G. B. Pattanaik, J. - (1.) This appeal is directed against the Division Bench judgment of Patna High Court dated 27th March, 1984 in C. W. J. C. No. 1564 of 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.
(2.) Respondent No. 1 had been posted as Deputy Secretary in the Local Self-Government Department of that State Government at Patna in the year 1962. At the point of time different authorities were considering the case of allotment of house site or flats and the respondent No. 1 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. 1 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 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 he 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. 72-D in Sri Krishna Puri has been allotted in his favour pursuant to the application of the year 1961. On receipt of the said information 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 has 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. Ultimately 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. 1 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. 1 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 of 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 even though 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 not intimated 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 that 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 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 by filing 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.
(3.) 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 their 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 inoperative 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. Sanyal, learned senior counsel appearing for the allottee 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 cancelled by the allotting authorities. Mr. Sanyal, learned senior counsel further contended that the High Court had interfered with the impugned order of cancellation after having held equity lies in favour of the allottee respondent No. 1 and that equitable relief granted should not be interfered (with) by this Court under Article136 of the Constitution.;