Ram Udar Jha vs State of Bihar and Others

In this writ application under Articles 226 and 227 of the Constitution of India, as originally filed, the petitioner prayed for quashing of Annexures 10, 12 and 14.

The petitioner, who is a partner of the proposed Jawahar Talkies, a Cinema house in Mohalla Amgola near Harisabha Chowk, Muzaffarpur, applied in 1972 for permission to construct a permanent cinema house in the name and style as "Jawahar Talkies" in the said Mohalla. The petition was placed before the District Cinema Advisory Committee which approved the grant of licence for construction of the above mentioned cinema house. It was attended to by the District Magistrate of Muzaffarpur, the Chairman of the Muzaffarpur Improvement Trust (now Muzaffarpur Regional Development Authority) and the Town Planner. On 7th of July, 1973, a notice was issued by the District Magistrate, Muzaffarpur, inviting objection, if any, to the proposed construction of the cinema house. According to the case of the petitioner, no objection was received. On 13th February, 1974, the District Magistrate, Muzaffarpur allowed the prayer of the petitioner to construct the above mentioned proposed cinema house. The case of the petitioner further is that the said order, a copy whereof is Annexure 5 to the writ application, was issued after obtaining approval from the Executive Engineer, P.W.D. Building Division, Motihari, who was the competent authority to approve the building plan of the cinema house. The petitioner wanted to change the proposal for construction of the cinema house from over the ground floor to the first floor and made an application to that effect to the District Magistrate, Muzaffarpur, The latter granted permission on 1st October, 1974, revising the above mentioned construction order, as requested by the petitioner, after getting the revised plan approved by the Executive Engineer, P.W.D. Building Division, Muzaffarpur, a copy whereof has been made Annexure 7 to the writ application.

The case of the petitioner is that on 3rd April, 1974, he submitted three copies of the plan, as per direction contained in Annexure 5, in the office of the Muzaffarpur Improvement Trust. On 2nd of July, 1975, he again submitted three copies of the revised plan in persuance of the revised construction order, as contained in Annexure 7, in the office of the said Improvement Trust. The petitioner claims that such plans were duly approved by the Executive Engineer. The petitioner thereafter started construction of the proposed cinema house after a lapse of more than six months. According to the petitioner, if there was no objection to the proposed plans by the authorities within a period of six months from their filing, they were deemed to have been approved and sanctioned u/s 6(5) of the Bihar Restriction of Uses of Land Act, 1948. On 29th of July 1976, however an item was published in "The Searchlight" of that day stating that the Government had asked the Superintendent of Police, Muzaffarpur, to stop construction of the said picture Palace for the purpose of ensuring peace in the locality. On seeing the said news, the petitioner claims to have made enquiries from the District Magistrate, Muzaffarpur, and in reply he was informed in writing that the construction order for cinema building granted to him was never revoked, a copy whereof is Annexure 9 to this application. The petitioner completed the construction of the structure of the building on 30th August, 1976 and only finishing works remained to be done. On 16th of September, 1976, he received an illegal and arbitrary direction from the Vice-Chairman respondent No. 3, restraining him from proceeding with the construction of the building. A copy of the letter containing this direction has been made Annexure 10 to the writ application. The petitioner protested against that direction, a copy whereof is Annexure 11. On 16th of September, 1976, itself, the petitioner was also served with a copy of the order of officer-in-charge kaji Mahmadpur Police Station, respondent No. 4, communicating an order of the District Magistrate, Muzaffarpur respondent No. 2, stopping the petitioner from proceeding further with the construction of the cinema building. The petitioner claims that actually the order of respondent No. 2 was never served upon him, but a true copy of the order of respondent No. 4 has been made Annexure 12 to the writ application. The petitioner sent a representation and protested to respondent No. 2 even against the aforesaid order, a copy whereof is Annexure 13 to the writ application. On 20.9.1976, respondent No. 3 passed an order u/s 6(2) of the Bihar Restriction of Uses of Land Act, purporting to refuse sanction for the construction of the cinema building. A copy of that order has been made Annexure 14. The case of the petitioner is that these orders were passed without affording him any opportunity to show cause, and, therefore, they were all illegal.

The case of the respondents, however, in the counter-affidavit filed in reply to the writ application is that the plan for construction of the cinema house was returned to the petitioner within six months of its presentation and certain changes were made therein at the instance of the petitioner. It has, accordingly, been claimed on behalf of the respondents that the petitioner should not have started construction of the cinema house unless the plan was approved and his claim that it stood approved and sanctioned because no objection to it was sent to him by the authorities concerned within six months, is not correct. According to the respondents, the plan was returned to and received by one Shri Jogendra Sharma, a Tracer, on behalf of the petitioner and the corrections therein were made by one Shri Krishna Kumar, an Architect of the petitioner.

