Krishna Sinha v. Bihar State Housing Board, Patna — 1985 DIGILAW 242 (PAT)

JUDGMENT Satyeshwar Roy, J. In all these there writ petitions notification dated 16.1.1982 issued by the State Government puported to be under section 23 of the Bihar State Housing Board Ordinance. 1981 (the Ordinance) which was replaced by the Bihar State Housing Board. Act, 1982 (the Act) and the notification issued by the Housing Board on 24.2.1982 following the notification of the State Government dated 16.1.1982 have been challenged. The facts in all the cases are almost. similar. These application were, therefore heard together and are being diposed of by this judgment. 2. All the petitioners applied to the Housing Board for allotment of hand at Adityapur in middle income group and they deposited requisite registration for. The Housing Board allotted pieces of land details of which have been given in the writ petitions to the petitioners at Adityapur Housing Colony. The letters of allotment of land to the petitioners in C.W.J.C. Nos. 1128 and 1917 of 1981 (R) were issued On 14.5.1981 and in C.W.J.C. No, 1241 of 1983(R) it was issued on 4.6. 1981The petitioners were informed about the total amount they were liable to pay in sixty equal installments. They deposited the amount required to be paid and thereafter the petitioners separately entered into purchase agreement and the instruments were duly registered. The petitioners deposited some of the installments as required under the hire purchase agreements. A notification was issued on 16. 1, 1982 by the State Government, by, which it was notified that in public interest the State Government under section 23 of the Ordinance (corresponding to section 23 of the Act) did not approve the resolution of the Housing Board taken on 28.1.1982 with regard to item no. 1.6 of the agenda. The State Government rescinded the resolution. This is annexure 2 in C.W.J.C. Nos. 1178 and 1197 of 1982 (R) and annexure 6 in C.W.J.C. No. 1141 of 1983 (R). This was followed by a notification issued by the Housing Board on 24.2.1982 whereby the allotment of land for construction of houses in Adityapur, Ranchi and Gaya, were cancelled. This is contained in annexure 3 to C.W.J.C Nos. 1128 and 1197 of 1982 (R) and annexure 7 to C.W.J.C. No. 1241 of 1983 (R). The petitioners were also individually informed of it. 3. This is contained in annexure 3 to C.W.J.C Nos. 1128 and 1197 of 1982 (R) and annexure 7 to C.W.J.C. No. 1241 of 1983 (R). The petitioners were also individually informed of it. 3. The common grounds on which the notifications have been challenges are that the allotments made in favour or the petitioners were cancelled without following the rules of natural Justice. It was bad because the order passed was malafide in law and nothing was shown why it became necessary to rescind the allotment in public interest. The allotments could have been cancelled only in terms of clause (19) or the hire purchase agreement and al none of the ground. mentioned therein was available, the allotment could not have been cancelled. The validity of section 23 was challenged on the ground that no guide line was laid down in the section to be able the State Government to exercise the power. In C.W.J.C. Nos. 1128 and 1197 of 1982 (R) it was also stated that the allotments at the petitioners in these two writ petitions could not have been cancelled as the validity of the allotments was challenged in C.W.J.C. No. 1018 of 1981 (R) and it were up-held. The matter was barred by the principles of resjudicata. 4. No counter affidavit was filed either on behalf of the State of Bihar or on behalf the Housing Board. 5. It was contended by Mr. Verma, learned counsel appearing on behalf of the petitioners in C.W.J. No, 1197 of 1982 (R) and followed by Mr. S.B. Sinha, learned counsel for the petitioners in C.W.J C. Nos. 1128 and 1241 or 1982 (R) and 1983 (R) respectively that the order of the State Government was bad as principles of natural Justice were not followed Consequently the order of the Housing Board that followed the order of the State Government was also bad. In the notification issued on 16.1.1982 which contained the order of the State Government it was stated the State Government did not accept in public interest the resolution of the Housing Board dated 28.1.1982 with regard to item no. 1.6. The resolution was rescinded. The resolution related to allotment or land for construction or house in different towns including Adityapur Housing Colony. 1.6. The resolution was rescinded. The resolution related to allotment or land for construction or house in different towns including Adityapur Housing Colony. It will thus appear from the order that save and except stating that the State Government did not accept the resolution in public interest nothing more was stated in the notification. Learned Advocate General appearing for both the State Government and the Housing Board, submitted that the allotment of land was made by the Chairman of the Housing Board ignoring the claim or the persons who were registered earlier. The State Government therefore, was or the opinion that the resolution or the Board. Was not made keeping in view public interest. He further contended that the order passed by the State Government was with regard to the resolution of the Housing Board and the petitioner Cannot challenge the same. They cannot make the grievance that the State Government was required to follow the principles of natural justice before seconding the resolution of the Housing Board. If at all it was the Housing Board who could challenge it, but the Board accepted the decision of the State Government. Section 23 of the Act, reads is follows:- "23. Power to let aside resolution or order of the Board. The Government may stay or set aside any resolution of the Board or and of the Managing Director or of the Board, if in the opinion of the Government the resolution or order is in excess of the power conferred by law or is not in consonance with the public interest." 