Bindeshwari Chaudhary v. State of Bihar — 1981 DIGILAW 111 (PAT)

JUDGMENT P.S. Sahay, J. This application is for a direction to the Bihar State Housing board through the Chairman, respondent no. 2, (hereinafter referred to as the Board) to execute the order of the Sub-divisional Officer, Patna, as contained in Annexure-2 for evicting Dr. Shiv Nandan Upadhaya, respondent no. 4 [hereinafter referred to as Upadhya] from the House MIG 15 belonging to respondent no. 2 and also to quash the letter dated 28.12.1979 issued by the Under Secretary, Housing Board, to Upadhya by which a decision was taken to settle the aforesaid house with him on certain terms and conditions. 2. The case has rather a chequered history and has traveled in different courts [from lower courts to Supreme Court] for the last ten years which will be clear from the facts mentioned hereinafter and God alone knows when this litigation will come to an end. In this petition counter affidavit has been filed by Upadhya, respondent no. 4. Housing Board, respondent no. 2, and also supplementary to counter affidavit and reply by the petitioner and rejoinder by the other parties with the result that the brief runs to about 323 pages. But in order to appreciate the point I will refer only to relevant facts and documents as a number of them filed in this case in my opinion, are not at all relevant for consideration of this case. 3. The State of Bihar in the Housing Department acquired some land in Kankerbagh which I now popularly known as Lohianagar for construction Housing colony and after acquisition was completed, 129 houses of Middle Income Group, (for the sake of brevity known as M.I.G.) were constructed. Out of those houses 98 were for general allotment and 12 for allotment to the Scheduled Tribes and 19 for the Scheduled Casts. The petitioner, who is a member of the Scheduled castes was working as Telephone Supervisor and on 9.12.1970 M.I.G. 15 was allotted to him after canceling the allotment to the previous occupier, Sri Manoranjan Prasad Singh on rental basis, a copy of the order is Annexure-1, but the possession of the aforesaid house was never given to him because the said house was not vacated and the said Manoranjan Prsad Singh had inducted Dr. Upadhyay illegally without the consent of the housing board. Upadhyay illegally without the consent of the housing board. The Housing Department then instituted a case under the provision of the Bihar Government Premises (Rent, Recovery and Eviction) Act, 1956 on 10.1.1971 before the Sub-divisional Officer, Patna, which gave rise to case no. 94 of 1971. The case was contested by respondent no. 4 and the Subdivisional Officer by his order dated 5.5.1972 held that Dr. Upadhya, respondent no.4, was in unauthorized occupation and, therefore, he should vacate the house within fifteen days of the receipt of the order failing which he was liable to be evicted and penal rent of Rs. 440/- was to be deposited with the rightful authorities of the Housing Department: a copy of the order is Annexure-2. Being aggrieved by the aforesaid order Dr. Upadhyaya preferred an appeal which was allowed by the Additional District Magistrate, Patna on 2.5.1975; a copy of the order has been filed as Annexure-3. 4. By notification no. 3749 dated 28.9.1972 the Bihar State Housing Board was created and in pursuance thereof all the assets and liabilities belonging to the State of Bihar in the Housing Department vested in the aforesaid Board which challenged the order of the Additional District Magistrate by filing C.W.J.C. 1764 of 1975 in the High Court and in that petition the stand of the Board was that M.I.G. 15 was allotted to the petitioner and Dr. Upadhya has been occupying the same without any authority and was a trespasser. Dr. Upadhya had also filed Title suit no.71 of 1972 before the Minsif-III, Patna challenging the order of eviction passed by the S.D.O. as contained in Annexure-2 and had also prayed for injunction which was refused; but on appeal it was allowed in Miscellaneous Appeal no. 105/1 of 1973 on 10.1.1974. Against the aforesaid order granting injunction the housing Board as well as this petitioner filed civil revisions in this court which gave rise to Civil Revisions No. 116 of 1947 and 491 of 1974. Both the petitions were allowed on 6.2.1975 and the injunction allowed by the appellate court was vacated. Thereafter Title Suit No. 71 of 1972, pending before the Munsif-III, was dismissed for non-prosecution. Dr. Upadhya, besides filing title suit against the order of the eviction passed by the S.D.O., Annexure-2, had also filed writ application in this court which gave rise to C.W.J.C. 583 of 1975 which was withdrawn on 5.5.1975. Thereafter Title Suit No. 71 of 1972, pending before the Munsif-III, was dismissed for non-prosecution. Dr. Upadhya, besides filing title suit against the order of the eviction passed by the S.D.O., Annexure-2, had also filed writ application in this court which gave rise to C.W.J.C. 583 of 1975 which was withdrawn on 5.5.1975. C.W.J.C. 1764 of 1975 filed by the Board came up for final hearing and was allowed on 27.9.1978 and the order of the Additional District Magistrate, as contained in Annexure-3, was quashed, a copy of the