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PETITIONER: BIHAR STATE HOUSING BOARD & ORS.

       Vs.

RESPONDENT: SATYA NARAYAN PRASAD (DEAD) BY THE LRS. & ORS

DATE OF JUDGMENT:       28/01/1998

BENCH: G.B. PATTANAIK, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.B. Pattanaik, J.      This appeal  is directed  against  the  Division  Bench judgment of  Patna High  Court dated  27th  March,  1984  in C.W.J.C. No.  1564 to  1983. By  the impugned judgment Patna High  Court   has  quashed  the  order  of  cancellation  of allotment in  favour of  Respondent No.1  on the ground that the foundation  of issuing the order of cancellation becomes non est.      Respondent no.1  had been posted as deputy Secretary in the Local Self-Government Department of the State Government at Patna  in the  year 1962. At that point of time different authorities were  considering the case of allotment of house site or  flats  and  the  respondent  no.I  had  made  three different applications  for allotment  of land  and/or flat. His first  application for  allotment of  plot of land under Middle Income  Group Scheme  in Sri Krishna Puri area was in the year  1961 and  this application  was made  to the Patna Improvement Trust  which Authority  later on  was  known  as Patna Regional  Development Authority.  He also made another application on  8th February,  1962 for allotment of a piece of land  to the  Housing Department in Srikrishna Nagar area under Low  Income Group  Housing Scheme.  He had also made a third application to the Housing department in the year 1965 for allotment  of a residential flat in Kankarbagh area. He, however,  was   not  successful   in  getting  the  flat  in Kankarbagh area  but by  letter dated  21st June,  1962, the Government communicated to respondent no. 1 that he has been allotted a  Plot in  Srikrishna Nagar for which some initial deposits were  required to  be made.  In accordance with the aforesaid letter  of allotment  the said respondent no.1 did make the  initial deposit  on 26th  June, 1962.  The earlier application  made  by  the  respondent  no.I  to  the  Patna Improvement Trust  for allotment  of a  plot of  land in Sri Krishna  Puri  remained  undisposed  of.  On  17.4.1965  the respondent  no.1  filed  an  affidavit  before  the  Housing Department, Government of Bihar stating therein that neither he nor his wife nor any of his minor child possess any house or land  within urban  areas of Patna and in the event it is found any of them have possession of such house or land then

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the State  of Bihar in the Housing Department shall have the right to  cancel the  allotment and  to forfeit  the earnest money in  addition to  any criminal  prosecution. He further undertook to  inform the  Secretary to the Government in the Housing Department  if the  acquires any house or plot after the date  of the  said affidavit.  Substantially in the same manner another  affidavit was also sworn to on 29.4.1965 and was submitted  before the  State Government. On 2.8.1966 the Patna Improvement Trust communicated to the respondent no. 1 that Plot  no.72D in  Shri Krishna Puri has been allotted in his favour  pursuant to the application of the year 1961. On receipt of  the said intimation the respondent no.1 made the initial deposit  as required  and then  got  the  said  land allotted  in  the  name  of  his  wife  and  the  Registered agreement to  that effect  was  executed  on  19.4.1967.  On 7.7.1967 the  Housing  Department  made  some  query  as  to whether the  respondent no. 1 or his wife, mother, father or dependent child  had been allotted any plot of land or house by any  Governmental Agency  to which  the  respondent  no.1 alleges to  have given a reply on 29.7.67. The Housing Board as well  as the  Housing Department, however, denied receipt of the  aforesaid communication  from the  respondent  no.1. Utility the  respondent no.1  entered into  a  hire-purchase agreement with  the Housing Department  on 7.12.1970 and the delivery of  possession was  given on  19.12.1970. The  land that had  been allotted  to respondent  no.1 in  Sri Krishna Puri area  was given  Possession  to  respondent  no,  1  on 12.1.1971 and  the other land which had been allotted in Sri Krishna Nagar  area was  given possession  on 10.12.1971. It may be  stated that  after getting possession of the land in Sri Krishna Puri area on 12.1.1971 the said respondent no. I had not  intimated  this  fact  to  the  Housing  Department notwithstanding his  undertaking  in  the  affidavits  dated 15.4.1965 and  29.4.1965,  referred  to  earlier.  The  said respondent no.1  built a house on the plot of land which was allotted to  him  in  Sri  Krishna  Puri  area  and  started residing in  the same.  So far  as the  land which  had been allotted in  Sri Krishna  Nagar area,  though the respondent no. I  took possession  of the  same on  10.12.1971, but  no construction had  been raised  thereon till 1982. It was the stipulation in the agreement that the houses should be built within 36  months from  the date  of allotment.  Bihar State Housing Board which is the successor Authority in the matter of allotment  of land issued a notice to the respondent no.1 on 18.6.1982  requiring him  to show cause why the allotment in his favour be not cancelled since he had failed to comply with the  terms of agreement regarding construction of house over the  plot land  within 36  months. A reply was given to the aforesaid notice indicating therein that respondent no.1 had started  construction of a house and reason for delay in starting the  construction was  the shortage  of funds.  The said Housing Board, however, issued a fresh notice on 6.9.82 calling upon  the respondent  no.1 to  show  cause  why  the allotment in  his favour  should not  be cancelled  for  the reason that  he had submitted a false affidavit and obtained an allotment  of land from the Patna Improvement Trust event through by  the date  of entering  into the agreement he had already acquired  a plot  of land  and had  taken possession thereof in  Sri Krishna  Puri area  but had  no intimate the said fact to the concerned Authorities. Pursuant to the said notice dated  6.9.82 the  respondent no.1 did send his reply on 8.9.82  and the stand taken therein is then since Housing Department did  not ask  him to  give any information at the time of  handing over possession of land he was not required to give  such information.  Not  being  satisfied  with  the

