IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12460 of 2001 NAGENDRA SHARMA, SON OF SRI DHOLAN SHARMA, RESIDENT OF VILLAGE NEORI, P.O.NEORA, P.S.BIHTA, DISTRICT PATNA---PETITIONER Versus 1.THE VICE CHAIRMAN,P.R.D.A. PATNA 2.PATNA REGIONAL DEVELOPMENT AUTHORITY, BLOCK-C, MAURYA LOK, PATNA THROUGH ITS VICE-CHAIRMAN 3.SMT. LALMATI DEVI W/O SRI RAM LAKHAN SINGH, RESIDENT OF SECTOR D-5, PEOPLE‟S CO-OPERATIVE HOUSE, KANKARBAGH COLONY, P.S.KANKARBAGH, PATNA-800020---------------------------------RESPONDENTS ----------- For the petitioner : Mr.Nagendra Sharma (in person) For Respondents 1 & 2:M/S Chandra Shekhar, Sr.Advocate Rana Randhir Singh, Advocate For Respondent No.3:M/S Chittaranjan Sinha, Sr.Advocate Prabhakar Kumar, Advocate For the Interveners : Mr.Prabhu Narayan Sharma, Advocate ------ 14. 08.9.2010 Heard the petitioner in person, learned counsels for the P.R.D.A., the respondent No.3 and for the intervenors. The petitioner seeks quashing of the entire proceedings including final order dated 24.8.2001(Annexure-7) of Appeal No.70 of 2000 passed by the P.R.D.A. Appellate Tribunal by which it has allowed the appeal preferred by the respondent No.3 and set aside the three orders of the Vice-Chairman, P.R.D.A. dated 27.6.2000, 17.8.2000 and 18.11.2000. The dispute in the present matter relates to a piece of land bearing Tauzi No. 5586, Khata No. 167, Plot No.541, Area 19 decimals situated at Mohalla 2 Sheikhpura(Khajepura), P.S. Shastrinagar, Patna on the Ashiana Road. The admitted position is that the owner of the said land was late Hardip Singh, grandfather of the petitioner and father-in-law of respondent No.3 Smt.Lalmati Devi. Both the respondent No.3 and the petitioner claim title and ownership over the land in question under two separate wills. Respondent No.3 claimed that the alleged will was executed in her favour on 3.12.1979; whereas the claim of the petitioner was that another will was executed later in his favour on 10.10.1982 by late Hardeep Singh. Both of them filed for grant of probate of the wills before the District Judge, Patna. Respondent No.3 Lalmati Devi filed L.A.Case No.47 of 1992 which was converted into Title Suit No. 15 of 1998 by order dated 12.8.1998. The petitioner filed L.A.Case No.37 of 1989 which was converted into Title Suit No.7 of 1991, which was earlier dismissed on account of non filing of requisite duty within the time granted. Against the order of dismissal the petitioner moved this Court and ultimately the Supreme Court in S.L.P.(Civil) No.17275 of 1998 while dismissing the appeal by order dated 2.3.2001 granted six weeks time to the petitioner to 3 deposit the requisite fee before the trial court and if the same was not deposited within the stipulated period the suit shall stand dismissed. The petitioner deposited the fee within the time granted by the Apex Court. Both the title suits are still pending. In the meantime, the respondent No.3 approached the P.R.D.A. for sanction of building plan bearing No.791/98 and the same was granted on 21.10.1998. The petitioner on 29.1.1999 instituted a Vigilance Case No.45(B) of 1999 against the sanction of the map plan and a restraint order was passed by the P.R.D.A. on 12.1.2000 and ultimately by order dated 27.6.2000 the sanction was revoked under Section 38 of the P.R.D.A. Act by the Vice- Chairman of the P.R.D.A. The Vice-Chairman noted that the respondent No.3 had filed an affidavit on 24.9.1998 in paragraph-2 of which it was stated as follows : “There is no suit/case pending for disposal in the court of the Vice Chairman, appellate tribunal or in any other court of law over the above mentioned plot. In future if it is found that my above statement is in ignorant, the above plan may be treated as cancelled U/s 38 of PRDA Act.” The Vice-Chairman noted that on the date of the affidavit as also on the date of sanction, Title Suit No.15 4 of 1998 in respect of the land in question was pending, and this fact was concealed and misrepresented by the O.P. before the authority and further referred to Bye-laws 7 & 7.1 of the modified building byelaws of PRDA which, inter alia, provides that title of the land should be verified and came to the conclusion that it appears to be admitted position that the title of the suit land in question had not been settled or determined in favour of the O.P. and, accordingly, sanction accorded in Plan Case No.791/98 was revoked under Section 38 of the Act and held that consequently the work done in the building in question shall be deemed to have been done without any sanction. Against the said order, review petition being Misc. Case No.1 of 2000 was filed by respondent No.3 which was dismissed by order dated 18.11.2000(Annexure-5) passed by the Vice-Chairman, P.R.D.A. In the meantime, on the notes being put up before the Vice-Chairman pointing out that the map plan of respondent No.3 has been revoked under Section 38 of the Act and notice may be given to O.P.