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2000 DIGILAW 227 (PAT)

Rama Shankar Dubey v. Bihar State Housing Board

2000-02-09

ASOK KUMAR GANGULY, BISHESHWAR PRASAD SINGH

body2000
Judgment B.P.SINGH, J. 1. The appellant herein has impugned the judgment and order of a learned Judge of this Court dated 1st September, 1998 dismissing the writ petition. In the writ petition filed by the appellant he had challenged the order of eviction passed by the Sub-Divisional Magistrate, Patna Sadar, dated 25th February, 1991 in Eviction Suit No. 17 of 1990 passed under Sec. 59 of the Bihar State Housing Board Act, 1982 , as well as, the appellate order dated 28th December, 1996 dismissing the appeal. These orders were Annexures 4 and 5 respectively to the writ petition. 2. The first submission urged before us by counsel for the appellant is that the Sub-Divisional Officer, Patna Sadar, had no jurisdiction under Sec. 59 of the Act to pass the impugned order dated 25th February, 1991 as he was not duly authorised to exercise the powers of the competent authority under the Act. 3. The learned Judge, before whom the same submission was urged, considered it unnecessary to examine this question on the ground that the appellate authority had considered the matter before passing the appellate order. 4. In our view the submission urged on behalf of the appellant must be accepted. Sec. 59 of the Act provides inter alia, a summary procedure for eviction of unauthorised occupants and recovery of rents. The jurisdiction is vested in the competent authority to hold an enquiry and to pass an order. Sec. 50 finds place in Chapter IX of the Act. Under Sec. 2(ii) of the Act, the competent authority has been defined to mean any person or authority authorised by the Government by notification to perform functions of the competent authority under Chapter IX for such area as may be specified in the notification. 5. A few facts not in dispute may be noticed. By notification dated 22nd November, 1973, the Sub-Divisional Officers and the Magistrates just below them in order of seniority were appointed to perform functions of the competent authority under Chapter IX of the Act. However, by notification dated 3rd February, 1981, the earlier notification dated 22nd November, 1973 was superseded and the Special Land Acquisition Officer of the Bihar State Housing Board was appointed as the competent authority for the purpose of Chapter IX of the Act. However, by notification dated 3rd February, 1981, the earlier notification dated 22nd November, 1973 was superseded and the Special Land Acquisition Officer of the Bihar State Housing Board was appointed as the competent authority for the purpose of Chapter IX of the Act. By another notification dated 31st July, 1987 the Estate Officer and the Revenue Officer of the Bihar State Housing Board were also appointed to perform the functions of the competent authority under Chapter IX of the Act. It would thus appear that after 3rd February, 1981 the Sub-Divisional Officer had no authority to deal with the matters which are included in Chapter IX of the Act, which includes Sec. 59 providing a summary procedure for eviction and recovery of rents. From 3-2-1981 till 31-7-1987 it was the Special Land Acquisition Officer of the Board who was appointed as competent authority, and after 31-7-1987 the Estate Officer as well as the Revenue Officer of the Board were also authorised to perform the functions of the competent authority under Chapter IX of the Act. 6. There is no dispute about the fact that in the instant case, eviction case No. 17 of 1990 was registered under Sec. 59 of the Act against the appellant in the Court of the Sub-Divisional Officer Sadar Patna. By his order dated 25-2-1991 the Sub-Divisional Officer, (Sadar) Patna purported to pass an order under Sec. 59 of the Act directing the appellant to vacate the flat in question within fifteen days from the date of the order, failing which he was to be evicted from the flat by use of force. The appeal preferred by the appellant being Appeal No. 2 of 1992, was dismissed by the appellate authority by the impugned order dated 28-12-1996. It was, therefore, submitted before us that the order passed by the Sub-Divisional Officer was wholly without jurisdiction, since he was not authorised to perform the functions of the competent authority under Chapter IX of the Act. It was further submitted that this is not a case where there was an error in the exercise of jurisdiction, or even a case where there was any dispute as to the jurisdiction of the Sub-Divisional Officer. This is a clear case of complete lack of jurisdiction so far as Sub-Divisional Officer, (Sadar) Patna, was concerned. It was further submitted that this is not a case where there was an error in the exercise of jurisdiction, or even a case where there was any dispute as to the jurisdiction of the Sub-Divisional Officer. This is a clear case of complete lack of jurisdiction so far as Sub-Divisional Officer, (Sadar) Patna, was concerned. He had ceased to be the competent authority after issuance of notification on 3rd February, 1981 and therefore, he could not either initiate or adjudicate a proceeding under Sec. 59 of the Act after that date. He has done so by usurping jurisdiction which by law was not vested in him. It is well settled that where an order has been passed by an authority which completely lacks jurisdiction, not only the order passed by such authority but also the consequential action taken pursuant thereto, must be quashed. 7. Counsel for respondent No. 6 could not seriously dispute the complete lack of jurisdiction in the Sub-Divisional Officer, Sadar Patna. The learned Judge did not consider it necessary to go into the question of jurisdiction. We are of the opinion that the learned Judge was clearly in error in not considering the question of lack of jurisdiction which was raised before him at the threshold. 