The petitioner has filed a reply to the counter-affidavit, in which he has claimed that neither Shri Jogendra Sharma was a Tracer for him, nor Shri Krishna Kumar was an Architect for him. According to the petitioner, persons who were inimical to him, have manipulated things in the office of the Development Authority by getting certain endorsements made by Shri Jogendra Sharma on the plan and certain corrections made therein by Shri Krishna Kumar. He has filed papers written and signed by Shri Jogendra Sharma and Shri Krishna Kumar in support of these assertions. Had the matter rested there, a question would have arisen whether, in fact, the plan was received by Shri Jogendra Sharma on behalf of the petitioner within six months of the date of its presentation and corrections were made therein by Shri Krishna Kumar as a representative of the petitioner. Ordinarily we would not have been inclined to accept the case of the petitioner that Shri Jogendra Sharma was not his Tracer and Shri Krishna Kumar was not his Architect.

It appears, however, that during the pendency of the writ application, the petitioner had also moved the Government and ultimately Shri Sharda Kumar Tiuriyar, Deputy Secretary to the State Government, Home (Police) Department, sent a letter dated 21st February, 1977, to the various authorities at Muzaffarpur, forwarding a copy of the application of the petitioner dated 15th of February, 1977, and stating that he should be granted permission to construct the building (cinema house) legally. The said letter is in Hindi, a copy of which has been made Annexure 24 to the supplementary petition filed by the petitioner, and the actual words used therein are "Bidhiwat bhawan nirman ki anumati pradan kar di jaye." On receipt of this letter, it appears an officer of the Muzaffarpur Regional Development Authority wrote a letter dated 23rd of February, 1977, a copy whereof is Annexure 26 to the supplementary petition filed by the petitioner, informing the petitioner that he has been granted permission to construct the building of the Jawahar Picture Palace. Thereafter the petitioner wrote a letter to the Vice-Chairman of the Regional Development Authority, Muzaffarpur, on 24th of March, 1977, informing him that according to the direction issued in Annexure 26, he had started construction of the building expeditiously and it was likely to be completed soon. He also prayed for return of the approved plan to him so that he may get necessary permission (anugyapti). A copy of this letter is Annexure 27 to the supplementary petition. Thereafter the petitioner received another letter dated 5th/6th of April, 1977 from the Muzaffarpur Regional Development Authority informing him that the order dated 23rd of February, 1977, permitting him to construct the cinema house had been stayed until final orders were passed by the State Government in the matter. A copy of the letter has been made Annexure 28 to the supplementary petition. In the supplementary petition, the petitioner has prayed for quashing of Annexure 28 as well.

As it appears from Annexure 26, permission has been granted to the petitioner by the appropriate authority for constructing the cinema house. In the circumstances, Mr. Basudeo Prasad, learned Counsel for the petitioner, confined his argument mainly to the question whether stay of the said order by Annexure 28 was legal.

It may be stated here that in the meantime the state Government have issued certain Ordinances concerning Regional Development Authorities. It is not disputed that the matter will be governed by those Ordinances. The Ordinance, which was placed before us is Bihar Ordinance No. 129 of 1976 which was published in the Bihar Gazette on the 1st of May, 1976. There must have been other ordinances of similar nature after this ordinance, but they have not been placed before us by the learned Counsel for the parties. We are informed that provisions of those Ordinances are similar to the Bihar Ordinance No. 129 of 1976. Mr. Hari Kishore Thakur, standing counsel No. III, who appeared in the case on behalf of the State, relied on Section 64 of the Ordinance which reads as follows:

Control by state Government (1) The State Government may set aside any resolution of the Authority or any order of the Authority, the Chairman, the Vice-Chairman or any officer of the Authority, if in the opinion, of the State Government the resolution or order is in excess of the power conferred by law.

(2) The State Government may issue directions to the Authority on matters of general policy.

Under this section, the State Government can set aside any resolution of the Authority or any order of the Authority, the Chairman, the Vice-Chairman or any officer of the Authority only if in the opinion of the state Government the resolution or order is in excess of the power conferred by law. The State Government may also issue directions to the Authority on matters of general policy. We wanted to know from learned standing counsel No. III how the State Government could set aside the order as contained in Annexure 26, unless it was held to be excess of the power conferred by law, and he was not able to convince us that the order approving the plan for construction of the cinema building was in excess of the power conferred by law! On the other hand, it was submitted by learned Counsel for the petitioner that sanction once accorded could be cancelled only u/s 38 of the Ordinance on the ground that it was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished u/s 37 of the Ordinance. He further contended that even such an order of cancellation could be passed after giving a reasonable opportunity to the person affected to explain as to why such order should not be made, and in this case no opportunity was afforded at all to the petitioner.

