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1988 DIGILAW 143 (PAT)

Meena Singh v. State of Bihar

1988-04-11

S.B.SINHA

body1988
JUDGMENT S.B. Sinha, J. This writ petition is directed against an order dated 12.2.1982 as contained in Annexure 9 to the writ petition passed by the State of Bihar purporting to exercise of its power conferred upon it under section 23 of the Bihar State Housing Board Ordinance, 1982 whereby and whereunder the allotment made in favour of the petitioner by the Bihar State Housing Board and as contained in Annexure 10 thereto, was cancelled. 2. The facts of the case lie in a very narrow compass. 3. The petitioner applied for allotment of a plot before the Bihar State Housing Board, Patna after making necessary deposit and after complying with the other requirements in respect thereof. 4. On or about 30.11.1981, Bihar State Housing Board (hereinafter called as the Board) took a decision to allot plot no. 4 M-14 at mohalla Bahadurpur. A copy of the order-sheet dated 30.11.1981 is contained in Annexure 1 to the writ petition. The said order of the Board was communicated to the petitioner by a letter dated 5.12.1981 as contained in Annexure 2 to the writ petition. 5. On or about 10.12.1981 the Board also executed and registered a hire purchase agreement a copy whereof as contained in Annexure 3 to the writ petition. By a letter dated 23.12.1981 as contained in Annexure 4 the Incharge Estate Officer of the Board intimated to the petitioner that the Board has decided to hand over possession and for taking other incidental actions in this regard. The possession was handed over in favour of the petitioner by the Board on 12.9.1982 and a report in respect thereof was made by memo no. 777 dated 29.12.1981 which is contained in Annexure 5, to the writ petition. 6. The petitioner has asserted in the writ petition that the State of Bihar by notifications as contained in Annexures 6, 7 and 8 extended the tenure of the non-Government members from time to rime. By a notification dated 12.2.1982 the State of Bihar purported to cancel the aforementioned allotment in exercise of its power conferred upon it under section 23 of the Bihar State Housing Board Ordinance 1982 (hereinafter called the Ordinance) allegedly on the ground that the tenure of non-Government members of the Board were extended despite the fact that prohibitory orders were made by the Government in this regard. The petitioner was intimated about the decision of the Board by a letter dated 16.4.1982 addressed to him by the Incharge Estate Officer of the Board, a copy whereof is contained in Annexure 10 to the writ petition. 7. Mr. Binod Kumar Roy, the learned counsel appearing for the petitioner, has raised a very short question. The learned counsel has submitted that by reason of section 23 of the Ordinance, the State of Bihar although bad been granted power to annul or modify any resolution passed by the Board but the same has to be done fairly, in a reasonable manner and after giving an opportunity of bearing to the persons who may be aggrieved and/or affected thereby. In my opinion, the contention of the learned counsel is correct. Although, the State of Bihar has been vested with wide power to annul or modify any decision taken by the Board, but the same does not imply that it can take unilateral decision behind the back of a person who would be affected thereby. 8. It is well known that statutory functionary must exercise his statutory power in a reasonable manner and with due care and caution. 9. It is also well settled that the principles of audi altreram partem extend not only to the quasi judicial orders but also to the administrative orders entailing upon civil consequences. 10. As by reason of the impugned notification and as contained in Annexure 9 to the writ petition, the allotment made in favour of the petitioner by the Board had been annulled the petitioner suffers civil consequences thereby. As mentioned in the writ petition, the Board not only took a decision to allot the plot in question in favour of the petitioner but in fact the same was followed by the actions on the part of the Board, namely by executing a registered instrument in favour of the petitioner and also by delivering possession thereof to him. 11. It is now well known that while exercising a statutory power the statutory functionary must comply with the principles of natural justice unless the same is expressly or by necessary implication not required to be done by reason of any provisions of a statute. 11. It is now well known that while exercising a statutory power the statutory functionary must comply with the principles of natural justice unless the same is expressly or by necessary implication not required to be done by reason of any provisions of a statute. It is also a well settled principle of law that reasonableness of a statute both substantive and procedural has to be adjudged on the touch stone of Articles 14 and 21 of the Constitution of India. Reference in this connection may be made to Maneka Gandhi Vs. Union of India (A.I.R. 1978 S.C. 597). 12. If it be held by this Court that although the State of Bihar is entitled to pass a quasi judicial or an administrative order in exercise of its power conferred upon it under section 23 of the Ordinance without giving any opportunity to the person concerned the same may nave to be declared ultra vires of Article 14 of the Constitution. In such a situation, in order to uphold the constitutionality of the said provision, the requirement to follow the principles of natural justice must be held to be implicit therein. Reference in this connection may be made to Swadeshi Cotton Mills vs. Union of India (A.I.R. 1981 S.C. 818) and Commissioner of Income Tax (Central) Calcutta vs. B.N. Bhattacharjee and another (A.I.R. 1979 S.C. 1725 at page 1731). 13. As in the instant case before passing of the impugned order the petitioner was not given an opportunity of being heard, the same in my opinion cannot be sustained. 14. In the result, this writ petition is allowed but without any order as to costs.