order has been filed and marked Annexure-5. Dr. Upadhaya filed another Title suit no. 134 of 1977 in the court of Subordinate Judge, I, Patna, and obtained a temporary injunction which was ultimately vacated on 25.5.1979, Annexure-4, and that title suit was also dismissed for non-prosecution. Dr. Upadhaya, against the judgment of this court in C.W.J.C. No. 1764 moved the Supreme Court in Special Leave petition no. 1205 of 1979 which was dismissed as withdrawn on 11.9.1979: a copy of the order is Annexure-6. Thereafter the order passed by the Subdivisional Officer on 5.5.1972, Annexure-2, was revived: but according to the petitioner both the Board and the Subdivisional Officer, respondent no.3 are not taking any action for vacating the house and indirectly trying to help Dr. Upadhaya. It has also been stated in this application that a sum of Rs. 60,000/- was payable to the Board by Dr. Upadhaya by way of rent and cost of litigation but no action was taken to realise the amount. 5. By letter dated 8.5.1980 the Board directed the petitioner to deposit Rs. 6500/- as the earnest money for final allotment of a House on hire purchase arrangement and a copy of that letter in Annexure-7. The petitioner immediately deposited the aforesaid amount and obtained a receipt on 9.5.1980 which is Annexure-8. Even after that, the Board took a decision to allot M.I.G. 15 with Dr. Upadhaya and the decision was taken by the board on the terms and conditions that he should pay market rent of the house from April, 1970 along with the cost of litigation and convey his decision within one week of the receipt of the letter which was dated 28.12.1979; a copy of the letter is Annexure-9. Upadhaya and the decision was taken by the board on the terms and conditions that he should pay market rent of the house from April, 1970 along with the cost of litigation and convey his decision within one week of the receipt of the letter which was dated 28.12.1979; a copy of the letter is Annexure-9. The petitioner has, therefore, moved this Court for quashing this Annexure-9 and also for a direction to the Board and the Subdivisional Officer, Patna, respondent no.3, to proceed with the eviction case against Dr. Upadhaya. Here, it may be mentioned that the petitioner also filed a petition for contempt against the Board and its officers and also Dr. Upadhaya which gave rise to M.J.C. no. 222 of 1980 which was ordered to be placed for hearing along with this writ application. After seeing the attitude of the Board and their counter affidavit the petitioner withdrew that application. 6. Dr. Upadhaya, respondent no.4, in his affidavit, has stated that there were several instances of sub-letting the hose and, therefore, his case was not a solitary one and in support of this some letters have been filed. It has been admitted by him that M.I.G. 15 was allotted to Manoranjan Prasad Singh and he, being his friend, allowed him to occupy the same with effect from April, 1970 and he also made a formal prayer for allotment on 12.12.1970 vide Annexure-V. It has also been admitted that eviction case was started and was decided against him but on his representation before the then Chairman Housing Board, who on 9.12.1971 directed not to proceed with this case and to make allotment with Dr. Upadhaya but no action was taken on this vide copy of the letter (Annexure-VI) and another letter of the Board (Annexure-VII). It has also been alleged by Dr. Upadhaya that the petitioner did not come within the Middle Income Group and he had made a false affidavit that his annual income was more than Rs. 6,000/- and actually he came under Low Income Group and the Central Bureau of Investigation had made requires and the reports were all against the petitioner (vide Annexure-VIII and IX series) and in that view of the matter, the petitioner having made a wrong statement, was not entitled to any settlement. 6,000/- and actually he came under Low Income Group and the Central Bureau of Investigation had made requires and the reports were all against the petitioner (vide Annexure-VIII and IX series) and in that view of the matter, the petitioner having made a wrong statement, was not entitled to any settlement. It has also been stated by respondent no.4 that while the matter was pending before the Supreme Court he made a representation before the then Chief Minister who ordered that his case should be re-considered (vide Annexure-XIII) and in that view of the matter he did not pursue his case before the Supreme Court, but this fact is falsified by the letter of the Board sent to the Chief Minister, Annexure-XIV, where it is clearly mentioned that the Board had never directed Dr. Upadhaya to withdraw the case from the Supreme Court and the question of allotment of house no. 15 will betaken up in the next meeting. The meeting of the Board was held on 20.11.1979 and according to respondent no.4 the Board of Directors authorized the Chairman, respondent no.2, to take a final decision in this matter; a copy of the proceeding has been filed as Annexure-XVIB. Thereafter, respondent No.2 directed the Chief Engineer, who was one of the Directors of the Board, to consider the case of Dr. Upadhaya for allotment and thereafter a direction was