S.K. JHA J.

(1.) In this application under Article 226 and 227 of the Constitution of India -- now for all practical purposes Article 226 only -- the petitioner, Ranchi Club Limited, is a public limited company incorporated under the Indian Companies Act with its registered Office at Ranchi. The relief prayed for is the issuance of an appropriate writ quashing the order dated 31-5-1976 passed by the Vice-Chairman of Ranchi Regional Development Authority (hereinafter to be called the Development Authority), respondent No. 2. By the impugned order, respondent No. 2 has cancelled the sanction accorded to the petitioner by the Controlling Authority for the construction of a building under the Bihar Town Planning and Improvement Trust Act, 1951 (Act 35 of 1951), hereinafter to be referred to as the Town Planning Act, read with the Bihar Restriction of Uses of Lands Act, 1948 (Bihar Act 23 of 1948) to be called, for the sake the brevity, the Restriction Act. A copy of the impugned order has been marked Annexure 4 to the application.

(2.) While the writ application was pending hearing, an application for amendment of the same was filed under Section 151 of the Civil P. C. By this amendment application certain amendments of formal nature have been sought for, especially on account of the passage of the Constitution (42nd Amendment) Act, during the pendency of the writ application. By the proposed amendment two paragraphs, namely, paras. 18-A and 23, which had been prayed to be added in the original writ application, are as follows :--

"18-A -- The said order of the respondent No. 2 cannot be challenged in accordance with the remedy and procedure provided under the Ordinance inasmuch as the Appellate forum, namely, a Tribunal conceived under Section 53 (2) of the said Ordinance has not been set up and constituted. The petitioner however made 3 representation before the respondent State for the exercise of their discretionary power and duties under Section 64 of the Ordinance. A true copy of the said representation is hereto annexed marked Annexure 5 hereof. The said representation was sent by Regd. Post on 22nd of July 75 (76) to the Minister in charge Local Self Government, State of Bihar and a copy thereof was presented personally as well by the Secretary of the Club. However the State Government in their turn have omitted and neglected to pass any orders thereon."

"23. -- That the said order of cancellation made by the respondent made Annexure 4 hereof with respect of the construction in progress has the effect of halting the completion of the buildings and keeping them in doldrums and impairing the contemplated use thereof for the purpose for which they were intended to be erected. The surface of the soil as also the structures standing thereon now stand of no use and the said order vitally affects the enjoyment, user and disposal of the property and is in the eye of law an infringement of the fundamental right of the petitioner to hold and enjoy the property -- under pretence of the regulation of its enjoyment and virtually the said order is an act of ravage, devastation and spoliation of the petitioners property at the instance of the said respondent in mala fide exercise of his powers and in abuse of the rule of law."

This application for amendment having been moved and pressed at the hearing of the writ application, not having been seriously objected to and being formal in nature is allowed and paras 18-A and 23 as extracted above shall now be treated as part of the writ application.

