ORDER
R.S. Garg, J.
1. Being aggrieved by the order dated 18-8-2001 (Annexure-6) passed by the Vice-Chairman, Patna Regional Development Authority, the petitioners have knocked the doors of this Court inter alia pleading that the order is passed on misconception of law and misreading of the facts and as error is apparent on the face of the records, this Court must Interfere and quash the orders.
2. The facts which are not in dispute before me are, though the correctness of the agreement etc. referred to in the foregoing paragraphs of this order have been vehemently disputed, that the Respondent No. 3 alleging that he entered into an agreement with one Jayanti Lal for purchase of ‘L8 dhoors land out of 2 kathas, 5 dhoors situate at Mithapur, Patna. As already said the genuineness of the said agreement, contained in Annexure-A to the counter filed by the Respondent No. 3, is highly disputed. On strength of the alleged agreement, on 30-4-1999 vide Annexure-B, the Respondent No. 3 issued a notice to said Jayanti Lal to perform the contract specifically, register the document and deliver the possession to the Respondent No. 3 after receiving the amount. On 10-5-1999 on strength of the said agreement. Respondent No. 3 filed Title Suit No. 177 of 1999 against the said Jayanti Lal. On 21-5-1999 the Sub Judge 1st, Patna directing the parties to maintain the status quo further directed that notices be issued to said vendor. Jayanti Lal. It appears that before the notices could be issued to said Jayanti Lal, a sale deed in relation to 2 kathas. 5 dhoors land was executed by Jayanti Lal in favour of the present petitioners at Bombay. On 27-5-1999 the notices were issued to Jayanti Lal. The petitioners allege that on 31-8-1999, their names were mutated in the official records. This fact is again highly disputed by the Respondent No. 3. On 15-10-1999 the petitioners applied to the Patna Regional Development Authority (‘the PRDA’ in short) for sanctioning the map to raise the constructions. On 18-8-2000 the map was sanctioned under the Sanction Order No. G32/ 99.
3. It is not in dispute before me that upto 18-8-2000 the present petitioners were not arrayed as defendants in Title Suit No. 177 of 1999. On 30-11-2000 in the said Title Suit, the present Respondent No. 3 made an application under Order I Rule 10 of the Code of Civil Procedure with a prayer that the subsequent purchasers be joined as party-defendants. On 2-1-2001 the present petitioners were added as party-defendants in the said Title Suit. It is not in dispute before me that Respondent No. 3 made an application under Section 144 of the Code of Criminal Procedure to the Sub Divisional Magistrate, who by his order dated 5/6/9-2-2001 incase No. 737/M/2000 rejected the case of the Respondent No. 3 vide Annexure-3. On 23-2-2001 the present Respondent No. 3 made an application to the Sub Judge in the said Title Suit to injunct the present petitioners from raising any constructions on the property in dispute. On 24-3-2001 notices in the said Title Suit Were served upon the present petitioners. On 23-4-2001 vide annexure-1, the application filed by the present Respondent No. 3 was rejected by the Sub Judge on the grounds mentioned in the order specially in view of the undertaking given by the present petitioners that in case the suit is decreed in their favour, they would not claim any rights over the constructions raised by them or they would deliver the vacant and peaceful possession to the present Respondent No. 3. It is not in dispute that the order dated 23-4-2001 has been impugned in an Appeal and the said Appeal is pending consideration.
4. On 19-2-2001 vide Annexure-4. the present Respondent No. 3 made an application to the PRDA inter alia pleading that the present petitioners had suppressed material facts and had made certain fraudulent statements in their application to obtain the sanction. The application was registered as Case No. 458/2001. A notice was issued to the present petitioners and they were required to submit their show cause. On 4-5-2001 (vide Annexure-A to the Counter Affidavit) an interim order was passed by the Vice Chairman, PRDA restraining the petitioners from raising the constructions. It is also the case of the Respondent No. 3 that the Vice Chairman asked the police authorities to stop the construction, if the same was in progress contrary to his directions. On 9-5-2001 vide Annexure-5, the petitioners submitted his show cause and prayed that they did not play any fraud nor had suppressed any material facts and as the complaint was an outcome of malice and fraud, the complaint made by the Respondent No. 3 deserved rejection. After hearing the parties, the learned Vice-Chairman vide his order dated 18-8-2001 withdrew the sanction on the grounds mentioned in Annexure-6 itself.