given to the Executive Engineer, Patna Division. Housing Board, with a copy to the Subdivisional Magistrate, Patna, (Annexure-XVIII) to calculate the arrears of the rent and the cost payable by him and to stay the eviction proceedings; a copy of the letter is Annexure-XVII. Dr. Upadhaya also deposited Rs. 5,830/- and requested for instalment of Rs.50/- per month and the cost of litigation could not be deposited as it was not ascertained. The claim of respondent no.4, therefore, is that after the payment of the aforesaid, is that after the payment of the aforesaid sum he became a regular allottee of M.I.G.15 and since the house was in a bad condition he spent Rs. 15,000/- from his own pocket for getting it repaired. It has also been alleged in the counter affidavit that inspite of these, the Housing Board had taken a complete somersault and directed the executive Engineer to proceed with the eviction and the letters sent earlier was cancelled. 15,000/- from his own pocket for getting it repaired. It has also been alleged in the counter affidavit that inspite of these, the Housing Board had taken a complete somersault and directed the executive Engineer to proceed with the eviction and the letters sent earlier was cancelled. The Subdivisional Officer heard the parties on 19.1.1980 and in view of some confusions created by the letter of the Board asked for clarifications and adjourned the matter and on 27.3.1980 it was decided by the S.D.O. that the Executive Magistrate will proceed with Execution and against that Dr. Upadhya filed Title suit no. 52 of 1980 before the Munsif, III, Patna, and status quo was ordered to be maintained in which the petitioner also was added as a party. Thus, according to respondent no.4 the petitioner had no right or claim or M.I.G.15 which was already in his occupation and was also later allotted to him. 7. The sum and substance of the affidavit on behalf of Respondent no.2 Board is that no allotment was made with respondent no.4, Dr. Upadhaya as alleged by him and the allegation of the petitioner that the Board has been helping respondent no.4 was wholly incorrect rather actions are being taken to evict him form the house which has, no doubt, been delayed due to various orders passed by different courts at different stages. It has also been stated that on 23.12.1967 petitioners had applied for allotment and had paid the requisite amount of Rs. 100/- along with an affidavit showing his income Rs. 4,000/- per annum. Rs. 2,916/- from salary and Rs.4,000/- from cultivation. It has also been stated that respondent no.4 owed huge amount of money by way of penal rent and other legal expenses incurred in course of litigation and the amount had been paid. At the meeting held on 20.11.1979 the Chairman was authorised to take decision regarding M.I.G. 15, a copy of the proceeding is Annexure-B, and in pursuance of the aforesaid resolution the Chairman, as a special case, directed him to deposit earnest money by letter dated 8.5.1980 Annuxure-7. It has also been stated in the affidavit that neither the petitioner nor the respondent no.4 could claim allotment of M.I.G.15 as a matter of right though the petitioner was entitled to allotment of a house. 8. It has also been stated in the affidavit that neither the petitioner nor the respondent no.4 could claim allotment of M.I.G.15 as a matter of right though the petitioner was entitled to allotment of a house. 8. In reply to the counter affidavit of respondent no.2 it has been stated by respondent no.4, Dr. Upadhaya, that the Chief Engineer sent a note on 6.12.1979 to the Chairman that the house in question M.I.G. 15 should be given to him and some other equivalent house should also be allotted to the petitioner which was duly approved by the Chairman: a photo stat copy of the letter along with the notes has been filed and marked Annexure XXVI. In reply to this is has been stated on behalf of the Board that no action was taken on Annexure-XXVI which was some how or other procured by Dr. Upadhaya from the office and in pursuance of this noting no letter was issued to him. In this affidavit it has also been stated that a sum of Rs.50,962.44 after calculation has been found to be outstanding and even assuming that Dr. Upadhaya had paid a sum of Rs. 8,830/- still there was a balance of Rs. 42,132.44 and in that view of the matter, no order of allotment could be made in favour of Dr. Upadhaya who was a defaulter and had paid the dues and against whom a huge amount of money was still outstanding. It has been stated on behalf of respondent no.2 that action for evicting Dr. Upadhaya from the premises MIG 15 has been revived and will be taken up in all seriousness. 