(3.) In short, the case of the petitioner may be stated as follows. One of the principal objects, for which the petitioner company has been formed, is to provide a club house and other convenience to its members and also to provide them sufficient recreation and bring near to them all amenities available in the market in the club campus. A vast area of land in the club campus was lying unused and therefore to utilise the said open space the petitioner applied on 27th June, 1974 for sanction of a plan for construction of a social and cultural center in the club campus on the Main Road, Ranchi, to the Controlling Authority appointed under the Restriction Act, who was at the relevant time the competent authority. The application was registered as B. C. Case No. 476 of 1974. The Controlling Authority, after making due enquiry in the aforesaid case, accorded sanction to the plan submitted by an order dated 22-8-1974. The petitioner company, after having obtained the required sanction, started construction of the said social and cultural centre as per the sanctioned plan and the construction had gone up to the roof level. The petitioner has already spent more than three lacs of rupees over the construction so far. In the meantime the Town Planning Act and the Restriction Act were replaced by an Ordinance, namely the Bihar Regional Development Authority Ordinance, 1974 (Ordinance 175 of 1974) in such areas as were to be notified under Section 1 (2) of the Ordinance. That Ordinance subsequently gave way to successive Ordinances and the relevant Ordinance with which we are concerned in this case is the Bihar Regional Development Authority 3rd Ordinance, 1975 (Bihar Ordinance 126 of 1975) hereinafter to be referred to as the Ordinance. Subsequent to the passing of the above Ordinance in or about January, 1976 Ranchi town was notified to be an area where the provisions of the Ordinance would be effective. Accordingly, the Development Authority came into being under the provisions of the Ordinance and respondent No. 2 was appointed Vice-Chairman thereof. On 20th March, 1976 respondent No. 2 issued two notices to the petitioner -- one under Section 38 and the other under Section 39 of the Ordinance. True copies of these notices have been marked Annexures 1 and 2 respectively. In the aforesaid notices the main allegations made against the petitioner are these - (a) That respondent No. 2 has come to know that the petitioner is making construction in violation of the sanctioned plan and in contravention of Section 38 of the Ordinance and it is constructing shops by practising fraud and deceit as it is only entitled to construct social and cultural centre and therefore, respondent No. 2 ordered the petitioner to stop further construction under Section 38 and to show cause why action should not be taken against the petitioner and the sanctioned plan. (b) In the notice referred to above respondent No. 2 alleged that the petitioner was constructing a shop and had executed agreement for the lettting out of the shop in favour of 16 of its members while the sanction was granted for building a social and cultural centre. Therefore notice was given under Section 39 of the Ordinance to stop the construction and to show cause by the 29th March, 1976. In pursuance of the aforesaid notices, the petitioner showed cause denying the allegations made therein and stating that the building was being constructed as per the sanctioned plan and for running a social and cultural centre for the use of its members. Respondent No. 2 thereafter is said to have deputed a junior engineer, (sic) without making any enquiry in presence of the petitioner, is alleged to have submittted an incorrect report to the effect that the petitioner had executed sixteen agreements in favour of sixteen of its members and had thus committed contravention of the sanctioned plan. The report further stated that the petitioner had constructed sixteen R. C. C. Pillars which had not been shown in the sanctioned plan. A copy of the said report has been marked Annexure 3. During the course of hearing of the petitioners objection, respondent No. 2 appointed one Shri Suit an Ahmad, a member of the Executive Committee of the Development Authority, as an Observer and he was requested to hold local inspection and submit a report. The said Shri Sultan Ahmad submitted his report stating that the building was being constructed by the petitioner as per the sanctioned plan and he also recommended that minor deviations like the construction of pillars were by way of improvement and protection of the building, attracting no serious notice. On 27-5-76 the petitioner also filed an application before respondent No. 2 reiterating therein that there has been no deviation from the sanctioned plan and that each room has been provided with 20 feet wide shutters and since such wide shutters could not be operated unless partitioned by a pillar, the above pillars have been erected. These pillars were by way of improvement and could not be treated as any deviation from the sanctioned plan. The petitioner, however, offered to remove those pillars if the construction thereof was not approved. The petitioner has further alleged that respondent No. 2, without any evidence produced and without any agreement having been filed before him, came to the conclusion, that the petitioner was constructing the sixteen shops and had entered into agreements in favour of its sixteen members instead of adhering to a social and cultural centre. He further held that sixteen R. C. C. Pillars up to 8 feet height had been constructed in contravention of the sanctioned plan. The report of the aforesaid Observer, Shri Sultan Ahmad, was rejected. He further held that the sanction had been obtained by fraudulent means on 22-8-74 and, accordingly, by the impugned order as contained in Annexure 4 the plan as sanctioned was cancelled outright.

(4.) A counter-affidavit has been filed on behalf of respondent No. 2. It has been stated therein that the petitioner was not making constructions according to the sanctioned Plan -- rather it was constructing sixteen shop buildings. The petitioner was granted permission to make constructions for social and cultural purpose, which was the only purpose permissible under the approved Master Plan as sanctioned by the State Government, as will appear from notification No. 6972/LSG dated 28th July, 1972, a copy of which has been marked Annexure A to the counter-affidavit. It has been further stated that the enquiry by the Junior Engineer was made in presence of the Secretary of the petitioner club, who stated before the Engineer that sixteen members of the club had been permitted to use the building for social and cultural purposes but in spite of the repeated requests of the Engineer no paper was produced in support of the assertions of the Secretary of the petitioner. The petitioner is said to be constructing the building for commercial purposes. In support of this a true copy of the tender circulated by the petitioner has been marked Annexure B to the counter-affidavit. It is said that respondent No. 2 had further come to learn that the tenders received as a result of the tender notice (Annexure B) having been circulated were duly scrutinised by the Committee at the meeting of its building Sub-Committee dated 19-9-75.

