Executive Engineer, Bihar State Housing Board Vs. Ramesh Kumar Singh & Ors  INSC
722 (22 November 1995)
K.S.(J) Paripoornan, K.S.(J) Anand, A.S. (J) Paripoornan, J.
1996 AIR 691 1996 SCC (1) 327 JT 1995 (8) 331 1995 SCALE (6)625
This is a typical case where the extraordinary discretionary jurisdiction
vested in the High Court under Article 226 of the Constitution of India was
improperly invoked, and High Court was pleased to exercise its jurisdiction
resulting in an abuse of process.
appellant is the Executive Engineer, Bihar State Hosuing Board and represents
the said 'Board' (hereinafter referred to as "Board"). The
respondents to this appeal are
Sri Ramesh Kumar Singh (Petitioner in the Writ Petition),
State of Bihar,
Sub-Divisional Magistrate, Saraikella, District Singhbhum (the 'competent
Sri S.N. Pandey, Adityapur, District Singhbhum (east).
first respondent assailed the show-cause notice - Annexure Ext. P-4-dated
16.12.1992 issued to him by the 3rd respondent herein under Section 59 of the
Bihar State Housing Board Act, 1982 in CWJC No. 82/93 - High Court of Patna. By
judgment dated 10.2.1993 a Divison Bench of the High Court quashed Annexure
Ext. P-4, show cause notice, and also the Eviction proceedings No. 6/92 pending
before the 3rd respondent. The Board, party-respondent in the writ petitio, has
filed this appeal against the aforesaid judgment dated 10.2.1993.
broad facts relevant for the disposal of the appeal are in a narrow compass.
The appellant-Board has allotted quarter No. M-11/(Old) Adityapur, Near Jamshedpur, to the 4th respondent on
hire-purchase basis. Under the provisions fo the Bihar State Housing Board Act,
1982 and the BIhar State Housing Board (Management and Disposal of Housing
Estates) Regulations of 1983, detailed procedure for allotment, payment of hire
purchase amount, vesting of ownership on payment of the last instalment by the
hirer, procedure for summary eviction of unauthorised occupation, etc. are
provided. The hirer is a tenant of the Board till the last installment is paid
where after the ownership is transferred to the hirer by executing an
appropriate conveyance. on this basis the 4th respodent, hirer, is a tenat of
the Board. Section 58 of the act states that provisions of the Bihar Buildings
(Lease, Rent and Eviction) control Act are inapplicable to the tenacy created
by the Board. Section 59 of the Bihar State created by the Board.
59 of the Bihar State Housing Board Act enables the Board to evict persons in
occupation in cases of sub-tenancy or any other unauthorised occupation, by
application to the 'competent authority'. By notification No. 3196/Patna dated
22.11.1973 (Annexure Ext. P-1), the Government f Bihar, in exercise of powers
conferred on it by Section 2(10) of the Bihar State Housing Board Ordinance,
had authorised all civilian Sub-Divisional Officers and Magistrates, just below
the rank of S.D.D.'s, as competent authorities for the purposes of the Act. The
3rd respondent is the competent authrity within whose jurisdiction the instant
building- quarter No. M/11(Old) Adityapur, Near Jamshedpur is stituate.
4th respondent, the allottee of the quarter No. M11/(Old), Adiyapur, Near jamshedpur, complained to the 3rd respondent
by communication dated 20.10.1992 (annexure Ext. P-2) that he has been allotted
the said abuilding by the Board, and while he was residing with his fmaily in
the siad building, the 1st respondent has forcibly and unauthorisedly occupies
the first floor of the building. The 3rd respondent forwarded the aforesaid
communication to the appellant. The appellant by Annexure Ext. P-3 dated
15.12.1992 informed the 3rd respondent, S.D.O. that house No. MIG M/11 (Old), Adityapur,
Near Jamshedpur stands allotted to the 4th respondent and the application of
the 4th respondent, which is self-explantory, praying for eviction of the
portion unauthorisedly occupied by the 1st respondent, is referred for
necessary action. In this back-ground, 'the 3rd respondent issued Annexure Ext.
P-4 notice dated 16.12.1992 to the 1st respondent which is to the follwing effect
SECTION OF BIHAR HOUSING BOARD ACT
R.K. Singh, Contractor, M-11, Adityapur, JAMSHEDPUR.
appears from the petition of the Executive Engineer, Bihar State Housing Board
(Adityapur) Jamshedpur that you are illegally and unauthorisedly
living in HOuse NO. M-11 Old of Housing Board situated at Adityapur Housing
are hereby directed through this notice that to explain in person or through an
Advocate on 28.12.1992 at 10 A.M. in the
court of undersigned that why not an order of eviction of the house in question
Sub-Divisional Magistrate, Saraikella 16.12.1992" (emphasis supplied)
is seen that the 1st respondent instead of shwoing cause against Annexure Ext.
