C.W.J.C No. 4013 of 1994 ---- In the matter of an application under Articles 226 and 227 of the Constitution of India ---- BISWANATH PRASAD SINHA, son of late Dasrath Prasad Sinha, resident of M.I.G. 102, Kankarbagh, P.S. Kankarbagh, District- Patna….. Petitioner Versus 1. State of Bihar 2. Bihar State Housing Board, Mangles Road, Patna through its Managing Director. 3. Managing Director, Bihar State Housing Board, Mangles Road, Patna. 4. Estate Officer, Bihar State Housing Board, Mangles Road, Patna. 5. Jangbahadur Singh, son of Muni Singh, resident of village- Chauri, P.O. Sahar, District- Bhojpur….. Respondents. ----- For the Petitioner: Mr. Naresh Dikshit,Advocate Mr. Kunal Tiwary, Advocate For Respondent No.5:Mr. Umesh Prasad Singh, Senior Advocate For the State: Mr. Ajay Kuamr Sharma, A.C. to AAG-III --- P R E S E N T THE HON’BLE MR. JUSTICE RAMESH KUMAR DATTA ---- R.K.Datta,J. I.A. No.1729 of 2009 The interlocutory application has been filed for substituting the heirs and legal representatives of the sole petitioner, Bishwanath Prasad Sinha, who is stated to have died on 14.1.2002. It is stated that the applicant, Devendra Prasad Sinha, is the only son and legal heir of the deceased petitioner. In the facts and circumstances of the case, the prayer for substitution is allowed and it is directed that the name of the sole - 2 - petitioner, Bishwanath Pd. Sinha, shall be expunged and in his place his sole heir and legal representative, Devendra Prasad Sinha, shall stand substituted. I.A. No.1729 of 2002 is, accordingly, disposed of. Heard learned counsel for the petitioner and learned counsels for respondent No.5 and for the State. No one appears for the Housing Board, although the counter affidavit has been filed on its behalf in the case. The petitioner seeks quashing of letter dated 12.11.1981 issued by the Incharge Estate Officer, Bihar State Housing Board to respondent No.5, by which M.I.G. flat No.102 situated at Lohia Nagar has been allotted in his favour and for a direction to the respondent Board to allot the said flat to the petitioner and to execute a proper deed transferring the said flat in favour of the petitioner on hire purchase basis and for a further direction to the respondents not to disturb the petitioner’s possession over the flat in question save and except in accordance with law. The petitioner was allotted the said - 3 - M.I.G. flat by letter dated 19.7.1968 issued by the Under Secretary, Housing Department, Government of Bihar on temporary basis on payment of rent of Rs.107/- per month. It is stated in the said letter that before handing over possession to the petitioner, a written undertaking shall be taken from him that on the said house being allotted on regular basis to any person, he shall without any delay vacate the house. Subsequently by letter dated 20.7.1974 issued by the Secretary of the Bihar State Housing Board, the petitioner was informed that if he was desirous of purchasing the said MIG flat on rental-cum-hire purchase basis then he may inform the Board within 15 days from the date of receipt of the said letter whether he had made an application for hire purchase of a house and got his name registered on payment of Rs.50/-. The petitioner responding to the same by his letter dated 13.8.1974 informed the Board that he has deposited the necessary amount to get himself registered with the Housing Board. The petitioner also informed that he has complied with the other conditions laid down in the said letter and requested for allotment of the said flat to him. - 4 - Further communications on behalf of the Board followed in which he was directed to comply with other conditions and supply various documents; the petitioner claims to have complied with the same including by paying arrears of rent till June, 1974 as demanded. In his letter dated 21.4.1980, the petitioner asserted the said fact and stated that he had also deposited his certificate regarding income of Rs.12,000/- in the office of the Board as also deposited the rental amount till June, 1974 and with respect to the rental from July,1974 it was stated that whatever arrears are there, he was willing to deposit the same. By an office order No.111 contained in memo No.1889 dated 17.7.1979 issued under the signature of the Manager-cum- Estate Officer it was informed that the Allotment Sub-committee has taken a decision on 17.9.1979 that in the 100 newly constructed M.I.G. houses at Lohianagar five houses are to be allotted to the officers and employees and they were informed to send their applications accordingly. Thereafter, it appears that by order dated 21.1.1980 in the file, the Chairman of the Housing Board allotted - 5 - as many as 11 MIG flats to different officers/employees of the Board and flat No.247 was allotted to respondent No.5. Subsequently, by another note put up before the Chairman of the Board it was stated that allotment of flat No.102 on rent in favour of the petitioner should be cancelled on account of arrears of rent of Rs.17,495.16/- and the same be allotted to respondent No.5, Jang Bahadur Singh, as flat No.247 had subsequently been allotted to another person. Thereafter a letter dated 12.11.1981 was issued by the Incharge Estate Officer, by which House No.102 was allotted in favour of respondent No.5. Aggrieved by the said action, the petitioner filed C.W.J.C. No.4651 of 1981 before this Court and the same was ultimately disposed of as not pressed taking into consideration that in the meantime by two notifications bearing No.1145 dated 24.4.1982 and 808 dated 1.2.1982 issued by the State Government it had been decided to cancel all the allotments made by the Bihar State Housing board since 24.10.1981 in view of the persistent complaints, bunglings, etc. committed by