Learned Standing Counsel No, III, however, submitted that the order as contained in Annexure 26 was passed on the basis of the Government letter as contained in Annexure 24, and that Annexure contained a direction that the permission for construction of the cinema house was to be given lawfully, but the Regional Development Authority, Muzaffarpur did not apply at all to that question and granted the permission as if there was a direction from the State Government to give the permission, without examining any matter in that connection, specially whether the plan was in accordance with law. Then we wanted to know from learned standing Counsel No. III as to what was the illegality in the Plan on the basis of which it can be said that the permission granted by Annexure 26, was not granted legally. He placed before us a report of the Chief Engineer, though it has not been filed as an Annexure in any of the counter-affidavits. For ends of justice, we looked into that report.

The report of the Chief Engineer pointed out only four or five irregularities in the plan submitted by the petitioner for the construction of the cinema house. The first defect pointed out was that as the cinema house was being constructed in the residential zone, it required examination and approval by the competent authority, if necessary. As already observed, the original approval was given by a Committee which was attended to by the District Magistrate, the Chairman of the Muzaffarpur Improvement Trust and the Town Planner. Thereafter the petitioner was allowed to proceed on with the construction of the cinema house and he was never informed that he should not construct the cinema house as it was in the residential zone. Lastly, the permission as contained in Annexure 26 was accorded. In the circumstances, it has to be held that this objection has been waived.

The second defect pointed out by the Chief Engineer was that the cinema house was being constructed on Hajipur Road which, according to the Master Plan, should be 50 feet wide, but it was only 32 feet wide and had to be extended 9 feet on either side. According to the Chief Engineer, therefore, the petitioner should have been given notice not to have any construct ion within 9 feet of the existing compound wall on the road side. We are informed that the petitioner has not made any construction within 9 feet of the compound wall on the road side and he will not make any such construction in future. An undertaking has also been given on his behalf that even if any construction is found within 9 feet of the compound wall on the road side, that should be demolished.

The third objection of the Chief Engineer was that the coverage of the area on which the cinema house was being constructed, was 60% of the land. The Chief Engineer, however, himself added that for the residential house the coverage should not exceed 50% but for the commercial and general purpose, it could be up to 65% once the petitioner has been permitted to have a building for business purposes in the residential locality, if the coverage of the building is less than 65% the Plan cannot be said to be defective on that account.

The Chief Engineer then pointed out that on the rear side of the cinema house, the space left was only 12 feet wide on average basis. According to him, the minimum space left should have been 20 feet. He has himself, however, stated that the petitioner assured him that he was going to purchase further vacant land on the rear side of the cinema building. We are informed by learned Counsel for the petitioner that the petitioner has already purchased land on the rear side of the cinema building. An undertaking has also been given that if that statement is found to be wrong, it may be open to the authorities to take such action against the petitioner as they may deem fit and proper.

Lastly, the Chief Engineer stated that there were a series of omissions of dimensions in the site plan which had been submitted by the petitioner and the junior Engineer Shri R.C. Prasad had been instructed to prepare and give dimensions in the presence of the proprietor. The Chief Engineer, however, did not recommend that permission should not be granted to the petitioner on account of this defect. He merely wanted corrections to be made in the site plan.

After having carefully considered the defects pointed out in the report of the Chief Engineer which was placed before us by learned standing Counsel No. III, we do not think that the permission granted to the "petitioner by Annexure 26 is not lawful and, therefore, it was open to the State Government to set it aside u/s 64 of the ordinance. Learned standing counsel No. Ill was not able to point out any illegality in the matter which could entitle the state Government to set aside the order of the Muzaffarpur Development Authority granting permission to the petitioner to construct the cinema house as contained in Annexure 26.

We would like to observe further that the petitioner started constructing the cinema house after his application for the purpose was considered at a meeting which, as observed earlier, was attended to by the District Magistrate, the Chairman of the Muzaffarpur Improvement Trust and the Town Planner. The authorities never seriously objected to the construction of the cinema house by him and it will be against justice to refuse permission to the petitioner to run the cinema when the building is almost complete. The doctrine of equitable estoppel will apply against the respondents in the circumstances of the case.

In the result, we allow the application and quash Annexure 28. In view of existence of Annexure 26, it is not necessary to quash Annexures 10, 12 and 14, However, it is made clear that the petitioner must not make any construction on 9 feet of his land from the compound wall on the road side, and if he has made any construction already, he must demolish it, and if he does not demolish such construction, if any or his statement that he has acquired land on the rear side of the cinema building is found to be incorrect, then it will be open to the authorities to take such action against the petitioner as they may consider fit and proper. In the circumstances of the case, there will be no order as to costs.