Supreme Court of India
THE EXECUTIVE ENGINEER, BIHAR STATE HOUSING BOARDversusRAMESH KUMAR SINGH AND ORS.
- Citation
- 1995 INSC 769
- Decided
- 22 November 1995
- Disposal
- Appeal(s) allowed
Holding
A party must first show cause before the competent authority; a writ under Article 226 is not an appropriate remedy to challenge a show‑cause notice issued under Section 59 of the Bihar State Housing Board Act.
Summary
The Bihar State Housing Board allotted a quarter to respondent No.4 on a hire‑purchase basis, making the allottee a tenant until the final instalment is paid. Respondent No.1 forcibly occupied the first floor, prompting respondent No.4 to complain to the Sub‑Divisional Magistrate (respondent No.3), who issued a show‑cause notice under Section 59 of the Bihar State Housing Board Act, 1982. Instead of complying with the notice, respondent No.1 filed a writ petition under Article 226 of the Constitution seeking its quash, arguing that he was a tenant of the owner and that eviction should proceed under the Bihar Building (Lease, Rent & Eviction) Act. The Patna High Court quashed the notice, but the Board appealed. The Supreme Court held that the respondent was unjustified in bypassing the statutory remedy and that the dispute over ownership required investigation by the competent authority, not a writ under Article 226. Consequently, the High Court’s order was set aside and the appeal was allowed.
Issues considered
- The appropriateness of invoking Article 226 to quash a show‑cause notice issued under Section 59 of the Bihar State Housing Board Act without first showing cause before the competent authority.
- Whether the Sub‑Divisional Magistrate had jurisdiction to issue the eviction notice under the Housing Board Act given the hire‑purchase arrangement.
- Whether the hire‑purchase allottee is a tenant of the Board and the Board remains the owner for purposes of eviction.
Legislation cited
Subjects
evictionshow‑cause noticeArticle 226hire‑purchasetenancyjurisdictionprocedural remedyBihar State Housing Board Act
Judgment
THE EXECUTIVE ENGINEER, BIHAR STATE HOUSING BOARD A
v.
RAMESH KUMAR SINGH AND ORS.
NOVEMBER 22, 1995
B
[AS. ANAND AND K.S. PARIPOORNAN, JJ.)
Constitution of India-A1ticle 226-Scope of-Show cause notice for
eviction to an unauthorised occupant of Housing Board quarter-Occupant
denies ownership of Housing Board-Cliallenge to show cause notice by a
writ petition-Jnteiference, if wa1ranted-Bihar State Housing Board Act,
c
1982-Section 59.
The appellant allotted a quarter to respondent No. 4 on hire pur-
chase basis. Under the provisions of the Bihar State Housing Board Act,
1982 and the Bihar State Housing Board (Management and Disposal of D
Housing Estates) Regulations, 1983, the allottee of a quarter under hire
purchase scheme remains a tenant till the payment of last instalment
whereafter the ownership gets transferred to the allottee after execution of
appropriate conveyance deed. Section 58 of the Bihar State Housing Board
Act, 1982 makes provisions of the Bihar Building (Lease, Rent and Evic-
tion) Act inapplicable to the tenancies created by the Board. Under section E
59 of the Bihar State Housing Board Act, power is given to the Housing
Board to evict persons who are in unauthorised occupation of the tenanted
premises by making application to the competent authority. The Respon-
dent No. 3 was the competent authority under the Act.
F
Respondent No. 4 complained to respondent No. 3 that respondent
No.1 had forcibly and unauthorisedly occupied the first floor of the quarter
allotted to him by the Board. After confirming the fact that respondent No.
4 was the allottee of the said quarter, respondent No. 3 issued a show cause
notice to respondent No. 1 to explain as to why he should not be evicted
from the quarter. Respondent No. 1, instead of showing cause, approached G
the High Court under Article 226 of the Constitution of India praying that
the show cause notice may be quashed. Respondent Np. 1 contended that
respondent No. 4 W3$ the owner of the quarter having purchased the same
from the Housing Board and that he was a tenant under respondent No.
4 and therefore, he could be evicted only by resort to the provisions of the H
543
544 . SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.
A Bihar Building (Lease, Rent & Eviction) Control Act and not under the
Bihar Housing Board Act.
