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2013 DIGILAW 574 (GAU)

Phulzari Basfor v. Union of India

2013-08-16

A.K.GOSWAMI

body2013
JUDGMENT Arup Kumar Goswami, J. 1. Heard Mr. A. Ahmed, learned counsel for the petitioners, Mr. S. Bora, learned Standing Counsel, Guwahati Municipal Corporation and Mr. M. Bhagawati, learned State Counsel. Office note dated 18.06.2007 indicates that notices were duly served upon the Respondents No. 6 to 13. Office note dated 25.0.2007 has also indicated that learned CGC had entered appearance on behalf of respondents No. 1 & 5. However, they are not represented. 2. By this writ application under Article 226 of the Constitution of India, the writ petitioners, who are five in number, have called in question the order(s) dated 21.02.2005 by which quarters were allotted to the respondents No. 6 to 13. 3. It is stated in the writ petition that there are two colonies, namely, Solapar and Morasali, in Guwahati city where more than five hundred Harijan families have been residing. They are working in various organizations. Large numbers of them are also working as Safai Karmacharies in the Guwahati Municipal Corporation, for short, 'GMC'. The Ministry of Urban Development and Poverty Alleviation Department, Government of India had sponsored a scheme known as "Construction of housing for Safai Karmacharies at slum pockets at Morasali Harijan colony and Solapara Harijan colony" and the construction of quarters were entrusted to the respondent No. 5. The scheme envisaged construction of 232 units at Solapara Harijan colony and 304 units at Morasali Harijan colony. The scheme was not restricted to Safai Karmacharies of Guwahati Municipal Corporation, but was meant for all Safai Karmacharies working in various organizations. The petitioners who were residing in the said two colonies were directed to hand over vacant possession for the purpose of construction of dwelling houses by the respondent No. 5 with the assurance that they will be provided one room and a kitchen space after completion of the construction. Subsequently, the petitioners were evicted from the said two colonies. 232 flats came to be constructed in Solapara Harijan colony and they were handed over to GMC. Thereafter, by various orders passed on 21.02.2005, many of the units came to be allotted to various persons including respondents No. 6 to 13. 4. The writ petitioners seek to challenge the order(s) dated 21.02.2005 so far as they relate to the respondents No. 6 to 13 only and not all of them. 5. Thereafter, by various orders passed on 21.02.2005, many of the units came to be allotted to various persons including respondents No. 6 to 13. 4. The writ petitioners seek to challenge the order(s) dated 21.02.2005 so far as they relate to the respondents No. 6 to 13 only and not all of them. 5. In paragraph 9 of the writ petition it is stated as follows: That your petitioners beg to state that the Respondent No. 3 issued the aforesaid Allotment Orders in a very arbitrary, whimsical and illegal manner. One Shri Dinanath Basfor, the Respondent No. 6 has managed to got allotment of six (6) quarters in Ground Floor of Block D and three (3) quarters in First Floor in the name of his all family members. The Respondent No. 7 Smti Geet Basfor, wife of Respondent No. 6 got her allotment in Block D (Quarter No. 6). The Respondent No. 8 Smti Gayatri Basfor, daughter of Respondent No. 6 got her allotment in Block D (Quarter No. 2). The Respondent No. 9 Shri Sujit Basfor, son of Respondent No. 6 got his allotment in Block D (Quarter No. 4). The Respondent No. 10 Shri Mantu Basfor, son of the Respondent No. 6 got his allotment in Block D (Quarter No. 5). The Respondent No. 11 Smti Chitra Basfor, nephew of Respondent No. 6 got her allotment in Block C (Quarter No. 1). The Respondent No. 12 Smti Shripati Basfor, who is the resident of Lalmati, near Haji Musafir Khana, Ulubari and close relative of the Respondent No. 6 got his allotment in Block D (Quarter No. 11) and the Respondent No. 13 Shri Jitu Basfor, nephew of Respondent No. 6 got his allotment in Block C (Quarter No. 9). It is also pertinent to mention here that the Respondent No. 8 Smti Gayatri Basfor, daughter of Respondent No. 6 is residing at Ambari Railway Harijan Colony with her husband but she is occupying the quarter at Block D (Quarter No. 2) at Solapara Harijan Colony. The Respondent No. 11 Smti Chitra Basfor, nephew of Respondent No. 6 is residing at Pandu Pani Tenki area with her family, but she is occupying in Block C (Quarter No. 1). The Respondent No. 11 Smti Chitra Basfor, nephew of Respondent No. 6 is residing at Pandu Pani Tenki area with her family, but she is occupying in Block C (Quarter No. 1). The Respondent No. 4 has not applied his proper mind and spot verification in allotment of Flats to the genuine Safai Karmachari whose dwelling houses were evicted by the Respondents on the ground that they will be provided with one room RCC Flats. The Respondent No. 1 had sponsored the said scheme of "Construction of Housing for Safai Karmachari at Morasali Harijan Colony and Solapara Harijan Colony" only for the benefit of all Safai Karmachari who are residing in the said Harijan Colonies irrespective of their engagement. However, the Respondent No. 4 in a very cryptic manner allotted those Flats to such persons who belongs to same family and also not genuine residents of Solapara Harijan Colony. As such the Allotment Orders dated 21.02.2005 issued to the respondent No. 6 to 13 is not maintainable before the eye of law as well as facts of the case and the same is liable to be set aside and quashed by the Hon'ble Court. 