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2000 DIGILAW 247 (PAT)

Bihar State Housing Board v. State Of Bihar

2000-02-14

S.K.CHATTOPADHYAYA

body2000
Judgment S.K.Chattopadhyaya, J. 1. In this application the petitioner, Bihar Housing Board, through its Managing Director has impugned the order of the State Commissioner constituted under the Consumer Protection Act, 1986 dated 12.10.1988 by reason of which it directed the petitioner Board to reimburse the charges paid by Respondent no.3 for registration and earnest money and the price of the land to the complainant with an interest of 16% from the date of payment of the charge and price respectively. It also directed to reimburse the earnest money and the cost of the house at current market rate and further pay compensation of Rs. 1.50 lacs for the harassment caused to the complainant. 2. There is no denial of the fact that Respondent no.3, Sheo Nath Singh, deposited Rs. 50/- with the Board in response to its advertisement inviting application for plots/house allotment. This deposit was made on 12.12.1972. Subsequently, he deposited Rs. 2000/- on 20.10.1978 and ultimately on 15.7.1981 the Board allotted M.I.G. plot no. 4M/2 at Bahadurpur to Respondent no.3. A hire purchase agreement was executed on 18.7.1981 which was registered at Patna on 20.7.1981. Delivery of the said plot was given to Respondent no.3 on 11.8.1981 and as per the agreement he took prompt step to get his house constructed. Patna Regional Development Authority sanctioned his plan on 3.3.1982 and after obtaining loan from the State Bank of India and cooperative he started his construction in March, 1982. Since 1983 the Respondent no.3 started living in the house with his family members after paying the municipal tax etc. 3. The case of private respondent is that the petitioner-Board cancelled the allotment of the said land on 28.4.1984 and on the other hand in respect of this very plot held lottery and allotted the same plot along with other several plots on 20.4.1984. This plot of Respondent no.3 was allotted to another person. The complainant moved the State Commission, Bihar, Patna in Case no.49/88 alleging, inter alia, that since he had already paid the price of the land and living with the family members after constructing a house over the land, the order of cancellation by the Board was not only illegal but also unjust, which caused harassment and mental agony to him. 4. 4. It is pertinent to mention here that before moving the State Commission the Respondent no.3 moved this Court in writ application, which was disposed of on 4.5.1984 giving liberty to the Respondent no. 3 complainant to file a representation before the Housing Board and the Housing Board was also directed to dispose of the said representation in accordance with law. In compliance of the said order, the Respondent no.3 filed a representation which was rejected by an order dated 25.8.1988 on the ground that the allotment of the said land under Chairmans quota was illegal inasmuch as that was in excess of the prescribed limit, 5. Thereafter, as noticed above, the respondent no.3 made a complaint before the State Commission. Being noticed, the Housing Board appeared with a stand that though the then Chairman of the Housing Board had no authority to allot the plot beyond his prescribed quota of twenty five in number, he allotted M.I.G. plots to fifty four persons beyond his authority and when this matter came to the knowledge of the Housing Board, the allotment of first twenty five allottees arranged in chronological order was accepted and allotment of the rest twenty nine was rejected in which the name of the complainant was there at serial no.44. It is admitted that the order of allottment in favour of Respondent no.3 was passed on 15.7.1981 and, after registration, delivery of possession was given on 11.8.1981. It was reiterated that as the said allotment to Respondent no.3 was in excess of the Chairmans quota as well as beyond the specified quota the said agreement was cancelled. Before the State Commission, argument was advanced on behalf of the Board regarding maintainability of the claim under the Consumer Protection Act and after noticing its earlier decision the Commission was of the opinion that the complaint petition was maintainable before it. On merit the State Commission, after going through the documents filed before it came to the conclusion that the cancellation of allotment of the plot has caused agony and harassment to the complainant because admittedly before the order of cancellation he had already constructed his house after taking loan from various sources. 6. Mr. On merit the State Commission, after going through the documents filed before it came to the conclusion that the cancellation of allotment of the plot has caused agony and harassment to the complainant because admittedly before the order of cancellation he had already constructed his house after taking loan from various sources. 6. Mr. Shrawan Kumar, learned counsel for the petitioner, at the outset fairly submits that in view of the decision of the Apex Court in the case of Lucknow Development Authority v. M.K. Gupta reported in (1994)1 SCC 243 he cannot argue that the State Commission had no jurisdiction to entertain the complaint of Respondent no.3. He, however, submits that because the Housing Board is guided by its own Act, the order passed by it cannot be reviewed by the State Commission and by doing so it has exceeded its jurisdiction. Lastly it is contended that before coming to the conclusion that the complainant had suffered any harassment or mental agony the State Commission was required to give a finding that there was any defect or deficiency in rendering service to the private respondent. 