Anil Kumar Sinha v. Bihar State Housing Board — 1998 DIGILAW 624 (PAT)

JUDGMENT Aftab Alam, J. One Anil Kumar Sinha, a retired Lieutenant Colonel of the Indian Army (since deceased) was the original allotee of M.I.G. House no. 237 situate at Lohianagar, Kankarbagh colony, Patna, constructed by the Bihar State Housing Board ('the Board', hereinafter). The allotment made in favour of Sinha was proper and valid and on his making payment(s) in accordance with the Board's demand(s), a registered hire purchase agreement concerning the house was also executed in his favour by the Board. However, the Board had been unable to give him possession of the house. This was because the house came in unauthorised occupation of one Dhirendra Kumar, respondent no. 5, a practising lawyer who, according to the Board, had forcibly entered into the house. While the Board's efforts to have respondent no.5 evicted was yet to yield result, the Government strangely asked the Board to allot that house to respondent no. 5. The Board meekly followed the Government's direction. It allotted the house to respondent no.5 and cancelled its earlier allotment made in favour of Sinha quite unmindfully that its contract with Sinha was concluded by a registered agreement of hire purchase and that contract could be avoided only in terms of that agreement and not by any unilateral action on its part, the 'Board being one of the contracting parties. The occupation of the house by respondent no.5 which had its origin in the breaking of the law was thus sought to legitimised, at the instance of the Government, in complete disregard of the rights of Sinha. On the basis of that allotment, which was not followed by any agreement, or any conveyance of title, respondent no.5 continues to be in occupation of the house committing breach with complete nonchalance, of several material terms and conditions of the allotment order, apart from the undertaking given to this court. In the meanwhile, seeking relief before this Court Sinha died-one more victim of the delay in the judicial process. And now it is his heirs who pursue this case and seek the relief originally sought by Sinha. 2. This is the sum and substance of this case. Now to state these facts in greater detail. 3. The aforesaid Anil Kumar Sinha on 31.1.1973 made an application for allotment of a house under priority quota for defence personnel. He was intimated by letter no. 2. This is the sum and substance of this case. Now to state these facts in greater detail. 3. The aforesaid Anil Kumar Sinha on 31.1.1973 made an application for allotment of a house under priority quota for defence personnel. He was intimated by letter no. 4449, dated 2.5.1975 (Annexure 1) issued by the Manager, Land Allotment-cum-Deputy Secretary in the Board that the Board had decided to allot M.I.G. House no. 237 situate at Lohianagar, Patna in his favour. By that letter he was asked to deposit 20% of the assessed value of the house and the land (Rs. 63,800/-) and some other incidental charges amounting to Rs. 12,810/- within thirty days from the receipt of the letter. Sinha made the payment as advised and complied with the other conditions of allotment following which a hire purchase agreement in respect of the house was executed by the Board in his favour which was registered on 26.10.1978 (Annexure 2). Clause 19 of the agreement enumerated the contingencies in which the allotment/settlement of the house made in favour of Sinha could be cancelled by the Board. 4. In the affidavit filed in this case on behalf of the Board it is plainly stated that the allotment of the house in favour of Sinha was proper and valid and he had made payment of all the demands made by the Board in accordance with the rules. 5. It is an admitted position that not, withstanding the issuance of the allotment letter and the execution of the hire purchase agreement the board was unable to give possession of the house to Sinha because it was not in a vacant state. 6. The Board then filed a petition before the Executive Magistrate, Sadar, Patna (giving rise to Case no. 518/19791 TR/129/1980) seeking summary eviction of respondent no.5 from M.I.G. House no. 237 in terms of section 59 (1) (b) of the Bihar State Housing Board Act. In this petition the Board besides seeking eviction of respondent no.5 from the house also claimed damages from him as provided under section 83A(3) of the Act. The case of the Board was that on 12.2.1979 at 9.00 A.M. respondent no.5 forcibly entered into the house by breaking open the lock and disregarding the protests of the Board's Chowkidar. The incident was also reported to Kankarbagh, police station. The case of the Board was that on 12.2.1979 at 9.00 A.M. respondent no.5 forcibly entered into the house by breaking open the lock and disregarding the protests of the Board's Chowkidar. The incident was also reported to Kankarbagh, police station. It was further the case of the Board that respondent no.5 was repeatedly asked by its officials to vacate the house but he paid no heed to the requests and hence the petition for his eviction under section 59(1) (b). This petition, however, was filed without making Sinha, the lawful allottee of the house, a party to the proceeding. 