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1994 DIGILAW 140 (PAT)

Ganesh Prasad Agrawal v. State Of Bihar

1994-03-30

N.PANDEY, S.K.CHATTOPADHYAYA

body1994
Judgment N.Pandey and S.K.Chattopadhyaya JJ. 1. Heard the learned Counsel for the petitioner and learned Counsel for the respondents. 2. This is an application under Articles 226 and 227 of the Constitution, wherein the petitioner has prayed for quashing an order dated 18-4-1993 (Annexure 3) passed in Eviction Case No. (sic) of 1991 under Sec. 59 of the Bihar State Homing Board Act (in short Act) as also the order of the appellate authority dated 1-2-1994 (Annexure 4) The. House in question was constructed by the Bihar State Housing Board (in short the Board) under a hire purchase scheme. It was allotted by the Board vide letter dated 15-7-1977) to one Fakruddin Ahmad and accordingly a deed of agreement was also executed on 14-4-1984. 3. The ease of the petitioner is that he took the house from Fakruddin Ahmad on rent. It is also claimed that dues of the Housing Board against Fakruddin Ahmad for the hire purchase of the house were also paid by the petitioner. The case of the petitioner is that Fakruddin Ahmad had agreed to sell the house in favour of the petitioner, but when entire money was paid by the petitioners, Fakruddin Ahamad after obtaining permission from the Housing Board sold the house to one Ashok Kumar Chadha (respondent No. 5) through a registered sale deed dated 14-12-1990. It appears that respondent No. 5 having purchased the house from Fakruddin Ahmad filed a petition under Sec. 59 of the Act for eviction of the petitioner from the house. The parties were heard before the Sub-divisional Officer, Saraikela and ultimately by the impugned order (Annexure 3) the Sub-divisional Officer, holding that the petitioner had no semblance of right to continue in possession of the house, directed him to vacate the same and give possession to respondent No. 5. He also directed different authorities including the petitioner to take steps to vacate the house in order to hand over possession to respondent No. 5. Thereafter, the petitioner filed CWJC No. 1479 of 1993 (R). A Bench of this Court at Ranchi dismissed the writ application on the ground that the order under challenge was appealable. It was also noticed that the petitioner had already filed a Tile Suit No. 47 of 1991 in the court of Munsif with respect to the same relief. Therefore, on that ground also, the writ application was not maintainable. A Bench of this Court at Ranchi dismissed the writ application on the ground that the order under challenge was appealable. It was also noticed that the petitioner had already filed a Tile Suit No. 47 of 1991 in the court of Munsif with respect to the same relief. Therefore, on that ground also, the writ application was not maintainable. The petitioner thereafter filed an appeal against the order of the Sub-divisional Magistrate before respondent No. 3, which was also dismissed holding that the petitioners status in the house was of a trespasser. Accordingly the order of the Sub-divisional Magistrate was affirmed. 4. It has already been noticed that the petitioner filed Title Suit No. 47 of 1991 in the court of Munsif Saraikela for a declaration that the Housing Board had no jurisdiction to file eviction case before the Sub-divisional Officer under Sec. 59 of the Act. The petitioner also filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure and got an order of injunction against the Housing Board from forceful dispossesion. However, on appeal filed by Fakruddin Ahmad and respondent No. 5 the order of injunction was set aside by the IVth Additional District Judge, Chaibasa. 5. The petitioner thereafter filed Civil Revision No. 135 of 1993 (R) against the order passed by the appellate Court. The Civil Revision was dismissed on 5-4-1993 on the ground that no jurisdictional error in the order of the appellate court was pointed out. It has been also pointed out that subsequently the suit of the petitioner was also dismissed as not maintainable. 6. In view of the facts stated above, it is apparent that the petitioner having lost before the different authorities, has filed the present writ application. 