(5.) A rejoinder to the counter-affidavit of respondent No. 2 has been filed by the petitioner wherein the facts as stated in the writ application have been reiterated and the statements made in the counter-affidavit challenged and controverted.

(6.) On these facts, Mr. Balabhadra Prasad Singh, learned Counsel for the petitioner, urged that the order contained in Annexure 4 was illegal and without jurisdiction for the following reasons: (i) The Vice-Chairman of the Development Authority, respondent No. 2, had no jurisdiction to exercise any power under Section 38 of the Ordinance in relation to sanction granted earlier than the date of enforcement of the provisions of the Ordinance, (ii) Alternatively, the impugned order is vitiated on the face of it as it discloses non-application of its mind by the statutory authority to the precise and relevant conditions which occasioned exercise of the power and in the eye of law the impugned order is an order made in mala fide exercise of power. There can conceivably be no cause for cancelling the sanction apart from the arbitrariness and unreasonableness writ large in the proceedings.

(7.) Before, however, I proceed to the merits of the case, it is necessary to take note of a preliminary objection raised by learned counsel for the respondents to the maintainability of this writ application. It was contended that statutory remedies prescribed in the Ordinance have not been exhausted and as such the application be held to have abated in view of Clause (3) of Article 226 as it stands after the Constitution (Forty Second Amendment) Act read with Section 58 (2) of that Act. Learned Counsel for the petitioner, on the contrary, urged that there cannot be any question of abatement of the present application as it was a case falling under Sub-clause (a) of Clause (1) of Article 226, in that the petitioner was seeking to enforce a fundamental right. Alternatively, it was argued, the remedy by way of appeal was not available to the petitioner since no tribunal for purposes of hearing the appeals had been constituted under Section 53 of the Ordinance and the revisional power under Section 64 given to the State Government did not provide the petitioner with any remedy at all, and even assuming that it did so provide, in the circumstances of the case, the petitioner should be held to have already exhausted that remedy as well. For the reasons to be given hereinafter, I do not think there is any substance in the preliminary objection raised.

(8.) Section 53 (2) of the Ordinance provides for an appellate forum in certain cases and reads thus -

"Any person aggrieved by an order under Sub-section (1) may appeal to a Tribunal constituted under this Ordinance against that order within thirty days from the date thereof; and the Tribunal may after hearing the parties to the appeal either allow or dismiss the appeal or reverse or vary the order or any part thereof;"

Section 89 of the Ordinance provides for constitution of tribunal of appeal and states - (1) The Tribunal of appeal shall consist of a President and two members. (2) The President shall be appointed by the State Govt. from the cadre of District Judges of the State Superior Judicial Service. (3) The State Government shall appoint two more persons as members of the Tribunal, one of whom may be a Civil Engineer not below the rank of Superintending Engineer and the other may be a chartered valuer or a Civil Kngineer with knowledge and experience of town planning and valuation of properties. (4) The President and the members of the Tribunal shall hold office during the pleasure of the State Govt. (5) All decisions of the Tribunal in exercise of its appellate authority shall be final and shall not be liable to be questioned in any Court of law whether in a suit or other proceeding by way of appeal or revision." It is common ground that no tribunal has been set up and constituted as provided in Section 89 read with Section 53 (2) of the Ordinance. For all practical purposes, therefore, there was no remedy by way of appeal available to the petitioner. To be on the safe side, however, ex abundanti cautela, the petitioner filed a revision before the State Govt. seeking to invoke its discretionary power under Section 64 of the Ordinance which reads thus -

"(1) The State Govt. may set aside any resolution of the Authority or any order of the Authority, the Chairman, the Vice-Chairman, or any Officer of the Authority, if in the opinion of the State Govt. the resolution or order is in excess of the power conferred by law. (2) The State Government may issue directions to the Authority on matters of general policy."