7. The plea taken by respondent no.5 makes interesting reading. According to him he was a retired personnel from the Indian Navy and was without an abode. Accordingly, on his request one R.I.Singh, who at that time was the Chairman of the Board, verbally advised him to occupay M.I.G. House no. 237 and following the verbal advice of R.I.Singh he occupied the house on 11.2.1979. Respondent no.5 further stated that after having occupied the house he continued to be in touch with the Chairman of the Board and the Minister, Housing Department who gave him the assurance that the house would be allotted to him in a regular way. It was further his case that the then Chief Minister who had the Department of Housing under his charge asked him to make the necessary payment for the allotment of that house in his favour. Following the Chief Minister's direction, he made an application before the Board's Chairman whereupon he was given permission by the Chairman on 7.3.1980 to deposit the earnest money amounting to Rs. 6,500/-. He then deposited the sum of Rs. 6,500/by bank challan, dated 17.5.1980 as earnest money for allotment of M.I.G. House no. 237. 8. Thus, on his own showing respondent no.5 came to occupy the house, on the basis of the verbal advice of the then Chairman of the Board even before making a formal application and depositing a single paisa by way of registration fee etc. for allotment of a house to him by the Board. 9. However, Shri B.C. Prasad, Executive Magistrate who heard the case failed to see any anomalies in the pleas raised by respondent no.5 and he simply accepted his case. for allotment of a house to him by the Board. 9. However, Shri B.C. Prasad, Executive Magistrate who heard the case failed to see any anomalies in the pleas raised by respondent no.5 and he simply accepted his case. On the basis of the statements of respondent no.5 Shri B.C. Prasad found and held that the Board was taking steps to allot the house in his favour in a proper and regular way and to that end it had also accepted a sum of Rs. 6,500/ from him as earnest money for the allotment of the house. According to Shri B.C. Prasad, therefore, respondent no.5 could not be described as an unauthorised occupant of the house. He accordingly rejected the petition filed by the Board by order dated 7.6.1980 (Annexure 5). 10. I have gone through this order and I only wish to observe that I would not be able to see with equanimity Shri B.C. Prasad being entrusted with the responsibilities and functions of a quasi judicial nature. 11. Against the order passed by the Executive Magistrate the Board preferred an appeal before the State Government. This appeal, registered as Appeal no.4/ 1980, was rejected by order, dated 30.7.1983 passed by the Minister, Housing Department. The appellate order simply paraphrased the order passed by the Executive Magistrate making "an additional observation that respondent no.5 had taken electrical connection in that house in his name. On a perusal of the appellate order I can only say• that Smt. Prabhavati Gupta, the Minister did not cover herself with glory in passing that order. 12. The Board then came to this court and filed C.W.J.C. no. 6078/1985 challenging the afore-mentioned orders rejecting its plea for the eviction of respondent no. 5 under section 59 (1) (b) of the Act. In that writ petition Sinha was impleaded as respondent no.5 and the facts concerning the allotment of the house and the execution of the hire purchase agreement in his favour were also disclosed. That writ petition was admitted for hearing by order, dated 17.12.1985. 13. All this while it seems Sinha was quite unaware of this development and it was only in 1988 when he came to Patna that he learnt about the Board's petition for eviction of respondent no. 5 having been rejected first by the Executive Magistrate and then in appeal by the Minister, Housing Department. 13. All this while it seems Sinha was quite unaware of this development and it was only in 1988 when he came to Patna that he learnt about the Board's petition for eviction of respondent no. 5 having been rejected first by the Executive Magistrate and then in appeal by the Minister, Housing Department. He then filed the present writ petition challenging, on his own, the aforesaid two orders. 14. This writ petition was admitted by order dated 15.9.1988 and was directed to be heard along with CWJC no. 6078/1985 filed on behalf of the Board. It is evident that at the time of filing of this writ petition Sinha was unaware about two identical letters issued by the State Government on 29.8.1985 and 5.9.1985 asking the Board to allot the house in question to respondent no.5. The two letters dated 28.8.1985 and 5.9.1985 are brought on record as Annexures 33A and 3A respectively to the counter affidavits filed on behalf of respondent no.5. 