(respondent No.3) under Section 54 an order was passed by the Vice- Chairman on 17.8.2000 to advertise in the newspapers and 5 to take steps for marking the land and after marking the proceedings for demolition would be started. Thereafter on 8.12.2000 the respondent No.3 filed Appeal No.70 of 2000 before P.R.D.A. Appellate Tribunal challenging therein the orders dated 27.6.2000, 17.8.2000 and 18.11.2000 under Section 54(2) of the BRDA Act in which the petitioner appeared and challenged its maintainability, inter alia, on the ground of limitation and by order dated 24.8.2001 the P.R.D.A. Appellate Tribunal allowed the appeal and set aside all the three impugned orders. The petitioner submits that the order of the P.R.D.A. Tribunal is without jurisdiction as no appeal lies against the order under Section 38 of the Act. It is further submitted that under Section 54(2) of the Act the period of limitation prescribed for filing an appeal against an order passed under Section 54(1) of the Act is only thirty days and thus the appeal against the orders dated 27.6.2000 and 17.8.2000 was in any case barred by limitation. It is further submitted by the petitioner that no appeal was permissible against the order dated 18.11.2000 passed on review in terms of Order 47 Rule 7 C.P.C. 6 It is also the contention of the petitioner that three orders cannot be challenged in one appeal and for the said reason the impugned order of the PRDA Tribunal is fit to be set aside. The petitioner further refers to Clause 2.48 of the Modified Building Bye-laws in which „Owner‟ has been defined as follows : “2.48. Owner.- The person who has legal title over land or building. It also includes; (a) An agent or trustee who receives the rent on behalf of the owner; (b) An agent or trustee who receives the rent of or is entrusted with or is concerned with any building devoted to religious or charitable purposes; (c) A receiver, executor or administrator or a manager appointed by any court of competent jurisdiction to have the charge of or to exercise the rights of the owners, and (d) A mortgagee in possession.” It is contended by the petitioner that the respondent No.3 does not come under any of the categories of owner because she has no title over the land and thus she was not entitled to get the plan sanctioned in her favour over the land in question. In this regard he specially refers to sub- clause(c) aforesaid which refers to receiver, executor or administrator or manager appointed by any court of competent jurisdiction to have the charge of or to exercise 7 the rights of the owners and submits that respondent No.3 having merely filed a suit for grant of letter of administration which is pending before the Civil Court, she could not have got the plan sanctioned as she does not become the owner of the land unless and until the letter of administration is granted to her. The petitioner also refers to the undertaking given by respondent No.3 in T.S. No.7 of 1991 filed by the petitioner in which she had filed two petitions on 7.11.1990 and 20.12.1990 in both of which she had undertaken not to alienate the property involved in the said T.S.No.7 of 1991 but she has violated the undertaking given to the Civil Court. It is also urged by the petitioner that L.A.47 of 1992 filed by the respondent No.3 was converted to T.S.No.15 of 1998 by order dated 12.8.1998 and thus from the said date it has to be assumed that the suit has become contentious with respect to the properties in dispute which was pending before the Civil Court. Thus when the respondent No.3 gave an affidavit on 24.9.1998 stating that no suit/cases were pending before any authority or court the said affidavit was patently false and in terms of Section 8 38 of the Act the sanction of the building plan became liable to cancellation and has rightly been cancelled by the order dated 27.6.2000 of the Vice-Chairman, P.R.D.A. In this regard it is also submitted by the petitioner that L.A.Case No.37 of 1989 filed by the petitioner which was converted to T.S.No.7 of 1991 was also pending at the relevant time, although the same stood dismissed for non- compliance of the order to deposit the stamp duty within the time granted, since the petitioner contested the said order continuously right up to the Supreme Court and the case was ultimately restored to its original file. It is also urged by the petitioner that at all stages despite earlier restraint order and the subsequent cancellation of plan by the Vice-Chairman, P.R.D.A. the respondent No.3 continued to violate the order of the P.R.D.A. by making constructions over the land in question. It is also submitted by the petitioner that the interveners have no right to be heard in the matter in view of the decision of a Division Bench of this Court in the case of Srikrishnapuri Boring Road Vyapari Sangh vs. The State of Bihar & others : 1995(1) PLJR 418 in which, it has been held that under Section 54 of the BRDA Act, 1981 9 owner or the person concerned are the same person and a tenant does not come within its purview and is not entitled to any opportunity to be heard. The petitioner also relies upon a Single Judge decision of this Court in the case of Rajesh Singh Buddhpriya & Anr.vs. Patna Regional Development Authority, Patna & Ors. : 2002(2) PLJR 263 in paragraph- 15 of which, it has been held as follows : “15. From a plain reading of Section 38 it would clearly appear that if the Vice- Chairman is satisfied that a sanction was accorded in consequence of any material misrepresented or fraudulent statement contained in the notice given or information furnished under Section 37, then after giving reasonable opportunity to the person affected to explain as to why such order should not be made, he may by order in writing and for reasons to be recorded cancel such sanction. Consequence