5. On 27-8-2001 the Respondent No. 3 being apprehensive that the order passed by the Vice-Chairman is likely to be challenged before this Court registered a Caveal in this Court. The present Writ Application came to be filed on 7-9-2001. On 9-10-2001 in presence of the Respondent No. 3 an interim direction was issued directing that during pendency of this application the petitioners may protect their construction without any obstruction by other side. The petitioners interpreted the order to mean that they are entitled to raise further construction while the PRDA and the Respondent No. 3 say that the petitioners’ construction only was protected and he was not given any authority to raise further construction. The Respondent No. 3 thereafter informed the police authorities that misinterpreting the order dated 9-10-2001 the present petitioners were proceeding with the construction, therefore, the construction work be stopped. On 18-10-2001 the Respondent No. 3 submitted an application for recall of the order dated 9-10-2001 inter alia submitting that the order was misused by the present petitioners, therefore, the order deserved vacation. The application submitted by the Respondent No. 3 was suitably replied and on 5-11-2001 Respondent No. 3 submitted his counter-affidavit. The matter was taken up for consideration on 5-11-2001. This Court directed that until further directions of this Court, the petitioners shall not make any further construction in/over the suit property. These facts are narrated in details as the sequence of the facts would show that in what manner the dispute proceeded and what is the real dispute between the parties.
6. Learned counsel for the petitioners attacking upon the correctness and validity of the order dated 28-8-2001 (Annexure-6) has made manifold submissions, the sum and substance of which are that the Vice-Chairman, PRDA did not look into the facts correctly and without appreciating that up to 24-3-2001 the present petitioners did not know about the pendency of the Title Suit nor they were ever served with a copy of the injunction order, therefore, while making an application for sanction of the map, they did not suppress anything. It is also the contention of the counsel for the petitioners that the Sub Judge in the said Title Suit Issued a direction to maintain the status quo on 21-5-1999 but before the injunction could be served upon the vendor of the petitioners, sale deed was executed on 25-5-1999, therefore, it cannot be held that the vendor of the petitioners either violated the injunction order or played a fraud. His further submission is that without any sufficient materials on the records that the vendor or the petitioner’s vendees had the knowledge of the institution of the suit or the injunction order made his remarks that it was difficult for the Vice-Chairman to believe that they had no knowledge about the Title Suit or the injunction order. Placing strong reliance upon the principles of equity it is contended that the petitioners have already spent a sum of Rs. 10 lacs on raising the construction and as the petitioners have already given an undertaking in the Title Suit that in case of the suit being decreed, they will hand over the peaceful vacant possession of the property, the Vice-Chair man of the PRDA should not have recalled the sanction order. It is also contended that petitioners’ vendor, Jayanti Lal has challenged the genuineness of the alleged agreement dated 17-3-1997 and has already instituted a Criminal Complaint No. 398(C)/2001 against the Respondent No. 3, therefore also the Respondent No. 3 has no rights in the property and had no locus to make a complaint before the authority. It is lastly contended by him that unless titles passes in favour of the Respondent No. 3, he would have no right, title or interest in the property and even in these proceedings no material has been brought before the Court that the petitioners were not bona fide purchasers for consideration.
7. To counter-blast the submissions made by the petitioners, learned counsel for the respondent No. 3 submitted before the Court that the application dated 15-1-1999 under which the petitioners had sought permission for construction and sanction of the map contained number of,the false statements. According to him, the petitioners stated before the PRDA that their names were already mutated but, in fact, it was not so. He also submits that a false affidavit was submitted before the authority that no litigation was pending in relation to the property though the petitioners knew the fact that the suit was pending. According to him. no ceiling permisson was obtained by the petitioners and as contrary to the local amendment in the provisions of the Registration Act, the property situate at Patna was transferred in favour of the petitioners at Bombay, no title would pass in favour of the petitioners, therefore, the application was not maintainable and the authority was justified in withdrawing or recalling the earlier sanction. It is also contended by him that as the petitioners violated the interim orders granted by this Court and continued with the construction, in these proceedings, the petitioners should not be allowed any relief:
8. The learned counsel for the PRDA supporting the order dated 28-8-2001 (Annexure-6) submitted that the Vice Chairman was absolutelyjustified in recalling the sanction.
