Section 2

Amendment status not verified — confirm the current text below against the official source.

Tribu!,81 constnuted under this Act against that order within thirty- days from the Gale thersot: und the Tribunal may after hearinq the parties to the appeal either :if!ow or c'rsrruss the appeal or reverse or vary the order or any par' thereof. (3; The decision ·of the Tribunal on the appeal and subject only to such ,:leGision U1e order under sub-section (i) shaf be final and conclusive. {4) The provisions of ihis section s~all be in -'lc'.dition to and not in deroqa- f;on of 2n:i.' other provisions rel2ting to demolition ot ~uildings contained in any ,:':'.1,;;~ :2'.N for ths imr,i being in force. Comments 2 cas~·l2w l{Votice-P. ien;:n, of the building does not come within lhe purvlsw of the e,n::>ressior. "ownei or person concerned" to whom notice under section 54 is re- quired to be given before an order under section 54 is passed. Moreover, where !~ie teicvunt statutory provisions warrant the exclusion of requirement of orio; no- "ice and/or opporturuty of hearing the Legislature can provide for their exclusion. ~inly the owner a1 ·,d Builder of an illegal structure which is sought lo be demol- :shed may raise objection and put forward such pleas as may be available in law. i~ privats contract between the tenant and the landlord cannot override the s!awlory provisions which justify order of demolition in the k::rgc; public interest in certain cases. Sri!rrishnapuri Boring Hoed Vyapari San9h vs. State of Bihsr, ·i995 (1) P!....JR 418 ,)::imoJi~ion.-An order of dernotition of cxistinq structure cannot be said to bs sostalnable where the impugned order had been passed on the ground that t!ic structure was unauthorised but the notice in terms of sub-section (i) of sec- tion o4 had bse: , served on a person who was neither the owner nor the person recorded as the !ax payer of the holding on which the altege!y unauthorised si.ucturo had been constructed, in the records of the Municipal Corporation. Order being, ill&gal is liqble to be quashed: However, High Court gave liberty to PROA :0 i·11iiate a fresh proceeding and proceed in the matter a;ter proper service of notice in ierms of proviso to section 54 (1). Shyamrist1i Singh vs. State ot Biner, :095 (2) PLJR 39. . ·• .. ~~•;.-.n., ~Q .::inrJ 54 read witi, Rule 9 of Appendix-I, of the .. _ ...... u...---.rtcu"i [ Sec t4 Bihar RC'gJonal Development Aulhoritv Ac~ 1 ~ 74 ::JJ Patch-work. repair or alteration done in 01c rxlstinq bu,lding cannot be saic' lo materially affect the external appearar-: 01 -uch a builrling. The requiromsr-' of "set-back" is not applicable 1'1 case of houses built prior lo enactment of la,-•2 prescribing such reouiremsnt r; ts »roper that post facto sanction of th~ Juild ing plan be considered by ths concerned Authority. 8udhist Kumar Pumev vs, Patna Regional Development 1'11thori:y, 1991 (2) Pl.JR 398. Action under section 54 for demolition can tie iaken even if a building )Ian had received sanction or deemed sanction if the buiklinq plan is no! in contorm- ity with the Draft Master Plan or the Master Pinn. Srikrishnapuri Baring Hoea Vyapari Sangh vs. State of Bihar, 1995 (i) PUR 418. The prlnciple or waiver connotes issuance ot notice :.:nci non-response there to. A person who does not make any representation inii1ally on issuance of no- tice cannot be permitted to turn around, after a Development Scheme reaches finality, as it would amount to putting premium on dilatory and dishonest conduct. Jsswent Singh Mathura Singh vs. Ahmedabad Municipal Cotponuion, 1992 Supp (1) sec s. The notice contemplated in section 54 is required to be issued only 10 ·ihc owner and not to the tenants occupying tho building, as they bad no role to play in the erection of the offending structures. Only the owner is liable to be pros- ecuted for the illeg?! structure. The term owner also includes "the person con- cerned for purposes of issue of notice under section 54-. The doctrine oJ reason· able expectation has no application as a private contract between landlord and tenant cannot override the statutory provisions providing for demolition oi mega! structures. Sri Krisbnsptui, Boring Road ,Vyapari Sangh vs. 8tate of 3ihar, ·1995 ('1) PLJR 418. Under sub-section (2) ot Section 54, any person aggrieved by an order under sub-section 1) of section 54, may prefer an appeal