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1993 DIGILAW 342 (PAT)

Radha Mohan Pd. Sinha v. State of Bihar

1993-08-17

B.P.SINGH, S.K.CHATTOPADHYAYA

body1993
JUDGMENT B.P Singh, J. - This is yet another case of a house-grabber seeking the protection of this Court, and praying for an appropriate writ, so that he can continue in illegal occupation of the M.I.G. Flat, belonging to the Bihar State Housing Board of which he is in occupation without paying rent and without even as much as making an application for allotment of house to him under a hire purchase agreement. Inducted initially as a temporary tenant on an interim basis, the petitioner has continued in occupation of the house without paying rent for several years. Without applying in the prescribed form for allotment of the flat to him, he seeks the protection of this Court, and prays that the respondent-Housing Board may be compelled to execute a hire purchase agreement in his favour. Obviously, the extraordinary writ jurisdiction of this Court is not meant to assist those who have scant regard for the law and who claim a judicial approval of illegal action. This is not a solitary case of its type and, perhaps, there are more occupants, who are illegally in occupation of premises belonging to the respondent-Board, than those who have been validly allotted such premises. Many of them are in such illegal occupation even at the cost of allottees, who have paid hard earned money to acquire residential premises after complying with the requirement of law. After hearing counsel for the parties at length, I have no hesitation in dismissing this writ application even though the petitioner claims to have been in possession of the premises for over two decades, of course without paying rent to the Board and without even making an application for allotment of the premises in his favour. 2. I shall only notice the relevant facts because large number of other issues have been raised in the writ petition only with a view to cloud the real issue. The petitioner claims that the Housing Department of the Government of Bihar acquired land measuring about 900 acres with the object of developing a Housing Colony. The land was sub-divided into plots and apart from other dwelling units, 129 Middle Income Group houses were constructed. According to the petitioner, one of the Middle Income Group's House no. 66 in Kankerbagh (Lohia Nagar) was allotted to him on a monthly rental basis. The petitioner was required to pay a sum of Rs. The land was sub-divided into plots and apart from other dwelling units, 129 Middle Income Group houses were constructed. According to the petitioner, one of the Middle Income Group's House no. 66 in Kankerbagh (Lohia Nagar) was allotted to him on a monthly rental basis. The petitioner was required to pay a sum of Rs. 107/-per month by way of rent and was also required to pay other local taxes in respect of the house. The petitioner came in possession of the house in question, which was allotted sometime in the months of September-October 1968. The petitioner has stated in the writ application that he has misplaced the original letter issued to him letting out the premises on monthly rental basis, but has annexed as Annexure-1 a sample copy of such letters issued to others, who were similarly inducted as tenants on monthly rental basis. From Annexure-1 it appears that the allotment was made temporarily on a monthly rental basis. Before taking possession of the premises, the allottees were required to give an undertaking that they shall forthwith vacate the premises after the premises were duly allotted in accordance with the rules. It, therefore, appears from Annexure-1 that these dwelling units, which were to be allotted subsequently, were let out on rental basis pending regular allotment. The petitioner claims that he came in possession of the house on monthly rental basis in the year 1968. The petitioner has stated in his writ application that he was unable to recall the d9tails of the payments made towards rent, taxes etc., but he has annexed a copy of the Chalan and Municipal receipt as Annexure-2, where under he had deposited a sum of Rs. 300/- on 9th February, 1983. From Annexure-2 it appears that he had deposited a sum of Rs. 300/-, and the purpose of deposit is shown to be instalment payment. I shall deal with Annexure-2 later while dealing with the averments made in this regard in the counter-affidavit, but it is apparent that even Annexure-2 does not purport to be a deposit on account of rent payable by the petitioner. 300/-, and the purpose of deposit is shown to be instalment payment. I shall deal with Annexure-2 later while dealing with the averments made in this regard in the counter-affidavit, but it is apparent that even Annexure-2 does not purport to be a deposit on account of rent payable by the petitioner. It is not in dispute that the Bihar State Housing Board was duly constituted under an Ordinance with effect from 1st September, 1972 issued by the Governor of the State of Bihar, and all the assets, rights and liabilities of the Housing Department stood transferred to the Bihar State Housing Board. The Ordinance has been ultimately replaced in the year 1982 by the Bihar State Housing Board Act, 1982. According to the petitioner, he got himself registered as an' applicant for allotment of a house, and deposited Rs. 50/- vide Chalan dated 12-12-1972. His case is that respondent-Board by publishing a communique dated 15th July, 1973, in the local press expressed its intention to settle the M.I.G. flats with the occupants thereof who had been inducted temporarily as tenants. Annexure-4 is the said