9. On 29-11-2001 the respondent No. 3 filed a supplementary counter-affidavit inter alia stating that the petitioners were continuing with the construction despite order dated 5-11-2001. On 18-1-2002 second supplementary counter-affidavit was filed by the respondent No. 3 bringing to the notice of this Court that the said respondent No. 3 had filed a criminal case against Jayanti Lal and his sons. On 20-2-2002 when the matter was being heard, learned counsel for the respondent No. 3 raised number of the arguments in support of his contention but as the said arguments did not find any mention in the orders of the Vice-Chairman, PRDA this Court required the PRDA to produce the original records. On 20-2-2002 the respondent No. 3 filed the thifd supplementary counter-affidavit in response to the Court’s observations made in its earlier order dated 20-2-2002, the respondent No. 3 extensively quoted the submissions made in his application which was submitted by him to the PRDA. On 28-2-2002 the fourth supplementary counter-affidavit was again filed.
10. On the strength of these supplementary counter-affidavits the learned counsel for the respondent No. 3 has submitted that the respondent No. 3 had raised number of pleadings and arguments before the Vice-Chairman and even if the said arguments do not find place in Annexure-6, the respondent No. 3 cannot be denied the right to press the said arguments before the Court.
11. I have heard the parties at length, have perused the pleadings of the parties and original records submitted by the respondent-authority.
12. A perusal of order (Annexure-6) would show that the only question taken under consideration, for recalling the earlier order was that the petitioners had suppressed the facts relating to pendency of the Title Suit No. 177 of 1999. The Vice-Chairman, PRDA observed in its order that the issues of (a) the right and competence of Jayanti Lal Kothari to sell the land in question to the Opposite Parties, Rajesh Singh Buddhpriya and Manish Vatsayayan (the petitioners), even when the order of injunction dated 21-5-1999 in Title Suit No. 177 of 1999 was in operation in relation to the land in dispute and (b) the validity of the sale and its registration having been effected at Bombay, were outside the scope of jurisdiction of PRDA. The Vice-Chairman very candidly recorded that the said issues could only be settled by the competent Civil Court. The Vice-Chairman formed his opinion that the issues to be settled in the matter was “Whether the present was a fit case for revocation of sanction under Section 38 of BRDA Act or not ?” After quoting Section 38 of the BRDA Act, the Vice-Chairman proceeded to observe that Title Suit No. 177 of 1999 in respect to the land in question was instituted on 10-5-1999 and order of injunction was passed on 21-5-1999. The Vice-Chairman also observed that the said injunction was vacated on 23-4-2001 and as the Title Suit was pending on the date when the application for sanction of the map was made and as it was difficult to believe that the Opposite Parties were ignorant of the said pending Title Suit so also of the order of in-Junctlon dated 21-5-1999 between 25-5-1999 (the date of sale of said land) and 15-10-1999 (the date of submission of the map plan by the present petitioners) and, from 15-10-1999 to 20-9-2000 (the date of sanction of the said map plan) it was proper and just to hold that a fraud was played or the material facts were suppressed. The Vice-Chairman also observed that the affidavit submitted by the present petitioners did not represent the true facts, therefore, the sanction was required to be recalled.
13. From the above narration it would clearly appear that the Vice-Chairman. PRDA did not take into consideration the effect of the injunction order and the registration of the property outside the State. The Vice-Chairman craved his indulgence on the particular fact that whether there was any misstatement or suppression of the facts which could have a material bearing on the issue, in the affidavit submitted by the petitioners.
14. Section 38 of the Bihar Regional Development Authority Act, 1981 (hereinafter referred to as ‘the Act of 1981’) reads as under :–
“38. Sanction accorded under misrepresentation.– If at any time after the sanction to erection of any building or addition or alteration thereto has been accorded, the Vice-Chairman is satisfied that such sanction was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Section 37 he may by order in writing and for reasons to be recorded cancel such sanction and erection of any building or addition or alteration thereto shall be deemed to have been done without such sanction :
Provided that before making any such order the Vice-Chairman shall give reasonable opportunity to the person affected to explain as to why such order should not be made.”