to the Tribunal const ituted under the Act within thirty days from the date o'. the order. The :ribur.a may after hearing the parties either allow or dismiss ihe appeal or reverse 01 vary the order or any part thereof. However. once the order of tho PROA ha;, attained finality, the PROA must give effect to its own earlier order for rer"tova of encroachment from public land. Suroma Pal vs. Patna Regional Deveiopmen Authority. "994 (2) PLJR 672. The High Court deprecated the failure of PROA authorities to give efft::ici i, its earlier order for demolition of unauthorised construction over public l"'.,c~. Th< High Court also i:c sued a writ of mandamus commanding PROA to give eftec to its own earlier order. ibid. Demolilior . ·Whore unauthorised constructions are demolished on ,he fore, of the order of Courts, the illegality is not taken care ot fully inasmuch as !h, officers of the statutory body who bad allowed the unauthorised construclio be made or mal<e illegal allotments should not be allowed to go scot-free. Officers must be punished in accordance with law. Or. G. N. Khajuria vs . .'Je/J Development Auth, vity; {1995) 5 sec 762 !:1wiromne1r1t. -Where a large hotel had beon constructed without props approval of "buildin(• plan" being obtained, and later application of hole: owcor fc exemption from operation of statutory restrictions allowed at the Chief Minister' level after overruling the recommendations of the statutory authorities, the 1-!ig Court may strike down lhe grant of exemption as being arbitrary and ciroct dernc litinn nf unauthorised construction. Supreme Court declined to. interfere with Hir r 39 Bihar Regional Development Authority Act • 971' Sec. 54] · Gour:·s order in e .. xercise of power under Arucls ms of the Constilution. Pleasant Stc1\f Hotel vs. Palani f-Jif/s Conservation Council, 1996. (1) PLJR 24' (SC). Before demofition PRO/\ is to issue general notice to the house owners o• 1112 area where ii proposes. to Increase the width of the road .. After notice a fi"l0i,surement has to be dcne and title deeds, maps etc. s tc be verifiev,(the presence of the party concerned. Pral<ash Kumar Singh v:,. State of Bif)c,r, 1997 (1j ?L.JR 21 1 t,"' orcer 0: demolition given after firinl verification of sanctioned pian and cie-11.::-;fon founc' in the actual construction work done. Builders arc not to obioct !O ihe de'Tlolition of such structure on the mere ground that the b1Jilding was 2llo1Ned to be constructed provisionally. Arun Kumar Mukiwrjee vs. Stale ot EJi/721: 199:1 (1) PLJR 369. In cases ot cu npouncanle deviation in const uclior from the sanctioned ,na!:i tno PROA rnav exercise its discretion but in cases where the deviation is not compoundable .·,e PROA will not direct t~e builder rot •o construct. Awn Kumer ll!wki'wrjce vs. State of Bihar, 1997 (1) PLJR 359 ,\ tenant has no locus stendi to raise an objeciior. of a demoliticn 0'1 a :x1ilciirig b'Jii1 or- a non sanctioned plan. Only those tenant can raise objection •,'l,gains'c demolition wherein the construction has been done urtder the sanctioned :>fan or v,,;1ore th,:; c v,strution has been made by due permission .. Sisir Kumar .J2in· vs. P.C{OA, 'l 99L {3) PLJR 676. . Dernoiition of boundary wall has been done without qiv'ns proper arc prior :-,ot:-:;.s- :.if hearinJ. Sqch action of the authority is against ttJe ,aw. Appropriate writ i.t:sued dirocti11g the auihorities to construct and repair the ::>illc._75 and tho bound- ary walls or ;:i,,:' co,s. of construction along witl, compensation for the mental pain and agony suncred by the petitioner .. Permottem Pd. Singh vs. State of , Bi!1a1; '1999 ( ! ) PUP 708 .. T!10 authorities are to remove t11e illegal construction where ,:,e cwna does .;,o2 remove the same .. The owners are not liable for any compensation fo~ such dernoiiiion. Patna Bnsoct) AG Oiiice Housing Co-Opt. Society vs. State of Bihar, ·1999 (1) PLJr-l 71 ·1. There is 2 dirt.ronce between a house constructed without a sanctioned plan and one constructed after obtaining sanction. This section empowers for · demolition or 2. building built without permission. approval or sanction of '.he au- thorities. The provision do not empowers the authori.y lo divest the owners ot his ·m:e to the land. fhe order of the authorities to the owners to surrender strips· 'of !ancl is without jurisdiction. Gauri Shankar Verma vs. State of Bihar, 1999 (3) PLJR 8i9. . The direction o; the authorities to the tenants/shopkeepers lo remove their b8iongings within 72 hours in· a case of demolition can no: be applied with ln case of owners. Monen Kumer Singh vs. State of Bihar, 2000 (3) ?LIR 243. i.!