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PATNA HIGH COURT
Navin Sinha, J.
Kunal Hazari
Versus
State Of Bihar
Criminal Writ Jurisdiction Case No. 13383 of 2001 ;
Decided On : JULY 27, 2007
1989 PLJR 920-Referred to.
Bihar Regional Development Authority Act, 1981-Sections 31, 32, 36, 37 and 39 read with Bye-laws-Development Authority sanctioning building for multi-storeyed apartment complex on Khas Mahal land without Collectors permission-under the lease only one dwelling house could be constructed-A construction of any other nature could be only with the permission of the Collector which admittedly is wanting-Letter of Collector addressed to the PRDA enclosing a copy of lease deed by any stretch of logic, reason or common sense can not be construed as a grant of permission for such construction-Section 37 was subject to the requirement for compliance of the provisions of the building laws-It was sanctioned subject to a precondition-If the precondition was not fulfilled the sanction had no meaning till it was fulfilled-Section 39 says that construction could be stopped for contravention of any conditions subject to which the sanction had been accorded. (Paras 20, 23, 26 & 27)
(2004)2 SCC 65-Relied upon.
Bihar Government Estates (Khas Mahal) Manual 1953-Rule 170 (1) and (4) read with lease deed and Government Instruction dated 11.3.1993 issued vide letter No. 8/AN Policy 7 of 1993 Kh-344R-and Appendix A (1)-Khas Mahal Land-Lessee a lady with no heirs transferring the lease land to a Builder for consideration for retaining 35% share in lands and property and transferring 65% of land to Builder-Difficult to accept that what was being built was one residental building in place of old one-Transfer of right, title and interest in the property to Builder without permission of Collector held committing a breach of condition of lease-Plea that lease was from generation to generation no permission was required rejected-Petitioner had clearly an income from the lease lands in consequence of such transfer for in excess of the amount specified in the note to clause 8 (1) of Appendix A(i) of Khas Mahal Manual amounting to commercialization of Khas Mahal land-Plea that use of the word "Developer" in the letter for permission to the Collector was sufficient discloser of the nature of construction rejected-No reason given why the development agreement was not submitted to the Collector along with copy of the proposed plan-Transfer of 65% land to the Developer was commercialization of the property-Building construction carried out despite PRDA asking for stopping it-Doctrine of "Legitimate Expectation held mis-conceived and rejected-The actions of the petitioner and the builder amount to a complete fraud played upon the Collector and the State Government the owner of the lands in connivance with PRDA in obtaining sanction for the plan-Construction held illegal-Demolition ordered. (Paras 26, 28, 29, 34 & 45)
AIR 1989 Bombay 392, (1998)7 SCC 66, (1999)65 SCC 464-Relied upon.
Bihar Regional Development Authority Act, 1981-Section 76, read with section 2 (k), 11, 32, 36 and Bye-laws (4) read with Rule 170(1(i) and (iv) of Bihar Government Estates (Khas Mahal) Manual 1953-Make it mandatory for even the Collector, the owner of the land to seek sanction from PRDA of construction of multi-storeyed building on khas mahal land-The application of the lessee petitioner to the PRDA was required to be accompanied by the permission of the land owner/collector for such construction-The PRDA was under obligation under its own laws to mandatorily require the same before processing the application for sanction-Any other interpretation shall render the provisions of Khas Mahal and the rights of the Government as the owner of the lands completely meaningless and redundant-Sanction purported to have been granted by PRDA at the behest of a person other than the land owner is no sanction in the eye of law.
(Para 30)
AIR 2002 SC 1506-Relied upon.
Bihar Regional Development Authority Act, 1981-Bye laws 12 and 13-Khas Mahal land-Construction of multi-storeyed building without Collectors permission and sale of flats-Bye laws 12 and 13 require obtaining completion certificate and occupancy and development certificate before the building could be occupied-Non-compliance render the entire construction and occupation illegal. (Para 32)
Constitution of India-Articles 226 and 227-Writ petition against show cause notice-Unless the court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate in to facts writ petition should not be entertaired for the mere asking and as a matter of routine and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. (Para 33)
(2004) 3 SCC 440-Relied up m.