15. From a plain reading of Section 38 it would clearly appear that if the Vice-Chairman is satisfied that a sanction was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Section 37, then after giving reasonable opportunity to the person affected to explain as to why such order should not be made, he may by order in writing and for reasons to be recorded cancel such sanction. Consequence of the cancellation of the sanction would be that erection etc. of any building would be deemed to have been done without such sanction. Section 3,8 clothes the Vice-Chairman with the jurisdiction to recall, revoke or cancel the sanction, if he is of the opinion that the sanction was accorded in consequence of any mis-representation or fraudulent statement contained in the notice given or information furnished under Section 37 of the Act of 1981. Section 38 does not say that ‘ the questions beyond what are provided in Section 38 can also be considered by the
Vice-Chairman. Section 38, in fact, clothes
the PRDA with the jurisdiction to recall, revoke or cancel the sanction, if the same is
an outcome or result of misrepresentation
or a fraudulent statement or suppression of
material fact. The legislature while confer
ring such limited power upon the authority
must have been alive to the authority of the
PRDA. Section 38, in fact, is a principle of
equity. The equity says that one, who seeks
equity, must exercise equity. The law says
that if somebody obtains a favourable order
by making a misrepresentation or suppressing the material facts then on detection of
the fraud or misrepresentation, such order
must be recalled and the wrong-doer must
be asked to return the benefits because one
cannot be allowed to take advantage of his
own wrong. ,
16. It is not the case of the respondent No. 3 or the PRDA that the Vice-Chairman had the jurisdiction to consider the questions relating to grant of injunction by the Civil Court or registration of the document outside the territories of the State of Bihar. In the opinion of this Court, the Vice-Chairman of PRDA was absolutely justified in not considering the two issues relating to grant of injunction and registration of the document beyond the territories of the State of Bihar.
17. Section 38 is required to be read in conjunction within Section 37 of the Act of 1981. The said Section 37 reads as under
“37. Sanction or refusal of application for erection of a building or addition or alteration thereto.– (1) The Vice-Chairman shall sanction the erection of a building or addition or alteration thereto If such erection of the building or addition or alteration thereto would not contravene any provision of this Act or any regulation made thereunder.”
“(2) If the proposed erection, alteration would be in contravention of any provision of this Act, or any regulation made in this behalf or under any other law. Sanction of the plan shall be refused.”
“(3) The Vice-chairman shall communicate the sanction to the person who has given the notice, and where he refuses the sanction he shall record a brief statement of his reasons for such refusal and communicate the refusal along with the reasons thereof to the person who has given the notice.”
“(4) The sanction or refusal as aforesaid shall be communicated in such manner as may be specified in the regulation made in this behalf.”
“(5) If at the expiration of a period of 4 months application under Section 36 has been made to the Vice-Chairman. no order in writing has been made to the Vice-Chairman, no order in writing has been passed by the Vice-Chairman and no notice of the order passed by the Vice-Chairman in this connection has been sent to the applicant, the applicant shall give a notice under registered post intimating that sanction shall be presumed if nothing to the contrary is received or notified in respect of his application within 30 days from the date of receipt of the notice.”
18. Sub-section (1) provides that the Vice-Chairman shall sanction erection etc., if such erection etc. would not contravene any provision of the Act of 1981 or any regulation made thereunder. Section (2) says that the sanction of the plan shall be refused, if the proposed erection etc. would be in contravention of any provisions of the Act or any regulations made in this behalf. Subsection (3) provides that if the sanction is accorded, a notice of the sanction would be given to the person, who made the application but in case he refuses the sanction, he shall be obliged to record a brief statement of his reasons for such refusal and also has to communicate the order of refusal along with the reasons. The sanction or the refusal, has to be communicated in such manner as is specified in the regulations made in this behalf. Sub-section (5) provides that if within the period of 4 months of submission of an application under Section 36, no order in writing has been made by the Vice-Chairman and no notice of such order has been sent to the applicant, the applicant shall give a notice under registered post intimating that sanction shall be presumed if nothing to the contrary is received or informed in respect of his application within 30 days from the date of receipt of the notice. In fact Sub-section (5) requires the authority to pass an order within four months and requires the applicant to” remind the authority after expiry of four months that in case no final orders are passed, he would presume that the map has been sanctioned.
