SUDHINDRA NATH GHOSH Vs. DIST MAGISTRATE
LAWS(PAT)-1960-5-3
HIGH COURT OF PATNA
Decided on May 04,1960

SUDHINDRA NATH GHOSH Appellant
VERSUS
DIST. MAGISTRATE Respondents


Cited Judgements :-

SHIVESHWAR PRASAD SINHA VS. DISTRICT MAGISTRATE OF MONGHYR [LAWS(PAT)-1965-8-3] [REFERRED TO]


JUDGEMENT

- (1.)In this case the petitioners allege that they are owners of the house situated in holding No. 39 in circle No. 28 of the Patna Municipal Corporation, and in a portion of the house respondent No. 3, Sri Nigam Chakravarty, Sub-Deputy Collector, was in occupation as a tenant paying monthly rent for the portion so occupied. Respondent No. 3 was transferred to Dhanbad, and on the 3rd January, 1959, the petitioner received a notice from the District Magistrate of Patna. to the following effect :
"To Shri Sudhindra Nath Ghqse for self and for his brother Sri Sachindra Nath Ghose and Sri Rabin-dra Nath Ghose "Mohan Kutir" Devendra Nath Das Lane, Langertoli, Patna-4. Whereas Sri N. K. Chakervaty, Sub-Deputy Collector Patna who has been occupying house bearing holding No. 39 Circle No. 28, in Abul As Lane,, Langertoli, Patna-4, of the Patna, Municipal Corporation is vacating the house on or about 2nd January, 1959, I, B. Sinha, I.A.S., District Magistrate, Patna, in exercise of the powers conferred upon me Under Section 11(2) A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1955, do hereby allot the above house to Sri V, Prasad,, Treasury Officer, Patna, on the same condition of tenancy as prevailed with Shri N. K. Chakravarty. Given under my hand and! seal of the court this day the 27th December, 1958. Sd/- B. Sinha, 28-12-58. District Magistrate, Patna."
The case of the petitioners is that the order of the District Magistrate of Patna, dated the 28th December, 1958, which is quoted above, is illegal and ultra vires and ought to be quashed by a writ in the nature of certiorari under Article 226 of the Constitution.
(2.)The contention of the petitioners is that there is no compliance with the peremptory condition imposed by Section 11 (2) (a) of Bihar Act III of 1947 which is to the following effect :
"11. Eviction of tenant--(1) * * * * (2) (a) Where a servant of the Government in possession of any building as a tenant intends to vacate such building, he shall give fifteen days' pre vious notice in writing of his intention to do so to the landlord, and to the District Magistrate who shall under intimation to the landlord, within a week of the receipt of the notice, either allot the building to any other servant of the Government whom the District Magistrate thinks suitable subject to the payment of rent, and the observance of the conditions of the tenancy by such servant of the Government, or direct that the landlord shall be put in possession of the building : Provided that when no such order is passed by the District Magistrate, the landlord shall be deemed to have been put in possession of the building."
It was submitted! that respondent No. 3, Sri Nigam Chakravarty, did not give 15 days' previous notice in writing to the petitioners of his intention to vacate the building. It was also submitted that the District Magistrate had not made allotment of the building to respondent No. 2, the Treasury Officer of Patna, within a week of the receipt of the notice from respondent No. 3. It was contended that these conditions about notice are preliminary conditions on which the jurisdiction of the Magistrate making allotment under Section 11 (2) (a) of the statue depends. It was contended that since these conditions were not satisfied in this case, the District Magistrate had no jurisdiction to make allotment of the house to respondent No. 2, and the order of the District Magistrate dated the 28th December, 1958, is, therefore, illegal and ultra vires and must be quashed by a writ in the nature of certiorari.
(3.)There is no counter-affidavit on behalf of the respondents challenging the facts stated by the petitioners, namely, that they did not receive a notice from respondent No, 3 of his intention to vacate the building and there was no notice given by the District Magistrate a week prior to the vacation of the building of the allotment of the house to respondent No. 2. The case of the petitioners is that the order of allotment, which was dated the 28th December, 1958, was actually served upon the petitioners on the 3rd January, 1959, a day after the house was vacated by Sri Nigam Chakravarty.


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