SACHCHIDANAND JHA, J. - (1.) THE petitioners are tenants in a portion of a building bearing holding No. 599A standing on plot No. 821 of Fraser Road in Patna town owned by respondent Nos. 5 and 6 Ehsan Raza and Talat Raza (hereinafter referred to as private respondents). They are aggrieved by the order of the Vice -Chairman, Patna Regional Development Authority (PRDA) directing demolition of their tenanted portion of the building. The relevant facts are as follows:
(2.) THE private respondents constructed the building after getting sanction of the building plan from the PRDA in Plan Case No. 593/80 on 5.3.82. The building is a market complex. Two rooms thereof, which are subject -matter of the dispute, were let out to the petitioners in 1982. They have been doing business in the premises in the name of Vinayak Furniture, now Sri Vinayak Foods. On 1.11.95, the private respondents got another building plan sanctioned with respect to a seven storied building (G+7) vide case No. PCA/8 -48/95. In the said building plan, the disputed premises was shown as set -back area of the proposed building. The case of the petitioners is that the sanction was obtained suppressing the fact that part of the building was under their tenancy. On 23.8.97, they filed application for review of the order dated 1.11.95 and cancellation of the sanction. They also filed intervention application in Vigilance case No. 136A/96 which had been instituted against the private respondents on the complaint of one Keshav Prasad Singh alleging that they were making construction in violation of the sanctioned building plan in case No. PCA/8 -48/95. On 26.8.97 the Vice -Chairman passed the impugned order in Vigilance Case No. 136A/96 directing the private respondents to demolish part of the projection/balcony beyond the sanctioned 0.6 metre and the old existing structure in accordance with the building plan sanctioned in case No. PCA/8 -48/95, failing which the PRDA would demolish the unauthorised construction and recover the cost of demolition from the respondents as arrear of land revenue. No order on the application dated 23.8.97 filed by the petitioners seeking review of the order and cancellation of the sanction, apparently, was passed. The petitioners preferred appeal being appeal No. 34 of 1998 before the Appellate Tribunal against the said order which was dismissed on 9.6.99. The private respondents, it seems, had also challenged the order dated 26.8.97 in Appeal No. 27 of 1997 before the Appellate Tribunal which too was dismissed on the next day, i.e., 10.6.99. The petitioners in the circumstances came to this Court in the present writ petition seeking direction upon the Vice -Chairman, PRDA to decide the review application, and quashing of the said impugned orders dated 26.8.97 and 9.6.99. Copies of the orders have been enclosed as Annexures 1 and 2 to the writ petition.
(3.) THE case came up for preliminary hearing on 27.4.2000. This Court found substance in the grievance of the petitioners as to non -disposal of their review application. The hearing was adjourned to enable the Counsel for the PRDA to take instructions regarding the fate of the review application. On 2.5.2000, the Vice -Chairman passed order rejecting the review application. The petitioners filed IA No. 2815 of 2000. challenging the said order. The matter came up for consideration on 3.5.2000. On the ground that the order had been passed without giving intimation and opportunity of ht ring to the petitioners, the order was quashed. The Vice -Chairman JTS directed to pass fresh order. The review application was thereafter heard in presence of the Counsel for the petitioners, the private respondents as well as the PRDA on 9.5.2000. On 13.5.2000 the Vice -Chairman passed order rejecting the application. The validity of the said order was challenged vide IA No. 3233 of 2000. The matter came up for hearing on 17.5.2000 when the parties were heard at length. The grievance of the petitioners as put forward by Shri Y.V. Giri is three -fold. It is contended that sanction of the new building plan in case No. PCA/8 -48/95 was obtained by suppressing the fact that the portion of the existing building was in possession of the tenants. According to the Counsel, had this fact been mentioned, in view of the provisions of Sec. 37(2) of the Bihar Regional Development Authority Act, 1981 (in short the BRDA Act) and Sec. 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (in short, the BBC Act sanction would have been refused, for in terms of Sec. 37(2) where the proposed erection or alteration is in contravention of any provision of the BRDA Act or any regulation made thereunder or under any other law, which would include the BBC Act, sanction of the proposed plan has to be refused. Secondly, construction of a new building in the garb of addition is really a device to evict the petitioners which cannot be allowed in view of the mandatory provisions of Sec. 11 of the BBC Act. It is said that the private respondents have already instituted suit being Eviction Suit No. 50 of 1997 for eviction of the petitioners from the disputed premises in the Civil Court at Patna. Thirdly, as the petitioners were in possession of the disputed premises, they were entitled to notice and opportunity of hearing not only before passing the impugned order directing the private respondents to demolish the disputed premises failing which it would be demolished by the PRDA, but also at the stage of sanction. It has been contended that under Sec. 54 of the BRDA Act, which is the only provision of the Act under which PRDA has jurisdiction to demolish a building or part thereof, the new ongoing or complete construction alone can be demolished and not old building in respect of which there is no allegation of any contravention. No part of the existing building can therefore, be demolished under Sec. 54.;