15. But before adverting to these two letters, it would be appropriate to note some developments in this writ petition. 16. It appears that a grievance was made on behalf of the petitioner that respondent no.5 was making constructions in the house whereupon the following order was passed in this case on 6.12.1983. "Put up this matter again after ten days, as prayed for by respondent no.5 Dhirendra Kumar. Pending final disposal of this application, Mr. Dhirendra Kumar, respondent no. 5 gives an undertaking not to make any constructions on the disputed land. He also undertakes not to make negotiations with any party for alienating the property in question. 17. A similar order was passed on 29.11.1989 the relevant portion from which is as follows : "The petitioner has prayed that respondent no.5 Dhirendra Kumar be restrained from continuing with construction work on the property in dispute. Mr. Dhirendra Kumar, respondent no.5, gives an undertaking that he will not make any construction on the property in dispute. This undertaking was given by him as far back as on 6.12.1988. Since Mr. Dhirendra Kumar once again gives his undertaking it is hereby ordered that respondent no.5 will forbear from making any construction on the property in dispute. Petition at flag 'B' is disposed of finally in the above terms." 18. This undertaking was given by him as far back as on 6.12.1988. Since Mr. Dhirendra Kumar once again gives his undertaking it is hereby ordered that respondent no.5 will forbear from making any construction on the property in dispute. Petition at flag 'B' is disposed of finally in the above terms." 18. Later on two occasions the writ petitioner made a complaint that respondent no.5 was making constructions in the house in violation of the undertakings given to this Court and filed contempt petitions being M.J.C. no. 892 of 1989 and MJC no. 758 of 1991. From the order sheet of MJC no. 892 of 1989 it appears that it was dismissed as withdrawn on a prayer made on behalf of the petitioner for 'its withdrawal. MJC no. 758 of 1991 was directed by order dated 28.4.1992 to be listed for admission after the disposal of CWJC no. 6617 of 1988 (that is, the case in hand). However, from the next order dated 8.5.1996 it appears that MJC no. 758 of 1991 was dismissed for non-prosecution, as no one appeared on behalf of the petitioner. It is not clear how that M.J.C. was placed for admission before the disposal of this writ petition as directed by order dated 28.4.1992. 19. Before the writ petition could be taken up for hearing Sinha died on 5.2.1991. His heirs then filed a petition seeking permission to pursue the relief(s) and other petition bringing on record the developments taking place subsequent to the filing of the writ petition. The substitution petition filed by the heirs of Sinha was allowed by order, dated 22.7.92 and the amendment petition filed 'by the substituted petitioners was also allowed by order, dated 6.8.1992. 20. At this stage, it would be appropriate to take a look at the developments taking place in the matter outside the court which now come under challenge on the basis of the amendment petition filed in this case. It is noted above that while CWJC no. 6078/1985, filed by the Board, was pending before this Court, a letter dated 29.8.1985 (Annexure 33-A) was issued under the signature of the Joint Secretary in the Urban Development and Housing Department of the State Government. It is noted above that while CWJC no. 6078/1985, filed by the Board, was pending before this Court, a letter dated 29.8.1985 (Annexure 33-A) was issued under the signature of the Joint Secretary in the Urban Development and Housing Department of the State Government. The Joint Secretary enclosed with his letter a copy of the letter, dated 17.6.1985 received from Shri Laloo Prasad Yadav and a few other members of the legislative assembly and requested the Chairman-cum-Managing Director of the Board to take steps to allot M.I.G. house no. 237 to respondent no.5 and to execute a deed of transfer in his favour. Another letter, identical to the earlier one, was issued on 3.9.1985 (Annexure 3A). The letter dated 3.9.1985 (Annexure 3A) came up for consideration before the Board in its 141st meeting held on 11.7.1991 and from the agenda note (Annexure 36A) it appears that the request made in that letter on the basis of the recommendation of Shri Laloo Prasad Yadav and a few other members of the legislative assembly was taken by the Board as an order from the State Government. In its aforesaid meeting the Board took the resolution to allot that house to Dhirendra Kumar after having its value assessed on commercial basis and to withdraw the case filed against him (in this Court). This was, however, subject to the condition that a flat be first allotted to Sinha in lieu of House no. 237. 