Case: West Bengal Housing Board Etc Vs. Brijendra Prasad Gupta and Others

of Appeal by the housing authority the same was allowed. Further appeal by the applicants to the House of Lords was dismissed. The following observations of Lord Brightman who spoke for the Court would be relevant: "In the instant case, the bona fides of the borough is not in dispute. On the facts in evidence, it is in my opinion plain that the council were entitled to find that the applicants were not homeless for the purposes of the Homeless Persons Act because they had accommodation within the ordinary meaning of that expression. My Lords, I and troubled at the prolific use of challenging the their functions under the Act of 1977. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused perversely, I think that great restraint should be exercised in giving leave to process by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg. Secretary of State for the Environment, Ex parte Nottinghamshire County Council. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely." * 29. In L. Chandra Kumar vs. Union of India the Court held that power of judicial review over legislative action vested in the High Court under Article 226 and in the Supreme Court under Article 32 is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of the High Courts and Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. No doubt under the Constitution power of judicial review of the action State or its authorities is unfettered but restraint should however be the hallmark of judicial review. 30. The Courts normally do not interfere in the policy matters of the State. If, however, the policy so formulated is against the mandate of the Constitution or a ny statutory provision it can certainly be tested on the principles of judicial review. When an act falls within the policy of the State which has been formulated for the benefit of the poor and needy and which policy cannot be faulted, court should stay its hands and need not examine the details minutely with a hands and need not examine the details minutely with a magnifying glass to find some fault here and there magnifying glass to find some fault here and there unless there are allegations of mala-fides. An overall view is to be taken of the matter and this potent weapon of judicial review cannot be used indiscriminately. 31. We find in the present back-drop the inability of the State Government and the Housing Board to me et the challenge to achieve the target of even constructing 50, 000 dwelling units in urban areas to tackle the acute problem of homelessness for different categories of people particularly those falling in Lower Income Group (LIG) and Middle In come Group (MIG) ; he State legislature amending the Housing Board Act and providing for incorporation of a joint sector company for executing the housing scheme on the terms and conditions to be approved by the State Government ; selection of the private entrepreneur for incorporation of the joint sector company with the Housing Board ; the Constitution of the Board of Directors of the joint sector company ; the control of the Housing Board and the State Government over the joint sector company to execute the scheme of the housing project ; control on the fixation of precise of the flats to be constructed by the joint sector company ; relevant factors taken into consideration for execution of the housing project and all these to tackle the urgent and growing need of providing shelter to the LIG and MIG people when it is not possible for these people to acquire a house of their own with escalating real estate prices ; it cannot be said that the public purpose is not being served or the incorporation of the joint sector company viz. Bengal Peerless Housing Development Company Ltd. and the execution of the housing project "Anupama" by this joint sector company, in the given circumstance s, on the land in question which is part of the bigger piece of land is not in public interest. The Housing Board acts as regulatory body and the State Government overseas the housing project and has also imposed certain terms and condit ions. No ulterior purpose has been alleged and it cannot be said that the power exercised by the State authorities are in any way arbitrary or irrational or there is any abuse of power. Rather the legal compulsion of the State and the Hou sing Board to get the housing project executed through a joint sector company is quite understandable.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are of the view that the provisions of service of notice stood complied when notices were served on the persons recorded as owners in the Record of Rights maintained under Section 50 of the WB Land Reforms Act. We are of the view that the provisions of service of notice stood complied when notices were served on the persons recorded as owners in the Record of Rights. Record of Rights is a statutory document maintained by the prescribed authority under Section 50 of the Act and it is a notice to the public at large as to who are the owners of the land in the records of the authorities. That would be the reason as to why writ petitioners themselves applied for mutation of the lands in their names in the year 1990 when in fact they had purchased the same in 1988. Under Section 3 ofthe West Bengal Land Reforms Act, 1955, the Act overrides other laws if there is anything inconsistent with what is stated in the Act. Section 50 of the Act provides for maintenance of thes by the prescribed authority by incorporating therein the changes on account of mutation of names as a result of transfer or inheritance or partition, exchange etc. Undern (9) of Section 51A every entry in thes shall be presumed to be correct, until it is proved that the entry in theright is incorrect, proceedings for that, however, will have to be initiated under the Act itself, Otherwise there s every presumption about the correctness of therights. As noted above mutation was effected in September 1995. The Division Bench has observed that the Collector would have been aware of the pendency of the applications of the writ petitioners for mutation of lands in their names when the same were pending in his office. The Bench in effect observed that it was a case where the right hand did not know what the left hand was doing . This observation sounds goods, but knowing the working of the Government offices it appears to have no place. Of course, the Collector could have asked for a report from the prescribed authority concerned if any application for mutation of the land was pending with him. But that would be expecting too much from the Collector. It is no part of the duty of the Collector to make a roving inquiry into ownership of the persons. We are of the opinion the requirements of the law wer e met when notices were served upon the recorded owners as per Record of Rights. Again we do not think in a case like the present one, it is for the Collector to make enquiries from registration office to find out if the land had since been sold by the recorded owners. In Winky Dilawari (Smt.) and another vs. Amritsar Improvement Trust, Amritsar (infra) this Court observed that the public authorities were not expected to go on making enquiries in thes trars office as to who would be the owner of the property. The Collector in the present case was thus justified in relying on the official record being the Record of Rights as to who were owners of the land sought to be requisitioned and prudence did not require any further enquiry to be made. We are therefore of the view that notices were properly served under Section 3(2) of the Act on the owners of the land.Before we further examine the rival contentions, we may have a look as to ho w the land was requisitioned on April 2, 1992, acquired on July 22, 1994, transferred to the Housing Board on December 8, 1994 and finally placed at the disposal of the Bengal Peerless Development Company Ltdn H.D. Vora