A copy of the representation has been marked Annexure 5. It was sent by registered post on 27th July, 1975 (76) and a copy of it was also handed over personally by the Secretary of the petitioner club to the Minister-in-Charge Local Self-Government, State of Bihar. The State Government, in its turn, did not choose to pass any orders thereon. It is pertinent to state here that this Court repeatedly wanted information from the State of Bihar, respondent No. 1, and the Vice-chairman, respondent No. 2 through their respective Counsel, to be enlightened as to what had happened to the representation filed by the petitioner before the State Government. In spite of the requests made by the learned Counsel for the respondents to the State of Bihar, they were not favoured with any reply one way or the other. On 21-2-77, therefore while the hearing was being concluded and the judgment reserved we passed an order in these terms -

"Hearing concluded and judgment reserved. This Court has repeatedly wanted the information from respondents 1 and 2 through their respective counsel to know as to what has happened to the representation filed by the petitioner before the State Government. In spite of requests made by the learned Counsel for the respondents to the State Government, they have not yet been able to obtain any reply one way or the other. Since the hearing of this case has been concluded and judgment reserved, we have expressed our desire to have a categorical reply with regard to the stage in which the petitioners representation is lying by the 1st of March, 1977, failing which it will be presumed that the petitioners representation has been rejected as it has already remained pending for a pretty long time. Both learned Counsel for respondent No. 2 assure us that they are trying to obtain the relevant information from the State Government and will furnish such reply by the 1st of March, 1977. Let a copy of this order, as prayed for, be handed over to Standing Counsel IV."

Notwithstanding the aforesaid order of this Court, neither learned Standing Counsel IV appearing for respondent No. 1 nor learned counsel for respondent No. 2 could give us any information at any time. We accordingly proceed upon the assumption that the representation filed by the petitioner before respondent No. 1 stands rejected.

(9.) Apart from this, I think it is worthwhile to bear in mind that the provision in Article 226 (3) being a provision in exclusion of the jurisdiction has to be construed strictissimi juris. The relevant enquiry for the purpose of such exclusion should be whether the enactment under which an order is made has provided a remedy equivalent to or amounting to a substantive right for the person aggrieved to have the locus standi at a prescribed forum and to be heard there as a matter of right. Judged from this point of view, on the admitted position that a tribunal has not been constituted under Section 53 of the Ordinance to hear an appeal, the remedy prescribed under Section 53 is as ineffective and nonexistent as if it were said that a provision of appeal would be made later in the Statute. So far as the language of Section 64 quoted above is concerned, it will be seen therefrom that it is merely an enabling provision reserving a power in the State Government as a matter of its Administrative Superintendence over the authorities under the Ordinance. There is no corresponding right in any person aggrived to claim as of right the exercise of that power by the State Government. No right either in express words or by necessary implication is conferred on any person aggrieved insisting that the power under Section 64, must be invoked or exercised. The State Government is not to give any hearing, much less in public, according to any prescribed procedure to an aggrieved person. Section 64, therefore, provides no statutory remedy at all. Assuming for the sake of argument that it does so provide, from the facts stated above, it will be seen that the petitioner has exhausted even such a remedy.

(10.) Turning to the merits of the case, It was urged in the first instance that respondent No. 2 had no jurisdiction to exercise any power under Section 38 of the Ordinance in relation to any sanction accorded or permission granted earlier than the date of enforcement of the provisions of the Ordinance. In order to bring home the point, learned Counsel pressed upon our attention some of the provisions of the Ordinance. Section 38 of the Ordinance reads thus -

"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 alternation 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."

It was argued that Section 38 confers upon the Vice-Chairman power to make an order under the provisions thereof in respect of a sanction accorded under Section 37 of the Ordinance. Admittedly the sanction accorded to the petitioner in the instant case was not under Section 37. We were further taken to the provisions of Section 42 which reads thus-

"If any building permit which had been issued, before the commencement of this Ordinance is not wholly completed within a period of three years from the date of such permit, the said permission shall be deemed to have lapsed and fresh permit shall be necessary."

and again, Section 43 provides that-

"The sanction once accorded shall remain valid up to three years during which period completion certificate from the registered architect/Engineer or, a person approved by Vice-Chairman, in the form prescribed in the Building Regulation shall be submitted and if this is not done the permit shall have to be revalidated before the expiration of this period on payment of such fees as may be prescribed. Revalidation shall be subject to the rules and regulations then in force."