6. The respondent No. 4 has filed affidavit denying the averments that 232 units were constructed by respondent No. 5 and were handed over to respondent No. 4. It is stated that only 98 units were constructed at Solapara. The GMC being the controlling authority of the Harijan colonies, the units allotted to the employees of the GMC have been named and styled as Departmental Quarters. It is also stated that some persons had been allotted quarters on the basis of misrepresented facts and the GMC was enquiring into the matter and appropriate action would be taken as per law within a short time. The affidavit was filed on 07.05.2007. 7. Mr. Ahmed, learned counsel for the petitioners submits that illegality and arbitrariness is writ large, on the face of the averments made in paragraph-9 of the writ petition, which have not been denied by the respondent No. 4. The respondent No. 4 also admitted about anomalies in the matter of allotment of quarters. Though, almost six years have elapsed, no action has been taken by the respondent-authorities. 8. Mr. S. Bora, learned Standing Counsel, GMC fairly submits that allotment of quarters to respondents No. 6 to 13 may not have been justified. The respondent No. 4 also admitted about anomalies in the matter of allotment of quarters. Though, almost six years have elapsed, no action has been taken by the respondent-authorities. 8. Mr. S. Bora, learned Standing Counsel, GMC fairly submits that allotment of quarters to respondents No. 6 to 13 may not have been justified. He, however, submits that in a similar matter wherein also an order dated 21.02.2005 was under challenge, this Court, by an order dated 27.11.2012 passed in WP (C) No. 6545/2005, had directed the respondent No. 2 to look into the grievance of the petitioners and pass a speaking order dealing with the issues raised by the petitioners in that writ petition on or before 31.01.2013 in the event of petitioners' filing representation. 9. Mr. Ahmed, learned counsel for the petitioners in reply submits that said order dated 27.11.2012 will not come in the way of passing any order by this court on the merit of the case inasmuch as, in the instant case, the GMC had filed affidavit, whereas in the case referred to by Mr. S. Bora, there was no affidavit filed on behalf of the GMC and in such circumstances, this court had directed those petitioners to file representation with the observation that the authorities may dispose of the same on or before 31.01.2013. It is also submitted by the learned counsel for the petitioners that in the said case also, he was the counsel and the petitioners, though had filed representation before the respondent No. 2, the representation(s) have not been disposed of. In the circumstances, he submits that this case may be disposed on merits. 10. I have heard and considered the submissions made by the learned counsel for the parties. 11. This court is in agreement with the submissions of Mr. Ahmed, learned counsel for the petitioners that there is no impediment for this court to pass an order on merits of the case, particularly in view of the statement that the respondent No. 2 had till now not taken any decision on the representation(s) made by the similarly situated persons. 12. At the very outset, this court has appreciated the fair stand of Mr. Bora, who has not unnecessarily tried to defend the impugned action. On the face of severe scarcity of flats, allotment of 7 (seven) quarters to close family members of respondent No. 6 defies logic and rational. 12. At the very outset, this court has appreciated the fair stand of Mr. Bora, who has not unnecessarily tried to defend the impugned action. On the face of severe scarcity of flats, allotment of 7 (seven) quarters to close family members of respondent No. 6 defies logic and rational. As has been noted in paragraph 9 of the writ application, Respondent No. 7 is his wife, Respondent No. 8 is his daughter, Respondent No. 9 and 10 are his sons, Respondent No. 11 and 13 are his niece and nephew, respectively, and Respondent No. 12 is a close relative. Respondent No. 8 is residing at Ambari Railway Harijan Colony with her husband but she is allotted the quarter at Block D (Quarter No. 2) at Solapara Harijan Colony. The Respondent No. 11 Smti Chitra Basfor, niece of Respondent No. 6 is residing at Pandu Pani Tenki area with her family, but she is allotted Quarter No. 1 in Block C. 13. If quarters are available for everybody, there can be no issue in allotting quarters to each and every individual, but when numbers of quarters are few and applicants many, authorities are duty bound and enjoined to adopt a fair and rational policy. There is no justification for allotment of 8 (eight) quarters in respect of one family in the larger context when many families were not allotted any quarter. Such allotment may have been because of misrepresentation of facts as pleaded in the affidavit or may be, the allotments had been made for extraneous or collateral considerations. This court refrains from making any further comment. In the circumstances of the case, while allotment made in favour of respondent No. 6, who appears to be head of the family, is not interfered with, allotment in respect of respondents No. 7 to 13 are quashed. 14. The respondent No. 4 is now directed to consider the allotment of the quarters allotted to respondent nos. 7 to 13 in accordance with law by following a transparent procedure. 15. Writ petition is allowed as indicated above. No costs. Mr. S. Bora, learned Standing Counsel shall be given a copy of this order. Petition allowed.