Regulation Of Building Operations Act | Locus Of Complainant Irrelevant When Fraud In Obtaining Permission Established: Allahabad HC
The Allahabad High Court has held that locus of the complainant is irrelevant for the purpose of proceedings under Section 7-A of the Regulation of Building Operations Act, 1958 when prima facie it is visible that the permission for development under the Act was obtained by fraud and misrepresentation.
Section 7-A of the Regulation of Building Operations Act, 1958 provides for cancellation of permission for development has been obtained by fraud by prescribed authority after recording reasons in writing. Section 10 provides for demolition of any construction erected in contravention to and without permission as provided under Section 6 of the Act.
Directing for continuation of proceedings under Section 7-A of the Act which were dropped on account that the petitioner did not have any locus to initiate the same, Justice Subhash Vidyarthi held
“When the inquiry report dated 06.02.2024 prima facie indicates that the sanction for building has been obtained by making a false statement and misrepresentation regarding boundaries of the land, which amounts to playing a fraud upon the authority, proceedings under Section 7-A of the RBO Act have to be initiated irrespective of the fact whether the petitioner has a right to press for initiation of the proceedings or not.”
Holding that obtaining permission for development by fraud affects planned development and public at large, the Court also held that
“If such fraudulent acts come to the knowledge of the authorities, they cannot refuse to take appropriate action in accordance with law on the pretext that the petitioner had earlier no pressed the demand of action under the law. Moreover, when such a conduct comes to knowledge of the Courts, the Courts cannot shut their eyes and chose to ignore the illegalities. The Courts' role is larger than mere protection of the rights of the parties. The Courts have to act as guardian of the Rule of Law.”
Opposite party no. 5 leased a plot of land on Gata No. 796 along with his brothers. Opposite party no. 4 purchased certain portion in the same Gata. Petitioner also purchased certain portion of land in Gata No. 796. Opposite party no. 4 applied for sanction of building plan which was approved without verifying the boundaries mentioned therein. Further, 2 other applications submitted by opposite party no. 4 for sanction of building map were also approved without verification.
When construction began, petitioner filed an application under Section 10 of the Act for demolition of the illegal portions. Petitioner also approached the writ Court where prescribed Authority was directed to conclude the proceedings under Section 10 expeditiously.
After inspection and certain proceedings, the Regulating Authority issued notice under Section 7-A of the Act to the opposite party no.4 who claimed that notice should also be issued to her husband, Opposite party no.5 as they had raised constructions together. Accordingly, both were issued notice under Section 7-A. Before the Prescribed Authority, the opposite parties pleaded that since the writ Court had only directed continuation of Section 10 proceedings, Section 7-A proceedings cannot continue.
The Prescribed Authority held that Section 10 proceedings could go on against the opposite parties, however, dropped the proceedings under Section 7-A. Petitioner approached the writ court challenging the dropping of Section 7-A proceedings.
Perusing Section 7-A and Section 10 of the Act, the Court observed that institution of proceedings under one Section would not bar proceedings under the other section.
Perusing the sanctioned map and the application filed by the opposite party no.4, the Court held that there was material deviation in the boundaries stated in both documents and the sanction of building plan was sought by misrepresenting the boundaries. Noting various discrepancies in the application, the Court held that the same warranted action under Section 7-A of the Regulation of Building Operations Act, 1958 as fraud was played on the authority.
Regarding the ground that the High Court had only directed the continuation of proceedings under Section 10 of the Act and therefore, proceedings under Section 7-A are not maintainable, the Court held that the petitioner had not forgone the claim under Section 7-A before the writ Court and there was no bar recorded in the order against initiation of proceedings under section 7-A of the Act.
“Therefore, the order dated 21.02.2024 does not amount to a direction for closure of proceedings against the opposite party no.4 under Section 7-A of the Act. Thirdly, even if the petitioner has no right to demand initiation of proceedings under Section 7-A of the RBO Act
against the opposite party no. 4, the initiation of such proceedings is not dependent upon the petitioner's right to claim initiation of the proceedings.”
Accordingly, the writ petition was allowed with a direction to the Prescribed Authority to conclude the proceedings under Section 7-A and Section 10 expeditiously and in accordance with law.
Case Title: Smt.Vandana Singh v. State of U.P. Thru. Addl. Chief Secy. Housing and Urban Planning Lko. and 4 others