of the cancellation of the sanction would be that erection, etc. of any building would be deemed to have been done without such sanction. Section 38 clothes the Vice-Chairman with the jurisdiction to recall, revoke or cancel the sanction, if he is of the opinion that the sanction was accorded in consequence of any mis-representation or fraudulent statement contained in the notice given or information furnished under Section 37 of the Act of 1981. Section 38 does not say that the question beyond what are provided in Section 38 can also be considered by the Vice- Chairman. Section 38, in fact, clothes the PRDA with the jurisdiction to recall, revoke or cancel the sanction, if the same is an outcome or result of misrepresentation or a 10 fraudulent statement or suppression of material fact. The legislature while conferring such limited power upon the authority must have been alive to the authority of the PRDA. Section 38, in fact, is a principle of equity. The equity says that one, who seeks equity, must exercise equity. The law says that if somebody obtains a favourable order by making a misrepresentation or suppressing the material facts then on detection of the fraud or misrepresentation, such order must be recalled and the wrong-doer must be asked to return the benefits because one cannot be allowed to take advantage of his own wrong.” It is lastly submitted by the petitioner that the interveners are illegal occupants on unauthorized structures as under Clause 13.1 of the Modified Building Bye-laws no building erected, re-erected or altered materially shall be occupied in whole or in part until the issue of an occupancy certificate by the Authority affirming that such building is fit for occupation whereas no such occupancy certificate was granted to the disputed land and thus the interveners had no right to occupy such building or claim to be heard in the matter. The petitioner also refers to the order of stay passed by this Court on 18.10.2001 in the present matter. Learned counsel for the Patna Municipal Corporation, while submitting that the P.R.D.A. had merged into the Patna Municipal Corporation after repeal 11 of the B.R.D.A. Act by the Bihar Municipal Act,2007 on the other hand, has sought to support the impugned order. Learned counsel for the private respondent No.3 has sought to argue that the flats had been sold prior to the order of the Vice-Chairman of the P.R.D.A. and thus rights had arisen in favour of the interveners and setting aside of the order would cause serious detriment to them. In this regard he refers to the last part of the impugned order of the P.R.D.A. Appellate Tribunal in which after setting aside the order of the Vice-Chairman of the P.R.D.A. and allowing the appeal it has been observed that after decision on the L.A. proceedings the P.R.D.A.(respondent No.2) or the respondent No.2 may reagitate the matter for revocation of sanction and demolition of the building in consequence of the revocation. It is thus urged by learned counsel that the order is just and fair as between the parties and in case of demolition of the same it would cause serious detriment to the respondent No.3 and the interveners when ultimately the L.A. case itself may go against the petitioner and no right may accrue to him. Learned counsel for the interveners submits that the interveners are occupying the flats built over the land in 12 question after making due enquiry that the mutation has been made in favour of respondent No.3 and the plan has been sanctioned by the P.R.D.A. also. It is urged that they are bona fide purchasers of the flats in question and they have purchased before the notice was issued in the newspaper on 26.2.2001. In reply it is submitted by the petitioner that all the documents filed by the interveners were ante-dated; as a matter of fact, they were fully aware of the entire situation and taking advantage of the same they had purchased the flats in question at much below the market rates and they are not entitled to any benefit of the same. I have considered the submissions of the parties and on perusal of the impugned order dated 24.8.2001 passed by the P.R.D.A. Appellate Tribunal I find that the main basis of coming to the conclusion by the Tribunal is that the L.A. Case No.47 of 1992 filed by respondent No.3 converted into Title Suit No. 15/98 had become contentious subsequently and not prior to her affidavit before the PRDA. According to the Tribunal the affidavit was sworn by the respondent No.3 on 24.9.1998 whereas the written statement and counter claim petitions were filed 13 on 19.2.1999 by the petitioner and for the said reason it came to the conclusion that the matter became contentious on 19.2.1999 and was not so on 24.9.1998 when the affidavit was sworn by respondent No.3 before the P.R.D.A. and thus the same could not be said to be a misrepresentation. This Court cannot agree with such approach adopted by the Tribunal when the L.A.Case No. 47 of 1992 was converted into Title Suit No. 15 of 1998 by order dated 12.8.1998 of the Civil Court. Once the L.A. Case stood converted into a Title Suit it is to be treated as having become contentious because the applicant of the L.A. Case would immediately become the plaintiff and the person opposing the grant of probate or letter of administration would become the defendant. The said position is evident from the explanation to Section 286 read with Section 295 of the Indian Succession Act, 1925 which are as follows :- “286. District Delegate when not to grant probate or administration.