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SUPREME COURT OF INDIA
A.S.Anand : K.S.Paripoornan
Executive Engineer, Bihar State Housing Board
Versus
Ramesh Kumar Singh
Case No. : .
Date of Decision : 11/22/95
Advocates Appeared: Kumar Ranjit : Sharan Amarender : Venna S.K.
Constitution of India - Article 226- Tenant - Extraordinary discretionary jurisdiction - Broad facts relevant for the disposal of the appeal are in a narrow compass. The appellant-Board has allotted Quarter Jamshedpur, to the fourth respondent on hire-purchase basis. Under the provisions of the Bihar State Housing Board Act 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 by the hirer, procedure for summary eviction of unauthorized occupation etc. are provided - Hirer is a tenant of the Board till the last is paid where after the ownership is transferred to the hirer by executing an appropriate conveyance - On this basis fourth respondent hirer is a tenant of Board – Held, It may be that this basic fact is denied by first respondent when he states that the fourth respondent is owner having purchased the building from the Board and that he is a tenant under fourth respondent - Basic facts on basis of which jurisdiction of the third respondent to initiate/continue proceedings, require investigation and adjudication - If as pleaded by the appellant and the fourth respondent, the Board is the owner and the fourth respondent is hirer, it cannot admit of any doubt that the third respondent has jurisdiction to initiate the proceedings as per - If that basic fact is denied by first respondent that may require investigation of disputed facts and adjudication by the "competent authority" - Third respondent - Without showing cause against notice, the first respondent straightaway filed the writ petition in the High court and assailed and the eviction proceedings - Averments in this regard, contained in paragraph 13(H) of the special leave petition, are not denied in the detailed counter-affidavit filed by the first respondent in this court – Court are concerned in this case, with the entertainment of writ petition against a show-cause notice issued by a competent statutory authority - It should be borne in mind that there is no attack against of 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 notice is ex facie a nullity or totally without jurisdiction" in the traditional sense of that expression - that is to say, that even the commencement or initiation of the proceedings, on face of it and without anything more is totally unauthorized - In such a case, for entertaining a writ petition under Article 226 of Constitution of India against a show-cause notice at that stage it should be shown that authority has no power or jurisdiction, to enter upon the enquiry in question - In all other cases it is only appropriate that party should avail of the alternate remedy and show cause against the same before the authority concerned and take up objection regarding jurisdiction also, then - In event of an adverse decision, it will certainly be open to him to assail same either in appeal or revision as case may be, or in appropriate cases by invoking the jurisdiction under Article 226 of Constitution of India - Appeal is allowed
Judgment
K.S.PARIPOORNAN, J.
(1) LEAVE granted.
(2) 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 the High court was pleased to exercise its jurisdiction resulting in an abuse of process.
(3) THE appellant is the Executive Engineer, Bihar State Housing Board and represents the said Board (hereinafter referred to as Board). The respondents to this appeal are (1 Shri Ramesh Kumar Singh (Petitioner in the writ petition), (2 State of Bihar, (3 Sub-Divisional Magistrate, Saraikella, District Singhbhum (the "competent authority") and (4 Shri S.N. Pandey, Adityapur, District Singhbhum (East).
(4) THE first respondent assailed the show-cause notice - Annx. Ext. P-4 - dated 16/12/1992 issued to him by the third respondent herein under Section 59 of the Bihar State Housing Board Act, 1982 in CWJC No. 82 of 1993 - High court of Patna. By judgment dated 10/2/1993 a division bench of the High court quashed Annx. Ext. P-4, show-cause notice, and also the Eviction Proceedings No. 6 of 1992 pending before the third respondent The Board, party-respondent in the writ petition, has filed this appeal against the aforesaid judgment dated 10/2/1993.
(5) THE broad facts relevant for the disposal of the appeal are in a narrow compass. The appellant-Board has allotted Quarter No. M-ll/(01d) Adityapur, near Jamshedpur, to the fourth respondent on hire-purchase basis. Under the provisions of 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 instalment is paid whereafter the ownership is transferred to the hirer by executing an appropriate conveyance. On this basis the fourth respondent, hirer, is a tenant of the Board. Section 58 of the Act states that the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act are inapplicable to the tenancy created by the Board. Section 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-l), the Government of 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 SDOs as competent authorities for the purposes of the Act. The third respondent is the competent authority within whose jurisdiction the instant building - Quarter No. M/ll (Old) Adityapur, near Jamshedpur is situate.
(6) THE fourth respondent, the allottee of Quarter No. M/ll(Old), Adityapur, near Jamshedpur, complained to the third respondent by communication dated 20/10/1992 (Annexure Ext. P-2 that he has been allotted the said building by the Board, and while he was residing with his family in the said building, the first respondent has forcibly and unauthorisedly occupied the first floor of the building. The third respondent forwarded the aforesaid communication to the appellant. The appellant by Annx. Ext. P-3 dated 15/12/1992 informed the third respondent, SDO that House No. MIG M/ll (Old) Adityapur, near Jamshedpur stands allotted to the fourth respondent and the application of the fourth respondent, which is self-explanatory, praying for eviction of the portion unauthorisedly occupied by the first respondent, is referred for necessary action. In this background, the third respondent issued Annx. Ext. P-4 notice dated 16/12/1992 to the first respondent which is
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