On the basis of Sections 42 and 43 aforesaid, it was argued that the object of the legislation seems to be quite clear that for any pre-Ordinance building permits the sanctity of the building permit issued before the commencement of the Ordinance is upheld for a period of three years meaning thereby that within a period of three years from the grant of the permit or the according of the sanction in respect of pre-Ordinance permits, the Vice-Chairman was powerless. In my view, this argument cannot be accepted as valid. The provisions of Section 93 in this connection have to be noticed. The relevant provisions of Section 93 (1) read as follows :--

"(1) As from the date of the constitution of the Authority- (a) the Bihar Town Planning and Improvement Trust Act, 1951, the Bihar Restriction of Uses of the Land Act, 1948, Bihar Act 23 of 1948, shall cease to have effect within the area notified under subSection (2) of Section 1, save as provided under Section 30, (b) tine Improvement Trust as constituted under the Bihar Town Planning and Improvement Trust Act, 1951 shall cease to exist with effect from the date this Ordinance comes into force."

and Section 93 (2) (b) provides that- "Notwithstanding the provisions of Sub-section (1) XXX XXX XXX XXX (b) anything done or any action taken (including any appointment delegation, notification, order, scheme, permission, rule, bye laws, regulation or form made, granted or issued) under the Bihar Town Planning and Improvement Trust Act, 1351 and the Bihar Restriction of Uses of Land Act, 1948 (Bihar Act 23 of 1948) shall so far as it is not inconsistent with the provisions of this Ordinance continue in force and be deemed to have been done or taken under the provisions of this Ordinance unless and until it is superseded by anything done or any action taken under the said provision." It will thus be seen that by virtue of the provisions of Section 93 (2) (b) any permission granted under the Town Planning Act and the Restriction Act shall be deemed to have been granted under the provisions of the Ordinance (sic). When the Legislature unequivocally provided that the pre-Ordinance permits will be deemed to have been issued under the provisions of the Ordinance, it needs no persuasion to hold that the provisions of Sections 42 and 43 cannot lead to the inference that the pre-Ordinance permits enjoyed complete immunity for three years or that the provisions of Section 38 must apply even to pre-Ordinance permits as if such permits had been granted under the provisions of Section 37 of the Ordinance. This alone can be the outcome of the legal fiction incorporated in the non obstante clause of Section 93 (2) (b). Learned Counsel for the petitioner argued that Section 42 of the Ordinance is a special self-contained provision and, therefore, the principle -- specialia generalibus derogant -- should apply. There is no scope for such an argument in view of the express language of Section 93 (2) (b). From the provisions of Section 93 (1) extracted above, it is clear that although the Town Planning Act and the Restriction Act have not been repealed, they are kept in a state of animated suspension (suspended animation) during the period that the Authority under the Ordinance once set up has not been dissolved under the provisions of Section 92. If the contention of learned Counsel for the petitioner be accepted, it will lead to absurd results. In the scheme of the things as envisaged by the Legislature in promulgating the Ordinance, it is quite clear that all through the period of interregnum, as it were, during which the Town Planning Act and the Restriction Act are held suspended, the Ordinance by itself constitutes a self-contained machinery substituting the corresponding provisions of the other two Acts. Learned Counsel also invited our attention to Section 144 (1) of the Town Planning Act which reads thus-

"In any area in respect of which an improvement Scheme is in force, the State Government may, by notification, declare that for the period during which such scheme remains in force and subject to such restrictions and modification, if any, as may be specified in the notification- (i) the powers and functions of the Municipal Commissioners under the Bihar and Orissa Municipal Act, 1922 (B. and O. VII of 1922) shall be exercised and discharged by the Trust; and (ii) the powers and functions of the Chairman of the Municipality under the said Act shall be exercised and discharged by the Chairman".