19. Section 36 provides that every person, who intends to carry out a development plan or any other development work to make any addition or alteration thereto, shall apply for sanction by giving a notice In writing of his intention to the Vice-Chairman in such form and containing such information as may be prescribed by regulations made in this behalf. Such application should be accompanied with such documents and such fees as may be prescribed.
20- A juxtapose reading of Sections 36 and 37 would make it clear that every person intending to carry out a development plan or any other development work etc. has to make an application accompanied with documents, plans and fees, in writing to the authority for according the sanction. The sanction may or may not be accorded but in either case an information is to be given to the said applicant and in case no orders are passed on the application within a period of four months then the applicant would be entitled to issue a reminder and if within 30 days from the date of receipt of notice, nothing is done the sanction would be presumed. Sections 36 and 37 are comprehensive in nature and in fact are a complete Code. Section 38, as already observed, is a corollary rather a proviso to Section 37. It simply provides that if the sanction is a consequence of misrepresentation or suppression of the material fact then the Vice-Chairman shall be entitled to revoke, recall or cancel the sanction after giving due opportunity of hearing to such person.
21. From the order passed by the PRDA it would clearly appear that It had recorded a finding that it was difficult for him to be-lie,ve that the present petitioners or their vendor did not have any knowledge about the institution of the suit and passing of the injunction order. The facts which have been narrated in detail would show that the suit was instituted on 10-5-1999. The Sub-Judge on 21-5-1999 directed the parties to maintain the status quo with a further direction to issue notices to the vendor. Undisputedly up to 27-5-1999 no notices were issued or served upon the vendor, Jayanti Lal. I fail to understand that on basis of what particular evidence or material, the Vice-Chairman could presume that on 25-5-1999 the petitioners and their vendor, Jayanti Lal acquired the knowledge that a Title Suit was filed and the Sub Judge has issued certain directions. It is trite law that an order of injunction or stay takes effect from the date of its communication and conscious knowledge to the party. If an order of stay or injunction is simply obtained but is not communicated to the other side who is obliged to observe the same then at a later stage, the party securing the order would not be allowed to say that he had the orders in his favour, kept the same in his pocket, did not inform the other side of the same even then the other party should be deemed to be bound by the said order, a particular party does not have the knowledge of an order then it would not be proper to hold that despite absence of the knowledge the party would be bound to observe the terms of the said order. It is not the case of the respondent No. 3 that immediately after receiving the order from the Sub Judge he sent some communication to the sole defendant i.e. vendor, Jayanti Lal. It is also not the case of the respondent No. 3 that after learning about the execution of the sale deed on 25-5-1999 or before the present petitioners made the application to PRDA for sanction of the map, he ever informed the present petitioners that in a pending Title Suit between the respondent No. 3 and the vendor Jayanti Lal, an injunction was granted. The respondent No. , 3 did not issue notice either to the petitioners or to the vendor. Through the agency of the Court notices were issued to the vendor, Jayanti Lal. If said Jayanti Lal did not inform about the pendency of the suit to the present petitioners as he had lost interest in the said property after transferring the same in favour of the present petitioners, no fault can be found with the present petitioners.
22. The petitioners had made the application for grant of sanction on 15-10-1999. The map was sanctioned on 18-8-2000. What happened in between the date of the institution of the suit i.e. 10-5-1999 and 18-8-2000, (the date of the sanction of the map) has not been brought on record by the present respondent No. 3. From the records of the PRDA also it does not appear that the respondent No. 3 brought any material evidence on the record to show that he took some positive action in the matter in informing the present petitioners that a Title Suit was pending and some interim order was granted in the matter.
