Patna High Court
Man Mohan Sharma vs Ranchi Regional Development Authority ... on 15 December, 1987
Equivalent citations: 1989(37)BLJR346
Author: B.P. Singh
Bench: B.P. Singh
JUDGMENT B.P. Singh, J.
1. The instant writ application was filed on 2nd September, 1987 for quashing Annexure-10 which is an order dated 7th August, 1987 passed by the Vice-Chairman of the Ranchi Regional Development Authority (hereinafter referred to as 'the Authority') directing the petitioner under Section 54 of the Bihar Regional Development Authority Act, 1974 (Bihar Act 40 of 1982) to demolish the unauthorised constructions in the eastern and southern portion of Municipal Survey Plot No. 2060 corresponding to Municipal Holding No. 818, situated at Main Road, Ranchi. This Court issued notice to respondents 1 and 2 by order dated 8-9-1987 with a direction that the respondents shall be at liberty to file counter-affidavit, if any, by the date fixed, so that after hearing both the parties, this writ application could be finally disposed of on the next date itself. By an interim order the operation of the order as contained in Annexure-10 was stayed. In response to the notice dated 8-9-1987, the respondents have filed a counter-affidavit in opposition. The petitioner has filed his rejoinder affidavit thereafter. We have heard learned counsels for the petitioner and respondents at length, and the writ application is being disposed of finally after hearing the parties by this Court.
2. Petitioner-Man Mohan Sharma claims to be the owner of Municipal Survey Plot No. 2060 situate at Main Road, Ranchi, which he purchased alongwith one Sushil Kumar Sharma by virtue of a registered deed of sale dated 28-4-1982. The petitioner claims that he along with Sushil Kumar Sharma applied for grant of permission to construct a building over the said plot and the said plan was numbered as Case No. 448 of 1982 be fore the Ranchi Regional Development Authority. A building plan had been submitted for sanction by the Authority. The aforesaid building plan has been annexed as Annexure-4 to the writ application. It is not in dispute that the said plan was duly sanctioned by the Authority by sanction order dated 19-7-1982. The petitioner then claim that he submitted a revised plan before the Authority for its sanction, being case No. 841 of 1982. The revised plan was also sanctioned by the Authority on 10-4-1085. The aforesaid sanctioned plan has been annexed as Annexure-5 to the writ application. The petitioner then pleads that on 20th January, 1987 he submitted another plan for sanction by the Authority. He received no response from the Authority within the period of four months prescribed under Section 37 of the Act, He, therefore, gave a registered notice to the Authority on 22-5-1987 which is annexure-7 to the writ application. By the said notice the petitioner informed the Authority that he had received no order as regards the revised plan submitted by him, and that if no order was communicated to him within thirty days from the date of receipt of the notice, it shall be presumed that the plan had been sanctioned. Such a notice, according to the petitioner, was given pursuant to Section 37 of the Act. The case of the petitioner is that this notice was received by the authority on 24-5-1987, and deposit receipt of notice no order was communicated to him by the authority. Thus, in terms of Sub-section (5) of Section 37 of the Act the plan was deemed to have been sanctioned by the Authority.
3. The further case of the petitioner is that he was surprised to receive a notice calling him to show cause, and in response to such notice he had shown cause, but he was not heard and no opportunity was given to him to lead evidence. The averments in paragraphs 16, 17 and 18 of the writ application in this regard are rather cryptic and the facts relating to this notice have to be gathered from the counter affidavit filed on behalf of respondents. The petitioner had earlier filed a writ application before this court challenging the legality and validity of the aforesaid show cause notice. The aforesaid writ application being C.W.J.C. No. 889 of 1987(R) was withdrawn by the petitioner on 13th July, 1987 to enable the petitioner to file show cause before the authority in response to the aforesaid show cause. The order of this Court permitting the petitioner to withdraw this writ application dated 13-7-1987 has been annexed as Annexure-9 to the writ application. The grievance of the petitioner is that he was neither heard nor was he given opportunity to lead evidence and suddenly a notice was issued for demolition of alleged unauthorised construction. This notice was issued on 7-8-1987 by the Vice-Chairman who had no authority to issue such an order under Section 54 of the Act.
It is rather surprising to find an averment in paragraph 26 of the writ application wherein it has been stated that the petitioner's building had been constructed according to the plan duly sanctioned by the respondents vide Case No. 408 of 1982 and 841 of 1982 and as such the respondents are estopped from issuing order of demolition of any portion of the building. This averment in the writ application amounts to saying that the building had been constructed in accordance with the sanctioned plan and, therefore, there was no question of demolition of any portion thereof. Surprisingly, paragraph 26 of the writ application has not been verified in the affidavit filed in support of the writ application. It was, therefore, rightly contended on behalf of the respondent-Authority that the petitioner deliberately made such a statement in the writ application without taking the risk of supporting the same by an affidavit.
