Sairnction or refusal of application for er~ciion ()U ai flJ)Mcl{]io-i(:j , m!lcliiion or alteration thereio… — BIHAR ACT 40 or " 1982]1

Sairnction or refusal of application for er~ciion ()U ai flJ)Mcl{]io-i(:j , m!lcliiion or alteration thereio . -(1) The Vice Chairman shall sanction the ere tion of a b.uilding or addition or alteration thereto if such erection of lhe buildi1 or addition or alteration thereto would not contravene any provision of ihis ,!:..ct any regulation made thereunder .

37 Sairnction or refusal of application for er~ciion ()U ai flJ)Mcl{]io-i(:j , m!lcliiion or alteration thereio . -(1) The Vice Chairman shall sanction the ere tion of a b.uilding or addition or alteration thereto if such erection of lhe buildi1 or addition or alteration thereto would not contravene any provision of ihis ,!:..ct any regulation made thereunder . If the proposed erection ' or alteration would ·:io in contravention ' ot a , provision of this Act , or any regulation made in this behalf or under any 0U1 law , sanction of Iha plan shall be refused . The Vice-Chairman shall communicate the sanction to ii1e person wl has giver. the notice , and where he refuses the sanction he shall . record a nr statement of his reasons for such refusal and communicate the refUS31 alo: with the reasons thereof to the person who has qiven the . notice. -:-he sanction or refusal· 'as aforesaid shall be communicated . n su , manner . as may be specified in the regulation made in this behalf. I"! at the expiration of a period of 3 months attsr application under S€ tion 36 has been made to the Vice-Chairman , no order in writhg has , Jo , passed by the Vice-Chairman and no notice of the order passed by the Vic Chairman, in this connection has been sent to the applicant , the applicani sh . give a notice under registered post intimating that sanction shall be presumed nothing to the contrary is received or notified in respect . of his application will' 30 days troro the date of receipt of the notice. comments lli case-law [Provisions of sub-section (5) oi section 31 are mancatory in nature. , he f.acl of participation by a land owner in any enquiry conductec by an Authurit) ' tPc.ler th~ Act cannot bu termed as waiving of the righi ol the land owner to proceed w[!h the construction after expiry of perioo of one month's nonce giv.en to ihc ?,~igic,mil Development P.uthority after ii hao not disposed of fae land owner's app!ic.:i.tion for s~nctioning cannot suffer for the delay or laches ot authorities cnc.lc·.- 'ihe Act. Uma Shysm Psrivnr Trust vs. State of Bifiar -, 990 (1) PL.JR 503. Seciion 37, (5) does not create any rioht whicil is. capable of being waived . · ~ person hos a right lo erect a building on his own land subject , of course , to the compliance of existing . Building Regulations . Th8 State merely" provides io, certain consequences once tho Authority fails to perform his statutory duty wi1l1in the time limi~ fiKcci by the LegislatL:e . ibid. Section ;;7 (b) mises a legcil fiction as a result whereof ihe building plan, suba1Hted by the land owner after the expiry of , he period ::,rescribed by the l _ er:isla"iu:·e, allhougt, not expressly sanctioned , would be deemed to navs been canctionod , ibid. t'1:?-01 ,, ~ _-; S2frCiio1,1.-Vl/hero the concerned authority had asked for certain ctariricat.on and udditional iniorrnation from the person who had submitted a "buikiing plan " for sanction, and instead of furnishing the additional information, ih(=: ~:,nC.: owner o had claimed deemed sanction on e)(piry of statutory period for sanction ow o, , Juiluing plan , the benefit of provision of demned sanction will no! be avai:able to 1he iand owner. Anset Properties and Industries (P) Ltd. vs. DOA, rcss supp (t) sec 61 . Sections 37 and 54 -afte, a plan is sanctioned by PROA , it is incumbent on them lo have w: .. tch on the construction so as to frustrate ihe design of de-' Jiations or ihe aevelopers. Mis Saket Housing Ltd. vs. Patna Regional Dev. v. A'Jihoriiy, 2003 (·1) PLJR,832 . J . :J'.