7. Mr. Tara Kant Jha, learned Counsel for the petitioner, contended that admittedly the Housing Board having granted permission in favour of Fakruddin Ahmad to transfer the house to respondent No. 5 had no jurisdiction to file an application under Sec. 59 of the Act for eviction of the petitioner before the Sub-divisional Magistrate. He contended that admittedly entire price of the house was paid by Fakruddin Ahmad and the Board having received the price, executed a deed in his favour. Apart from the aforesaid, admittedly permission was also granted in favour of Fakruddin Ahmad to transfer the house to respondent No. 5. He contended that admittedly entire price of the house was paid by Fakruddin Ahmad and the Board having received the price, executed a deed in his favour. Apart from the aforesaid, admittedly permission was also granted in favour of Fakruddin Ahmad to transfer the house to respondent No. 5. In the aforesaid circumstances the house was no longer in possession of the Board nor it had any title of the same. Therefore, it is urged that the Sub-divisional Magistrate had no jurisdiction to pass an order of eviction under Sec. 59 of the Act. It is stated after the transfer of the house to Fakruddin Ahmad, the same was no longer a premises of. the Board. Under Sec. 59 of the the Act, the Sub-divisional Magistrate has only jurisdiction to pass an order of eviction with respect to a holding which is under the premises of the Board. 8. On the other hand, learned Counsel for the Board and respondent No. 5 while referring to Clause (x) of the lease-deed executed by the Board in favour of Fakruddin Ahmad, submitted that the Sub-divisional Magistrate had full jurisdiction under Sec. 59 of the Act to pass an order of eviction. It would be appropriate to quote Clause (x) of the Agreement hereunder: (10). That the lessee shall not sub-let or transfer his right, title or interest in the demised house in whole or part by way of sale, exchange, gift or mortgage without the prior permission of the Board in writing which it shall be entitled to refuse in its absolute discretion or in the event of consent being given the Board may impose such terras and conditions as it thinks fit and proper and the Board shall be entitled to claim and recover a portion of the unearned increase in the value (i.e. difference between the premium/cost paid and the market value of the premises) at the time of such sale, transfer, gift, mortgage, assignment or parting with the possession the amount to be recovered being 50% of the unearned value of the said allotted MIG House and the land appertaining thereto shall be final. The Board sha(sic) also have the pre-emptive right to take back (purchase) the premises from the lessee after paying an amount equal to the premium/cost paid to the lessee (less depreciation) and 50% of the unearned increase in the value of the said allotted MIG House and the land appertaining thereto determined in the manner indicated above. 9. It was contended that such transfer by the Housing Board is through a lease for 90 years. Therefore, in case of deviation or breach of any of the conditions of the lease, the Housing Board has full authority to file a case for eviction under the provisions of Sec. 59 of the Act before an appropriate authority. 10. Before coming to a conclusion whether the Board had jurisdiction to maintain a case of eviction before the Sub-divisional Magistrate under Sec. 59 of the Act, it would be appropriate to examine the right of the petitioner over the house in question. It he had no right to the house whether he can invoke the writ jurisdiction of this Court. The claim of the petitioner is that he was inducted in the house as tenant by Fakruddin Ahmad. But we have already noticed that such claim was rejected by different authorities from time to time. The petition has not been able to produce any legal and valid document before us to establish his claim that he was legally inducted in the house as a tenant. It has also been noticed that no permission of the Board was obtained by Fakruddin Ahmad to sub-let the house in favour of the petitioner. Apart from what has been stated above, when Fakruddin Ahmad, after obtaining permission from the Board, transferred the house in favour of the respondent No. 5, the status of the petitioner in the house is of a mere trespasser It is well-known that m order to invoke the writ jurisdiction in such a matter the petitioner has to establish his right to continue in possession of the house. We have already held that in absence of any valid and legal document, the petitioners possession over the house is of a trespasser. Therefore, it is difficult for us to interfere with the impugned order. 11. In the background of the facts stated above as also in view of Clause (x) of the agreement the impugned orders contained in Annexures 3 and 4 require no interference. Therefore, it is difficult for us to interfere with the impugned order. 11. In the background of the facts stated above as also in view of Clause (x) of the agreement the impugned orders contained in Annexures 3 and 4 require no interference. Therefore, the writ application is dismissed.