Case Note & Summary
The dispute arose from a show cause notice issued by the Sub-Divisional Magistrate, Saraikella (competent authority) under Section 59 of the Bihar State Housing Board Act, 1982, against Ramesh Kumar Singh (first respondent) in relation to House No. M-11 (Old), Adityapur, Near Jamshedpur. The Bihar State Housing Board had allotted the house to S.N. Pandey (fourth respondent) on hire-purchase basis, and while he was residing there with his family, the first respondent allegedly forcibly occupied the first floor. The fourth respondent complained to the competent authority on 20.10.1992; the Executive Engineer (appellant) forwarded the complaint to the same authority, which then issued show cause notice Ext. P-4 dated 16.12.1992 directing the first respondent to explain why an eviction order should not be passed. Instead of showing cause, the first respondent filed CWJC No. 82/93 in the Patna High Court under Article 226 of the Constitution challenging the notice and the eviction proceedings. He contended that the fourth respondent was the owner having purchased the house from the Board, that he was a tenant under the fourth respondent, and that only the Bihar Buildings (Lease, Rent & Eviction) Control Act, not the Housing Board Act, applied; hence the competent authority lacked jurisdiction. The High Court accepted this and by judgment dated 10.2.1993 quashed the show cause notice and eviction proceedings, holding that the first respondent was not a tenant of the Board and the Board had no jurisdiction. The Board appealed to the Supreme Court by special leave. The Supreme Court noted that the ownership status of the house was disputed: the Board and fourth respondent claimed the hire-purchase transaction was still in force and ownership had not been transferred to the fourth respondent, while the first respondent claimed the fourth respondent was the absolute owner and the first respondent was a tenant under him. The Court observed that the competent authority had been notified by the State Government under Section 2(10) of the Bihar State Housing Board Act to initiate summary eviction proceedings for sub-letting or unauthorised occupation of Board premises. If the Board was the owner and the fourth respondent was only a hirer, the competent authority clearly had jurisdiction. However, since the basic facts were disputed, an investigation and adjudication by the competent authority was necessary. The first respondent had bypassed this statutory forum and directly approached the High Court without even filing a show cause. The Court held that a writ petition under Article 226 against a show cause notice is not maintainable unless the notice is ex facie a nullity or totally without jurisdiction. There was no challenge to the vires of the statutory provisions and no allegation of infringement of fundamental rights. The notice was not ex facie without jurisdiction. The appropriate course for the first respondent was to file objections and place necessary materials before the competent authority and invite a decision on whether the proceedings under Section 59 were justified. Only after an adverse decision could he challenge it in appeal, revision, or under Article 226 in appropriate cases. The Court concluded that the High Court committed a grave error in entertaining the writ petition and quashing the notice and eviction proceedings without proper investigation of basic facts. Accordingly, the Supreme Court allowed the appeal with costs and set aside the High Court judgment, leaving the first respondent to contest the matter before the competent authority.
Headnote
A) Constitutional Law - Writ Jurisdiction - Maintainability Against Show Cause Notice - Constitution of India, 1950, Article 226 - A writ petition under Article 226 against a show cause notice is not maintainable unless the notice is ex facie a nullity or totally without jurisdiction; no attack on vires of statutory provisions or infringement of fundamental rights was alleged, and the notice was not ex facie without jurisdiction (Paras 10-11). Held that the High Court erred in entertaining and allowing the writ petition prematurely. B) Administrative Law - Alternate Remedy - Exhaustion of Statutory Remedies - Bihar State Housing Board Act, 1982, Section 59 - When a competent statutory authority has jurisdiction to hold an enquiry, the party must avail the alternate remedy and show cause before that authority, raising objections regarding jurisdiction; if adverse decision is passed, party can challenge it in appeal/revision or under Article 226 in appropriate cases (Paras 10-11). C) Housing Law - Summary Eviction - Jurisdiction of Competent Authority - Bihar State Housing Board Act, 1982, Sections 58, 59; Bihar State Housing Board (Management and Disposal of Housing Estates) Regulations, 1983 - The basic fact whether Board or fourth respondent owned the premises and whether hire-purchase transaction was in force required investigation; if Board is owner and fourth respondent is hirer, competent authority has jurisdiction under Section 59; first respondent denied this fact by claiming fourth respondent was owner and he was tenant under him, so disputed facts required adjudication by the competent authority, not writ court (Paras 9, 11). D) Practice and Procedure - Writ Petitions - Disputed Questions of Fact - Constitution of India, 1950, Article 226 - Proceedings under Article 226 are inappropriate when adjudication involves disputed questions of fact; the High Court committed grave error by allowing the writ petition and quashing show cause notice and eviction proceedings without proper investigation of basic facts; appeal allowed with costs and High Court judgment set aside (Paras 9-11).
Issue of Consideration
Whether a writ petition under Article 226 of Constitution of India is maintainable against a show cause notice issued under Section 59 of the Bihar State Housing Board Act, 1982 without first showing cause before the competent authority, especially when disputed questions of fact regarding ownership and jurisdiction are involved.
Final Decision
Appeal allowed with costs; judgment of High Court of Patna in CWJC No. 82/93 dated 10.2.1993 set aside. The first respondent was to show cause before the competent authority and raise all objections, including jurisdictional objections, before that authority; the competent authority was to adjudicate disputed questions of fact after investigation.
Law Points
- Article 226 not available against show cause notice unless ex facie nullity or without jurisdiction
- alternate remedy must be exhausted
- disputed questions of fact not for writ court
- competent authority under Section 59 Bihar State Housing Board Act has jurisdiction if Board owns property and allottee is hirer
- show cause notice not to be quashed prematurely