4. On the basis of the above mentioned fact, the learned counsel for the petitioner raised before us three main contentions. He firstly, submitted that the original plan duly sanctioned in the year 1982 had been revised by sanction of the revised plan on 10-4-1985. Therefore, another plan, having been submitted on 20th January, 1987, and no communication having been received from the Authority either sanctioning or refusing to sanction the aforesaid plan despite notice, the plan submitted on 20th January, 1987 should be presumed to have been sanctioned by the Authority in terms of Section 37 (5) of the Act. It was secondly contended that the impugned order contained in Annexure-10 passed by the Vice-Chairman of the Authority was unauthorised and illegal since the Vice-Chairman of the Authority had no power or jurisdiction to issue such order of demolition under Section 54 of the Act. Lastly it was submitted that the notice for demolition is incapable of being executed since the petitioner had been directed to demolish something which it was not possible to understand from the notice for demolition in the light of the sanctioned plan.
5. A counter affidavit has been filed on behalf of the respondent-Authority affirmed by its Vice-Chairman. The Authority admits that the petitioner had originally sought sanction of a plan in the year 1982 which was sanctioned on 19.7.1982. Perhaps on account of the fact that the sanctioned plan has a life of only three years, and because the petitioner could not complete his construction within that period, the petitioner submitted another plan in the year 1985 and the same also sanctioned on 10-4-1985 in Case No. 841 of 1982. It is, therefore, this sanctioned plan (Annexure 5) which is the final sanctioned plan in respect of the building in question.
According to the respondents, the Civil Surveyor of the Authority detected certain unauthorised constructions over the plot in question, and, therefore, made a report in this regard on 9th January, 1987. The report of the Civil Surveyor has been annexed as Annexure-B. A notice was, therefore, issued on 13.1.1987 calling upon the petitioner to show cause by 20.1.1987 as to why the unauthorised construction should not be demolished. According to the respondents, the petitioner avoided service of this notice and, therefore, the said notice was passed on a conspicuous part of the building in question in presence of the witnesses of the locality on 14.1.1987. It was on account of this notice, that the petitioner submitted another plan for sanction on 20.1.1987. In the aforesaid plan, submitted by the petitioner, certain defects were pointed out by the Assistant Engineer and by communication dated 8.5.1987 sent on 22.5.1987, the petitioner was required to remove the defects in the plan which had been submitted, by 7.6.1987. The aforesaid communication has been filed as Annexure-C. The defects were not removed by the petitioner, and hence by order dated 16.6.1987 the Vice-Chairman of the Authority rejected the plan which order has been filed as Annexure-C/1 to the counter affidavit. The order rejecting the plan was communicated to the petitioner by communication dated 22.6.1987 which has been annexed as Annexure-C/2 to the counter affidavit. It is, therefore, contended on behalf of the Authority that the third plan submitted by the petitioner was duly rejected and communicate by the Authority within the period prescribed by Section 37 of the Act, and, therefore, there was no question of deemed sanction of the third plan submitted by the petitioner.
6. It is submitted on behalf of the Authority that pursuant to the show cause issued, and the order of the High Court dated 13.7.1987 permitting the petitioner to withdraw the writ application with a view to file show cause before the authority, the Authority received the show cause filed by the petitioner. The aforesaid show cause was filed on 25.7.1987 but the petitioner was interested in delaying the matter and sought adjournments on untenable pleas which was rejected by the Vice-Chairman of the Authority. The Vice-Chairman rejected the show cause by a reasoned order meeting all the points raised in the show cause. This order dated 25.7.1987 has been annexed as Annexure-D to the counter affidavit Pursuant to the order rejecting the show cause, an order was communicated to the petitioner on 7.8.1987 (Annexure-10) requiring the petitioner to demolish the unauthorised constructions over the plot in question.
7. It may be noticed that in view of the averments contained in the counter affidavit filed on behalf of respondents 1 and 2, the petitioner filed a supplementary affidavit praying that the reasoned order passed by the Vice-Chairman of the Authority (Annexure-D) may also be quashed. The said order was filed by the petitioner as Annexure-12 to the writ application.