The High Court quashed the show cause notice on the ground that
respondent No. 1 is not a tenant of the Housing Board and therefore, the
Housing Board could not have initiated proceedings for his eviction under
B the Bihar Housing Board Act.
Allowing the appeal of the Housing Board, this Court
HELD : 1. On the facts of this case, the 1st respondent was unjus-
tified in invoking the extraordinary jurisdiction of the High Court under
c Article 226 of the Constitution of India, without first showing cause against
show cause notice before the 3rd respondent. [549-F-G]
2.1. According to the Housing Board and the 4th respondent the
hire-purchase transaction is still in force, and the ownership of the build-
D ing has not been finally transferred to the 4th respondent. The 1st respim-
dent 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 basic facts, on the basis of which jurisdiction of the 3rd respondent
to initiate/continue the proceedings, require investigation and adjudica-
tion. [548-D-E; G]
E
2.2. There is no 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 show cause notice is exfacie a "nullity" or totally "without jurisdiction"
F in the traditional sense of that expression - that is to say, that even the
commencement or initiation of the proceedings, on the face of it and
without anything more, is totally unauthorised. In such a case, for enter-
taining a writ petition under Article 226 of the Constitution of India
against a show-cause notice, at that stage, it should be shown that the
authority has no power or jurisdiction, to enter upon the enquiry in
G question. In all other cases, it is only appropriate that the party should
avail of the alternate remedy and show cause against the same before the
authority concerned and take up the objection regarding jurisdiction also.
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
H cases, by invoking the jurisdiction under Article 226 of the Constitution of
BIHAR STATE HSG. BOARD v. R.K. SINGH [PARIPOORNAN, J.] 545
India. [549-C-F] A
2.3. 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 B
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. [549-G-H; 550-A]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11187 of C
1995.
-
From the Judgment and Order dated 10.2.93 of the Patna High Court
in C.W.J.C. No. 82 of 1993 (R).
Ranjit Kumar for the Appellant.
D
Amarender Sharan for the Respondent No. 1.
S.K. Verma for the Respondent No. 4.
The Judgment of the Court was delivered by
E
PARIPOORNAN, J. Leave granted.
2. This is a typical case where the extraordinary discretionary juris-
diction 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. F
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 appeals are (1) Sri Ramesh Kumar Singh
(Petitioner in the Writ Petition), (2) State of Bihar, (3) Sub-Divisional G
Magistrate, Saraikella, District Singhbhum (the 'competent authority') and
(4) Sri S.N. Pandey, Adityapur, District Singhbhum (East).
4. The 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 H
546 SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.
A High Court of Patna. By Judgment dated 10.2.1993 a Division 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 petition, has filed this appeal against
the aforesaid judgment dated 10.2.1993.
B 5. The broad facts relevant for the disposal of the appeal are in a
narrow compass. The appellant Board has allotted quarter No. M-
11/(0ld) Adityapur, Near Jamshedpur, to the 4th respondent on hire-pur-
chase basis. Under the provisions of the Bihar State Housing Board Act,
1982 and the Bihar State Housing Board (Management and Disposal of
c Housing Estates) Regulations of 1983, detailed procedure for allotment,
payment of hire purcbwse amount, vesting of ownership on payment of the
last instalment by the hirer, procedure for summary eviction of un-
authorised occupation, etc. are provided. The hirer is a tenant of the Board
till the last instalment is paid whereafter the ownership is transferred to
D the hirer by executing an appropriate conveyance. On this basis the 4th
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
E occupation, by application to the competent authority'. By notification No.
3196/Patna dated 22.11.1973 (Annexure Ext. P-1), 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 S.D.O.S. as competent
authorities for the purposes of the Act. The 3rd respondent is the com-
F
petent authority within whose jurisdiction the instant building-quarter No.
M/11 (Old) Adityapur, Near Jamshedpur is situate.
6. The 4th respondent, the allottee of the quarter No. M/11 (Old),
Adityapur, Near Jamshedpur, complained to the 3rd respondent by com-
G munication 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 1st respondent has forcibly and unauthorisedly
occupied the first floor of the building. The 3rd respondent forwarded the
aforesaid communication to the appellant. The appellant by Annexure Ext.