It was argued that in view of the aforesaid provisions there is a referential incorporation of the provisions of the Bihar and Orissa Municipal Act, 1922 (hereinafter to be called the Municipal Act) and that since the Municipal Act has not been held to be suspended by the Ordinance, the relevant control over the pre-Ordinance permits must be regulated by the provisions of the Municipal Act. This argument is again fallacious. It cannot be argued that the pre-Ordinance permit granted to the petitioner was not under the Restriction Act read with the Town Planning Act but under the provisions of the Municipal Act. It is no ones case that the building permit sanctioned to the petitioner under the Restriction Act read with the Town Planning Act was under the Municipal Act de hors the provisions of those two Acts. Whatever be the procedure adopted in granting the building permits under those two Acts, it cannot be said that the permission granted to the petitioner was one under the Municipal Act. As I have already held above, the machinery set up under the Town Planning Act and the Restriction Act has been replaced lock, stock and barrel by the provisions of the Ordinance till such time as the Authority constituted under the Ordinance is not dissolved, under the provisions of Section 92 of the Ordinance.

(11.) In this connection it was next argued that the power granted by the Statute cannot retrospectively affect a vested right unless there is express authority for the exercise of such power in a particular manner. The exercise of the power is conditioned and correlated with the provisions of Sections 37 and 36 of the Ordinance. No notice required under Section 36 wag given to the petitioner, no representation was made to the Vice-Chair-man of the Development Authority and the order finally passed by the then competent Controlling Authority granting building permit to the petitioner cannot be reopened by the statutory authority operative under Sections 36, 37 and 38 of the Ordinance. I have already held above that the Ordinance provides a self-contained machinery. If there were a provision corresponding or analogous to the provision of Section 38 of the Ordinance in either of the two Acts -- the Town Planning Act and the Restriction Act, that finding would have applied to this argument also. But no such corresponding provision could be pointed out to us by learned Counsel for the respondents in these two Acts. That being the position, in my view there is much substance in the contention that the building permission or sanction granted under those two Acts was not circumscribed or hedged in by any limitation on account of any provision akin to that of Section 38 of the Ordinance. Can it then be said that a right which the petitioner had got before the enforcement of the Ordinance was to be affected by the provision of Section 38 without there being anything in the language thereof to make it retrospective in operation It is well settled that while provisions of a Statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the Statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the Statute came into force, were final, are provisions which touch existing rights (vide Delhi Cloth and General Mills Ltd. v. Income-tax Commr. (AIR 1927 PC 242 [LQ/PC/1927/88] ) and Colonial Sugar Refining Co. v. Irving, (1905) AC 369) I am, therefore, constrained to hold that although the pre-Ordinance building permits granted under the provisions of the Town Planning Act and the Restriction Act will be deemed to have been granted under the provi-sions of Section 37 of the Ordinance, yet for the purpose of Section 38 of the Ordinance it must be held that it does not confer any! authority upon the Vice-Chairman to cancel the pre-Ordinance building permits since there is no such provision in those two Acts.

(12.) In support of the second point Mr. Singh argued that assuming that the provision of Section 38 of the Ordinance be applicable even to pre-Ordinance building permits, the conditions laid down therein must be fulfilled before the exercise of such power by the Vice-Chairman can be justified. In that connection, learned Counsel submitted that the precondition for exercise of the power by the Vice-Chairman is his satisfaction that the sanction to erect or add to or alter any building was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Section 37. Admittedly, in the instant case there was no question of any notice to be given under Section 36 or information to be furnished under Section 37 of the Ordinance since the permission accorded was under the provision of Section 6 of the Restriction Act. Section 5 of the Restriction Act lays down that-

"No person shall erect or re-erect any building, or make or extend any excavation, or lay out any means of access to a road in a controlled area, except with the previous permission of the Controlling Authority in writing."