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aforesaid reply  and having  found that  the respondent no.1 had already  been given  possession of a plot of land in Sri Krishna Puri  area the  said Housing Board finally cancelled the order of allotment made in favour of the respondent no.1 in  Sri   Krishna  Nagar  area  by  order  dated  19.3.1983. Aforesaid order of cancellation was challenged by respondent no.1 lining  a Writ Petition before the Patna High Court and by the impugned judgment Patna High Court having allowed the Writ petition  and quashed  the order  of cancellation,  the present appeal has been preferred.      Mr. Ranjit  Kumar, learned  counsel appearing  for  the appellant contended  before us that under the relevant rules in force  dealing with  the allotment  of land  in Municipal area of Patna no person can be allotted a plot/flat/house if he, his  wife  or  any  dependent  children  have  in  there possession a  plot of land/flat or house and, therefore, the allotment of  the land  in Sri  Krishna Nagar  area and  the handing over of possession of the same to the respondent no. 1 is  invalid and  imperative and,  therefore, the Competent Authorities have  rightly cancelled the same. The High Court committed gross  error in interfering with the said order of cancellation. He further contended that the respondent no. 1 had filed  an affidavit stating therein that he would inform the Secretary of the Government in the Housing Department of Bihar if  he acquires any house or land within the Municipal area and  that undertaking  not having  been adhered  to the Authorities concerned  were fully  within  their  powers  to order cancellation  of the  land allotted and the High Court was in  error in interfering with the order of cancellation. Mr.  Sandal,   learned  senior  counsel  appearing  for  the allotted respondent no.1 on the other hand contended that at no point  of time  the respondent  no.1 has  filed any false affidavit and he had duly intimated the facts and yet if the second allotment  of plot  of land is made in his favour the same could not be canceled by the allotting authorities. Mr. Sandal, learned  senior counsel  further contended  that the High  Court  had  interfered  with  the  impugned  order  of cancelation after  having held  equity lies in favour of the allotted respondent  no.1 and  that equitable relief granted should not  be interfered by this Court under Article 136 of the Connotation.      After the  Independence of  the country  the desire  of citizens to  have houses in urban areas gradually increased. With the  rapid  industrial  growth  when  cities  began  to develop people  became crazy  to have houses in Urban areas. State  Governments  started  exercising  control  over  such acquisition and  framed Rules and Regulations indicating the guiding principle  of allotment of land/house in the cities. Different Housing  Societies came  into  existence  in  some States and  different independent  bodies like State Housing Boards and Regional Improvement Authorities were created for allotment of lands after developing the same to cater to the need of  the public.  Almost in every State uniform rule was applied to  the fact  that no  applicant would be allotted a plot of  land or  a house  if he, his wife or his department children are  in possession  of land  or a  house within the Municipal limits.  The State  of Bihar  also framed a set of rules for settlement of land acquired and developed at Patna under Low Income Group Scheme as well as Middle Income Group Housing Scheme  called "the  Rules for  Settlement  of  Land Acquired and Developed by the State Government at Patna."      Rule 9  of the  said Rules  speaks of  the  undertaking required to be given in writing by an allotted.      Rule 14  of the  said Rule  clearly stipulates that the land would  be settled  with  individuals  who  do  not  own