9. From what is mentioned above there facts are practically admitted : (1) MIG 15 was allotted to Manoranjan Pd. Singh who, without any permission form the Board, sublet it to Dr. Upadhaya. (2) The House was allotted to the petitioner on the basis of Monthly rent. (3) Petition for allotment of a house in the colony by the petitioner was pending. (4) Dr. Upadhaya neither vacated the house nor paid any rent for which eviction case was launched against him and he went on filling cases after cases in different courts and the last one was in the Supreme court which was withdrawn. (5) Thereafter, Dr. (3) Petition for allotment of a house in the colony by the petitioner was pending. (4) Dr. Upadhaya neither vacated the house nor paid any rent for which eviction case was launched against him and he went on filling cases after cases in different courts and the last one was in the Supreme court which was withdrawn. (5) Thereafter, Dr. Upadhaya started filing petitions right form the level of the Chief Minister to other officers of the Board and the State Government, due to which soft attitude was adopted by the Board and the execution proceeding pending against him was delayed. (6) The Board also issued a letter in connection with allotment to the petitioner, Annexure-7, in pursuance thereof a sum of Rs. 6,500/- was deposited on 9.4.1980 and a receipt was obtained, Annexure-8. (7) The attitude of the Board towards the petitioner for some time was rather nou-tral but when petition for starting contempt proceeding was moved in this court against the officers of the Board and that was ordered to be placed along with this writ application, there was a change of attitude of the Board which will be clear form the affidavits filed by them in this case and that continued till final hearing of this writ application. In that view of the matter, the petitioner did not press the petition for contempt. 10. In the prayer portion of this writ application two prayers have been made. Firstly, a direction should be given to the authorities of the Board to execute [prosecute ?] the execution proceeding against Dr. Upadhaya and also to quash the letter of the Board as contained in Annexure-9. Mr. Janardan Sinha, learned counsel appearing for the petitioner, has submitted that M.I.G. 15 was allotted to the petitioner on monthly rental basis but no possession was given to him because it was not vacated by Dr. Upadhaya and the Board was also taking up the matter very lightly. He has also submitted that after the order of the Chairman which was in favour of the petitioner as per Annexure-7, the amount which was demanded had been deposited by him and he is thus entitled to an allotment of a house. But, again the Board, by issuing a letter on 18.12.1979, Annexure-9, to Dr. He has also submitted that after the order of the Chairman which was in favour of the petitioner as per Annexure-7, the amount which was demanded had been deposited by him and he is thus entitled to an allotment of a house. But, again the Board, by issuing a letter on 18.12.1979, Annexure-9, to Dr. Upadhaya, has created a hurdle and thus the action of the Board is completely malafide which has been trying to help a person who has always been a defaulter and has been flouting the orders of the court form time to time. Mr. Balbhadra Prasad Singh, learned counsel appearing on behalf of Dr. Upadhaya, has submitted that the writ application is not maintainable because the petitioner has suppressed material facts and the petitioner has no legal right to enforce and no writ in the nature of mandamus could be granted by this court. Sri Burendra Mohan Singh, learned counsel appearing on behalf of the Board, has submitted that there was no allotment in favour of Dr. Upadhaya, who was a defaulter, and all actions are being taken to evict him. He has, further, submitted that allotment of a house (not particulary MIG 15) will be made with the petitioner. Learned standing counsel appearing on behalf of the state has supported the stand of the Board. 11. Thus, it will be seen that if MIG 15 would have fallen vacant then the petitioner would have come in possession of that house at least as a tenant pending final allotment by the then Housing Department and now the Board. Dr. Upadhaya has been fighting litigations against the Board and in some of those cases the petitioner was also made a party. The Board had not been vigiltant in taking action against Dr. Upadhaya, may be due to the fact that he has been filing petitions after petitions before the high officials of the State or the Board and some orders were also passed in his favour. The petitioner on receipt of the letter of the Board, Annexure-7, has deposited the amount and obtained receipt, Annexure-8. Even after that a note was given by the Chief Engineer that the house occupied by Dr. Upadhaya (MIG 15) be allotted to him provided he is ready to pay the entire penal rent form 1970 plus the cost of litigation and the petitioner should also be allotted some other house. Even after that a note was given by the Chief Engineer that the house occupied by Dr. Upadhaya (MIG 15) be allotted to him provided he is ready to pay the entire penal rent form 1970 plus the cost of litigation and the petitioner should also be allotted some other house. The Chairman also agreed with the aforesaid note and all these are to be found in Annexure-XXVI. Thereafter, a letter was issued on 28.12.1979, Annexure-9, making the offer to Dr. Upadhaya to which he replied on 19.1.1981. But only a sum of Rs. 5,330/- has been deposited on the pretext that the actual amount had not been ascertained. Here I may observe that knowing the history and the background of the litigation between the Board and Dr. Upadhaya it was not at all proper for the