\iilern the authorities or any other statutory bodies wish to wide1 •1a lane '.hi:: m1ly course open are either to persuade the owner to voluntary surrender or .:;cq'..li:·e ,he necessary strips of land or on payment of compensation in accord- snce w;lh law .. Manorama Devi vs. State of Bihar, 2000 (i) PLJR 170. iVi<=>mh1 rnil1ino red mark on H1e buildinq bv the authorities can not be said ( Sec. 54 8i:1ar Regior.al Development Authority Act, if /'l. 4 (I j not mere a formality its object is to rnake the person aware about action to be taken. IV/ohan Kumar Singh vs. State of Biner; 2000(3) PLJR 243 Putiing of the red mark on the buildin~ about three years ago and g;v;ng no opportunity to oxpla '1, action taken holds no rneaninq in :he eyes of !avv. Mohall Kumar Singh vs. Srate of Bihar; 2000 (3) PLJR 24.3. - where the 'louse has been constructed on the basis of a duly sa,:c- tioned plan, it cannot be demolished even if it is situate on a road or lane of . width less than 2011.- -Authority if they wish to widen such lane have ei\11er to get land from the owner by his volunteer surrender or resort to acquisition oy paying compensation- no forcible demolition permissible. Smt. Manorama Devi vs. State of Bihar, 2000 ("I) PLJR, HO. - a tenant cannot claim hoarinq by the authority before passing order of demolition 1J/s 54. vivek Arora vs. Patna Regional Development Authority, 200·, (2) PLJR 798 - building pla,1 sanctioned in which existing structure shown in set back -eJdstin!J structure in the occupancy of tenant who were knowing about the plan -demolition order of such portion is valid and. cannot betermed as a pica to evict the tenant bypassing the B.B.C. Act. Vivek /vora trs. Patna Regional De- velopment Authority, 200i (2) PLJR 798. - Authority is a creature of the statute -ii has a legal obligation 10 per- form certain functions specified i.n the Act, but those functions must be per- formed in the manner laid down in the ~.ct and al! its action must, theratore, conform to the provisions of the Act and it is not free to act beyond the param- eters of the statute and in a manner not sanctioned by the statute. Smt. Sudha Devi vs. State of Bihar, 2002 ( 4) PLJR 278 - a person who is strictly aggrieved· within. the moaning of this section, can only seek remedy-petitioner's house not adjacent but separated by 4-5 houses held not aggrieved. Ramesh Chandra Agrawal vs. Patna Regional Oev.Aufhority,2002 (3) PLJR, 80i - claim that demolition taken up on Fraser Road on the .basis of court's order dt. "17.7.2002 in Arun Kumar Mulcherjee's case -directions in the Court's order 'nowhere gave .sanction to the Authority to act in a completely lawless manner for the removal of unautliorised constructions - Authority lhemselves gave assurance to the court in that case that they will start removal of unau- thorised constructions itself and they will proceed with the matter within tour days- their assurance and court's direction do not even hint that the Authority was free not to follow the .procedure prescribed by the law and to act in a man- ner as it pleases. smr. Sudha Devi vs. State of Bibet, 2002 (4) PLJR 273 - notice published in the newspaper fo<ing the very next day and time for the .owners of the buildings on Fraser Road to keep ready tne maps sanctioned for inspection and those not complying or not having sanctioned plans it would be presumed that their structures arc unauthorised and action · would be taken to remove them -such an action of the Authority does not conform to the provi- sions of Section 54 - no reasonable opportunity to show cause is given--no order in writing under sub- section (i) of. section 54 passed nor period of thirty days lo take, the order in appeal given --"7""a reasonable opportunity to show --··---11 : ....... ; ..... ....,..,,.... ..... ,....,,... ,......