In accordance with the provision of Section 5, the petitioner had applied for the permission of the Controlling Authority which was granted under the provision of Section 6, the relevant portion of which reads as under- "(1) Every person dealing to obtain the permission referred to in Section 5 shall make an application in writing to the Controlling Authority in such form and containing such information in respect of building excavation or means of access to which the application relates, as may be prescribed and shall submit in triplicate ground plan, elevation and section and a specification of the work to be done, prepared and signed by a surveyor licensed by a municipal corporation, improvement trust or municipality (hereinafter referred to as the licensed surveyor). (2) On receipt of such application, the Controlling Authority, after making such inquiry as he considers necessary, shall by order in writing either- (a) grant the permission, subject to such conditions, if any, as may be specified in the order, or (b) refuse to grant such permission. (3) The Controlling Authority shall not refuse permission to erection or re-erection of a building which was in existence on the date on which the declaration under Sub-section (1) of Section 3 was made, nor shall he impose any conditions in respect of such erection or re-erection unless, for reasons to be recordered in writing, he considers that the grant of such permission, with or without, any conditions shall be attended with serious inconvenience and injury to the public, or unless it involves the addition of one or more storeys to the building or the extension of the plinth area of the building by more than one-eight of the original plinth area, or there is a probability that the building will be used for a purpose other than for which it was used on the date on which the said declaration was made or unless the erection or re-erection conflicts with, or contravenes any master plan published under subsection (1) of Section 33 of the Bihar Town Planning and Improvement Trust Act, 1951 (Bihar Act XXXV of 1951), or any scheme framed under Chap. III of that Act or under Section 228 of the Patna Municipal Corporation Act, 1951 (Bihar Act XIII of 1952)."

Sub-section (4) of Section 6 lays down the grounds on which the Controlling Authority may refuse to grant permission. Sub-sections (5) and (6) of Section 6 have no relevance to the question at hand. It will be seen from Section 6 (1) extracted above that an application in writing has to be made to the Controlling Authority in such form and containing such information in respect of building, etc., to which the application relates, as may be prescribed. Section 17 of the Restriction Act invests the State Government with the power to make rules. In accordance therewith rules were framed known as Rules framed under the Bihar Restriction of Uses of Land Act, 1948. Rule 1 thereof enjoins that every person making that application under Section 6 (1) of the Restriction Act must do so in the form set out in the schedule to the Rules. Rule 2 prescribes that in the case of an application to erect or re-erect a buliding the applicant shall submit with his application (a) a certified copy of relevant record of rights showing the names of the landlord and tenant and description of land to which the application relates, (b) a site plan fulfilling the requirement set forth in Rule 3, (c) a building plan fulfilling the requirement set forth in Rule 5 and (d) a specification of the proposed building, etc. Rules 3 to 7 may usefully be quoted here-

"3. (1) The site-plan required under Clause (b) of Sub-section (11 of Rule 2 shall be drawn to a scale not less than- l/16th of an inch to a foot in the case of sites up to 5,000 sq. ft. in area; l/32nd of an inch to a foot in the case of sites exceeding 5,000 sq. ft. but not exceeding 20 acres in area; and l/64th of an an inch to a foot in the case of sites exceeding 20 acres in area. (2) The site-plan shall be prepared with sufficient accuracy to enable the site to be identified and shall be submitted in triplicate in the form of cloth-backed ferro prints or tracings. The site-plan shall be fully dimensioned and shall show- (a) the actual dimensions of the plot to be built upon and its diagonal measurements; (b) the block plan of the proposed buildings or group of buildings clearly shown inside the plot with the set-backs on the front, rear and sides: (c) the position of immediately surrounding buildings and streets with their width and if the buildings are not bounded by streets on all sides, only the width of that street which is the closest; (d) the north point relative to the plan of the building to be shown on the left hand top corner of the site plan; (e) the sanitation and drainage lines showing all arrangements of drawing storm-and waste-water giving relative levels; and (f) the position of septic tank and soakpits and the location of a well, if any. 4. An application for erection or re-erection of buildings shall be accompanied with a key plan drawn to a scale of l/50th of an inch to a foot showing the plot of the applicant and the adjacent plots as per survey sheet and also indicating the ward, circle or village, thana and the Sheet number as the case may be. 5. (1) The building plan required under Clause (c) of Sub-rule (1) of Rule 2 shall be drawn to a scale not less than 18th of an inch to a foot and shall be submitted in triplicate in the form of cloth-backed ferro prints or tracings and shall show- (a) floor plans of all floors of the main building and outhouses indicating rooms, kitchen, garage, baths, water closets, septic tank, staircase, etc., together with their size; (b) elevations including the front elevation; (c) at least two sectional elevations showing clearly the size and depth of footings, slabs, walls, framing members, height of ceiling, staircase, etc., and also the relative levels of the plinth of the building with the surrounding land; and (d) the level of the courtyard and the open spaces in the building in relation to the level of the centre of the street towards which the building is to be drained. Note:-- The dimensions shall be written neatly and legibly. (2) In the case of a proposal for any addition to, or alteration in, an existing building, new work shall be indicated on the building plan in an indelible distinctive colour, a key to the colours being given on the plan. 6. The following particulars shall be written on the plan:-- (a) the name and full address of the applicant, plot number, ward number (if it relates to a municipal area), survey sheet number, mauza, thana etc. (b) general specifications of works and kinds and grade of materials to be used in the walls, floors, roads, foundations etc.: (c) a schedule of doors and windows, showing dimensions numbers required types, that is whether panelled, battened or glazed, etc.; (d) a statement showing the plot area and plinth area and also the area of each floor in case of buildings more than two storeys high; and (e) the percentage that the built up area will bear to the plot area. 7. Each plan shall bear the signatures of applicant and licensed Surveyor or Draftsman or Engineer or Architect or Overseer."