8. The first point which we propose to consider is whether there has been violation of the sanctioned plan, and whether the petitioner has made unauthorised construction contrary to the sanctioned plan. The learned counsel for the respondents drew our attention to the sanctioned plans (Annexures 4 and 5). The sanctioned plan disclose that towards the east is the Mian Road and the plans show 10' vide platform on the eastern side of the building abutting the road. Towards the south, the plan discloses a passage 3'.6" wide. According to the Authority the petitioner has constructed over the portion which was required to be left open towards the east as also construction over the vacant area meant for a passage towards the south. This, according to the respondents, is in clear breach of the building bye-laws as also the sanctioned plan. The learned counsel appearing on behalf of the petitioner could not pursuade us to hold that the constructions ordered to be demolished are in accordance with the sanctioned plan (Annexure-5). I have no hesitation in recording a categoric finding on the basis of the materials placed before us that the petitioner has constructed over portion/portions of the plot which were required to be left open under the sanctioned plan, and is, therefore, guilty of making unauthorised construction.
The alternative plea of the petitioner is that in the plan submitted on 20th January, 1987, such constructions had been proposed, and since the plan submitted on 20.1.1987 is deemed to have been sanctioned, these constructions are in accordance with the third sanctioned plan. I have already noticed the facts stated in the counter affidavit. The plea of the petitioner that the Authority did not communicate either its approval or rejection of the plan submitted on 20th January, 1987 is not true. Documentary evidence has been produced before us to show that certain defects were pointed out in the aforesaid plan vide Annexure-C, and since those defects were not removed, the plan was ultimately rejected by the Vice-Chairman by order dated 16.6.1987 (Annexure-C/1). This order was communicated to the petitioner on 22nd June, 1987. Assuming that the notice issued by the petitioner was received by the Authority on 24.5.1987, as contended by the petitioner, the Authority did communicate the rejection of the plan on 22.6.1987, well within the period of thirty days prescribed by Section 37 of the Act. Therefore, there is no question of deemed sanction of the plan submitted on 20.1.1987. This plea must, therefore, be rejected. I, therefore, find that the petitioner is guilty of having raised unauthorised construction over portions of the plot which he was required to keep open and vacant under the sanctioned plan (Annexure-5). I also find that the plan submitted by him on 20th January, 1987 was rejected by the Authority on 16.6.1987 and the order of rejection communicated to the petitioner on 22.6.1987. This plan was expressly rejected and, therefore, could not be deemed to have been sanctioned under Section 37 (5) of the Act.
9. The next contention of the petitioner is that the Vice-Chairman of the Authority is not authorised under Section 54 of the Act to pass an order for demolition of unauthorised constructions. This takes us to a consideration of the relevant provisions of the Act. Under Section 3 of the Act, the State Government has been authorised to constitute a Regional Development Authority. The Chairman of the Authority shall be the Minister of Urban Development Department of the State of Bihar, or any person nominated by the State Government. His tenure shall generally be of three years. The Vice-Chairman of the Authority is to be appointed by the State Government, and shall be whole-time Government servant. He shall be entitled to receive from the fund of the Authority such salaries and allowances, if any, and governed by such conditions of services as may be determined by the rules made in this behalf. Apart from the Chairman and Vice-Chairman, there are other members of the Authority, some of them ex officio and others nominated. The Vice-Chairman holds office during the pleasure of the State Government. Some of the nominated members hold office for a term of three years from the date of their nomination, but cease to hold office as soon as they cease to be the members of the body from which they were nominated. The constitution of the Authority leaves no room for doubt that the Vice-Chairman is the Chief Executive of the Authority, and he is a whole-time Government servant and a full time Vice-Chairman of the Authority.
10. Section 6 of the Act provides that the Authority shall have a Secretary, to be appointed by the State Government, who shall exercise such powers and perform such duties may be prescribed by regulation or delegated to him by the Authority, or the Chairman. Sub-section (2) of Section 6 of the Act authorises the Authority to appoint such number of other officers and employees as may be necessary. The Secretary and other officers and employees of the Authority are entitled to receive from the funds of the Authority, such salaries and allowances, if any, and shall be governed by such conditions of service as may be determined by the Regulations. The other provisions of the Act also make it abundantly clear that it is really the Vice-Chairman who exercises executive powers on behalf of the Authority. Section 35 of the Act provides that no person shall erect or commence to erect any building or make any addition or alteration to any building except with the previous sanction of the Vice-Chairman, and in accordance with the provisions of this Chapter and the Regulations made under this Act. Section 37 of the Act vests erection or addition or alteration of any building. Section 39 of the Act vests power in the Vice-Chairman to take action against any person who erects any building or makes any addition or alteration without or contrary to the sanction referred to in Section 37 or in contravention of any condition subject to which such sanction has been accorded, or in contravention of any provision of the Act. The Vice-Chairman is authorised to issue an order requiring any person to stop such unauthorised construction and with a view to enforce his order, he may require any police officer to remove such person, and may also depute police officers to watch the premises in question and to ensure that the erection of the building or execution of the work is not continued. Similarly Section 40 of the Act vests in the Vice-Chairman the power that at any time during the erection or addition or alteration to any building or at any time within six months after submission of the completion certificate he may direct the person concerned, to make such alteration or to show cause why such alteration should not be made, if he finds that the same is without sanction or contrary to the sanction granted under Section 37 of the Act. Thus the scheme of the Act is that in the matter of grant of sanction and in the matter of enforcing strict compliance with the building bye-laws, regulations and the sanctioned plans, vide powers have been vested in the Vice-Chairman who acts as the Chief Executive of the Authority. It is, therefore, follows that if any unauthorised construction has been made without sanction, or contrary to the sanction granted by the Vice-Chairman attracting the consequences of demolition, he will be within his powers to enforce compliance with the sanctioned plan and require the person concerned to demolish the unauthorised construction, and upon his failure to do so, to get the unauthorised constructions demolished.
