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2019 Supreme(Pat) 391
IN THE HIGH COURT OF JUDICATURE AT PATNA
Amreshwar Pratap Sahi, Anjana Mishra, JJ.
Om Prakash Srivastava, S/o Late Babu Lal Prasad - Appellant
Versus
The Apurva Awas Yojna Pvt. Ltd. Ors. - Respondents
Letters Patent Appeal No.268, 181 of 2018, In Civil Writ Jurisdiction Case No.4540 of 2015
Decided On : 02-07-2019
For the Appellant :Mr. P. K. Shahi, Senior Advocate, Mr. Satyam Shivam Sundaram, Advocate
For the Respondent:Mr. Arbind Kumar Jha, Advocate, Mr. Vijay Kumar Verma, Advocate, Mr. Abhay Kumar, AdvocateMr. Ramchandra Singh, Advocate
For the State : Mr. Rakesh Ambastha, AC to AAG 7
Headnote:
Bihar Municipal Act, 2007 – Section 323 – Constitution of India – Article 226 – Cancellation of building plan – As recorded by Executive Officer, affidavit filed by respondent-petitioner was not a mistake but was a deliberate act on part of respondent-petitioner – This stands fortified by findings recorded on these facts by Tribunal – Respondent-petitioner for oblique motives and for reasons that have not been validly explained had tendered a map for sanction deliberately mentioning wrong plot numbers and, therefore, finding on this issue by Executive Officer as well as by Tribunal has to be sustained – Once this is established, then it was not open for Writ Court to have ignored this finding and then proceed to exercise a discretion against admitted part of records – Writ jurisdiction ought not to have been exercised in favour of respondent-petitioner as he had obtained sanction order on the basis of a false disclosure which was deliberate and not a mistake – Judgement of Single Judge cannot be sustained – Judgement of Single Judge set aside and orders of Executive Officer and that of Appellate Tribunal upheld. (Paras 19, 20 and 25)
JUDGMENT :
Amreshwar Pratap Sahi, J.
Heard learned counsel for the appellants and the learned counsel for the respondent-petitioners as well as the learned counsel for the Khagaul Nagar Parishad, Khagaul, Patna.
2. The two appeals question the correctness of the impugned judgment of the learned Single Judge dated 3rd of January, 2018 whereby the writ petition filed by the respondent petitioners has been allowed and the order dated 15th September, 2014 passed by the Municipal Building Tribunal, Patna and the order dated 11th of January, 2012 passed by the Executive Officer, Nagar Parishad Khagaul, Patna, has been quashed.
3. The facts in brief are that the respondent-petitioner submitted a building plan being Plan Case No.17 of 2009 for sanction before the Nagar Parishad, Khagaul, District-Patna. It is undisputed between the parties that such sanction is governed by the Modified Building Bye-laws approved by the State Government known as ‘The Patna Planning Standards and Building Bye-Laws, 1981’. The said Building Bye-Laws have been framed in exercise of the powers conferred under the Bihar Regional Development Authority Act, 1974.
4. The map that was proposed by the petitioner was sanctioned on 12th July, 2009. The dispute began when a complaint was lodged by one Shri Haribansh Narain Pandey appellant in LPA No.181 of 2018 and another complaint by one Mr. Fahimuddin Ahmad Khan. The third objection was filed by the appellant D. D. Cooperative Housing Society Committee Ltd. through its Secretary Om Prakash Shrivastava, who are appellants in LPA No.268 of 2018. They had been allowed to intervene in the writ petition filed by the writ petitioner as they are claiming title over Plot Nos.223 and 230 to the extent indicated in their objections. Haribansh Narain Pandey is claiming title over Plot No. 221. It is in this background that the two appeals have been filed by these two persons and have been heard simultaneously for being disposed of together.
5. A Division Bench of this Court had passed an ad interim order on 18th April, 2018 in LPA No. 268 of 2018 staying further constructions which order was continued on 27.6.2018.
6. The application of Haribansh Narain Pandey is Annexure-5 to the writ petition. On the basis of this application a notice was issued on 8th August, 2011 which is addressed to respondent-petitioner Sabitri Singh and others. She submitted a reply signed by her. The said reply is Annexure-7 to the writ petition. We are mentioning this fact as one of the arguments advanced by the learned counsel for the respondent-petitioners in defence is that the notice was issued to the Director of the promoter Company and was not in the name of the Company that was raising the constructions. Hence, the notice was invalid and any proceedings initiated on the basis of such a notice has to fall through.
7. At this juncture, a relevant fact deserves to be recorded at the outset, namely, the dispute about the correctness of a document that is the basis of the entire claim which is the sanction order dated 12th July, 2009. Annexure-3 to the writ petition is the said document, the reference whereof has been made in paragraph 10 of the writ petition sworn on oath by the writ petitioner. The said document categorically mentions six plots to be part of the sanction letter, namely, plot nos. 221, 223, 230, 231, 233 and 234. It is signed by the Executive Officer and it is addressed to the respondent-petitioner Sabitri Singh and others and is not in the name of the Construction Company. As against this document there is an argument advanced on behalf of the appellants that the writ petitioner filed a supplementary affidavit dated 2nd of December, 2015 before the Writ Court sworn by the respondent-petitioner Sabitri Devi herself where in paragraph 11 it has been mentioned that the same sanction letter as referred to hereinabove had been issued, but the sanction was granted for Plot Nos. 230, 231 and 234. Annexure-12 which is appended to the said af