- A District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his Court. Explanation.- “Contention” means the appearance of any one in person, or by his 14 recognized agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding.” “295. Procedure in contentious cases.- In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be defendant.” It was not open to the Tribunal to go behind the order dated 12.8.1998 passed by the Civil Court converting the L.A. Case into a Title Suit. That would be the date from which it would be treated as a contentious matter. Once the said position is accepted then there cannot be even an iota of doubt that the filing of the affidavit by respondent No.3 on 24.9.1998, i.e., one month twelve days, after the conversion of her L.A.Case into a Title Suit was a clear case of misrepresentation as the right to the property in question was being claimed by respondent No.3 solely on the basis of the will allegedly executed on 3.12.1999 in her favour by her father-in-law late Hardip Singh. In that view of the matter, nothing remains in the order of the Appellate Tribunal to sustain it and the same will have to be set aside. 15 Moreover, this Court is in agreement with the submission of the petitioner that there is no provision for appeal against an order passed under Section 38 of the Act under Section 54(2) thereof. Sections 38 and 54 of the said Act are quoted hereinbelow: “38. Sanction accorded under misrepresentation.- If at any time after the sanction to erection of any building or addition or alteration thereto has been accorded, the Vice-Chairman is satisfied that such sanction was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Section 37 he may by order in writing and for reasons to be recorded cancel such sanction and erection of any building or addition or alteration thereto shall be deemed to have been done without such sanction: Provided that before making any such order the Vice-Chairman shall give reasonable opportunity to the person affected to explain as to why such order should not be made. 54. Order of demolition of building.-(1) Where any development or erection of a 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 thereof directing that such erection or development work shall be removed by demolition, filling 16 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 completed, as arrears of land revenue : 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. (2) Any person aggrieved by an order under sub-section(1) may appeal to a Tribunal constituted under this Act against that order within thirty days from the date thereof; and the Tribunal may after hearing the parties to the appeal either allow or dismiss the appeal or reverse or vary the order or any part thereof. (3) The decision of the Tribunal on the appeal and subject only to such decision the order under sub-section (1) shall be final and conclusive. (4) The provisions of this section shall be in addition to and not in derogation of any other provisions relating to demolition of buildings contained in any other law for the time being in force.” It is evident from the provisions of Section 54(2) that a person aggrieved by an order under sub-section(1) of the 17 said Section may appeal to the Tribunal within thirty days from the date thereof. Section 54(1) of the Act merely provides power to the Authority or its authorized officer to make an order for removal by demolition, filling or otherwise by the owner or the person at whose instance the erection or development work was commenced or carried out. It is only against such an order of demolition that an appeal may be filed before the P.R.D.A. Appellate Tribunal. No other provision of the B.R.D.A. Act has been pointed out by learned counsel for the respondents or the interveners under which an order under Section 38 of the Act could be challenged by filing an appeal. This Court finds that as a matter of fact there is no order of demolition at all passed by the Vice-Chairman of P.R.D.A. in terms of Section 54(1) of the Act. It appears from the materials on the record that after the order dated 27.6.2000 cancelling the plan was passed by the Vice- Chairman, notes had been put up before him by his subordinates regarding the further steps to be taken pursuant to the order passed under Section 38 of the Act and in which it has been suggested that notice may be given to the opposite party (respondent No.3) under 18 Section 54 of the Act. By the order in the file dated 17.8.2000 of the Vice-Chairman a direction was made to the authorities to advertise in the newspaper and take steps for marking the land in question. There is neither any order of demolition under Section 54(1) of the Act nor any notice was issued under the said provision for passing order under the said sub-section. Thus there was no occasion for the P.R.D.A. Appellate Tribunal to have heard any appeal under Section 54(2) of the Act. Hence, the impugned order dated 24.8.2001 passed in the Appeal is also without jurisdiction. So far as the claim of the interveners is concerned, this Court does not accept the submission of the petitioner that they do not have even any right to be heard in the matter. The interveners, whatever be the nature of