CIVIL WRIT JURISDICTION CASE No.176 OF 1993 In the matter of an application under Articles 226 And 227 of the Constitution of India. THE BIHAR STATE HOUSING BOARD THROUGH ITS MANAGING DIRECTOR SUDHIR KUMAR RAKESH, IAS, MANGLES ROAD, PATNA-- ------------PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE JOINT SECRETARY, BUILDING CONSTRUCTION & HOUSING, GOVERNMENT OF BIHAR, PATNA. 3. GAURI SHANKAR PRASAD S/O LATE RAJNI PRASAD R/O MOHALLA- 13/456, FLAT NO. L.I.G., HANUMAN NAGAR, PS. KANKARGABH, DISTT----- PATNA 4. PHULCHAND RAM S/O LATE PANAN RAM, R/O VILLAGE- AKOLHI, PS. BIJANPUR, DISTT- SIWAN------- RESPONDENTS. --------- For The Petitioner: Mr. Rajiv Nayan Singh, Advocate Mr. Sanjay Kumar Singh, Advocate For The Respondent No.4: M/s. Binod Kumar & Ravi Kumar Advocates ----------- P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI A.K.Tripathi,J Petitioner Bihar State Housing Board is aggrieved by the order passed by the Joint Secretary, Building Construction Department in Appeal No. 71 of 1989 which is order dated 19.11.1990 contained in annexure-1. The appellate authority has set aside the order passed by the competent authority in favour of the Housing Board which is order dated 12.9.1988 in Eviction Case No. 7 of 1987, annexure-2. The background to the dispute is that one Sri Gauri Shankar Prasad respondent no.3 was found to be rank outsider and trespasser with regard to flat No. 13/455 located in Hanuman Nagar. The property in question belongs to Bihar State Housing Board and the same was initially allotted in favour of respondent - 2 - no.4, namely, Phulchand Ram. There is some reflection that Sri Gauri Shankar Prasad probably occupied the flat as a tenant of respondent no.4, the original allottee. But this has been denied by respondent no.4 which may not or may have much of relevance as of now. Gauri Shankar Prasad never appeared before the competent authority but based on record and submission the competent authority did come to a conclusion that he was a trespasser and deserved to be removed from the property. Sri Gauri Shankar Prasad thereafter decided to file an appeal. The appeal was heard and order dated 19.11.1990 was passed in favour of the appellant. The Housing Board therefore decided to challenge the said order because the same is not only based on erroneous consideration but even beyond the competence of the authority to decide or pass direction as has been done in the present case. Attention of the Court has been drawn to the “Niskarsh”, the conclusion, reached by the appellate authority. The appellate authority categorically refers that Gauri Shankar Prasad is not an encroacher but no reasoning has been assigned as to how he has reached that conclusion. Not only this to make it worse certain directions had been issued to the Housing Board that he shall be treated as a tenant of the house in question till the Housing Board decides to take a decision and make allotment in his favour. It is seriously contested on behalf of the petitioner that it is not within the domain and power of the appellate authority to - 3 - dispense favour by way of allotment to be made in favour of the appellant, more so when the very right and interest of such a person has not been established. A plain reading of the conclusion reached by the appellate authority compels the Court to accept the submission made on behalf of the petitioner. There is neither any reasoning nor the material on which the conclusion has been reached and it is not understood as to how the kind of relief directing allotment in favour of the appellant treating him to be a tenant in the meanwhile can be passed. The appellate authority had to render his opinion on the findings and the reasonings given by the competent authority but he has acted as dispenser of privilege which in the opinion of the Court is not within his domain. This writ application is allowed and the impugned order 19.11.1990 contained in annexure-1 is quashed. However, there will be no order as to cost. (Ajay Kumar Tripathi, J.) Patna High Court, Patna Dated the 3rd December, 2008 NAFR (RPS)