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2009 DIGILAW 819 (ALL)

KRISHNA CHANDRA MAURYA v. STATE OF U. P.

2009-03-19

DILIP GUPTA, S.K.GUPTA

body2009
JUDGMENT By the Court.—This writ petition has been filed by the petitioner for a direction to the respondents to hand over the possession of the Flat No. 4 Nagar Nigam Awas Vikas Colony Shivpur, Varanasi to the petitioner. 2. A further prayer by way of amendment has been added for quashing the order dated 29.11.2005 whereby the allotment made in favour of the petitioner was cancelled by the Nagar Ayukt, Nagar Nigam, Varanasi. 3. The background facts in a nutshell are essentially as follows : 4. The Nagar Nigam, Varanasi has developed and constructed several flats in Shivpur Colony, Varanasi for providing housing accommodation on a low rent to the persons who did not have houses of their own. The flat No. 4 was allotted to respondent No. 4 Shri Prakash Maurya on certain conditions in the year 1996. Sri Prakash Maurya subsequently constructed his own house and started living therein and sublet the aforesaid Flat No. 4 to another person on high rent and flouted the conditions imposed upon him. The petitioner applied for the allotment of the accommodation in the office of the Nagar Nigam. After physical verification, authorities of Nagar Nigam, Varanasi by order dated 16.7.2005 cancelled the allotment order which was in favour of Shri Prakash Maurya and the disputed flat was thereafter allotted in favour of the petitioner and the Nagar Nigam executed documents on 19.7.2005 with respect to the disputed flat. In compliance of the terms and conditions as provided, petitioner deposited Rs. 4,169/- as rent in advance for 11 months. The respondent No. 4 Sri Prakash Maurya i.e. the erstwhile allottee approached this Court by filing a Writ Petition No. 55862 of 2005 and this Court after hearing both the parties dismissed the writ petition with a direction to the petitioner Sri Prakash Maurya to vacate the accommodation in question within 15 days and further directed that if he does not vacate the disputed flat peacefully then the authorities of the Nagar Nigam will take steps for forcible ejectment. It appears that no effective steps were taken to get the disputed flat vacated despite the representations made by the petitioner to the concerned authorities. 5. It appears that no effective steps were taken to get the disputed flat vacated despite the representations made by the petitioner to the concerned authorities. 5. As such the present writ petition was filed with the prayer to direct the respondents to hand over the possession of the disputed flat to the petitioner on the basis of the order dated 16.7.2005 allotting the disputed flat in favour of the petitioner. It appears that in order to flout the order passed by this Court in Writ Petition No. 55862 of 2005 the allotment of the disputed flat was made in favour of one Shamsher Khan the Tax Superintendent in Nagar Nigam, Varanasi. Therefore, the petitioner filed a Contempt Petition No. 3648 of 2006 before this Court and this Court was pleased to pass the following order : “Heard learned counsel for the applicant and perused the Affidavit which has been filed by the opposite party Sri Shamsher Khan in response to the order dated 27.9.2006 whereby charges have been framed against him. Sri C.K. Parekh has also produced the correspondence undertaken by the person Nagar Ayukt, Nagar Nigam, Varanasi, vide letter dated 30.9.2006. This action has been proposed in the background in which the contemner had been allotted the premises in question in spite of the direction of this Court to maintain status-quo. According to the said letter and according to the Affidavits brought on record, the order of allotment in favour of Sri Shamsher Khan has been cancelled and the possession has been resumed from him. The letter dated 30.9.2006 of the Nagar Ayukt states that the orders dated 7/10.7.2006 had been obtained due to inadvertence and due to the order of this Court having escaped the notice of the then Nagar Ayukt, for which the subordinate officials were responsible. Considering the aforesaid facts and considering the unqualified apology tendered by the contemner who has already purged the contempt, the charges are dropped and the contempt petition is consigned to records with a warning to the opposite party not to indulge in future which may amount to interference with the orders of this Court. It shall be open to the authorities to proceed under the letter dated 30.9.2006 in accordance with law. It shall be open to the authorities to proceed under the letter dated 30.9.2006 in accordance with law. It is also noteworthy to mention that the order cancelling the allotment of the applicant is under scrutiny in Writ Petition No. 64705 of 2005 which is still pending.” 6. It appears that the order of allotment in favour of Shamsher Khan was cancelled and the possession was also resumed from him and as such the order of allotment in favour of petitioner of the disputed flat was restored. In the meantime before passing of the order dated 4.10.2006 in the contempt petition, the Nagar Nigam cancelled the allotment order dated 16.7.2005 which existed in favour of the petitioner by order dated 29.1.2005 merely on the ground that the fixation of rent while allotting the disputed flat in favour of the petitioner was not proper. Hence the present writ petition. 