the respondent Board in the matter of allotment and thus the impugned order - 6 - dated 12.11.1981 would also stand automatically cancelled. The petitioner thereafter filed another representation before the Housing Board to pass an order for permanent settlement and registration of the flat in question in view of the order passed by the High Court in the writ petition stating that he was willing to pay all dues which are still standing against him. By letter dated 4.5.1983 again certain documents were sought for from him by the Housing Board. In the meantime, respondent No.5 also filed C.W.J.C.No.4313 of 1983 praying for a direction to the respondent Housing Board to hand over the possession of MIG flat No.102 after evicting the petitioner ( arrayed as respondent No.5 in the said case ). In the said case earlier an interim order was passed on 29.8.1983 while issuing notice to this petitioner that during the pendency of the application it will be open to the Housing board to evict the tenant and hand over the possession of the flat in question to the present respondent No.5. The petitioner after appearing in the said case made a prayer to vacate the said interim order and by order dated - 7 - 30.8.1990, this Court passed an order for maintaining status quo. In the said case, counter affidavit was filed on behalf of the respondent Housing Board in which, inter alia, it was asserted that the allotment made in favour of respondent No.5 and others was made by the employees of the Board including the Secretary and only the order of the then Chairman was taken and the decision of the Board was never taken. It was further stated that flat No.247 was not vacant at the time of alleged allotment and thereafter flat No.102 was allotted to respondent No.5 after obtaining a report that the flat in question was booked and that there was arrear of rent to the extent of Rs. 17,495.16/- to pay till October, 1981, which was obviously wrong and incorrect. It was accepted that the proposal for allotting flats/houses in favour of the officers and employees of the Board was never placed either before the Allotment Sub-Committee or before the Board and the orders making allotment were issued by the then Manager-cum- Estate Officer knowing fully well that the said allotment is invalid in the eye of law. It was also stated that there - 8 - was no resolution passed by the Board on 21.1.1980 for allotting any flat/house to any other officers/ employees and any allotment issued on behalf of the Board without its approval is neither binding nor valid in the eye of law. It was further averred that out of 100 newly built up MIG houses only five were earmarked for the two categories of employees and not 12. It was also averred that respondent No.4 of the said case had no authority to cancel the allotment for any reason when the allotment in the past was made by the State Government specially when the application for allotment on hire purchase of the petitioner was pending before the Board. The writ application filed by respondent No.5,however, was permitted to be withdrawn by order dated 11.4.1994 on the basis of the statements made in paragraph Nos. 5 and 6 of the supplementary counter affidavit of the respondent Board filed on 6.4.1994 in which it was stated on the basis of the order dated 20.9.1983 passed by this Court and the decision of this Court quashing the Government notification in pursuance of which the allotment - 9 - of respondent No.5 was cancelled, it was ordered by the Managing Director on 27.6.1990 to evict the petitioner and deliver possession to the respondent No.5 and accordingly the action was being taken to evict the petitioner. It appears that Eviction Case No.109(E) 1981 was also initiated against the petitioner by the respondent Board but subsequently by letter dated 28.1.1984 of the Executive Engineer of the Board, the Engineer of the Board was directed to withdraw the said case in terms of the letter No.10962 dated 29.12.1983 issued by the Board Headquarters and the same was also admittedly withdrawn. In the counter affidavit filed on behalf of the Housing Board in the present matter the statements made in the earlier counter affidavit of the Housing Board in C.W.J.C. No.4313 of 1983 filed by respondent No.5, are reiterated stating that flat No.247 was allotted to respondent No.5 by the Chairman of the Board but the same was not done by the Board nor it was approved by it. It is also stated in the counter affidavit that the allotment of the petitioner was cancelled but before cancellation no demand notice appears to - 10 - have been issued to the petitioner. It is admitted that the petitioner had been asked to deposit the arrear of flat up to a particular period for allotment of the same to the petitioner on hire purchase basis which he had done by depositing of Rs. 6021/- on 16.8.1975 towards arrear or rent till June, 1974. It is further admitted in the counter affidavit that as per the decision of the Allotment Sub- Committee any flat out of newly built up 100 flats ought to have been allotted to respondent No.5 and not MIG flat No.102, which was to be allotted to the tenant of that flat, i.e., the petitioner. It is further clarified in the counter affidavit that the supplementary counter affidavit that was filed in C.W.J.C. No.4313 of 1983 was prepared on behalf of the Board on 7.12.1990, in paragraph Nos. 5 and 6 of which the statements were made, which were recorded in the order dated 11.4.1994 of the High Court while permitting the withdrawal of the writ petition. The said supplementary counter affidavit though prepared and signed on 7.12.1990, had been filed on 4.6.1994 and the same ought not to have been - 11 - filed belatedly because the state of affairs of the matter had been changed