11. Learned counsel for the petitioner placed great reliance upon Section 54 of the Act. The relevant part of which provides as follows :-
54. Order of demolition of building.-(1) Where any development or erection of 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 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 therefor directing that such erection or development work shall be removed by demolition, filling 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 of the person at whose instance the erection or development was commenced or was being carried out or was composed, as arrears of land revenue :
Provides 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.
Based on Sub-section (1) of Section 54 of the Act, the submission of the petitioner is that since the Vice-Chairman of the Authority has not been authorised, under Section 54 of the Act to make an order for demolition of unauthorised constructions he could not have passed the impugned order. The argument overlooks the fact that Section 54 of the Act only enables the Authority to authorise any of its officer to exercise such powers. The power of the Vice-Chairman of the Authority is not in doubt and he is a member of the Authority. Section 54 of the Act only enables the Authority to vests such powers in any of the officers of the Authority. The Vice-Chairman of the Authority is not an officer of the Authority in that sense. He is a member of the Authority and, is therefore, a part of the Authority. He is the Chief Executive of the Authority. The officers of the Authority contemplated by Section 54 of the Act are the person who are appointed as such under Sub-section (2) of Section 6 of the Act. Thus, in the case of Vice-Chairman, no such specific authority has to be conferred under Section 54 of the Act. Such authorisation is only necessary when such powers are sought to be exercised by officers of the Authority, meaning thereby officer appointed by the Authority under Sub-section (2) of Section 6 of the Act. In this view of the matter, we hold that the Vice-Chairman was fully within his powers to issue an order of demolition as contained in Annexure-10. I also find that the Vice-Chairman of the Authority has passed a proper reasoned order, and I find no such infirmity in the order which may justify interference by this Court in the exercise of jurisdiction under Articles 226 and 227 of the Constitution of India. The second submission of the petitioner must, therefore, be rejected.
12. It was lastly submitted by Sri Dayal, learned counsel appearing on behalf of the petitioner, that the impugned order (Annexure-10) is not clear as to what encroachments is required to be removed. I have carefully considered the order of the Vice-Chairman as also the communication sent to the petitioner. The orders are quite clear. Unauthorised construction has been found on the eastern and southern portion of the building in question. It has been found that towards the east, a construction has been raised over an area of 19'.4" x 6'.4". This area according to the sanctioned plan was to be left open to the east. Instead of leaving an open platform, construction has been raised over this portion of the plot, which is required to be demolished. Similarly towards the south, it has been found that construction has been made over an area of 26'.2"x3'.6". According to the sanctioned plan, this portion was to be left as a passage, but instead of doing so, construction has been made over it. This construction had been found to be unauthorised and, therefore, the petitioner is required to demolish it. The orders being quite clear, I cannot hold that the order is bad for ambiguity.
13. Before parting with this judgment, we may notice another submission faintly raised on behalf of the petitioner that unless a regional plan is prepared and sanctioned by the Government, no construction can be said to be unauthorised. Section 16 of the Act provides for preparation of the regional plan. By its very nature the regional plan is a general plan for development of the region, and is required to provide for the matters specified in Section 16 of the Act. The requirement to get the plan sanctioned in accordance with building bye-laws cannot be ignored even if the required plan has not been approved. It cannot be said that since the plan has not been approved, every one is free to construct buildings in any manner he desires. Indeed in the instant ease itself, the petitioner did make an application for sanction of the building plan and the building plan was actually sanctioned on two occasions, the revised plan having been sanctioned on 10.4.1985. I, therefore, hold that the sanction of a building plan in accordance with the building bye-laws by the Regional Authority has nothing to do with Section 16 of the Act, which relates to the preparation of a regional plan for the entire region. No other point was urged before us.
14. This writ application is rejected. There shall be no order as to costs, N.S. Rao, J.
15. I agree.