PARMESHWAR DAS SETH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE petitioner who has filed this petition under Article 226 of the Constitution of India is the owner of a house with a very large compound at 13-A Ashok Marg, Lucknow. THE opposite party No. 4 is a tenant in that house. It is averred in the petition that on 1&-11-1972, the petitioner made an application under Section 21 of the U.P. Act XIII of 1972 for the release of surplus land in the compound to him for construction purposes. THE release order was passed on 18-12-1973. THE opposite party No. 4 preferred an appeal against that order but to no avail. THE appeal was dismissed by the learned Additional District Judge on 31-5-1974, A writ petition was thereafter filed by opposite party No. 4 and it is stated at the Bar that the said writ petition has also been dismissed and the petitioner is in possession of the surplus land so released to him with a view to make constructions on the said land, the petitioner submitted a plan to the Pres cribed Authority opposite party No. 3 for the accord of permission. That application was moved under Section 7 of the U. P. Regulation of Building Operations Act, 1958 (hereinafter called the Regulation Act). THE Nagar Abhiyanta pointed out certain defects in the plan vide his letter dated 13-4- 1973. THEse defects were removed by the petitioner and the building plan was accepted. THE permission to build on the said land was thereupon accorded to the petitioner on 11-10-1973 which was communicated to him by a letter dated 17-10-1973 a copy of which is Annexure-2 to the writ petition. However, when the petitioner was out of Lucknow In connection with his employment at Jamuna Nagar District Ambala, a letter was served on his house at Lucknow on 10-6-1974, intimating that the petitioner should appear before the Controlling Authority on 11-6-1974 at 10-30 A. M. in connection with his appeal. THE petitioner could not obviously appear before the Con trolling Authority on 11-6- 1974 as he was at Jamuna Nagar, District Ambala. His wife however, appeared before the Controlling Authority on 11-6-1974 and asked for adjournment but the same was not acceded to. Ultimately, the letter dated 8-1-1974 was sent to the petitioner informing him that the Controlling Authority had cancelled the permit to build. That permit, it may be recalled, was accorded by the Prescribed Authority. THE petitioner then filed a revision before the State Government against the order of the Control ling Authority under Section 15-A of the Regulation of Building Operation Act which was, however, rejected by an order dated 23-5-1977 copy of which is Annexure-5 of the writ petition. On inspection of file that could be made available to him in the month of August, 1977 only, the petitioner came to know that on 1-6-1974 the opposite party No. 4 bad written a letter to the Administrator of Nagar Mahapalika for cancellation of the permit granted to the petitioner for constructing the house on the land in question; a copy of that letter is Annexure-6. That letter was considered by the Special Officer who made a note on it on 5-6-1974 recommending to the Controlling Authority for cancellation of the permit. That is how the matter reached the Controlling Authority which by its resolution contained in Ansexure-8 to the writ petition cancelled the permit in question. THE learned counsel for the petitioner argued that the Controlling Authority did not have the jurisdiction to cancel the permit in question and that no reason whatsoever was assigned by the Controlling Authority while cancelling the permit as would be evident from Annexure-8 as also from Annexure-4 to the writ petition. We find force in the aforesaid contention. A perusal of Annexure 2 to the writ petition would disclose that permission to build was granted by the Prescribed Authority in exercise of his power under sub-section (2) of Section 7 of the U. P. (Regulation of Building Operations) Act, 1958. THE sanction was communicated to the petitioner ty letter dated 17-10-1973, annexure-2 to the writ petition. THE permission granted under sub-section (2) of Section 7 of the Act could, however, be cancelled under Section 7-A of the Act, if at any time, the Prescribed Authority was satisfied that such permission was granted in consequence of any material misrepresentation made or any fraudulent statement of information furnished. Of course, while cancelling the permission the Prescribed Authority has to record reasons in writing. Section 7 A of the Act thus confers jurisdic tion on the Prescribed Authority to cancel the permission was if the permission was obtained either (1) in consequence of any material misrepresentation or (2) by any fraudulent statement of information furnished. An appeal from the order passed under Section 7-A of the Act lies before the Controlling Authority vide sub-section (2) of Section 15 of the Act and a revision lies before the State Government against the order of the Controlling Authority. So, the scheme of the Act is that the permission may be granted or refused by the Prescribed Authority. If a permission has been granted it may be cancelled by the Prescribed Authority. THE Controlling Authority is an Appellate Authority, and the State Government is a revisional authority. In the instant case though the permission was granted by the Prescribed Authority, the order of cancellation was not passed by him. That order was, however, passed by the Controlling Authority. Obviously, the Controlling Authority had no jurisdiction to pass that order under Section 7-A of the Act. He did not pass the order in appeal, the appeal could have been filed before him if the order had been passed by the Prescribed Authority under Section 7-A of the Act. THE Controlling Authority had no original jurisdiction to pass the order cancelling the permission granted by the Prescribed Authority. That power vests in the Prescribed Authority. Moreover, the order was passed on appeal. It was just passed on letter sent by the opposite party No. 4 to the Administrator, Nagar Mahapalika. THE order of the Controlling Authority having been passed without jurisdiction was nullity. THE State Government was no doubt, approached by the petitioner in revision. That revision was dismissed on the ground that the permission was granted in violation of Regulation 18 and in contravention of the Master Plan. Regulation 18 required that not more than one building shall be erected on any one plot provided that the aforesaid restrictions shall not apply to the construction of Kitchen, Store, Servant Quarters and garage. THE Controlling Authority in its resolution contained in Annexure-8 dated 11-6-1974 did not state that the permission was being cancelled on the ground that more than one building shall be erected on any one plot. In fact, no reason was assigned by the Controlling Authority for passing that order. It was for the first time alleged before the State Government that the permission granted to the petitioner to build on the surplus land released to him was in violation of Regulation-18. THE petitioner's contention is that the surplus land was extracted out of a huge compound and was released to him in accordance with law under the provisions of U. P. Act XIII of 1972. He wants to make construction on that surplus land which is lying vacant and that he does not want to build more than one building on that plot. Regulation-18 was, therefore, on these facts not attracted. It may be pointed out here that no counter affidavit has been filed by any of the opposite parties and the allegation made by the Petitioners remain uncontroverted. THEse allegations have, therefore, to be accepted. THEre is nothing on the record to show that the permission granted was in contravention of any alleged Master Plan. THE order of the State Government passed in Revision is, therefore, basically perverse and unsus tainable. For the reasons in the foregoing, the petition is allowed, the resolution dated 11-6-1975 and the orders of the Controlling Authority as contained in Annexure-8 and 4 to the petition as also the order dated 23- 5-1977 passed by the State Government contained in Annexure-5 to the petition are quashed. Opposite parties 1 to 3 are commanded to treat as valid permission. No. S. No. 3962 Ka dated 11-10-1973 granted by the Prescribed Authority and communicated through Annexure 2 to the petition.