by that time and the order dated 29.9.1983 passed by this Court had been reconsidered and status quo order had been passed on 30.8.1990 and in view of the order dated 30.8.1990, the said supplementary counter affidavit ought not to have been filed. Apology has also been sought for the mistake of the counsel of the Board in this regard. In the counter affidavit filed on behalf of respondent No.5 the facts stated above have not been disputed but the ground has been taken that the writ application is barred by the principle of constructive res judicata, as in the earlier writ petition filed by the petitioner, the points raised herein ought to have been taken but were not taken. It is also the case in the counter affidavit that the petitioner’s allotment having been cancelled by the order dated 17.11.1983 he becomes a trespasser in unauthorized occupation and is not entitled to any relief, whereas respondent No.5 is a bona fide allottee of the Board. Learned counsel for the petitioner has taken me to the various averments made and the - 12 - Annexures to the writ petition as enumerated above. On the basis of the aforesaid facts and also the admission made by the Housing Board with respect to most of the issues raised by the petitioner, it is submitted by learned counsel that the petitioner was earlier allowed as a tenant as far back as on 19.7.1968 and has been continuing in possession of the said flat for the last 42 years. It is urged by learned counsel that the offer having come to the petitioner from the respondent Board to purchase the flat on the terms and conditions mentioned in the letter dated 13.8.1974 and those conditions having been admittedly complied with by the petitioner, it was not open to the Housing Board to have lingered the matter indefinitely and not taken a decision on his application for allotment of the said MIG Flat No.102. It is urged that since the requirements as per the offer made was to deposit the rent till June,1974 and the said requirement having been fulfilled along with the other requirements, the authorities of the Board were obliged to take a decision in favour of the petitioner and enter into a hire purchase agreement and duly register the same and for the - 13 - laches on the part of respondent Board, the petitioner cannot be penalized. It is further urged by learned counsel that no right could have accrued in favour of respondent No.5 until the application for allotment of the said flat was pending before the Board and without disposing of the said application, it was not at all open to the authorities of the Board to make fresh allotment. It is contended that the decision of the Allotment Sub-Committee dated 17.7.1979 was only to allot five out of 100 newly built- up MIG flats to the employees, and in in any view of the matter the flat No.102 which was in occupation of the petitioner since the year 1968 could not be considered as a newly constructed flat covered by the said decision after more than 11 years; hence the case of respondent No.5 could not have been considered for allotment of such an old flat not covered by the decision as communicated by the office order dated 17.7.1979. Learned counsel further submits that it is admitted by the respondent Board in its counter affidavit that as a matter of fact there was no valid authority in the eye of law in - 14 - favour of respondent No.5 and whatever has been done in his favour was in view of manoeuvring and manipulations made by the employees and officials of the respondent Board in his favour. It is urged that the power to make recommendation and the allotment itself has only been given to the Board itself and not to any its officials including even the Chairman. The said fact having been admitted in the counter affidavit of the Board, the allotment of the flat in question in favour of respondent No.5 must be treated as illegal, non est and ab initio void. It is further urged that there is no question of any constructive res judicata in the matter as no issue was decided in the earlier writ petition filed by the petitioner, which was disposed of as not pressed in view of the prevailing situation that the writ petition had become infructuous since the impugned order dated 12.11.1981 stood automatically cancelled in terms of the general orders dated 24.8.1982 and 1.2.1982 passed by the State Government with regard to all allotments made by the Housing Board since 24.10.1981. It is submitted that in such circumstances, there can be no application - 15 - of the principle of constructive res judicata. Learned counsel contends that the Board itself having realized its mistake in the matter of cancelling the allotment as tenant and taking steps to evict the petitioner thereafter, withdrew the Eviction Case No.109 of 1981 which tantamounts to abandonment of the cancellation order, and thus there would be no occasion or need to challenge the same. Learned counsel contends that in any view of the matter, the petitioner could not have been evicted except in accordance with the provisions of the Bihar State Housing Board Act and admittedly no such procedure has been followed. Learned counsel for the respondent No.5, on the other hand, submits that the petitioner having not pressed his earlier writ petition and not raised the contentions that have been raised in the present application, the same are barred by the principle of constructive res judicata. It is further submitted by learned counsel that the petitioner’s allotment was cancelled by the Housing Board’s letter dated 17.11.1983, but at no stage the petitioner has challenged the aforesaid cancellation and thus he is a - 16 - trespasser in unauthorized occupation and not entitled to any relief. It is also urged by learned counsel that the petitioner