7. Mr. Seraj, learned counsel for the State and Mr. Pradhan, learned counsel for the private respondent strongly contend that in view of the latest view expressed by their Lordships of the Supreme Court both the District Forum as well as the State Commission has the same power and jurisdiction which has been vested in the Civil Court under the Code of Civil Procedure. When from the facts and circumstances the State Commission has come to a conclusion that before cancellation of allotment the Respondent no.3 had already constructed his house on the basis of the plan duly approved by Patna Regional Development Authority after the agreement was executed between him and the Board, the State Commission was justified in holding that the Board was liable to pay compensation. 8. From the narration of facts aforesaid, it is absolutely clear that the Respondent no.3 for constructing his house bonafide applied before the Board for settlement of land against an advertisement issued by the Board itself. He completed all the formalities and registered agreement came into existence on 20.7.1981 in which admittedly the Board was one of the signatories. The possession was given and after obtaining loan from the Bank and Cooperative and also arranging money from other sources the Respondent no.3 constructed the house. He completed all the formalities and registered agreement came into existence on 20.7.1981 in which admittedly the Board was one of the signatories. The possession was given and after obtaining loan from the Bank and Cooperative and also arranging money from other sources the Respondent no.3 constructed the house. He started living in the house with his family members since 1983. Thus, from the date of registration i.e. 20.7.1981 till 1983 the Board did not awake from its slumber but all of a sudden on 28.4.1984 cancelled the allotment order which was issued on 15.7.1981. It did not appreciate the facts that the Respondent no.3 had already constructed his house and was living with his family members therein, and by another lottery the Board has allotted the said plot to another person. This lottery was held on 20.4.1984. 9. Even assuming that the then Chairman had no authority to allot M.I.G.plots in excess of his quota, i.e., twenty five in number and he allotted lands to fifty four persons, the petitioner, in my view, cannot be blamed for that. Whether the then Chairman had authority to allot the lands to him or to other similarly situated persons was not his look out. If the Board was of the view that the Chairman had committed some illegality it should not have registered the agreement on 20.7.1981 but definitely it was the Board which allotted M.I.G. 4M/2 at Bahadurpur to Respondent no.3 on 27.7.1981 on the basis of order of the then Chairman. 10. Under these circumstances, by no stretch of imagination it can be argued on behalf of the Board that because the then Chairman had no authority to allot the plot beyond his quota, therefore, the order of allotment was cancelled. Considering the situation regarding the residential house, the Board before cancelling the order of allotment should have considered the predicament of the allottees like Respondent no. 3. As has been held by the Supreme Court in the case of Lucknow Development Authority (supra) that the administrative law of accountability of public authorities for their arbitrary and even ultra vires action has taken many strides. It is now accepted that the State is liable to compensate for loss and injury suffered by a citizen due to arbitrary actions of its employee. It is now accepted that the State is liable to compensate for loss and injury suffered by a citizen due to arbitrary actions of its employee. In any case the law has always maintained that the public authorities who are entrusted with statutory function cannot act negligently. 11. in the facts and circumstances, I find that there was gross negligence on the part of the Board to cancel the order of allotment without considering the hardship of Respondent no. 3. The Board is also negligent because before registering the agreement in 1981 it did not scrutinise as to whether the then Chairman had alloted the plot to Respondent no. 3 and other such persons beyond his quota. If this fact had been scrutinised the Board might have not agreed to enter into the said agreement. But having entered into the agreement and delivered the possession, the Board cannot be allowed to say at a later stage that the then Chairman had no authority to allot the land. The act of negligence on the part of the then Chairman as well as the Board cannot be used as a weapon to destroy the right of the Respondent no. 3. 12. In the facts and circumstances, I am of the view that the State Commission has not committed any illegality by allowing the prayer of the Respondent no. 3. I find no merit in this application which is, accordingly, dismissed. The Housing Board is directed to recover the amount of compensation from the concerned public servant. This direction is in the line of the direction given by their lordships in the Case of Lucknow Development Authority (supra). No order as to costs.