H P- 3 dated 15.12.1992 informed the 3rd respondent, S.D.O. that House No.
BIHAR STATE HSG. BOARD v. R.K. SINGH [PARIPOORNAN, J.) 547
Mig M/11 (Old), Adityapur, Near Jamshedpur stands allotted to the 4th A
respondent and the application of the 4th respondent, which is self-ex-
planatory, 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 following effect :
B
"UNDER SECTION OF BIHAR HOUSING BOARD
ACT SHOW CAUSE NOTICE
To,
Shri, R.K Singh,
c
Contractor,
M-11, Adityapur,
Jamshedpur.
It appears from the petition of the Executive Engineer, Bihar D
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 Board.
You are hereby directed through this notice that to explain the
person or through an Advocate on 28.12.1992 at 10 AM. in the E
Court of undersigned that why not an order of eviction of the house
in question be passed.
Sd/-
Sub-Divisional Magistrate,
Saraikella F
16.12.1922"
(emphasis supplied)
7. It is seen that the 1st respondent instead of showing cause against G
Annexure Ext. P-4, straightaway approached the High Court by filing
CWJD No. 82/93 and assailed 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 proceeding under H
-·
548 SUPREME COURT REPORTS (1995) SUPP. 5 S.C.R.
A the Biha:r Building (Lease, Rent & Eviction) Control Act will lie for
eviction. So, he prayed for quashing Annexure Ext. P-4 show-cause notice
and the eviction proceedings.
8. The 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
B 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 bring a suit under the Bihar Buildings (Lease, Rent & Eviction) Control
c Act. In the result, Annexure 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 in appeal by special leave.
9. We heard counsel. It is common ground that Quarter No. M/11
D (Old) Adityapur, Near Jamshedpur, belongs to Board. According to the
Board and the 4th respondent the hire-purchase transaction is still in force,
and the ownership 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
E authority notified 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. Annexure Ext. P-4, notice, is the one so issued by
the 3rd respondent. The appellant and the 4th respondent complained
F 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 ownership 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
G and that he is a tenant under the 4th respondent. The basis facts, on the
basis of which the jurisdiction of the 3rd respondent to initiate/continue
the proceedings, require investigation and adjudication. If, as pleaded by
the appellant and the 4th respondent, the Board is the owner and the 4th
respondent is the hirer, it cannot admit of any doubt that the 3rd respon-
H dent has jurisdiction to initiate the proceedings as per Annexure Ext. P-4.
BIHAR STATE HSG. BOARD v. R.K. SINGH [P ARIPOORNAN, J.] 549
If that basic fact is denied by the 1st respondent, that may require inves- A
tigation of disputed facts and adjudication by the competent authority -
the 3rd respondent. Without showing cause against Annexure Ext. P-4,
notice, the 1st respondent straightway filed the Writ Petition in the High
Court and assailed Annexure Ext. P-4 and the eviction proceedings. The
averments in this regard, contained in paragraph 13(H) of the Special
B
Leave Petition, are not denied in the detailed counter affidavit filed by the
1st respondent in this Court.
10. We 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 no attack against the c
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, that even the commencement or initiation of the proceedings, D
on the face of it and without anything more, is totally unauthorised. In such
a case, for entertaining a Writ Petition under Article 226 of the Constitu-
tion of India against a show-cause notice, at that stage, it should be shown
- that the authority has no power or jurisdiction, to enter upon the enquiry
in question. In all other cases, it is only appropriate that the party should
avail of the alternate remedy and show cause against the same before the E
authority concerned and take 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.
F
11. On the facts of this case, we hold that the 1st respondent was
unjustified in invoking the extra-ordinary 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 G
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 dis-
puted questions of fact which require investigation. In such a case, H
550 SUPREME COURT REPORTS. (1995] SUPP. 5 S.C.R. ·
A proceedings under Article 226 of the Constitution can hardly be an ap-
propriate remedy. The High Court committed a grave error in entertaining
the Writ Petition and in allowing the same by quashing Annexure Ext. P-4
also the Eviction proceedings No. 6/92, without proper and fair investiga-
tion 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.
B We hereby do so. The appeal is allowed with costs.
B.K.M. Appeal allowed.
I
L
..·•.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "eviction"Sign in to search