7. Learned counsel for the petitioner has submitted that the cancellation order dated 29.11.2005 is absolutely illegal and arbitrary. The Nagar Nigam without giving any opportunity of hearing has passed the impugned order in violation of the principles of natural justice. It is further submitted that the allotment has been made in favour of the petitioner in accordance with law and the rent was fixed in accordance with the Govt. order which provided that fresh allotment can be made after enhancing the rent by 50% of the existing rent and after every 5 years 12.5% rent can be enhanced. It is further submitted that the rent in respect to the earlier allottee Shri Prakash Maurya respondent No. 4 was fixed Rs. 250/- per month and as such after increasing the rent by 50% of the existing rent the disputed flat was allotted in favour of the petitioner @ Rs. 379/- per month, as such no illegality was committed in fixing the said rent and allotting the disputed flat in favour of the petitioner. It is further submitted that the order has been passed illegally and malafidely in order to flout the order of this Court and to allot the disputed flat in favour of its own employee. 8. On the other hand the learned counsel appearing on behalf of Nagar Nigam, Varanasi has supported the impugned order dated 29.11.2005 and stated that there is no infirmity in the said order. 8. On the other hand the learned counsel appearing on behalf of Nagar Nigam, Varanasi has supported the impugned order dated 29.11.2005 and stated that there is no infirmity in the said order. It is further submitted that since the allotment was made in favour of the petitioner without adopting any legal procedure and the rate of rent was also fixed arbitrarily without any basis, therefore, cancellation of the allotment is fully justified. 9. No one has appeared on behalf of respondent No. 4 Sri Prakash Maurya despite the written notice served upon the learned counsel. 10. We have heard learned counsel for the parties and perused the record. 11. Admittedly the petitioner was allotted the disputed flat by order dated 16.7.2005 and the rent was fixed @ 379/- per month but instead of delivering the possession to the petitioner the allotment was made in favour of one Sri Shamsher Khan posted as Tax Superintendent in Nagar Nigam, Varanasi which led to the filing of the present writ petition as well as Contempt Petition No. 3648 of 2006. During the pendency of the contempt petition the Nagar Nigam cancelled the allotment in favour of Sri Shamsher Khan and this Court while disposing of the contempt petition strictly warned the authorities of Nagar Nigam not to pass any order in future which may amount to interference with the orders of this Court. It is noteworthy that prior to the filing of the contempt petition the Nagar Nigam cancelled the allotment of the disputed flat made in favour of the petitioner by order dated 29.11.2005. The impugned order has been passed merely on the ground that neither any legal procedure was adopted nor the competent authority fixed the rate of rent of the disputed flat. According to the Nagar Nigam the rate of rent was to be fixed in the light of the Government Order which provided the fixation of rent on the basis of carpet area and the rent was not fixed by the Nagar Ayukt but was fixed by Assistant Nagar Ayukt without taking approval from the Nagar Ayukt. The learned counsel for the Nagar Nigam apart from the aforesaid ground, could not pin point any other irregularity in the allotment of the disputed flat in favour of petitioner. 12. The learned counsel for the Nagar Nigam apart from the aforesaid ground, could not pin point any other irregularity in the allotment of the disputed flat in favour of petitioner. 12. Learned counsel for the petitioner has placed the Government Order dated 25.8.1977 which is applicable to the flats/houses which are owned by Nagar Maha Palika of various districts including Varanasi which provides the guidelines for the fixation of rent. It further provides in paragraph 2 that fresh allotment can be made after increasing the rent by 50% of the existing rent and the increment of 12.5% of rent is to be made after every 5 years. Admittedly the earlier allottee was paying Rs. 250/- per month as rent for the disputed flat and the said disputed flat was subsequently allotted to the petitioner by order dated 16.7.2005, after fixing the rent @ Rs. 279/- per month. As such the Government Order dated 25.8.1977 was fully complied with. 13. Learned counsel for the Nagar Nigam has failed to place any document or any Government Order which provides that rent will be charged on the basis of the market value of the carpet area. Admittedly the disputed flat ought to be allotted to the people belonging to the low strata of the society, who do not possess any house of their own as such no such condition of charging rent on the basis of market value of the carpet area can be envisaged. The grounds taken by the Nagar Nigam for cancelling the allotment of the petitioner are superficial, casual and too technical and as such cannot be sustained. Record of the case further shows that no opportunity of any nature was afforded to the petitioner by the Nagar Nigam before cancelling the allotment. Therefore, the impugned order cancelling the allotment is in utter violation of the principles of natural justice and is liable to be set-aside. In any case, even if there was any error in fixing the rent, the Authorities would have increased the rent, but this could not have been made a ground to cancel the allotment. 14. Therefore, the impugned order cancelling the allotment is in utter violation of the principles of natural justice and is liable to be set-aside. In any case, even if there was any error in fixing the rent, the Authorities would have increased the rent, but this could not have been made a ground to cancel the allotment. 14. In view of the aforesaid discussions, the writ petition is allowed and the order dated 29.11.2005 cancelling the allotment of the disputed flat i.e. Flat No. 4, Nagar Nigam Awas Vikas Colony Shivpur, Varanasi is quashed and the Nagar Nigam, Varanasi is directed to hand over the peaceful possession of the said flat to the petitioner within a period of one month from the date of receipt of a certified copy of this order. However, it will be open to the Nagar Nigam, Varanasi to refix the rent in accordance with law after giving opportunity to the petitioner. ————