~ ""'~ ,.,'"'r!Av ~f r11n'V"\tJ•:..t I rl.arnnli1i~n 11/c: ~A /il \nrhi'rh r 41 3ihar Regional Development Authority Act 1974 Sec. 54] naturally Include a proper notice to the concerned person uh, 67 a general notice does not ineei the requirement u/s 54 as per which a proceeding r,an be initiated on tho basis ot ;i notice addressed to ihe conc-r-ied individual owner ' occupiec- ll 1erefo;e, a public notice cannot be said to be an effective substitute for an individual notice=- however, instantly even the statutory provision «, I suance of a public notice (u/s 68) (for other matters mid not for a procr ,~ditt , vle 54) wz.s not properly complied with. Smt. Sudha 00111 vs. State of 1har. 2002 (4) PLlR.218 Section 54 r/w oroviso 2i .2 of Modified Building 8y8 taws- multi-storeyed apartment constructed after rnal<ing major deviation from the sanction. plan-- ag2ii1ist sanction to build upto the height of 6 floors. construction were made upto the height of nine floors- the provisions made in the bye laws either about. !'luor area ratio or thA area and height limitations are not without significance - 11'",ar;c provisions have been made after taking into consideration various factors rn~e density of population. state of availability of inlrastn .cture and also potential for development- !he front set back available instantb is sufficient only for a ou!idin!J of heighl of 21.0 mt. while the construction 01 ihe building had been made more than 31 mt. tor which front set back wc:..s inadequate -the devia- '.ion2/ shortfalls cannot be met oy acquiring adjacent land since the front and set -backs, of lhe building would not change oven on obtaininq land to rear of the buildin9 in question -impugned order for depositing condonation/ compounding iee and also to remove deviations I meet shortfalls upheld Mis Seket I-lousing Uc'. vs. Patna ,qogional Dev Authonty, ~003(L!) PLJH, 832 Section 54 r/w proviso 10.2 of Modified Building Bye Laws- construction oi' muliistoreycci buildina made after making major deviation from the sanction plan - proviso i 0.2 of the bye laws would not give protection from demolition of ihe portion of the building beyond sanction plan since the provision is appli- cable only in case where them has been minor deviations. Mis Seke; Housing Uc}, vs. Patna Regional Dev. Authority, 2003 (4) PLJR, 832 - demolition of portion beyond sanction plan of a multi -storeyed apart- ment constructed dter making major deviation from the sanction plan -allottee~ oi the apartmea: have no vested righ, in the matter and their interest am· iargGdy linked with the builder - even considered othorwiso, if ihe structures have been illegallv constructed and order u/s 54 of the Aci is justified, it makes no dif:'erence whether the premises are self occupied or am tenanted premises. Mis 8aket Housing Ltd. vs. Patna Regional Dev. Autho~ity, 2003 (4) PLJR, 832.] 5'.). 1:mencr~:,, bv cornpanies.e--It) If the person committing an offence un- der this Act is a .ompany. eve1y person, who at the time the offence vvas com- miitcd, was in charge of, and was responsible. to the company for ihe conduct of the business o, the company, as well as the-company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordinqly . Provided that nothing contained in ihis sub-section shall ;ender any such · person liable 1.0 any punishment provided in this Act if he proves that the ot- fence was committee without his knowledge or that he excrclsec 211 due dili- gence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section Cl) v11here an offence , ,nr1.,,· thi<>- Ar.t has been committed by a company and it is proved that the - -c -·· ;,..., ""-~l"ih1 ,t~hlo , Se-::. 55 Bihar Regional Development Authority Act, 1974 ,J.2]. to any negiecl on the part of, any director, manager, secretary or other officflr of ttie company, such director, manager, secretary or othr r officer shall ilso ue deemed to be g11i!ty of that offence and shall bo liable It be proceeded. aqa.nst and punished accordingly. _ En:planaU011.- For the purposes of this section (a, Company's mean., a body corporate and includes a firm or other association of individuals and (b) 'director' in relation to a firm means a partner in the firm. Comments /Jt case-law [Director Chairman or General Manager of a Company or Partner of a !· rrm are vicariously liable for the offence committed by the Company or Firm unless he or they establish their innocence. Mahmud Ali w,. Ste!e of Biher; 1986 Pl JR 123 (FB). Burden of proof is on the Director, Chairman or General Manager o~ the prosecuted Company or Partner of prosecuted Firm to establish their personal innocence. Sadri Prasad Gupta vs. State of Bitisr, 198n PLJR 246 (FB).]