23. From the records it would clearly appear that an application for joining the
present petitioners as parties was made in the Title Suit on 30-11-2000 i.e. after about three months and twelve clays of the sanction of the map. The petitioners were added as parties on 2-1-2001. The petitioners were served with the notice of the Suit on 24-3-2001. The application for seeking further injunction was submitted on 20-3-2001 and the same was rejected on 23-4-2001. The records would also show that the complaint was made to the PRDA on 19-2-2001 under Annexure-4 that is after the present respondent No. 3’s application for joining the petitioners as parties to the Suit was allowed. On basis of the above undisputed facts, would PRDA be justifiable fn raising the presumption that on 15-10-1999 the present petitioners had some knowledge or semblance of knowledge that a Suit was pending, some interim order was issued and the respondent No. 3 was proposing to join the present petitioners as party defendants in the said Title Suit. When the allegations of fraud or misrepresentation are made by one party and refuted by another then the burden is extra-heavy upon the party, who levels such allegations. In a case of fraud there is no scope for presumption unless the law says that such a presumption can be raised. In a case of fraud the party alleging the same has to come out with a specific case, give the specific instances of fraud and prove its allegation by leading or producing positive evidence. Conduct of a party which has derived certain benefits from an order may not be bona fide but lack in bona fide would not be a fraud or a misrepresentation.
24. In the present case the respondent No. 3 did not make any positive allegation against the present petitioners that either on the date of the execution of the document or on the date when he made the application to the PRDA for sanction of the map the petitioners had the knowledge about the pendency of the Suit nor did respondent No. 3 lead any evidence to prove that despite knowledge of the pendency of the Suit and the order passed therein, the petitioners made a misrepresentation or a fraudulent statement in their application seeking sanction of map.
25. I fail to understand that how could the Vice-Chairman observe that it was difficult for him to believe that the petitioners had no knowledge of the facts. It was for the respondent No. 3 to prove that the petitioners had the knowledge of the facts. The burden to proye a fact is always upon a party which asserts it. If the onus of proving is wrongly shifted on the shoulders of a party then any findings recorded in the proeeedings would become bad. I am unable to understand that how a party can give the proof of a negative fact. A party can say that he had any knowledge of a particular fact but in case of negative burden a party is only entitled to say that he had no knowledge of a particular fact and unless his statement is rebutted and is challenged on the strength of the positive material that he had the knowledge, the presumption would be in favour of the party asserting that he had no knowledge.
26. The respondent No. 3 was obliged to bring positive evidence on the record to prove that the present petitioners had positive knowledge of the pendency of the Title Suit and the orders passed therein. The approach of the Vice-Chairman of PRDA was contrary to law and the findings recorded by him cannot be sustained.
27. It would also be necessary for this Court to take into consideration the question of equity and effect of comparative mischief to be suffered by the parties. The petitioners have already raised the constructions. According to them they have spent a sum of rupees ten lacs and more in raising the constructions. If at this stage the sanction order is withdrawn then the petitioners have to suffer the demolition of the erection/construction and in case they ultimately succeeded in the Title Suit the losses cannot “be compensated. The present petitioners have already given an undertaking in favour of the present respondent No. 3 that in case that Suit of the respondent No. 3 is decreed, they would hand over the peaceful and vacant possession to the respondent No. 3, It also cannot be ignored that under the sale deed two kathas and five dhoors property was purchased by the petitioners while the alleged agreement in favour of the respondent No. 3 is only for 18 dhoors. From the records it does not appear that the Vice-Chairman PRDA had taken into consideration that if the Suit was in relation to 18 dhoors only would he be justified in cancelling the sanction for the whole of the area.
28. In my opinion the equity would tilt the balance in favour of the petitioners and
if the order is allowed to stand, it would cause extra-mischief against the interest and rights of the petitioners.
29. The learned counsel for the respondent No. 3 had raised certain questions relating to filing of the criminal case, registration of the document outside the territories of the State of Bihar and the other frauds played upon the authority. In my considered opinion if the said question could not be considered by the PRDA then the scope of this petition cannot be enlarged to consider the said questions. When this Court is exercising its jurisdiction under Article 226 and/or 227 of the Constitution of India it has to see that whether the order passed by the authority is within the four Corners of the provisions of law or not, This Court would not allow any illegal order to stand because if an illegal order is allowed to stand then it would lead to judicial anarchism. This Court has only to see that whether the concerned authority acted within the scope of its authority, the powers conferred upon it and within the provisions of law. If this Court comes to the conclusion that the authority/ officer acted beyond its authority and passed an illegal order then this court has to strike upon such illegal order by the judicial sword and should not provide a sheath by refusing to interfere in the said order saying that It would not be advisable in its discretion to set aside such an illegal or wrong order.
30. The order passed by the Vice-Chairman, PRDA for the reasons stated aforesaid cannot be allowed to stand. It deserves to and is accordingly quashed.