P-4, straightaway approached the High court by filing CEJC NO. 82/93 and assailedl
Annexure Ext. P-4. According to him, 4th respondent is the owner of the
building having purchased the same from the Board, that he is a tenant of the
first floor under the 4th respondent, that the 3rd respondent is incompetent to
initiate proceedings for eviction under the Bihar State Housing Board Act, and
that only proceedings under the Bihar Buildings (Lease, Rent & Eviction)
Control Act will lie for eviction.
prayed for quashing Annexure Ext. P-4 show-cause ntocie and the eviction
High Court heard the parties and took the view that the 1st respondent is not a
tenant of the Board, and so the Board will have no jurisdiction to initiate
proceedings either on its own motion or at the instance of the 4th respondent
and in this view, the proceedings, initiated as per Annexure Ext. P-4, are
unjustified and without jurisdiction. The High Court opined that the 4th
respondent may seek appropriate remedy by bringing a suit under he Bihar
Buildings (Lease, Rent & Eviction) Control Act. In the result, Anexure Ext.
P-4 and also the eviction proceedings NO. 6/92 were quashed. It is from the
aforesaid judgment of the High Court dated 10.2.1993, the Board has come up on
appeal by special leave.
heard counsel. It is common groudn that Quarter No. M/11 (Old) Adityapur, Near Jamshedpur,
belongs to Board.
to the Board and the 4th respondent the hire- purchase transaction is still in
force, and the ownsership of the building has not been finally transferred to
the 4th respondent. The 1st respondent would say that the 4th respondent is the
owner having purchased the building from the Board. The 'basic' or fundamental
fact is thus in dispute. The 3rd respondent is the competent authority ntofied
by the State Government under the BIhar State Housing Board Act, 1982 to
initiate summary proceedings for eviction against the sub-letting, unauthorised
occupation by any person, of the premises, etc. belonging to the Board.
Ext. P-4, notice, is the one so issued by the 3rd respondent. The appellant and
the 4th respondent compalined about the forcible or unauthorised occupation by
the first respondent of the premises belonging to the Board. The 3rd respondent
was competent to initiate the proceedings under the Act if the building still
belongs to the Board and the ownersip has not vested in the 4th respondent. It
may be, that this basic fact is denied by the 1st respondent when he states
that the 4th respondent is the owner having purchased the building from the
Board and that he is a tenant under the 4th respondent. The baisc facts, on the
basis of which the jurisdiciton of the 3rd respondent to initiate/continue the
proceedings, require investigation and adjudication. If, as pleaded by te
appellant and the 4th respondent, the Board is the owner and the 4th respodent
is the hirer, it cannot admit of any doubt that the 3rd respondent has
jurisdiction to initiate the proceedings as per Annexure Ext. P-4. If that
basic fact is denied by the 1st respondent, that may require investigation of
disputed facts and adjudication by the 'competent authority' - the 3rd
respondent. Without showing cause against Annexure Ext. P-4, notice, the 1st
respondent straightaway filed the Writ Petition in the High Court and assailed
Annexure Ext. P-4 and the eviction proceedngs. The averments in thsi regard,
contained in paragraph 13(h) of the Special Leave Petition, are not denied i
the detailed ocunter affidavit filed by the 1st respondent in this Court.
are concerned in this case, with the entertainment of the Writ Petition against
a show cause notice issued by a competent statutory authority. It should be
borne in mind that there is not attack against the vires of the statutory
provisions governing the matter. No question of infringement of any fundamental
right guaranteed by the Constitution is alleged or proved. It cannot be said
that Ext. P-4 notice is ex facie a "nullity" or totally "without
jurisdiction" in the traditional sense of that expression -- that is to
say even the commencement or initiation of the proceedings, on the face of it
and without anything more, is totally unauthrised. In such a case, for
entertaining a Writ Petition under Article 226 of the Constitution of India
against a show-cause notice, at power or jurisdiction, to enter upon the
enquiry in question. In all other cases, it is only appropariate that the party
should avail of the alternate remedy and show cause against the same before the
authority concerned and taken up the objection regarding jurisdiction also,
then. In the event of an adverse decision, it will certainly be open to him, to
assail the same either in appeal or revision, as the case may be, or in
appropriate cases, by invoking the jurisdiction under Article 226 of the
Constitution of India.
the facts of this case, we hold that the 1st respondent was unjustified in
invoking the extraordinary jurisdiction of the High Court under Article 226 of
the Constitution of India, without first showing cause against Annexure Ext.
P-4 before the 3rd respondent. The appropriate procedure for the 1st respondent
would have been to file his objections and place necessary materials before the
3rd respondent and invite a decision as to whether the proceedings initiated by
the 3rd respondent under Section 59 of the Bihar State Housing Board Act, 1982,
are justified and appropriate. The adjudication in that behalf necessarily
involves disputed questions of fact which require investigation. In such a
case, proceedings under Article 226 of the Constitution can hardly be an
appropriate remedy. The High Court committed a grave error in entertaining the
Writ Petition and in allowing the same by quashing Annexure Ext. P-4 and also
the Eviction proceedings No. 6/92, without proper and fair investigation of the
basic facts. We are, therefore, constrained to set aside the judgment of the
High Court of Patna in CWJC NO. 82/93 dated 10.2.1993. We hereby do so. The
appeal is allowed with costs.