communique published in a local daily (The Indian Nation) on 15th July, 1973. From Annexure-4 it appears that it was reported in the Press that the occupants of 129 M.I.G. Houses in Kankerbagh Colony may be allotted those houses subject to their fulfilling all the conditions laid down by the Housing Department for allotment of house. Person not within the middle income group, and those already owning house at Patna will not be entitled to such allotment. The petitioner claims that by resolution dated 28 November, 1972 the Board resolved that the persons mentioned therein had been found fit and entitled to be considered for allotment of the House on permanent basis subject to payment of arrears of rent. According to the petitioner, he was also found entitled for allotment. The petitioner then states that subsequently a dispute arose regarding the valuation of the M.I.G. houses, because the respondent Board had arbitrarily fixed a much higher value for such houses. The petitioner had communicated his desire to take the house on hire-purchase basis, but the price fixed for the house was never communicated to the petitioner. The petitioner then states that subsequently a dispute arose regarding the valuation of the M.I.G. houses, because the respondent Board had arbitrarily fixed a much higher value for such houses. The petitioner had communicated his desire to take the house on hire-purchase basis, but the price fixed for the house was never communicated to the petitioner. 'He further states that since the dispute regarding the fixation of price continued, the petitioner entertained the hope that the house in question will be allotted to the petitioner on the initial promised price, even if there had been some default in payment of rent as that could be adjusted against the total value ultimately determined for the said house. The petitioner admits in paragraph no. 15 of the writ application that because of unforeseen circumstances he could not deposit the arrears of rent. He received a letter issued by the Board on 27th December, 1989, a copy whereof has been annexed as Annexure-5. Annexure-5 is a detailed letter setting out the background in which the said letter had been issued by the respondent-Board. The aforesaid letter refers to the fact that the house in question was allotted to the petitioner on a purely temporary basis on a monthly rental. Thereafter by letter no. 7738 dated 27-12-1974 the petitioner was informed that he should deposit arrears of rent upto June, 1974 and thereafter make an application along with the requisite affidavit within 30 days for regular allotment of the house on hire-purchase basis. However, the petitioner neither deposited the arrears of rent nor did he submit the requisite papers. Thereafter, the Board again by letter no. 6598 dated 5-8-1975 gave a last notice stating that if by 15-8-1975 the petitioner did not submit the necessary papers, the allotment of the House on rent will be cancelled without further notice, and that appropriate action will be taken under section 59 of the Ordinance for recovery of rent and eviction of the petitioner from the house in question. Even thereafter the Board by its subsequent letters/reminders dated 12-11-84, 26-6-85, 15-7-85, 22-1-86, 4-2-87, 19-11-87, 12-8-88 and 18-1-1989 directed the petitioner to deposit the arrears of rent and to inform the Board so that appropriate action may be taken for allotment of house to him on hire purchase basis. Despite such letters and reminders the petitioner did not respond. Even thereafter the Board by its subsequent letters/reminders dated 12-11-84, 26-6-85, 15-7-85, 22-1-86, 4-2-87, 19-11-87, 12-8-88 and 18-1-1989 directed the petitioner to deposit the arrears of rent and to inform the Board so that appropriate action may be taken for allotment of house to him on hire purchase basis. Despite such letters and reminders the petitioner did not respond. The report of the Executive Engineer of the Board showed that the petitioner had not deposited the rent at all, and as in June, 1989 the arrears of rent amounted to Rs. 26,611.90 paise. Under these circumstances, it was apparent that the petitioner had contravened the terms and conditions of allotment and, accordingly, the aforesaid allotment of House no. 66 was cancelled. The petitioner was directed to hand over possession within fifteen days and also to pay arrears of rent failing which appropriate action may be taken in accordance with law. 3. According to the petitioner, .Annexure-5 refers to a letter dated 5-8-1975, but that letter was not received by the petitioner. He further states that even prior to the receipt of Annexure-5 he had written a registered letter on 10th March, 1989 enquiring about the amount to be deposited by the petitioner. The case of the petitioner is that he made a representation to the Chairman-cum-Managing Director of respondent-Board on 7th December, 1990, since he had learnt that respondent no. 7 was trying to get the allotment in favour of the petitioner cancelled with a view to get the allotment in his favour. He did not receive any reply to his aforesaid representation and, thereafter the petitioner made another representation on 29th December, 1991. He has also referred to other representations made later to the Minister-in-charge, Housing on the question of fixation of price of the M.I.G. dwelling units. The petitioner later came to know that the dwelling unit in occupation of the petitioner was allotted to respondent no. 7 on 14-2-1991. The petitioner also came to learn that the Board as well as respondent no. 7 had approached the Collector/District Magistrate, Patna, to evict the petitioner from the house in question. He has made allegation against respondent no. 7 of using political influence to get the allotment in his favour. 