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residential house nor any land for construction of houses of Patna in  their names or in the names of any member of their family and who are in genuine need of houses.      The expression  "family" has  been defined  in 2(g)  to mean family  includes the  wife or husband and the following relations of the applicant who are entirely dependant on him sons and  step-sons, daughters  and step-daughters,  parents and minor  brothers. Rule   2(g),  Rule 9  and Rule  14  are quoted here in below in extension:-      "Rule 2(g) - "family" includes the wife or the husband, and the  following  relations  of  the  applicant,  who  are entirely dependent  on him:-  sons and  step-sons, daughters and step-daughters, parents and minor brothers;      Rule  9   -  Every  allotted  shall  have  to  give  an undertaking in  writing that  the settlement  is on  his own behalf and  exclusively for  his own use, and that if at any time subsequent  to the  allotment  it  is  found  that  the allotted was  a Farzidar, or that he took settlement of land on behalf  of any  other person  or person,  the  Government shall have the right to cancel the allotment and to re-allot to any  other suitable person or persons, and to forfeit the entire amount deposited by him towards the cost of the land.      Rule 14  - The  land shall  be settled  primarily  with individuals who  do not own residential houses, nor any land for construction  of hoses at Patna in their names or in the names of  any member  of their family and who are in genuine need of houses."      A combined reading of the aforesaid rules make it clear that an individual will not be entitled to an allotment of a second plot or a second house within the Municipal limits if he or  any of the member of his family is in possession of a plot or  house within  the Municipal limits. Admittedly, the respondent no.  I had  been allotted  a plot  of land in Sri Krishna Puri  and possession  had been  given  to  him  much earlier to  the date  on which he got possession of the land in Sri  Krishna Nagar and in terms of the aforesaid Rules he was not entitled to get the allotment of land in Sri Krishna Nagar.  In  that  view  of  the  matter  the  allotment  and possession of  the land  in favour of the respondent no.1 in Sri Krishna  Nagar was liable to be cancelled being contrary to the  Rules of  Allotment and  the Competent  Authorities, therefore, rightly cancelled the same.      That apart  it also  transpires from the records of the case  that   respondent  no.1   had  given   an  unequivocal undertaking to the effect that he would intimate the fact of acquisition of  any house  or land  if he acquires any after the date  of the  affidavit.  The  expression  "acquisition" would obviously  mean the  date on which the payment for the allotted land  is  made,  the  agreement  entered  into  the possession delivered.  A mere  letter of allotment would not tantamount to  acquisition of  the land  in  question.  That being the  position by  the date  the respondent  no. 1  was given possession  of the  land in  Sri Krishna Nagar area he had already got the possession of a land in Sri Krishna Puri area. On  that piece  of land  he had  built a house and was resident. The  fact that  he had already received possession of a  plot of land in Sri Krishna Puri area on 12.1.1971 had not been intimated to the Housing Department of Bihar at any p[point of  time notwithstanding  the  undertakings  by  the respondent  no.1  in  his  affidavits  dated  15.4.1965  and 29.4.1965. Thus  the respondent no.1 had not carried out the undertaking  and   had  not   intimated  the   fact  of  his acquisition of  plot  of  land  in  Sri  Krishna  Puri  area notwithstanding his  solemn undertaking  and as  such cannot claim any  equitable relief.  The High Court was, therefore,

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wholly in  error in  granting the  relief sought  for on  an equitable consideration.  We  are  also  of  the  considered opinion that  in the  matter of  allotment of  land within a Municipal area  in accordance with the Rules and Regulations framed buy  the   State Authorities  no citizen can claim to get more  than one  plot of  land house  and the  plea a  of equitable relief is wholly misconceived.      In the  aforesaid premises,  we see  no  illegality  or infirmity with  the order  of the cancellation passed by the State Government  and the  High Court was wholly in error in interfering with  the order  of cancellation  passed by  the authorities in  exercise of extraordinary jurisdiction under Article 226  of the Constitution.  Accordingly, we set aside the impugned  judgment of the Patna High Court and hold that the order  of cancellation  of the  plot of land allotted in favour of  respondent   no.1 in  Sri Krishna  Nagar area  is legally valid.  The Writ  Petition fief  by the  respondent, therefore, stands dismissed and this appeal is allowed.      Before parting  with the case a disquieting feature was brought to  our notice,  namely, an  affidavit of a dead man was filed  in the  Registry by  the  concerned  advocate-on- record but  later on  he has  tried to  wriggle out  of  the situation by  trying to  exclude the document from the Paper Book. We  have already  directed for  an  enquiry  into  the matter as  to how  the  concerned  Oath  Commissioner  could attest the signature of the deponent of the date on which he was no alive. We would have also taken a serious view of the matter against  the advocate-on-record who filed the same in the Registry  of this  Court but we refrain from doing so in view of  the unconditional apology tendered by the advocate- on-record in  course of  hearing. We, however, would observe that the  atmosphere of  the Court  may not  be polluted  by filing of  any forged  document  for  some  benefit  in  any individual case  and no advocate-on-record who is an officer of the  Court  should  involve  himself  in  filing  such  a document.