Back
1988 Supreme(Pat) 358
PATNA HIGH COURT
Uday Sinha and B.P.Singh JJ.
Shaikh Mohammad Aliand Dr.Geeta Singh
Versus
Bihar State Housing Board
Civil Writ Jurisdiction Case No. 2200 of 1988 ; 4410 of 1988 ;
Decided On : OCTOBER 14, 1988
A public authority cannot ignore an encroachment on public land and allow construction on such land.
Headnote:
LAND ALLOTMENT - CO-OPERATIVE SOCIETY - PUBLIC PARK - ENCROACHMENT - JURISDICTION OF PRDA - VALIDITY OF ALLOTMENT - INTERPRETATION OF COURT ORDER - FRAUD ON COURT - PUBLIC INTEREST: 1. The Patna Secretariat Ministerial Officers Co-operative House Construction Society Ltd. was allotted 10.31 acres of land by the Housing Department for allotment to its members. 2. The Society encroached upon a large park, which was not part of the allotted land, and carved out eight plots for its members. 3. The petitioners, who were members of the Society, obtained sanction for construction on the encroached land from the Patna Regional Development Authority (PRDA). 4. The PRDA, upon realizing the encroachment, revoked the sanction and rejected the applications for sanction of plans for the remaining petitioners. 5. The petitioners challenged the PRDA's actions in two writ petitions: C.W.J.C. No. 4410 of 1988 (filed by the petitioners who had obtained sanction) and C.W.J.C. No. 3200 of 1988 (filed by the petitioners who had not obtained sanction). 6. The Court held that the PRDA had the jurisdiction to ignore the allotment of land to the petitioners by the Society and to stop the construction. 7. The Court found that the allotment of land to the petitioners was not valid as it was not part of the land allotted to the Society by the Housing Department. 8. The Court also found that the petitioners had obtained the sanction for construction by fraud and misrepresentation. 9. The Court dismissed C.W.J.C. No. 4410 of 1988 and allowed C.W.J.C. No. 3200 of 1988. 10. The Court directed the PRDA to remove the encroachment from the large park.
Fact of the Case:
The Patna Secretariat Ministerial Officers Co-operative House Construction Society Ltd. was allotted 10.31 acres of land by the Housing Department for allotment to its members. The Society encroached upon a large park, which was not part of the allotted land, and carved out eight plots for its members. The petitioners, who were members of the Society, obtained sanction for construction on the encroached land from the Patna Regional Development Authority (PRDA). The PRDA, upon realizing the encroachment, revoked the sanction and rejected the applications for sanction of plans for the remaining petitioners.
Finding of the Court:
The Court held that the PRDA had the jurisdiction to ignore the allotment of land to the petitioners by the Society and to stop the construction. The Court found that the allotment of land to the petitioners was not valid as it was not part of the land allotted to the Society by the Housing Department. The Court also found that the petitioners had obtained the sanction for construction by fraud and misrepresentation.
Issues: 1. Whether the PRDA had the jurisdiction to ignore the allotment of land to the petitioners by the Society and to stop the construction? 2. Whether the allotment of land to the petitioners was valid? 3. Whether the petitioners had obtained the sanction for construction by fraud and misrepresentation?
Ratio Decidendi: 1. The PRDA had the jurisdiction to ignore the allotment of land to the petitioners by the Society and to stop the construction because the allotment was not valid as it was not part of the land allotted to the Society by the Housing Department. 2. The allotment of land to the petitioners was not valid as it was not part of the land allotted to the Society by the Housing Department. 3. The petitioners had obtained the sanction for construction by fraud and misrepresentation.
Final Decision: The Court dismissed C.W.J.C. No. 4410 of 1988 and allowed C.W.J.C. No. 3200 of 1988. The Court directed the PRDA to remove the encroachment from the large park.
Uday Sinha, J.
1. These two writ applications under Articles 226 and 227 of the Constitution have been heard together as they relate two sides of the same coin. The matter being allied, both of them will be disposed of by this common judgment at the admission stage itself. Counsel for the parties have been heard at length.
2. Vigorous submissions were advanced on behalf of the parties. The point, however, calling for consideration is short and simple and admits of no difficulty. In order to bring home the point I shall set the facts appearing in C.W.J.C. No. 4410 of 1988. The expression petitioners shall refer to petitioners in this writ petition.
3. Some Ministerial Officers of the Patna Secretariat formed a Housing Co-operative Society under the name and style of Patna Secretariat Ministerial Officers Co-operative House Construction Society Ltd. The eight petitioners also were members of that Society. The Society itself is respondent No. 5 to this application. The Society was allotted 10.31 acres of land in the year 1967 by the Housing Department for allotment to its members. A deed to that effect was executed by the Housing Department on 22-12-1967. The order of allotment was in respect of 321 Kathas measuring approximately 10.81 acres which was to be allotted to 127 members. The order of the State Government was conveyed by Assistant Secretary to Government addressed to Superintending Engineer Rural Housing Cell, Housing Department, by letter dated 23-1-1967. This letter is Annexure A/1 to the counter affidavit of respondent No. 1 in C.W.J.C. No. 3200 of 1988. In this letter it had been stated that 127 plots had to be carved out. Sixty plots were to be of 2 kathas each and sixty seven plots were to be of 3 kathas each. The State Government also mentioned that till the issuing of Annexure A/1 only 122 names had been approved by the Government for allotment. The other five would be approved as and when appropriate revised affidavits of the members were received in the department, for which the Society had been requested by letter No. 120 dated 7-1-1987. In short, the grant of land by the Housing Department of the State Government was in regard to specified area meant to be allotted to specified individuals. All the petitioners were mentioned in the list annexed to the letter of the Assistant Secretary, Housing Department (Annexure A/1). Four of the petitioners were to be allotted 3 kathas land and four of them 2 kalthas.
4. It appears that some jugglery, in the matter of allotment of plots, was committed by the powers controlling the Co-operative Society inasmuch as the eight petitioners, who had been mentioned in Annexure A/1, were left high and dry and no plot was allotted to them. Other disputes also cropped up in the matter of allotment of plots. That gave rise to disputes under Sec. 48 of the Bihar and Orissa Co-operative Societies Act and an award was passed by Joint Registrar, Co-operative Society on 22-9-1975. The Joint Registrar, set aside the order of the Deputy Registrar dated 21-10-1974. Four writ applications came up before the High Court relating to the disputes about the allotment of plots, They were C.W.J.C. No. 2416 of 1976, 630 of 1977, 219 of 1977 and 272 of 1977. All of them were disposed of by a common judgment by K. B. N. Singh, C. J. and P. S. Sahay J. The matter was ultimately resolved by consent order. It transpired before their Lordships that there were 136 persons out of whom the allotment had been made only to 127 persons and nine members had name of his wife/husband or minor children had been left without any allotment. Their Lordships thinking of the situation that for the sake of nine persons the entire allotment was in jeopardy six years after registration of the deed of allotment and since construction also had been made on numerous plots their Lordships suggested that with some accommodation the nine persons left out should also be accommodated. The suggestion of the bench bore frui