21. Following the Board's decision letter no. 3373, dated 23.12.1991 (Annexure 37-A) was issued to Sinha (by that time he was dead) intimating that allotment of house no. 237 in his favour under letter n0.4449, dated 26.5.1975 was cancelled and that the Board had decided to allot him, in place of the house, flat no. 3 MF-7/43. Following this letter, a letter of allotment in respect of Flat no.3 MF-7/43 was issued to Sinha on 6.2.1992 (Annexure 38-A). There is no averment from any side much less any material to show that these two letters were in fact dispatched from the Board's office and were received by the heirs of Sinha. Having thus discharged its responsibility towards Sinha the Board issued letter dated 28.2.1992 (Annexure 42-A) making allotment of house no. 237 in favour of respondent no.5. In this letter, the valuation of the house was fixed at Rs. Having thus discharged its responsibility towards Sinha the Board issued letter dated 28.2.1992 (Annexure 42-A) making allotment of house no. 237 in favour of respondent no.5. In this letter, the valuation of the house was fixed at Rs. 3,95,727/- on a tentative basis and respondent no.5 was asked to deposit 30% of that amount along with some other incidential charges. After making deduction of Rs. 6,500/- deposited by him earlier, he was required to make payment of a sum of Rs. 1,12,418/- within thirty days from the date of issuance of the letter. Clause 12 of the allotment letter made it explicit that the house was being allotted for residential purposes only and no portion of the house could be used for any other purpose. Following the issuance of the letter, respondent no.5 on 13.3.1992 deposited a sum of Rs. 1,12,418/- by bank draft dated 7.3.1992 (Annexure 43-A). 22. This was the position when the two writ petitions being CWJC no. 6078/1985 (filed by the Board) and CWJC no. 6617/1988 filed by Sinha came up for hearing. So far as the writ petition filed by the Board was concerned, it had obviously become infructuous because having issued the allotment letter for the house in favour of respondent no.5, the Board could no longer seek a direction for his eviction from that house. That writ petition was accordingly dismissed as infructuous by order dated 13.7.1998. Thus out of the pair, the writ petition filed by Sinha alone was left which is now in hand. 23. In this case respondent no.5 has been filing counter affidavits, supplementary counter affidavit and further supplementary counter affidavits. Evidently not satisfied with his earlier affidavits, respondent no. 5 filed two more affidavits on 15.7.1998 and 23.7.1998 after the case was taken up for hearing on 13.7.1998. In the supplementary counter affidavit filed on 15.7.1998, respondent no.5 stated on oath that he had constructed a number of shops in the premises of House no.237 and had given them on rent to as many as 12 tenants. A description of the tenants and the nature of business being carried on by each of them is stated in para 3 of this affidavit. A description of the tenants and the nature of business being carried on by each of them is stated in para 3 of this affidavit. It is further stated that he had received lump sum money from them at the time of creation of tenancy and had executed in their favour agreements of lease with periods ranging from nine years to 18 years. This affidavit was filed perhaps in an effort to forestall any direction being issued for his eviction from the house. But to me the action of respondent no.5 in filing this affidavit appears to be quite mindless and his averments, made on oath are bound to lead to a result quite contrary to the one aimed at by him. Respondent no.5 seems to have completely overlooked the stipulation contained in clause 12 of the allotment letter apart from, his own undertaking given before this Court in this case on two earlier occasions. Respondent no.5 has thus on his own showing made himself liable to be proceeded for contempt of Court. 24. At this stage, it may be stated that in pursuance of the direction by this Court the Board has filed an affidavit stating the present status of respondent no.5 in respect of the house in question. In that affidavit it is stated that after issuance of allotment letter, dated 28.2.1992 to respondent no. 5, no further agreement of any kind was executed by the Board in his favour. It is further stated that respondent no. 5 made a total payment of Rs. 1,20,811/- in the following manner: 26.2.1977 : Registration fee Rs. 50.00 17.5.1980: Earnest money “ 6,500.00 13.3.1992 : Amount being 30% of the tentative 1,14,261.00 price of the house " Total: " 1,20,811.00 24A. In other words respondent no. 5 has been living in that house for the past more than nineteen years on payment @ Rs. 530/- per month. He has not disclosed the amounts realised from the tenants which would be presumably more than - the amount paid by him to the Board. 