law as explained in (2004) 1 SCC 769 (Rame Gowda v. M. Varadappa Naidu) at paragraph 8 as follows : - “8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and 14 without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” The order dated 6.4.2011 is set aside. The Corporation is directed to remove any lock that it may have put on the premises. The Corporation may proceed afresh in accordance with law, if so advised. Nothing in this order shall affect or be deemed to affect the proceedings in Vigilance Case no. 20B of 2010 in so far as enforcement of the building regulations are concerned and which shall have to be adjudicated on it own merits but in accordance with law. The application is allowed. KC ( Navin Sinha, J.) 15