~ . Sanc~ior:·· @ccordoo uncile1· misrepres1;ntation.If at any time after the sanction to erection of any building or addition or alteration thereto has been accorded , tho Vice -Chairman is satisfied that such sanction was accorded in consequence of anv material misrepresentation or fraudulent statement contained ln i:1e notice given or informa.don furnished under Section 37 he. may by order in writing and tor reasons to be recorded cancel such sanction rind erection of any building or addition or alteration thereto shall be deemed to have been dorm wiihou! such sanction: p,-,JV;ded "ll1at before makinq any such order the Vice-Chair-nan shall give reasonable opportunity to the person affected to explain as to why sucl 1 order i:: ;10..il::l not bo r:1m.iP Co1',tments iJ: c.,m::i-16:W ' [The authority has ilO power under this provlsion to cancel ;:irs-or.dinance 1Juilclina permit , sanctioned by the controlling authority under the earner Bihar Town Planning and Imoroverncnt Trust Act , 195·, , Hanr:hi Club vs . State, ·1973 38CJ 51:. Power under Section 38 can only be exercised if application had contained ·-·---~~ ~.,,. ""n r,r frri11r!ulent statement, later discovered by authority . Section sa -withdrawal of sanction-section 38 c otnes the Vicf'· Chairmru with the jurisdictlcn to recall, revoke or cancel the sanction, if the sarno is LI out come uf misrepresentation or fraudulent statement or suppression of mate rials facts =-sectlon 38 does not say that the question beyond what are pr-::vide< in section 38 can also be considered by the Vice-Chairman-however , in .=:. Gels, of fraud there is no scope for presumption unless the law permits it -tlw ' -).Jli! which complained to the Vice-Chairman . PROA about psndoncy oi a tills su:t am stay order passed therein was obligr"d to prove posltlvety that puiitionf!rs ha< positive knowledge of the p sndency or ~he title suit and the orders passer therein =-Vioe-Chairman presurrunq that tho petitioners had tho lmowlodge o pendency of suit and stay order v,~thout any positive evidence and witildrawin! tho sanction acted contrary to law-impugned order set aside. F;lajesh Sing: Buddhpriya VS. Patna Reg. Dev. Authority, 2002 (2) PLJA. 263.] Orrolec ' of stoppaqe of building; in certain t~nse.-(1) Where the erec tion of any building or addition or alteration tl-ierelo has been commenced or i. heing carried on (but has not been completed) without or contrary to ths sane tion referred to in Section 37 or in contravention of any condition subject t< which such sanction has been accorded· or in contravention of any provisions o this Act . or rei;iulations made thereunder the Vice-Chairman rr.ay, in addition t< any other. action that may be taken under this Acl , by order , require the psrsot at whose instance the building or the work has been commenced or is bein, carried on , !o stop the same forthwith. It such order is not complied for!hwith, the Vice-Chairman may requr. any police officer to remove such person and all his assistants and workmoi from the premises within such time as· may be specified in the requisit'on an such police officer shall comply with the requisition nccordingly. After the requisition under Sub-section (2) has been complied wi!h, 'lhr Vice -Ohairrnan may, if he thinks fit, depute by a written order, a police officer :.:: any officer or ot'rer employees of the Authority to watc» the premises in order i1 ensure that the erection of the building or the execution of the work is not ccr tinued. Where a police officer or an officer or other employee of the Authorit has been depute,..:: under sub-section (3) to watch the premises. the cost of sue! deputation shall be paid by the person at whose instance such erection or e;; ecution is being continued or to whom notice under sub-section (1) · was give, and 'shall bo recoverable from such person as an arrear of tax under this Aci Comments llt case-law [Where permission to construct Cinema hall was given by appropriate au lhorities and no serious objection was raised during tho construction of ' ·he builc ing, it will