8. Counsel for respondent No. 6, however, submitted that in the facts and circumstances of this case the impugned order passed by the Sub-Divisional Officer (Sadar) Patna should not be set aside, because that would give rise to another illegality. Therefore, even if the Court finds that the impugned order was passed without jurisdiction, the Court should not quash that order. To appreciate the submission urged on behalf of counsel for respondent No. 6 it is necessary to notice the relevant facts of this case. 9. It is admitted that before the creation of Bihar State Housing Board in the year 1972, several flats were constructed by the Housing Department for being allotted to different persons and pursuant to an agreement with the Housing Board, the State Government purchased altogether 270 flats from the Housing Board which included Flat No. 148 in Block No. 37 of the Defence Colony within the jurisdiction of Police Station Kankarbagh in the town of Patna. Since respondent No. 6 was a war widow the said flat was allotted to her on certain terms and conditions. Since respondent No. 6 was a war widow the said flat was allotted to her on certain terms and conditions. It appears from the materials placed before us that respondent No. 6, who was employed at Ranchi, herself made a request to the District Soldiers Sailors and Airmans Board to find a suitable tenant for the premises allotted to her. She has herself filed I.A. No. 9639 of 1999 in this appeal, and from the documents annexed thereto it appears that she had herself requested the Soldiers Board to let the premises allotted to her to a suitable tenant. Though, these documents do show that she was not supplied with a copy of the agreement that may have been executed, but it is admitted that the appellant did sent to her by money order a sum of Rs. 100.00 per month for several years. It cannot, therefore, be contended that the appellant is a rank trespasser who had entered the premises without any semblance of right or interest therein. The District Soldiers Sailors and Airmans Board acting on the request of respondent No. 6 inducted him as a tenant, and these facts lend support to the plea of the appellant, the writ petitioner, that he had been inducted as a tenant in the premises by the District Soldiers Boards on the request of respondent No. 6 10. The appellant has filed Annexure 2 a letter written to him on 10th June, 1974 by the Secretary of the District Soldiers Sailors and Airmans Board, Patna informing him that the premises in question were being let out to him provisionally on a monthly rental of Rs. 100.00 per month, and that the appellant was required to remit monthly rent to the owner of the flat whose address was given in the letter. Annexure 3 is another letter dated 4th July, 1974 written by the Secretary of the District Soldiers Sailors and Airmans Board to the appellant in connection with payment of rent for the premises in question. These documents, together with the admission of respondent No. 6 herself, leave no room for doubt that on her request the District Soldiers Sailors and Airmans Board had arranged a suitable tenant for her, and that is how the appellant was inducted into the premises. 11. These documents, together with the admission of respondent No. 6 herself, leave no room for doubt that on her request the District Soldiers Sailors and Airmans Board had arranged a suitable tenant for her, and that is how the appellant was inducted into the premises. 11. It was submitted before us that letting of the premises by the District Soldiers Sailors and Airmans Board was itself illegal, in as much as, the terms and conditions of the agreement executed in favour of respondent No. 6 do not permit to her to sub let the premises without prior approval of the Housing Board. It is not possible for us to go into such questions in this appeal. These are matters which have to be considered by the competent authority, or the Court which may have jurisdiction in the matter. This is, however, not a case where quashing of the impugned order would revive another illegal order. If the impugned order passed by the Sub-divisional Officer, (Sadar) Patna, is quashed, at best appropriate action may have to be taken before the competent authority or the Civil Court, as the case may be, in accordance with law. We cannot, on the basis of the record as it is before us, hold categorically that the appellant is a rank trespasser. Respondent No. 6, having admittedly accepted rent from him for several years, cannot now be allowed to turn around and say that the appellant was not inducted as a tenant in the premises in question. 12. It is not possible for this Court to record a conclusive finding on the basis of the record as it is before us. We find that the impugned order of the Sub-divisional Officer, as well as, the appellate order are cryptic and apart narrating the cases of the parties as pleaded by them, there is hardly any discussion of the matters in dispute which arose for consideration. 13. In the circumstances, we are of the considered opinion that this Court should not refuse to exercise its jurisdiction in a case of this nature where the impugned order is found to be wholly without jurisdiction. 14. In the result, the instant appeal is allowed and the impugned judgment and order is set aside. The order of the Sub-divisional Officer, Sadar Patna dated 25-2-1991 and the appellate order dated 28-12-1996 are also quashed. 14. In the result, the instant appeal is allowed and the impugned judgment and order is set aside. The order of the Sub-divisional Officer, Sadar Patna dated 25-2-1991 and the appellate order dated 28-12-1996 are also quashed. It will be open to the respondents to take appropriate steps in accordance with law before the competent authority or before a Court of competent civil jurisdiction, as they may be advised.Appeal allowed.