6. There was some controversy whether power exercised by the State Government was quasi judicial or administrative. There is no doubt that by the decision of the State Government allotment of the land made in favour of the petitioners has been cancelled. The order of the State Government involved civil consequences, for in it. comprehensive connotation, every thing that affects a citizen in his civil life inflicts civil consequences" Mohinder Singh Gill.....Vrs...... The Chief Election Commissioner. Further, on one point there is no distinction between judicial, quasi judicial or administrative Act, and that eyen an administrative order which involves civil consequences must be made consistently with the rules of natural justice-State of Orissa Vrs. Vina Pant Dei quoted with approval in S.L. Kappor Vrs. Jagmohan. The Chief Election Commissioner. Further, on one point there is no distinction between judicial, quasi judicial or administrative Act, and that eyen an administrative order which involves civil consequences must be made consistently with the rules of natural justice-State of Orissa Vrs. Vina Pant Dei quoted with approval in S.L. Kappor Vrs. Jagmohan. The effect of the order of the State Government was that the allotment of land made in favour of the petitioners was cancelled. Even if the order passed under Section 23 is an administrative order, since the order under the statutory power involved civil consequences the rules or natural justice were required to be followed. But urged the learned-Advocate General that the State Government was with regard to the Housing Board's resolution and the petitioner have no locus standi to challenge it. This is devoid of any merit. What was cancelled was Housing Board's resolution. And whose legal right was adverse1y affected the petitioners They surely have locus standi. 7. Learned Advocate General submitted that there is no provision in the section for following the principles of natural justice. Even if there is no such provision in section 23, and it must be noted that the section docs not expressly or by implication excludes it as the actual order passed by the State Government adversely affected the interest of the petitioners who were not given notice of the matter, it must be held that before passing the order the State Government was bound to followed the principles of natural Justice, The order of the State Government dated 16.1.1982 must. Therefore be held to be bad. 8. Further the order does not disclosed the facts why the resolution of the Housing Board was held by the State Government to be not in consequence with the public interest. I have already noticed that no counter affidavit was filed by the respondents. The concerned file was also not produced to show the facts which were brought to the notice of the State Government on the basis of which the opinion was formed. Whether the materials were sufficient or not may not be justifiable but if there was no material, court may interfere. Learned Advocate General during the submission tried to give facts but no notice of the same can be taken because he did not show that on the basis of these facts the State Government formed the opinion. Whether the materials were sufficient or not may not be justifiable but if there was no material, court may interfere. Learned Advocate General during the submission tried to give facts but no notice of the same can be taken because he did not show that on the basis of these facts the State Government formed the opinion. What was done in this case was that recourse was taken to the cliché. "public interest". although there was complete non existence of fact to form such opinion. As the power was exercised for un-authorised purpose the orders contained in the notifications cannot be sustained. 9. In C.W.J.C. 1128 and 1197 of 1982 (R), it was submitted that the validity of allotment of the petitioners was questioned in C.W.J.C. No. 1018 of 1981 (R), reported in 1982 B.L.J. 229 and repelled by this Court. The matter is therefore, barred by the principles of res-Judicata, It appears that originally the land allotted to the petitioner were shown in the plan by the Housing Board as reserved for other utility C.W.J.C. No. 1018 of 1981 (R) was filed by three persons against the petitioners of C.W.J.C. Nos. 1128 and 1197 of 1982 (R), the Housing Board and the State of Bihar, the land was allotted to the petitioners in the ground that as the land was received for other utility it could not have been utilised for building purposes. In the counter affidavit filed by the Housing Board on 29.7.1981 in that case it was, inter alia, stated that the Housing Board had jurisdiction to utilize the land for building purposes and the allotments made to the petitioner were legal and valid. The writ petition of 1981 was taken up for hearing on 2.1.1982 and adjourned to 1.3.1982 for further bearing. Before that date the state Government and the Housing Board by separate notifications dated 16.1.1982 and 24.2.1982 respectively had cancelled the allotment. Therefore, on the date the hearing of the writ petition were resumed, the orders of cancellation were already there. Neither the State nor the Housing Board both of whom had contested the case relied on the orders of cancellation. The defence taken by these respondents in C.W.J.C. Nos. 1128 and 1197 of 1981 (R) was available to them yet they did not rely on it. The petitioners in these two writ petition. Neither the State nor the Housing Board both of whom had contested the case relied on the orders of cancellation. The defence taken by these respondents in C.W.J.C. Nos. 1128 and 1197 of 1981 (R) was available to them yet they did not rely on it. The petitioners in these two writ petition. specifically referred to Bred relied On the averments made in the counter affidavit filed in C.W.J.C. No. 1018 of 1981 (R). The validity of allotment was directly involved in the earlier writ petition and it was up-held. That being the position the question is barred by the principle of resjudicata. 10. In view of the findings rccor.1ed above it is not necessary to decide the of her point. 11. In the result, there application. are allowed and the notification dated 16. 1.1981 issued by the state Government and the notification dated 24. 2, 1982 issued by the Housing Board are quashed. The respondents must pay the consolidated sum of Rs. 1000/- as cost to the petitioners. Petitions allowed.