be against justice to refuse permission to run the Cinema hall whe , the building is complete or nearly complete . The doctrine of equitable estoppr will apply against the authorities . Ram Chandra Jha vs . State, 1977 B:..JR 4ffi After approval of proposed plan of building b~1 appropriate authority an ores of cancellation of permission of construction made without affording an opporu nity of hearing t< the pariy concerned is illegal. ibid. The principal that if the encroachment is less than 5 links, if' cannot be hol with certainty that there is indeed an encroachment cannot be sale to be a infle)(ible rule of universal application . Haribansh Singh vs. Basist Kumer, ·198 PLJR 370 (FB). · ?rovisions o~ sections 3!1 and 54 read v..rith Rule 9 of Appendix-, ,, Bye-laws (as amended by Order No . 75 of 1987 dated 28.2.1987) are attrac to all constructions wi!hm the territorial jurisdiction of the A!Jtl,ority under Parcl1-,Nor!{, repair or c 'tf', ltio'l do-io in old existing bui!ciing cannot be said to me.teria!ly effect the external appearance of such a building . The requirement ot "sot-back " is not applicable in case of houses built pr or to enactment of laws pr~.c,ibins such requirement. 11 is proper that post tac '1 sanction of the Builriing Plan be considered by the concerned Authority, S·Jdhisr Kumar Purf)8JI vs . Pc.lnn Rogionaf Development Authoriry, 1991 (2) PLJR 19P,. A procccdinq under section 39 is maintainable only where the construction rs being carried out in contravention of. the sanctioned (or rleemed sanctioned) pl21n, Utna Shyam Parivar Trust vs. State otBinsr, 19S'O (1} PLJR 503]. · ~i·:t. f.!.;::si:.;er o ,;l1::t>-Chairman fto reouire alleraiior of wo:-!t.-{1) The ViceCt·ai,r.iE.n rr.ay at :;ny time during the erection of or addition or alteration to any oliilding or at any lime within six months after the submission of tho completion ceriiiicatD as required , mcier regulation framed for the p.u,pose oy a written notice specify any matter in respect of whicl1 such erection er execution is without ·or contrary to the sanction referred to in Section 37 or is ;'1 contravention of any of the provisions of H1is Act or any regulation made thereunder and require the porson who gave 'he notice. under Section 36 or the owner of such building or wo:-!.o: either- (a) to make such alierations . as may be specified in ~he said notice with the object of bringing the building o: work in conformity with the said sanction, condition or provisions or {b) to show cause why such alterations should no: be made , within a period stated in the notice. {2) If the oerson or the owner does not show cause as aforesaid he ,shall co bound to make the alterations specified in the notice. ~3) " the person or tho owner shows cause as aforesaid the Vice-Chairrnan shall by an order either cancel the notice issued under sub-section ( " i) or confirm ·tie same subject to such modifications as he thinl<s M. Comments A Case -!aw [Section 40 _:_building in question alleged to have not made as per the sanctioned plan- -direction issued to . make certain modification in the buildingw1ii filed against such direction-writ disposed of by permitting · ih.c petitioner to Me representation which will be disposed of by the authority in accordance wi!h ie.w-no representation filed by the petitionerauthority revived the earlier _order w:1en no representation filed by tho petitioner-c-alteqation that VC did not conside; · tho representation which was filed (filed after the order of revival on the same day) no , liegality held to have been committed by the authority .. indrameni Davi vs . State of Binet, 2004 (2) PLJR 4G7 . ] t1"L Ll$O o:i l@nd ic>md building in contresentier01 pl..1.Jls.-Arter the coming into operation of any of the development plans in a zone no person s:1all L'.Se or permit to be used any land or building in that zone otherwise than in coni'ormity with sud plan: Provided that it shall be lawful to continue to use upon such ·terms and condsions as may be prescribed by regulations made in this behall any land or