Chairman to have ordered for allotment even before ascertaining the exact amount of outstanding rent and the cost of litigation and this, if I may say so, has only added to the confusion. The letter Annexure-9 also do not mention any amount. If the board was really anxious to allot a house to Dr. Upadhaya the Chairman should have directed him to pay the entire arrears including the cost of litigation after ascertaining the amount and then to consider his case for allotment on its own merit. This action of the Chairman and the Board has affected the rights to the petitioner who has been agitating his claim for the settlement of the house for the last eleven years and particularly when the letter, Annexure-7, was issued to him. Thus, it is clear that the petitioner has established that he has a legal right for allotment of a house by the Board and the contention of Sri Balbhadra Prasad Singh that the petitioners has no legal right to enforce has to be rejected. In that view of the matter, the case laws relied upon by Mr. Singh in the cases of Mani subrat Jain vs. State of Haryana, Rani Umeshwari Subrato vs. Member, Board of Revenue, West Bengal Sohan Lal vs. Union of India & Century Spinning Mill vs. Ulhas nagar Municipality have no relevancy at all. In that view of the matter, the case laws relied upon by Mr. Singh in the cases of Mani subrat Jain vs. State of Haryana, Rani Umeshwari Subrato vs. Member, Board of Revenue, West Bengal Sohan Lal vs. Union of India & Century Spinning Mill vs. Ulhas nagar Municipality have no relevancy at all. In all the above cases it has been positively held that neither the person concerned had any legal right for which a writ of mandamus could be issued nor the authority had any statutory duty to perform which clearly distinguishes the instant case form those cases. The petitioner has been crying hoarse for allotment of a house and the Board has virtually accepted the claim of the petitioner and had issued letter for depositing money and a cloud has been cast by the action of the Board by issuing Annexure-9 which compelled the petitioner to move this Court. 12. Another submission of Mr. Singh that Dr. Upadhaya has been coming in possession of the house and, therefore, he has a better claim than the petitioner for a settlement is equally without any substance and fit to be rejected. It has been consistently held by different courts that Dr. Upadhaya is in unauthorised occupation of the house and is a rank trespasser. The principle that a person in possession has a better title than a person having neither title nor possession is well setlled for civil cases where conflicting claims were put forward in a suit for declaration of title and recovery of the possession or confirmation of the possession, as the case may be, but cannot be relied upon as a proposition of law in this writ application in favour of Dr. Upadhaya. In that view of the matter, the case laws Chimmy Boy (Smith’s leading case) volume I page 393 are not relevant at all. 13. The submission that the petitioner does not come under Middle Income Group which is a condition precedent for allotment and for that enquiry by the C.B.I. was pending is also wholly irrelevant for the purpose of this case. That is a matter between the Board and the petitioner and Dr. Upadhaya is not at all concerned with this. Mr. Janardan Sinha has relied upon Annexure-10 to show that besides his salary the petitioner had income from agricultural land and his total income came to Rs. 7,720/-. That is a matter between the Board and the petitioner and Dr. Upadhaya is not at all concerned with this. Mr. Janardan Sinha has relied upon Annexure-10 to show that besides his salary the petitioner had income from agricultural land and his total income came to Rs. 7,720/-. Moreover the Board is satisfied about this position and in their affidavit filed on 6.4.1981, it has been stated that the letter which was sent from the board to the S.P. C.B.I. Annexure-B, was attested by Dr. Upadhaya and, therefore, the aforesaid letter had no value at all. 14. The petitioner has been made out a case, and, now coming to the relief sought for, it is clear that the Board is taking all steps to evict Dr. Upadhaya from the house in question and this fact has been clearly stated in the affidavit of the Board and also argued by the counsel at the time of argument and, therefore, no fresh direction is necessary in this regard. It is, thus hoped that the Board will take all coercive steps to evict Dr. Upadhaya from MIG 15 and also realise the huge amount of arrears and the cost of litigation and there should be no laches on their part. The application is accordingly, allowed. I am satisfied that Annexure-9 has created a hurdle in the way of the allotment of a house to the petitioner and let, therefore, a writ of certiorari issue quashing the letter of the Board as contained in Annexure-9. The board is further directed to expedite the allotment of a hose with the petitioner. The petitioner is also entitled to cost. Hearing fee is assessed as Rs. 300/- to be equally shared by Respondent no.2, the Board, and Respondent no.4, Dr. Upadhaya, who are responsible for this litigation. K.B.N. Singh, C.J. I agree. Application allowed.