25. It is also stated in the affidavit that the outstanding balance against respondent no.5 as on 31.7.98 comes to Rs. 11,75,958/-. It is further stated that the •action of respondent no.5 in making constructions and inducting tenants for running shops etc. on a commercial basis was in utter violation of the conditions of allotment. 26. 25. It is also stated in the affidavit that the outstanding balance against respondent no.5 as on 31.7.98 comes to Rs. 11,75,958/-. It is further stated that the •action of respondent no.5 in making constructions and inducting tenants for running shops etc. on a commercial basis was in utter violation of the conditions of allotment. 26. These are the detailed facts of the case and having recorded them I find that the facts only lead to one inference that respondent no.5 entered into the house by breaking the law and continues' to occupy it in an unlawful manner; further, that the unlawful and unauthorised occupation of the house by respondent no.5 has caused and continues to cause blatant violation of the rights of the lawful allottee Sinha and his successors in interest, the present petitioners. 27. However, in fairness to respondent no.5, who appeared in this case in person, I must take notice of the submissions made by him. He submitted that no. relief could be granted to the substituted petitioners in this case because in the amendment petition filed by them they did not seek quashing of the Government direction issued to the Board as contained in the letters dated 29.8.85 (Annexure 33A) and 3.9.86 (Annexure 3-A) but simply sought quashing of the Board's resolution, dated 11.7.1991 (Annexure 36-A). According to him the Board's resolution was based on the Government direction and unless the Government direction was challenged and set aside by the Court, no relief could be granted to the petitioners. I find no substance in this submission. A copy of the Government's letter was not furnished either to Sinha or his heirs and they were, therefore, not in possession of that letter. Moreover, as it would be shown presently, it would not at all be necessary to quash the Government letter in order to set aside the Board's resolution which can be interfered with by this Court independently and separately. 28. He next submitted that the allotment of the house made in his favour could not be questioned as it was made on the basis of a direction issued by the Government. He further submitted that the State Government had ample powers to give such a direction to the Board. In support of his submission he relied upon sections 23 and 109 of the Housing Board Act. Section 23 of the Act is as follows : "23. He further submitted that the State Government had ample powers to give such a direction to the Board. In support of his submission he relied upon sections 23 and 109 of the Housing Board Act. Section 23 of the Act is as follows : "23. Power to set aside resolution or order of the Board. - The Government may stay or set aside any resolution of the Board or any order 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," And section 109 is re-produced below: "109. Powers of Government to give directions to the Board and local authorities. - (1) The Government may give the Board such directions as in their opinion are necessary or expedient for carrying out the purposes of the Act, and thereupon it shall be the duty of the Board to comply with such directions. (2) The Government may give any local authority such directions as in their opinion are necessary or expedient for carrying out the purposes of this Act after giving an opportunity to the local authority concerned to state its objections, if any to such directions and after considering the said objections, and it shall thereupon be the duty of the local authority to comply with such directions." 29. I am unable to accept the submission. In the first place it is erroneous to describe the contents of the letter dated 5.9.1985 (Annexure 3A) as a direction from the Government. That letter simply enclosed a copy of a letter from Shri Laloo Prasad Yadav and a few other members of the legislative assembly making recommendation in favour of respondent no.5 and made a request to the Chairman of the Board to allot that house to respondent no.5. Had the Board acted legally and with propriety the letter ought to have been ignored instead of being used as the pretext for cancelling the allotment of the house in favour of Sinha. Secondly, I am unable to accept that the provisions contained in sections 23 and 109 give any power to the Government to direct the Board that any particular house be allotted to a particular person. Secondly, I am unable to accept that the provisions contained in sections 23 and 109 give any power to the Government to direct the Board that any particular house be allotted to a particular person. Under sections 23 and 109 the Government can issue general directions concerning policy matters but not specific directions of the kind contained in that letter. In this case it was not permissible for the Government to give any such direction for the additional and far more weighty reason that the house in question was already allotted to Sinha and a hire purchase agreement in respect of the house had been executed by the Board in his favour. 