Hem Narain Jhunjhunwala vs State of Bihar and Another

Prabha Shankar Mishra, J.—Petitioner herein has moved this Court for quashing the order as contained in Annexure 1 and the notice as contained in Annexure-6 which, together, forbid the petitioner from proceeding with the construction of a building in the town of Patna (City area) and hold that the sanction accorded to the building plan of the petitioner on 27-1-1988 lapsed because no revalidation was granted as required u/s 43 of the Bihar Regional Development Authority Act, 1974 (hereinafter referred to as ''the Act'').

The petitioner herein, it is not disputed, has alleged that noticing that Patna city was important for tourists, pilgrims and businessmen, visitors needed proper accommodation but there was no posh hotel, managed to have sufficient land, got a map and a building plan prepared by an architect and as required under the provisions of the Patna Municipal corporation Act and the Bihar Regional Development Authority Act, applied to the Cooperation and the Patna Regional Development Authority for necessary sanction. Necessary sanctions were accorded to the map and the plan by the competent authorities in the Patna Municipal Corporation and the Town Planning Officer of the Patna Regional Development Authority. Requisite sanction by the development authority, thus, was given to the petitioner u/s 37 (1) of the Act on 21-1-1977. The petitioner proceeded accordingly to construct the hotel. In the meanwhile, according to the petitioner, the Government of India introduced a scheme of Janta hotels. The petitioner applied to the concerned department of the Central Government for sanctioning conversion of the petitioner''s hotel project into a Janta hotel project. He was by an order dated 15-6-1979 informed by the Director, Hotels, Ministry of Tourism and Civil Aviation (Department of Tourism) that the petitioner''s hotels project was approved for domestic and budget minded foreign tourists on the condition that "in the event of your making any changes in the plans of the project as submitted now or in its location the approval of this Department will have to be applied for afresh for the project". The project, which was for a four storied building, however, got stuck for want of finance (after construction upto ground, floor). The petitioner, as required u/s 43 of the Act, applied for revalidation of the map and the plan on 20-1-1980. The second respondent, however, directed the petitioner to deposit the revalidation fee by his order dated 10-11-1981. On that very day the petitioner deposited the revalidation fee. No communication, however, was made to the petitioner revalidating the sanction accorded for the building construction until he was noticed to appear before the Vice Chairman-second respondent and show cause. The notice (Annexure-6) dated 26-2-1988 purportedly issued u/s 39 (1) of the Act asked the petitioner to stop construction of the said building and called upon him to produce the sanctioned map. The petitioner appeared before the second respondent and stated that he had a sanctioned plan on which he had proceed to make construction of the hotel building, that his project was approved by the department of Tourism, Government of India, that he had applied for revalidation on 20-1-1980, that when asked for, he had deposited the revalidation fee on 10-11-1981 and that he was proceeding with the construction rather slowly because he was facing financial problems, yet he had substantially completed the building construction. The second respondent, however, held that Section 43 of the Act required revalidation within a period of three years of the original sanction, that any application for revalidation was required to be made along with the prescribed fee therefore and that revalidation had to be ordered, subject to the Rules and Regulations then in force. According to respondent No. 2, since no revalidation order was made on the application of the petitioner within the prescribed period of three years, the petitioner could not proceed with the construction of the building and revalidation being out of question, the petitioner was required to apply for a fresh sanction which could be granted only when the petitioner was found complying with the Rules and Regulations for construction of a building on the date of the application for a fresh sanction.

Learned counsel for the petitioner initially contended that Section 43 of the Act is ultra vires Articles 14 and 13 of the Constitution of India but modulated his argument to submit that the correct meaning to the language in Section 43 of the Act will lead to the inference that the prescription that the sanction once accorded shall remain valid upto three years during which period a completion certificate from the registered Architect/Engineer/or a person approved by the Vice Chairman in the form prescribed in the building regulation shall be submitted, is not a mandatory provision and that the words that revalidation shall be subject to the Rules and Regulations then in force, for the purpose of revalidation of the sanction, must mean rules and regulations in force on the day the original sanction was ordered.

In the return, filed on behalf of respondent No. 2, it has been alleged that the original sanction accorded on 21-1-1977 lapsed on 21-1-1980 and even if it is assumed that there was any default on the part of the Patna Regional Development Authority, a further period of three years counted from the claim of revalidation of the petitioner had also lapsed before the notice as contained in Annexure-6 dated 26-2-1988 was issued.