vs. State of Maharashtra and others. relying on the earlier judgment of the Court in State of Bombay vs. Bhanji Munji which was a case underthe Bombay Land Requisition Act, 1948, the Court observed that it was not necessary that the order of requisition must explicitly set out the public purpose for which it was made and that the only requirement of the law was that the requisitioning must be made for a public purpose and that so long as there was a public purpose for which an order of requisition was made, it would be valid, irrespective of whether such public purpose was recited in the order of requisition or not. But then the State Government h as to show that the order of requisition was made for a public purpose and that necessary facts showing the public purpose for which the order of requisition was made would have to be established by the State Government from its record to the satisfaction of the Court. In that case the Court held that the order was not made for public purpose and further that the requisition could not be for an indefinite period. The Court was of the view that the order of requisition even though valid ceased to be valid and effective after the expiration of the reasonable period of time but at the same time the Court observed that if was not necessary for it to decide what period of time might be regarded as reasonable for the continuance of an order of requisition in a given case because ultimately the answer to that question case because ultimately the answer to that question must depend on the facts and circumstances of each case. This judgment in our view i s of no help to decide the issue now raised before us. It is a matter of common knowledge that there is acute shortage of housing accommodation both in rural and urban areas of the country. Since late the rural and urban areas of the country. Since late the prices of the real estate haved making it beyond the reach of low income and middle income people. State has a duty to perform to give shelter to homeless people specially to people in the low income group. In the pre sent case State was unable to meet this gigantic task. In the background of shortage of resources which the State has the legislature enacted the Housing Board Act and constituted the Housing Board to meal the challenge. Housing Board Act was amended to bring in the concept of joint venture in order to tag the resources of the private sector. Thus, a joint feature came into being as disclosed in the supplementary affidavit of the State as to how the process of starting of joint venture had gone into and how the Board of Directors of the joint sector company had been constituted and how the State and Housing Board exercise control over this joint sector enterprise.Simply because there is an element of profit could not make the whole scheme illegal. A private entrepreneur will certainly look to some profit but to see that the profit motive does not lead to exploitation even of the rich and that the houses are available to the poor people and to middle class people at nominal o affordable prices, or even on no profit no loss basis, the Housing Board exercises the necessary control. It is certainly a public purpose to provide houses to the community especially to poor people for whom the prices are beyond their means and they would otherwise be never able to acquire a houseWhat has been done in the present case is that the profit earned on sale of flats of HIG have been pumped into to subsidise the prices of the houses failing in LIG and in this t here would certainly be element of profit both for the Housing Board as well as the private company in the joint venture for selling flats of HIG. We fail to see how public purpose is not being served in the present caseCourt must shake off it s myth that public purpose is served only if the State, or the Housing Board or the joint sector company does not earn any profit. There cannot be any better authority than the State or the statutory corporation to supervise or monitor the functions of the joint venture company. Courts will certainly step in if the public purpose is sought to be frustratedIn the present case Directors appointed by the Housing Board/State on the Board of Directors of he Joint Venture Company would certainly see that no run away profit is earned and that sale price of HIG houses is guided by market forces but there is no exploitation. Every section of the society needs protection from exploitation. It is however not possible nor desirable to lay down any principle as to how this to be done in a particular caseIn L. Chandra Kumar vs. Union of India the Court held that power of judicial review over legislative action vested in the High Court under Article 226 and in the Supreme Court under Article 32 is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of the High Courts and Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. No doubt under the Constitution power of judicial review of the action State or its authorities is unfettered but restraint should however be the hallmark of judicial reviewThe Courts normally do not interfere in the policy matters of the State. If, however, the policy so formulated is against the mandate of the Constitution or a ny statutory provision it can certainly be tested on the principles of judicial review. When an act falls within the policy of the State which has been formulated for the benefit of the poor and needy and which policy cannot be faulted, court should stay its hands and need not examine the details minutely with a hands and need not examine the details minutely with a magnifying glass to find some fault here and there magnifying glass to find some fault here and there unless there are allegations of. An overall view is to be taken of the matter and this potent weapon of judicial review cannot be used indiscriminatelyWe find in the presentp the inability of the State Government and the Housing Board to me et the challenge to achieve the target of even constructing 50, 000 dwelling units in urban areas to tackle the acute problem of homelessness for different categories of people particularly those falling in Lower Income Group (LIG) and Middle In come Group (MIG) ; he State legislature amending the Housing Board Act and providing for incorporation of a joint sector company for executing the housing scheme on the terms and conditions to be approved by the State Government ; selection of the private entrepreneur for incorporation of the joint sector company with the Housing Board ; the Constitution of the Board of Directors of the joint sector company ; the control of the Housing Board and the State Government over the joint sector company to execute the scheme of the housing project ; control on the fixation of precise of the flats to be constructed by the joint sector company ; relevant factors taken into consideration for execution of the housing project and all these to tackle the urgent and growing need of providing shelter to the LIG and MIG people when it is not possible for these people to acquire a house of their own with escalating real estate prices ; it cannot be said that the public purpose is not being served or the incorporation of the joint sector company viz. Bengal Peerless Housing Development Company Ltd. and the execution of the housing project "Anupama" by this joint sector company, in the given circumstance s, on the land in question which is part of the bigger piece of land is not in public interest. The Housing Board acts as regulatory body and the State Government overseas the housing project and has also imposed certain terms and condit ions. No ulterior purpose has been alleged and it cannot be said that the power exercised by the State authorities are in any way arbitrary or irrational or there is any abuse of power. Rather the legal compulsion of the State and the Hou sing Board to get the housing project executed through a joint sector company is quite understandable.