7 on 14-2-1991. The petitioner also came to learn that the Board as well as respondent no. 7 had approached the Collector/District Magistrate, Patna, to evict the petitioner from the house in question. He has made allegation against respondent no. 7 of using political influence to get the allotment in his favour. The petitioner has also referred to the provisions of section 59 of the Act which lays down the procedure for the eviction of persons in unauthorised occupation of the premises belonging to the respondent-Board. On such averments the petitioner has prayed that Annexure-5, the letter dated 2712-1989 cancelling the allotment made in favour of the petitioner, and also the letter of allotment dated 14-2-1991 in favour of respondent no. 7 (Annexure-11) be quashed, and the respondents be restrained from evicting the petitioner from M.I.G. House No. 66 situate in Kankerbagh Colony. 4. A counter-affidavit has been filed on behalf of respondent no. 7 and another counter-affidavit has been filed on behalf of the respondent-Housing Board. In its counter-affidavit the respondent-Board has stated that the petitioner has tried to misle2-d the Court by misstating facts. In fact, M.I.G. House no. 66 was allotted to the petitioner in the year 1968 by the Housing Department on monthly rental basis, subject to the terms and conditions mentioned in the letter of allotment. The Housing Board was constituted in the year 1972 under an Ordinance. The petitioner, who had come in possession of the House, never deposited the rent payable in respect of the premises. It was found that upto June, 1989 arrears of rent amounted to Rs. 26,611.90 paise. The petitioner had made a vague statement in his writ application with regard to payment of arrears of rent in para- graph no. 8 of the writ application which was wrong and misleading. Had the petitioner deposited the rent, he could have produced documentary evidence in support thereof. The record maintained by the Board showed that he had not paid any amount towards the arrears of rent. It is also asserted by the respondent-Board that in the year 1974 the Board took a decision to allot M.I.G. Houses on hire-purchase basis to the persons who were earlier allotted those Houses on monthly rental basis. The record maintained by the Board showed that he had not paid any amount towards the arrears of rent. It is also asserted by the respondent-Board that in the year 1974 the Board took a decision to allot M.I.G. Houses on hire-purchase basis to the persons who were earlier allotted those Houses on monthly rental basis. With this in view the petitioner was directed to deposit arrears of rent upto June, 1974, and to submit necessary papers such as application in the prescribed form, requisite affidavit etc. vide Board's letter no. 7738 dated 27-12-1974. The petitioner, however, did not take any interest in the matter. In the year 1975 the Board again wrote to the petitioner by letter dated 5-8-1975 asking him to deposit the dues and to submit necessary papers upto 15-8-1975, so that the Board could take necessary steps regarding allotment of House to him on hire-purchase basis, failing which the Board would cancel the allotment and take steps for his eviction from the premises. This was followed by another notice vide letter no. 391 dated 19-1-1976. Apart from these letters several other reminders were issued vide letters dated 12-11-1984, 26-6-1985, 22-11-1986, 4-2-1987, 19-11-1987, 12-8-1988 and lastly later dated 18-1-1989. Despite these reminders the petitioner neither deposited the arrears of rent nor took steps for allotment of the House on hire-purchase basis. Most of the reminders and notices were issued through registered post, but the petitioner was falsely asserting that he had not received those letters/reminders. Two of the letters dated 1211-1984 and 18-1-1989 have been annexed as Annexures B & C to the counter-affidavit. The letter (Annexure-C) refers to the earlier letters on the subject. Annexure-C also states that if within ten days of the receipt of the letter the arrears of rent were not deposited by the petitioner and intimation given to the Board in writing, appropriate legal action will be taken for his eviction. According to the respondent-Board the petitioner neither appeared before the Board with the relevant papers nor did he deposit the dues. He did not make any representation against Annexure-C which left the Board with no alternative but to cancel the allotment to him on rental basis. According to the respondent-Board the petitioner neither appeared before the Board with the relevant papers nor did he deposit the dues. He did not make any representation against Annexure-C which left the Board with no alternative but to cancel the allotment to him on rental basis. The impugned letter of cancellation dated 27-121989 was sent to the petitioner by registered post, and after receipt of the letter of cancellation the petitioner started creating documentary evidence to show that he was filing representation etc. As a matter of fact, prior to 9-2-1992 the petitioner neither filed any representation nor deposited any rent. He had wrongly stated in paragraph nos. 16 and 18 of the writ application that he had filed applications and representations before the Board on 10-3-1989, 7-12-1990 and 29-12-1991. In fact, he had not filed any application or representation before the Board on the above dates. He filed only one application on 18-21991, much after the order of cancellation was passed on 27-12-1989. These material averments are