Baleshwar Paswan vs The State of Bihar and Others

The prayer of the petitioner is to quash the order dated 10-1-1991 passed by the Patna Regional Development Authority Appellate Tribunal in Appeal No. 8 of 1990 (as contained in Annexure-4). With the consent of the parties, we proceed to dispose of this case on merit at the stage of admission itself.

Mr. Shivanand Prasad Sinha, learned counsel appearing for the petitioner, submits that the impugned order is without jurisdiction inasmuch as u/s 89 (1) of the Bihar Regional Development Authority Act, 1974 (hereinafter to be referred to as the Act) the Appellate Tribunal has to mandatorily consist of its President and two members, whereas in the instant case the impugned order has been passed only by the President and one member. He further submits that under Bye-laws No. 5. 3 (v)(b) of the Patna Planning Standards & Building Bye-Laws, 1981 (hereinafter to be referred to as the Bye-Laws) it is not necessary to file an attested copy of the mutation record with the application for building permit. Under the said Bye-Law even an affidavit can be furnished which the petitioner did. Accordingly, the reason assigned by the Tribunal that for non-filing of the attested copy of the mutation record, the application for grant of building permit was defective was valid, is not sustainable.

Mr. Sanjay Singh, learned counsel appearing for respondents nos. 2 to 5, on the other hand, submits that it was not mandatory that the Tribunal should have consisted of the President and two members. The Member, who is party to the order was from the planning side and thus the petitioner cannot be said to be prejudiced at all inasmuch as his case was from the planning side. He further submits that filing of attested copy of the mutation record along with the application for building permit being mandatory, the application of the petitioner was correctly rejected by the Tribunal.

We are of the view that the submissions of Mr. Sinha are valid.

Section 89 (i) of the Act runs as follows :

The Tribunal of Appeal shall consist of President and two members.

It is thus clear that the Tribunal has to mandatorily consist of 3 persons which was wanting in the case.

The other submission of Mr. Singh that the member present was from the planning side is also not of much consequence as what could have been the fate of the appeal in the presence of the third member, who might have initially taken a different view from the President and the other member and would have persuaded them to agree with his view, is difficult to forecost.

Bye-Law 5. 3 (v) of the Bye-Laws runs as follows :

Every application for building permit shall be accompanied by the following for verifying proof of ownership :

(a) attested copy of the original sale/lease deed

(b) attested copy of the Revenue Survey Sheet/Municipal Survey sheet with Khesra No. or mutation record.

Or

affidavit or other documents acceptable to the Authority.

From a bare perusal of the aforementioned provision it is clear that the accompanying of attested copy of the mutation record along with the application for building permit is not mandatory, rather it is open for an applicant to file an attested copy of the revenue survey sheet or Municipal Survey sheet with khesra number or even an affidavit or other documents to show his ownership and title of the land on which the building is proposed to be constructed.

Mr. Sinha states that the affidavit as required was filed by the petitioner along with application in regard to which Mr. Singh states that he has got no instruction.

Mr. Singh informs us that the third member now has also been appointed by the State Government.

For the aforementioned reasons, we allow this writ application and quash the appellate order dated 10-1-1991 (as contained in annexure-1) and remit back the case for its re-disposal to the Tribunal in accordance with law. No cost. Let a Writ of Certiorari issue accordingly.