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High Court of Patna
Aftab Alam & D.S. Dhaliwal, JJ.
Anil Kumar Sinha - Petitioner
Versus
The Bihar State Housing Board & Ors. - Respondents
C.W.J.C. no. 6617 of 1988
Decided On : 2.9.1998
BIHAR STATE HOUSING BOARD ACT - SECTION 59(1)(B) - SECTION 83A(3) - SECTION 23 - SECTION 109 - ALLOTMENT OF HOUSE - UNAUTHORISED OCCUPATION - EVICTION - CANCELLATION OF ALLOTMENT - DIRECTION BY GOVERNMENT - POWER OF GOVERNMENT - VALIDITY OF ALLOTMENT - COMPLIANCE WITH FORMALITIES - CONSTRUCTION AND INDUCTION OF TENANTS - VIOLATION OF UNDERTAKINGS - CONTEMPT PROCEEDINGS - REFUND OF PAYMENTS - CLAIMS FOR DAMAGES - LEGAL FRAMEWORK APPLIED BY COURT.
Fact of the Case:
Anil Kumar Sinha, a retired Lieutenant Colonel of the Indian Army, was the original allottee of M.I.G. House no. 237 in Patna, constructed by the Bihar State Housing Board. The allotment was valid, and a registered hire purchase agreement was executed in his favor. However, the Board failed to give him possession due to unauthorized occupation by respondent no. 5, Dhirendra Kumar, a practicing lawyer. Despite the Board's efforts to evict respondent no. 5, the Government strangely directed the Board to allot the house to him. The Board complied, canceling Sinha's allotment and allotting the house to respondent no. 5 without any agreement or conveyance of title. Respondent no. 5 continued to occupy the house in breach of several material terms and conditions of the allotment order and undertakings given to the court. Sinha died during the pendency of the case, and his heirs pursued the relief sought by him.
Finding of the Court:
The court found that the allotment of the house to respondent no. 5 was illegal and unsustainable. The resolution taken by the Board to cancel Sinha's allotment and allot the house to respondent no. 5 was quashed. The court also found that respondent no. 5's occupation of the house was illegal, as he had entered the house by breaking the law and continued to occupy it in an unlawful manner. The court further found that respondent no. 5's actions in making constructions and inducting tenants for running shops violated the conditions of allotment and his undertakings to the court.
Issues: 1. Whether the allotment of the house to respondent no. 5 was valid and legal. 2. Whether the Board could cancel Sinha's allotment and allot the house to respondent no. 5 based on the Government's direction. 3. Whether respondent no. 5's occupation of the house was lawful. 4. Whether respondent no. 5's actions in making constructions and inducting tenants violated the conditions of allotment and his undertakings to the court.
Ratio Decidendi: 1. The court held that the allotment of the house to respondent no. 5 was illegal and unsustainable. The Board's resolution to cancel Sinha's allotment and allot the house to respondent no. 5 was quashed. 2. The court held that the Government's direction to the Board to allot the house to respondent no. 5 was not a valid exercise of its powers under sections 23 and 109 of the Bihar State Housing Board Act. The Government could issue general directions concerning policy matters but not specific directions of the kind contained in that letter. 3. The court held that respondent no. 5's occupation of the house was illegal, as he had entered the house by breaking the law and continued to occupy it in an unlawful manner. 4. The court held that respondent no. 5's actions in making constructions and inducting tenants for running shops violated the conditions of allotment and his undertakings to the court.
Final Decision: The court allowed the writ petition filed by Sinha's heirs and directed respondent no. 5 to vacate the house within two months. In case of failure to vacate, the Board was directed to evict him with the help of the Collector, Patna. The court also directed the Board to hand over possession of the house to Sinha's heirs upon making the necessary payments and complying with the provisions of the rules within three months.
Aftab Alam, J.
One Anil Kumar Sinha, a retired Lieutenant Colonel of the Indian Army (since deceased) was the original allotee of M.I.G. House no. 237 situate at Lohianagar, Kankarbagh colony, Patna, constructed by the Bihar State Housing Board ('the Board', hereinafter). The allotment made in favour of Sinha was proper and valid and on his making payment(s) in accordance with the Board's demand(s), a registered hire purchase agreement concerning the house was also executed in his favour by the Board. However, the Board had been unable to give him possession of the house. This was because the house came in unauthorised occupation of one Dhirendra Kumar, respondent no. 5, a practising lawyer who, according to the Board, had forcibly entered into the house. While the Board's efforts to have respondent no.5 evicted was yet to yield result, the Government strangely asked the Board to allot that house to respondent no. 5. The Board meekly followed the Government's direction. It allotted the house to respondent no.5 and cancelled its earlier allotment made in favour of Sinha quite unmindfully that its contract with Sinha was concluded by a registered agreement of hire purchase and that contract could be avoided only in terms of that agreement and not by any unilateral action on its part, the 'Board being one of the contracting parties. The occupation of the house by respondent no.5 which had its origin in the breaking of the law was thus sought to legitimised, at the instance of the Government, in complete disregard of the rights of Sinha. On the basis of that allotment, which was not followed by any agreement, or any conveyance of title, respondent no.5 continues to be in occupation of the house committing breach with complete nonchalance, of several material terms and conditions of the allotment order, apart from the undertaking given to this court. In the meanwhile, seeking relief before this Court Sinha died-one more victim of the delay in the judicial process. And now it is his heirs who pursue this case and seek the relief originally sought by Sinha.
2. This is the sum and substance of this case. Now to state these facts in greater detail.
3. The aforesaid Anil Kumar Sinha on 31.1.1973 made an application for allotment of a house under priority quota for defence personnel. He was intimated by letter no. 4449, dated 2.5.1975 (Annexure 1) issued by the Manager, Land Allotment-cum-Deputy Secretary in the Board that the Board had decided to allot M.I.G. House no. 237 situate at Lohianagar, Patna in his favour. By that letter he was asked to deposit 20% of the assessed value of the house and the land (Rs. 63,800/-) and some other incidental charges amounting to Rs. 12,810/- within thirty days from the receipt of the letter. Sinha made the payment as advised and complied with the other conditions of allotment following which a hire purchase agreement in respect of the house was executed by the Board in his favour which was registered on 26.10.1978 (Annexure 2). Clause 19 of the agreement enumerated the contingencies in which the allotment/settlement of the house made in favour of Sinha could be cancelled by the Board.
4. In the affidavit filed in this case on behalf of the Board it is plainly stated that the allotment of the house in favour of Sinha was proper and valid and he had made payment of all the demands made by the Board in accordance with the rules.
5. It is an admitted position that not, withstanding the issuance of the allotment letter and the execution of the hire purchase agreement the board was unable to give possession of the house to Sinha because it was not in a vacant state.
6. The Board then filed a petition before the Executive Magistrate, Sadar, Patna (giving rise to Case no. 518/19791 TR/129/1980) seeking summary eviction of respondent no.5 from M.I.G. House no. 237 in terms of section 59 (1) (b) of the Bihar State Housing Board Act. In this petition the Board besides seeking eviction of respondent no.5 f
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