Shivendra Kumar vs The State of Bihar and Others

Sheema Ali Khan, J.

*Ed.-The LPA field against this Order has been dismissed. The Order passed by LPA Bench is being given below for the facility of reference.

Heard learned counsel for the petitioner and the Housing Board. The petitioner has challenged the order, dated 8.3.2011 contained in Annexure-8 by which the Managing Director has issued a letter to the petitioner stating therein that he should submit his show cause as to why the construction made on the allotted land M44 New/24 (old) should not be cancelled u/s 78 of the Bihar State Housing Board Act (hereinafter referred to as ''the Act''). Annexure-8/1 is also under challenge, which is a letter by the Executive Engineer to stop the construction on the land described aforesaid. Annexure-14 is the order passed by the Managing Director by which he has held that the petitioner has made construction for commercial purposes and as such his show cause filed in response to Annexure-8 is rejected. One of the ground for rejecting the show cause is that it is in contravention of Clause (7) of the deed of agreement executed at the time of allotment of the land. Finally the Housing Board has held that the petitioner should demolish the construction made by him within fifteen days.

The facts are that the petitioner''s father was allotted a piece of land by the Housing Board M/44/24 at S.K. Nagar, Patna. The lease was registered on 18.8.1992.

After the death of petitioner''s father, he applied for transfer of the land which was transferred in his name on 1.8.2009. After the land was transferred to the petitioner, he applied for sanction of the map to the Municipal Corporation to make construction of the house. The Corporation sanctioned the map on 9.10.2009. Subsequent to that the petitioner applied before the Housing Board by three letters for grant of no objection certificate so that he could obtain loans from the bank. The last letter written by the petitioner is contained in Annexure-6 in which he had sought a no objection certificate annexing the map with the application. In response to the said application filed by the petitioner, the Housing Board granted permission to the petitioner on 28.1.2011 (Annexure-7) subject to certain conditions. Thereafter, the impugned orders were passed.

This court would refer firstly to the provisions of the lease deed which is Annexure-1. Counsel for the Board submits that the lease deed indicates that the petitioner has to seek written permission from the Municipal Corporation to make construction on the land in question. Counsel for the Board has referred to paragraphs-5, 6 and 7 of the lease deed which is being quoted below:-

That the lessee shall obtain the approval of the Board and the authority prescribed in the Bihar Restriction of Uses of Land Act or any other authority prescribed in any other law for the time being in force to his building plan before starting any construction thereon.

That the lessee shall make no alteration or addition upon the said premises other than the construction according to the approved plan mentioned in clause 5 above without the written permission of the Municipal or other authorities in accordance with the provisions of law for the time being in force.

That the allotted plot of land shall be exclusively used for residential purposes and for no other use.

On the basis of the aforesaid facts it is submitted that the petitioner had not made a proper application for construction on the land in question. On the other hand, counsel for the petitioner submits that the lease deed indicates that the construction should be made in accordance with law at the time of making construction. It is submitted that the only rider is that the land should be used exclusively for residential purposes. There is no bar on construction except to say that the construction should be made according to the approved plan and thus the Board should be apprised of the said construction.

According to the counsel for the Board, the permission sought for by the petitioner was not in accordance with the provisions of the lease. It is submitted that the petitioner ought to have sought separate permission for initiation of the construction. Merely, applying for a ''no objection'' certificate by annexing the map and asking for permission is not in the proper form. After considering this aspect of the submission and pursing Annexure-6, it would be apparent that the petitioner has informed the Housing Board that he intends to make construction in accordance with the approved map of the Municipal Corporation and he further sought a no objection certificate in order to obtain loan. The said letter alongwith the map is sufficient compliance as it informs the Board that the petitioner is going to make construction of a residential house of four floors as would be apparent from the map. Further, the map indicates that it was approved on the basis of the fact that it was for residential purposes.

The next objection raised on behalf of the Board is based on letter no. 871, dated 28.1.2011. It has been argued that clause 3 of the said letter indicates that the petitioner has to seek permission if an allottee intends to make construction on an already constructed and allotted house by the Board before adding floor or changing or altering original plan whereas according to counsel for the petitioner clause 3 is not applicable to the petitioner as he has not sought permission to make construction on an already allotted constructed building, rather, it is submitted that the petitioner would come under clause 2 which specifically provides that the allottee can make construction on the land allotted to him. It is further specified in the said clause that if the construction is being made deviating from the approved plan, then it would be subject to the provisions of Section 78 of the Act.

Learned counsel for the petitioner refers to Section 78 of the Act to submit that the scope of Section 78 is that there is a prohibition of making any sort of construction on an allotted piece of land if the Board has undertaken a housing scheme or execution of any scheme u/s 28. Section 28 refers to the types of housing scheme that can be adopted by the Board. It is not in dispute that the Board has not proposed any housing scheme for the area where the petitioner''s plot is situated, at the point of time, when the petitioner got sanction from the Municipal Corporation, or when permission was granted vide Annexure-7, dated 28.1.2011 and, therefore, it is submitted that the objection raised by the Board is without jurisdiction.

On perusal of the counter affidavit I find that there is no statement which would indicate that the Board had undertaken the housing scheme in S.K. Nagar where the allotted land is situated. Moreover, any objection on construction has to be raised within three months on receipt of such plan, and thereafter time limit is prescribed for the person concerned to answer the objections raised by the Managing Director, in the present case there was no occasion for the Managing Director to issue a notice alleging non-compliance of Section 78 of the Act. Thus, this court comes to the conclusion that there is no violation of the provisions of Section 78 viz-a-viz the petitioner and, therefore, the notice issued vide Annexure-8 is without jurisdiction.