Contentions raised on behalf of the petitioner have been contested by the statements that the requirements u/s 43 for a revalidation arc intended to ensure a town planning and development by adherence to the rules and regulations in force which are revised from time to time to meet the needs of planning and development of the city.

It is evidently not a case of any material suppression or fradulent representation made by the petitioner for either obtaining the original sanction or claiming rcvalidation. It is also not a case where any action was taken to cancel the sanction accorded to the petitioner. The respondents received the application of the petitioner dated 20-1-1980 for revalidation and accepted the renewal fee on 10-11-1981. Their conduct gives sufficient support to the fact that they never, until February, 1988, thought that Section 43 had to be enforced. Respondent No. 2 in his order dated 8-4-88, for the first time found that Section 43 had not been observed. Until then they treated the requirements of Section 43 of the Act as a formality. They never treated petitioner''s action of applying for revalidation without requisite fee enough to hold that there was no valid application made for revalidation. That is why they accepted the required fee on 10-11-1981.

The condition that in case the complection certificate in the prescribed forms was not submitted, ''the permit shall have to be revalidated before the expiration of this period'' indicates that it is required to ensure that the Patna Regional Development Authority is informed about the progress of the building construction. This cannot transform the requirements of revalidation into a mandatory decree by law that if not done the permit (sanction) would be rendered invalid. I am inclined, for the said reason, to agree with the interpretation given by the learned counsel for the petitioner that requirements of S. 43 of the Act that completion certificate should be presented within three years of the, original sanction and if not done revalidation before the expiration of this period should be asked for, has to be read as a regulatory provision and not as a mandatory provision. I may, however, add that even regulatory provisions are required to be observed. Non-observance of regulatory provisions also sometimes render actions to the contrary invalid, yet in a given case the court may examine, whether omission to observe a regulatory provision was intentional or not. If non-observance is found to be not intentional the court may not for non-observance hold that the act done is invalid.

Revalidation shall be subject to the Rules and Regulations then in force can receive to other meaning than one that will make the original sanction valid even after the expiry of the period of three years, in accordance with the Rules and Regulations then in force. Any variation or change in the rules and regulations if introduced in the map and the plan already sanctioned, may cause serious hardship to a person who proceeded to complete the work and could not complete because he either suffered on account of one or the other disability. Then in force must mean in force when the original sanction was granted. Rules for interpretation of statute require that a workable meaning should be given to a statute. A meaning which shall promote the interest of justice is the real meaning and not one which may be used to scotch or scuttle the ends of justice.

In the instant case, in my view, no further discussion on the subject is necessary except stating that the words ''then in force'' cannot mean that the rules and regulations in force at the time of making the revalidation application, that is to say, the time after the expiry of three years from the original sanction will be applied.

Had the respondents made their intention known that the petitioner was required to receive revalidation on expiry of each three years period from the original sanction or revalidation or that except one revalidation no further revalidation was permissible, the petitioner who had applied on 20-1-1980 could have applied once again, after the expiry of further three years period for revalidation or could have applied for a fresh sanction. The respondents, however, in my view, could not ask the petitioner to complete the construction of the building within the period of three years from the date of sanction or even within a further period of three years counted from the date of revalidation. A person who invested a substantial amount of money in obtaining the sanction and making substantial construction, must have been under serious constraints of one or the other kind, otherwise no person would attempt delaying construction of a building. Delays occur because of constraints. The petitioner has alleged that he suffered financial constraints. There is no reason to discredit his assertion. Had revalidation been communicated on the application of the petitioner dated 21-1-1980, the petitioner could reckon that a further period of three years began from the date of the revalidation. No such revalidation order was communicated to him. It is difficult to read in the language of S.. 43 that revalidation shall be only for a further period of three years. Revalidation may continue even after the expiry of three years. Still, as I have said earlier, respondent No. 2 never insisted that the petitioner should approach for a further revalidation or that the period of revalidation was to survive for three years and not more.

Having found as above, I have no hesitation in holding that the second respondent has committed error of jurisdiction and error of law in issuing the order as contained in Annexure-1; the same is accordingly quashed. The petitioner shall be entitled to continue construction of the building in accordance with the plan sanctioned on 21-1-1977. The respondents, however, shall be at liberty to take suitable action against the petitioner if he deviated from the sanction accorded on 21-1-1977. However, on the facts and in the circumstances of the case there will be no order as to costs.