contained in paragraph nos. 8 to 12 of the counter-affidavit filed on behalf of respondent nos. 2, 3, 5 and 6 which includes the respondent-Board. The petitioner filed another application for amendment of the writ application raising various other pleas, such as validity of the Regulations framed by the Board with regard to allotments. It is not necessary to go into those questions in the view that I have taken. In the rejoinder filed on behalf of the petitioner, the petitioner has not denied the factual averments contained in paragraph nos. 8 to 12 of the counter-affidavit. It has been vaguely stated in paragraph no. 7 of the rejoinder that the statements made in paragraph no. 8 are matters of record and need no reply. Similar is the reply to paragraph nos. 9, 10, 11 and 12 of the counter-affidavit. We pointedly requested counsel for the petitioner show us from the record whether there was any denial of the averments contained In paragraph nos. 8 to 12 of the counter-affidavit filed on behalf of the respondent-Board- He fairly stated that except what was stated in paragraph nos. 7, 8 and 9 of the rejoinder affidavit, there was no categoric denial of those averments. 5. 8 to 12 of the counter-affidavit filed on behalf of the respondent-Board- He fairly stated that except what was stated in paragraph nos. 7, 8 and 9 of the rejoinder affidavit, there was no categoric denial of those averments. 5. From the facts stated above, it would appear that the petitioner was inducted as a tenant on purely temporary basis in the year 1968 on a monthly rental of Rs. 107. The tenancy was to continue only till such time as the house was not duly allotted in accordance with the rules. Upon such allotment, the tenants, if required, were bound to vacate the premises. A decision was taken by the Board sometime in the year 1974 to allot the Houses in question to the occupants who were in occupation of such premises on monthly rental basis The allotment was to be made subject to the conditions laid down by the State Government, namely, that the allottee must belong to the middle income groups, and must not own any other house in Patna. Such allottees were also required to pay the entire arrears of rent and to apply in the prescribed form alongwith the requisite affidavit. The affidavit was obviously required because the allottees had to declare that they did not own any other house in Patna and belonged to the middle income group. There is no doubt that several letters and reminders were issued to the petitioner. In fact, the petitioner admits that he was in default in payment of rent. At another place he has stated that he had been making some deposits, but he could not produce any documentary evidence, such as pay slips or receipts to support the assertion that he had deposited rent in respect of the premises occupied by him. On the other hand, there is a clear denial by the Housing Board, and it is stated that the petitioner did not deposit any amount by way of rent, with the result that in 1989 he owed to the respondent-Board a Sum of Rs. 26611.90 paise only by way of arrears of rent. Apart from the fact that the petitioner did not pay the arrears of rent, he never applied for allotment of the House to him. There is no denial of the categoric averment in the counter-affidavit that the petitioner never applied for allotment of House No. 66, M.I.G. in his favour. 26611.90 paise only by way of arrears of rent. Apart from the fact that the petitioner did not pay the arrears of rent, he never applied for allotment of the House to him. There is no denial of the categoric averment in the counter-affidavit that the petitioner never applied for allotment of House No. 66, M.I.G. in his favour. Despite several reminders he neither applied in the prescribed form nor did he submit the requisite affidavit. Such being the factual position, I fail to understand what relief this Court can grant to the petitioner. In terms of the letter allotting the House to him temporarily on monthly rental basis, the petitioner was required to vacate the premises after regular allotment was made. Since the petitioner did not apply for regular allotment, the House has been allotted to respondent no. 7 and, therefore, the petitioner must vacate the House. This apart, the petitioner like other allottees was offered the House on hire-purchase basis, subject to his making an application in the requisite form and fulfilling all the conditions of allotment. The petitioner never applied for allotment of the House in his favour and consequently the House was never allotted to him. Such being the position, the petitioner cannot claim any right, title or interest in the House in question. He neither paid rent as a tenant nor did he apply for allotment of the House to him on hire-purchase basis. In these circumstances, if the respondent-Board has cancelled the allotment to him on monthly rental basis, and has allotted the House in question to another person, the petitioner cannot be heard to say that he should not be evicted from the premises in question. No legal right of the petitioner has been infringed, and in fact the petitioner has been in illegal possession of the House so long. In the background of these facts, even if equity is pleaded in his favour by reason of his having continued in possession for so long, in the facts and circumstances of this case, I am not inclined to exercise my extra-ordinary writ jurisdiction to grant relief to such a dishonest petitioner. 6. I, therefore, find no merit in this application and the same is accordingly dismissed with cost which is quantified at Rs. 1,000/- (one thousand). S. K. Chattopadhyaya, J. -I agree.