30. Respondent no.5 next contended that Sinha did not belong to the middle income group and. therefore, that house could not be allotted t6 him. The submission is simply noted to be rejected. There is no material to suggest that Sinha did not belong to the middle income group and as noted above it has come in the affidavit filed on behalf of the Board that the allotment made in his favour was perfectly valid and proper. 31. Respondent no.5 lastly contended that Sinha had failed to take possession of the house for more than two months after the issuance of the allotment letter and his allotment of the house was, there(ore, liable to be cancelled in terms of regulation 32 of the Bihar State Housing Board (Management & Disposal of Housing Estates) Regulation, 1983. This submission too is equally devoid of substance. Regulation 32 does not speak of taking possession of the house but speaks of accepting offer of allotment and complying with the prescribed formalities. It is undeniable that Sinha had not only accepted the offer of allotment but had also complied with the prescribed formalities within the specified time. Moreover, it is admitted by the Board that Sinha was unable to take possession of the house not due to any fault on his part. 32. For the reasons discussed above, I have no hesitation in finding that the resolution taken by the Board in its meeting held on 11.7.1991 to cancel the allotment of M.I.G. house no. 237 made earlier in favour of Sinha and to allot that house to respondent no.5 was wholly illegal and unsustainable. 32. For the reasons discussed above, I have no hesitation in finding that the resolution taken by the Board in its meeting held on 11.7.1991 to cancel the allotment of M.I.G. house no. 237 made earlier in favour of Sinha and to allot that house to respondent no.5 was wholly illegal and unsustainable. The resolution dated 11.7.1991 is accordingly quashed following which all the subsequent actions taken by the Board fell to the ground. I am further of the view that by making constructions and inducting tenants into the house premises as stated by respondent no. 5 himself on oath, he has flouted the undertakings given to this court and is, therefore, liable to be proceeded in contempt. However, I do not propose to take any further action in that regard. His occupation of the house, however, is totally illegal and makes constant invasion on the rights of the petitioners. He must, therefore, be evicted from the house. He is accordingly directed to vacate the house within two months from the date of this order. In case he fails to vacate the premises within the specified time, the Board with the help of the Collector. Patna will have him evicted with the optimum use of force. On request being made by the Board, the Collector, Patna will extend full help and assistance in getting respondent no.5 evicted from M.I.G. house no.237. 33. The occupation of respondent no.5 having been found illegal, it is obvious that the occupation of anyone claiming under or through him can be no better. The order of eviction of respondent no.5, therefore, would equally apply to all his tenants and all persons occupying any portion(s) of the house claiming under or through him. 34. Having obtained vacant possession of the house, the Board will make it over to the heirs of Sinha, the substituted petitioners in this case in accordance with law and on their making the necessary payments as per the rules. The petitioners in this case must be handed over possession of the house subject to their making the necessary payment(s), if any, and complying with the provisions of the Rule, if any, within three months from today. 35. It will be open to respondent no.5 to make claim of refund of the payments made by him to the Board. The petitioners in this case must be handed over possession of the house subject to their making the necessary payment(s), if any, and complying with the provisions of the Rule, if any, within three months from today. 35. It will be open to respondent no.5 to make claim of refund of the payments made by him to the Board. It would be similarly open to the tenants or to persons occupying any portion(s) of the house claiming under or through respondent no.5 to raise their claims for refund/damages against him. In case any claim is made by respondent no.5 against the Board or in case claims are made by person(s) against respondent no.5, such claims will proceed and will be decided in accordance with law. 36. In the result, this writ petition is allowed with costs quantified at Rs. 2200/. D.S. Dhaliwal, J. -I agree.