The schedule appended to the Rules prescribed the form of application to be made under Rule 1, in these terms- Schedule (See Rule 1) Form of application

"To District Magistrate Sub-divisional Officer From The Chairman ... ... ... Improvement Trust, Secretary ... ... ... T. p. Authority. Sir, In pursuance of Sub-section (1) of Section 6 the Bihar Restriction of Uses of Land Act, 1948, I seek permission to make/extend/ excavate/lay out a means of access to a road, erect, re-erect a building in the controlled area of ... ... ... declared as such in Government Notification No. ... ... ... L. S. G., dated ... ... ... 2. The documents required by the rules are attached as follows :-- (a) a certified copy of the relevant extract from the record-of-rights and other title deeds; (b) a site plan showing the boundaries of the land and the proposed structure, if any; (c) a building plan; (d) a specification of the proposed construction and the use of the building or of the additions thereto. I certify that application for this permission was not made before either by me or by anybody on my behalf. An application for this permission was made, vide ease No. ...... ...... ...... ...of 19... ... ... Yours faithfully, Signature-- Date-- Full Address-- "

Thus, the Rules fully prescribe the manner and form of making the application and the information to be furnished or the statements to be made in accordance with the requirements of the Rules. It was araued that the term Material misrepresentation or fraudulent statement relates to the information furnished by an applicant in accordance with the Rules. If at the time of making the application certain material misrepresentations or inaccurate statements with dishonest motive are made in the application which subsequently come to the notice of the Vice-Chairman, the power under Section 38 can appropriately be exercised as if such material mis-representation or fraudulent statement had been made in the notice given under Section 36 or information furnished under Section 37 of the Ordinance. It is nobodys case that any such material misrepresentation or fraudulent statement was made by the petitioner in the application filed in the prescribed form under the Restriction Act read with the Rules framed thereunder. The contention must be accepted as valid. The material misrepresentation or the dishonest statement must be contemporaneous with the making of the application and must be relatable to the information furnished by an applicant in the application filed in accordance with the Rules and the schedule thereto. A minor deviation from the sanctioned plan while the construction is in progress in order to strengthen the structure cannot be put in the category of material misrepresentation or fraudulent statement within the meaning of Section 38 of the Ordinance. I must, therefore, hold that the pre-condition for the exercise of the power under Section 38 of the Ordinance, assuming that Section 38 were to apply even to cases of pre-Ordinance building permits, has not been satisfied and respondent No. 2 has purported to pass the impugned order on extraneous considerations not germane to attract the provisions of that section.

(13.) In the result, therefore, this application must succeed and is, accordingly, allowed and the impugned order dated 31-5-1976 (Annexure 4 to the writ application) is quashed. In the circumstances of the case, however, I shall make no order as to cost.