in his letter dated 21.4.1980 admits that there is an arrear of rent after July, 1974 and thus for the said reason also the cancellation of allotment of the flat in question was justified and accordingly, the allotment made in favour of respondent No.5 ought not to be touched. It is lastly submitted by learned counsel that the order of allotment being an administrative order, between the two parties, that is, the petitioner and respondent No.5, the petitioner does not have a better right since he was found not eligible in terms of the cancellation of his allotment by order dated 17.11.1983 and the same, therefore, ought not to be set aside. I have considered the submissions of learned counsels for the parties and the materials on the record. At the out-set, this Court is of the view that there can be no application of the principle of constructive res judicata in the facts and circumstances as enumerated above. The earlier - 17 - writ petition was not pressed by the petitioner in the given circumstances that the order impugned therein itself stood cancelled by reason of the two orders of the State Government. Thus, no issue remained to be decided by the Court or could have been decided under such circumstances and the writ petition itself had become infructuous. In the said situation the petitioner had rightly withdrawn the writ petition. The petitioner was well within his right to not press the writ petition as nothing remained to be decided. So far as the present writ petition is concerned, it has arisen in view of the subsequent development when this Court in a batch of writ petitions quashed the orders of the State Government by which all allotments made by the Housing Board since 24.10.1981 were cancelled, as a result of which steps were being taken by the respondent authorities to disturb the petitioner. In the said circumstances since no issue has been decided in the earlier writ petition, there can be no question of applicability of the principle of res judicata or constructive res judicata. - 18 - So far as the merits of the matter are concerned, the petitioner had applied for purchase of the flat in question in terms of the offer made by the Housing Board and from the materials on the record it appears that he had complied with all the requirements as made in the said offer, including that of depositing the arrears of rent up to June, 1974. That having been done it was incumbent upon the respondent authorities of the Housing Board to have taken a decision on his application for allotment. Without deciding the same one way or the other, it was not open to them to take collateral action treating him as a tenant, who has defaulted in the payment of arrears of rent since those issues could have arisen only after the rejection of his application for allotment by the Housing Board in his favour on hire purchase basis. In any view of the matter, it is evident that power has been conferred upon the Housing Board under Section 59 of the Bihar State Housing Board Act, 1982 to evict any person from the premises of the Board by adopting a summary proceeding which includes issuing a notice in writing calling upon the person whether - 19 - authorized to occupy or otherwise in occupation of the premises to show cause why the order of eviction and recovery of arrears of rent and damages should not be made. Such notice is also required to specify that order of eviction and recovery of arrears of rent or damages is proposed to be made. It is admitted in the counter affidavit filed by the Housing Board that no such steps were taken, but straightaway in order to benefit the respondent No.5 and on the basis of a written report obtained, the so-called order of cancellation of allotment as a tenant was passed. It is evident that the petitioner had been inducted into the premises by the State Government and the Act does not provide for cancellation of any such allotment but only for the eviction under Section 59 of the Act. The Board, in fact, had filed Eviction Case No. 109 (E) 1981 against the petitioner but subsequently it was withdrawn and thus it cannot be said that the petitioner continues to be in occupation of the premises unauthorizedly as a trespasser on account of the order dated 17.11.1983, which is on the face of it non est, illegal and void ab initio, apart from having been abandoned and - 20 - given up by the Board itself. So far as the allotment made to respondent No.5 is concerned, from the materials on the record, it is evident that there was no such decision taken by the Allotment Sub- Committee or the Housing Board of making any such allotment to any of its employee with respect to flats and houses which had been constructed a long time back. It took a decision to allot only 5 out of 100 M.I.G. newly built up flats/houses to its officers/employees and the MIG Flat No. 102 was evidently not a newly built up flat when such decision was taken and thus no such allotment could have been made in favour of respondent No.5 as also admitted in the counter affidavit of the Housing Board. Moreover under regulation 25 it is clearly provided that the property in Patna shall be allotted by the Board and in other areas, the Board shall constitute a committee at the Divisional level for the said purpose. The flat in question being situated at Patna, the allotment could only have been made by the Board itself. It is admitted in the counter affidavit of the respondent Board that for allotment of - 21 - flat No.247 earlier as also subsequently flat No.102 in favour of respondent No.5, no recommendation was made by the Allotment Sub- Committee nor it was approved by the Housing Board. Thus, on this issue itself the allotment made in favour of respondent No.5 on the basis of the letter dated 12.11.1981