LexTHE EXECUTIVE ENGINEER, BIHAR STATE HOUSING BOARD versus RAMESH KUMAR SINGH AND ORS.
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THE EXECUTIVE ENGINEER, BIHAR STATE HOUSING BOARD A v. RAMESH KUMAR SINGH AND ORS. NOVEMBER 22, 1995 [AS. ANAND AND K.S. PARIPOORNAN, JJ.) Constitution of India-A1ticle 226-Scope of-Show cause notice for eviction to an unauthorised occupant of Housing Board quarter-Occupant denies ownership of Housing Board-Cliallenge to show cause notice by a writ petition-Jnteiference, if wa1ranted-Bihar State Housing Board Act, 1982-Section 59. B c The appellant allotted a quarter to respondent No. 4 on hire pur- chase basis. Under the provisions of the Bihar State Housing Board Act, 1982 and the Bihar State Housing Board (Management and Disposal of D Housing Estates) Regulations, 1983, the allottee of a quarter under hire purchase scheme remains a tenant till the payment of last instalment whereafter the ownership gets transferred to the allottee after execution of appropriate conveyance deed. Section 58 of the Bihar State Housing Board Act, 1982 makes provisions of the Bihar Building (Lease, Rent and Evic- tion) Act inapplicable to the tenancies created by the Board. Under section E 59 of the Bihar State Housing Board Act, power is given to the Housing Board to evict persons who are in unauthorised occupation of the tenanted premises by making application to the competent authority. The Respon- dent No. 3 was the competent authority under the Act. Respondent No. 4 complained to respondent No. 3 that respondent No.1 had forcibly and unauthorisedly occupied the first floor of the quarter allotted to him by the Board. After confirming the fact that respondent No. F 4 was the allottee of the said quarter, respondent No. 3 issued a show cause notice to respondent No. 1 to explain as to why he should not be evicted from the quarter. Respondent No. 1, instead of showing cause, approached G the High Court under Article 226 of the Constitution of India praying that the show cause notice may be quashed. Respondent Np. 1 contended that respondent No. 4 W3$ the owner of the quarter having purchased the same from the Housing Board and that he was a tenant under respondent No. 4 and therefore, he could be evicted only by resort to the provisions of the H 543 544 . SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R. A Bihar Building (Lease, Rent & Eviction) Control Act and not under the Bihar Housing Board Act. B c The High Court quashed the show cause notice on the ground that respondent No. 1 is not a tenant of the Housing Board and therefore, the Housing Board could not have initiated proceedings for his eviction under the Bihar Housing Board Act. Allowing the appeal of the Housing Board, this Court HELD : 1. On the facts of this case, the 1st respondent was unjus- tified in invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India, without first showing cause against show cause notice before the 3rd respondent. [549-F-G] 2.1. According to the Housing Board and the 4th respondent the hire-purchase transaction is still in force, and the ownership of the build- D ing has not been finally transferred to the 4th respondent. The 1st respim- dent would say that the 4th respondent is the owner having purchased the building from the Board. The basic or fundamental fact is thus in dispute. The basic facts, on the basis of which jurisdiction of the 3rd respondent to initiate/continue the proceedings, require investigation and adjudica- E tion. [548-D-E; G] 2.2. There is no attack against the vires of the statutory provisions governing the matter. No question of infringement of any fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that show cause notice is exfacie a "nullity" or totally "without jurisdiction" F in the traditional sense of that expression - that is to say, that even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthorised. In such a case, for enter- taining a writ petition under Article 226 of the Constitution of India against a show-cause notice, at that stage, it should be shown that the authority has no power or jurisdiction, to enter upon the enquiry in G question. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also. In the event of an adverse decision, it will certai
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