Annexure-14 is the final order passed by the Managing Director of the Board on the show cause filed on behalf of the petitioner. Annexure-14 would reveal, apart from the grounds mentioned in the show cause, an additional ground has been stated in the impugned order, wherein it is alleged that the petitioner is utilizing the allotted land for commercial purposes which is not in accordance with the terms of the lease. The fact that the petitioner is building an apartment for residential purpose does not amount to construction made for commercial purpose. The definition of commercial purpose has not been given in the Bihar State Housing Board Act, but it is defined u/s 3(1)(2) of the Bihar Municipal Act. Sub-clauses (e) and (f) of sub-section (2) of Section 3(1)(2) defines what is meant by business building and mercantile building. It is apparent on perusal of the map that it does not include structures, such as, office, banks, professional establishment, libraries or for that matter structures, such as, shops, stores or markets for display and sale of mercantile either wholesale or retail, or for offence, storage or service facilities, incidental to the sale on mercantile allocated in the building. This finding of the Managing Director is supposedly based on a report of the Executive Engineer. The said report of the Executive Engineer has not been brought on record but original records have been produced before this court which indicates that the Executive Engineer has reported that a big building was being constructed for commercial purposes. This report, dated 7.3.2011 by the Executive Engineer issued vide memo no. 526 appears to have been issued without examining the sanctioned map of the petitioner. I, therefore, find that the order of the Managing Committee is not only without jurisdiction but is based on extraneous facts which are not supported by any documents. Besides this there are already several residential buildings on the lands allotted by the Housing Board in S.K. Nagar area which would be apparent from Annexure-15.

Lastly I should refer to Annexure-8/1 which is letter of the Executive Engineer to stop the construction work. Apparently this letter has been issued without examining any documents which would be apparent from Annexure-18. The petitioner had responded to the letter of the Executive Engineer contained in Annexure-8/1. The Executive Engineer by his letter, dated 30.3.2011 refers to the reply of the petitioner which he apparently received on 18.3.2011. It has been stated by the Executive Engineer that the petitioner should produce sanctioned map and permission in his office, thereby indicating that Annexure-8/1 as well as the inspection report have been made without looking into any document of the petitioner which, in my opinion, was quite unwarranted.

A peculiar argument has been raised on behalf of the Board by submitting that the petitioner intends to sell some of the flats which he is going to construct and that in itself would amount to construction on commercial basis. There being nothing on the record to indicate that the petitioner is constructing the four storied building for letting out or selling on commercial basis which has been described in Section 3(2)(1) of the Bihar Municipal Act, the fact that the petitioner intends to sell some of the flats in order to pay his loan does not amount to transaction on commercial basis. Any area used for residential purposes cannot be equated with an area which is used for commercial purposes. Moreover, the petitioner will have to seek permission of the Housing Board before selling any of the flats.

It goes without saying that unless there are good reasons for not allowing such transaction, the court cannot imagine that the petitioner cannot utilize the allotted land in a manner, which is in accordance with law, and the provisions of the Act with the permission of the concerned authority. In any event this question is not very relevant in the present case. Suffice to say that the order passed by the Managing Director is not in accordance with law and accordingly this court quashes Annexures-8, 8/1 and 14. This writ petition is, thus, allowed.

* LPA No. 1002 of 2012

30.07.2012

The Bihar State Housing Board, Patna, through the Managing Director, Bihar State Housing Board, 6, Sardar Patel Marg, Patna-16 & Ors.

vs.

Shivendra Kumar son of late Srideo Mishra, resident of Plot No. M/44, Sri Krishna Nagar, P.O.-Kidwaipuri, P.S.-Budha Colony, District-Patna & Ors.

Shiva Kirti Singh and Vikash Jain, JJ.

Counsels: Lalit Kishore and Ram Kishore Singh.

Jitendra Kumar Singh, Piyush Lall, Sanjeev Kumar and Binay Kumar

ORDER

Shiva Kirti Singh, J.—Heard learned counsel for the appellant and perused the order under appeal. Also heard learned counsel in respect of Limitation Petition (I.A. No. 4515 of 2012).

The order impugned before the Writ Court dated 11.8.2011 (Annexure-14 to the writ petition) clearly shows that on the basis of report of Executive Engineer Division-2 to the effect that building being constructed by the writ petitioner is for commercial use, action was taken for alleged violation of Clause 7 of the lease deed. That clause is extracted in the order of the Writ Court. It simply provides "that the allotted plot of land shall be exclusively used for residential purposes and for no other use". The Writ Court has further referred to arguments of appellants advanced to support their action on the basis of clause 7 and has found that the submissions were based upon what may possibly be done by the writ petitioner in future. There is no material to justify the conclusion that the writ petitioner had violated Clause 7 of the lease deed.

The Writ Court also considered Clauses 5 and 6 of the lease deed and found that those conditions stood complied on account of letter of the writ petitioner in Annexure-6 and reply to that by the Bihar State Housing Board vide Annexure-7 to the writ petition. Since the reasoned order contained in Annexure-14 does not refer to violation of Clauses 5 and 6 hence, it is not necessary to go into the issue whether Annexures-6 and 7 amount to compliance with Clauses 5 and 6 of the lease deed.

So far as allegation of violation of Clause 7 is concerned, in our considered view, the judgment and order of the Writ Court does not suffer from any error so as to require interference, Hence, the appeal is dismissed.

In view of disposal of the appeal on merits, there is no need to issue notice in respect of limitation petition or stay petition.