Equity-Equity follows the law and not that law follows equity. (Para 41)
Town Planning-Khas Mahal land-Illegal construction of multi storeyed apartment on busy road, thickly populated prime area-Direction to demolish the construction-Director to hold an enquiry against the officials of PRDA and Patna Collectorate at all levels who dealt with the file of the petitioner and granted sanction and to fix a responsibility and submit a detailed report to the Court within six months for further directions-However directed that such demolition be carried out after six months to enable the respecting purchasers to make alternative arrangements for themselves-Further directed the petitioner and the builder to pay back the present market value of the flats purchased by the unsuspecting owners within a period of six months-Directions are additionally issued to the builder to obtain loans from financial institutions for such payment on guarantees to be furnished by him independently-Cost for demolition shall be recovered from the petitioner and the builder-Writ dismissed with cost of Rs. one lakh jointly against the petitioner and the builder.(Paras 44 to 47)
(1999)6 SCC 464; (1999)6 SCC 532; (2006)7 SCC 597, (2005)4 SCC 99, (1995)2 SCC 577, AIR 2005 SC I, 1997(2) All PLJR 15, AIR 1966 SC 253, AIR 1996 SC 715 2004 (3) PLJR 753-Relied upon.
Navin Sinha, J.
1. The original petitioner, Dr (Mrs) Iva Rani Hazari was the lessee of Khas Mahal lands measuring 6 Kathas 18 Dhurs 5 Dhurkies bearing Holding No. Nil, Circle No. 13, Plot No. 15, Ward No. 10, Block No. C, in Kadamkuan, Khas Mahal T No. 17023, RS. Pirbahore, under a lease deed executed by the Col lector of Patna in favour of her ancestor. She has been deceased during the pendency of this application and was substituted by the present petitioner, the legatee under her will.
2. The writ petition was filed challenging the show cause notice dated 23.8.2001 issued by the Collector, Patna, questioning the construction by her of a multi-storeyed residential apartment styled "Kanika Mehar Apartment" on the Khas Mahal lands leased to her for residential use, through a professional builder thus commercialising the lands, and the user contrary to the conditions of the lease. She was required to show cause why the lease be not cancelled for breach of the conditions of the lease. The writ petition also questioned the consequential orders dated 29.8.2001 and 19.9.2001 of the erstwhile Patna Regional Development Authority (hereinafter referred to as "the PRDA") directing her to immediately stop further construction unless and until the permission of the lessee (Sic lessor ?) /Collector was first obtained subject to which condition the building plan had been sanctioned by the PRDA.
3. Learned Counsel Shri Arun Kumar, appearing on behalf of the petitioner, submitted that under the lease deed (at Annexure 1 to the writ petition) construction of one "dwelling house" was permitted. The petitioner on 10.9.1999 informed the Collector that she was constructing a "new residential building in place of the old one through a Developer". The disclosure of the words "Developer" in her application seeking permission for such construction demonstrates, there was no concealment. It was therefore not necessary to inform the Collector that she had prior thereto already entered into a Development Agreement dated 18.6.1999 with the intervener respondent (hereinafter referred to as the Builder) for the construction of a multi-storeyed residential apartment complex. The lease deed in Clause (6) permitted "other user" with the permission of the Collector. The fact that under the development agreement she had executed an irrevocable power of attorney in favour of the Builder transferring 65 percent of the ownership rights in the lease hold lands and building as also handed over the original land documents to the Builder, were not required to be disclosed to the Collector. The lease deed was from generation to generation with full rights of transfer. Learned Counsel however fairly conceded that the proposed construction was far in excess of "one dwelling house" permitted under Clauses 2 and 3 of the lease. It was further conceded, that apart from the aforesaid, there was no other explanation for non-submission of the Development Agreement dated 18.6.1999 to the Collector for such construction alongwith the application for permission made on 10.9.1999. Though five days later the Collector had required her to submit a copy of the plan of the proposed construction, for his consideration, the same was not done as only one copy of the original plan had been prepared which was submitted to the PRDA, and no Xerox copies of the same had been retained. The plan was submitted to the Collector after sanction by the PRDA on 5.12.2000 as the Collector subsequently only required the plan approved by the PRDA to be submitted and made no further queries with regard to the nature of the proposed construction. There was thus deemed approval by the Collector of the change of user by the proposed construction as evident from the letter dated 13.11.2000 written by the Collector to the PRDA, at Annexure 11/1. Learned Counsel however fairly acknowledged that till the submission of the plan to the Collector on 5.12.2000 the Collector was not aware of the nature of th
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