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2014 DIGILAW 1792 (PNJ)

Dinesh Kumar v. Union Territory, Chandigarh

2014-12-22

HARI PAL VERMA, HEMANT GUPTA

body2014
JUDGMENT : Hemant Gupta, J. This order shall dispose of the aforementioned writ petition as well as the writ petitions, mentioned at the foot of the order, raising identical questions relating to the allotment of tenements as a part of rehabilitation process of the slum dwellers. However, for the facility of reference, the facts are taken from the aforementioned writ petition. 2. The petitioners have sought quashing of notification dated 09.11.2009 (Annexure P-2), whereby the claim for allotment of tenements to the bona fide residents of notified colonies have been asked to be supported by voter identity card in the voter list of either of the years 2004 to 2008. The petitioners have sought quashing of the decision of the Administration in rejecting the claim of the petitioners in the absence of names in the voter list in the relevant years. 3. As per facts on record, there were 18 slum colonies in Chandigarh. In January 2004, the Administration conducted a door-to-door 2 survey of the said colonies, which revealed that 21076 families are residing in such colonies. Later in the year 2005, re-verification was conducted in two largest colonies i.e. Colony No.4 and Colony No.5, which revealed that there was increase of 12.5% in population in these two colonies in a period of about 1 year. Thus, it was estimated that there were about 23183 families residing in the slums of the city. 4. In February, 2006, the Administration decided to conduct Biometric survey in the aforesaid 18 colonies jointly with Haryana State Electronics Development Corporation Ltd. (HARTRON), a Haryana Government Undertaking and Estate Office, UT, Chandigarh. The process of Bio-metric survey was communicated to the Deputy Commissioner, UT, Chandigarh on 02.03.2006 by HARTRON. Annexure - A in the said communication deals with the process of conducting of survey, whereas Annexure - B deals with the schedule of conducting of survey in respect of 17 colonies. One 'Janta Colony' was inadvertently missed out, which was added by the HARTRON later on. The said colony was also surveyed. The Bio-metric survey in respect of 18 colonies spread over approximately 198.5 acres was carried out by thirty teams in a phased manner. The process of Biometric survey was started on 03.03.2006 and accomplished on 31.03.2006. Second round of Bio-metric survey was also carried out to cover the left out cases, which was concluded before 31.03.2006. The Bio-metric survey in respect of 18 colonies spread over approximately 198.5 acres was carried out by thirty teams in a phased manner. The process of Biometric survey was started on 03.03.2006 and accomplished on 31.03.2006. Second round of Bio-metric survey was also carried out to cover the left out cases, which was concluded before 31.03.2006. Such survey revealed that 23689 jhuggies were in existence in 18 colonies, whereas 181 jhuggies were found to be locked even after repeated visits. The final figure arrived at the conclusion of the Bio-metric survey was 23689. 5. The Chandigarh Administration has framed various schemes with a view to rehabilitate the slum dwellers. It was on 06.11.2006, the "Chandigarh Small Flats Scheme, 2006" was notified. The relevant extract from the said Scheme reads as under: "3. In this Scheme, unless the context otherwise requires: xx xx (g) "Recognised Resident" means a resident of a Notified Colony, whose name is both included in the voter list of 2006 and whose name is also included in the Bio-metric survey conducted by the Chandigarh Administration in the month of March, 2006 and is continuously residing in the colony. Provided that in case of the demise of the Recognised Resident, one member of his family, as defined above, who fulfils the conditions of the Recognised Resident will be eligible for being a licensee. xx xx Procedure of shifting the unauthorised habitations 4. (a) The Competent Authority may prepare a phased plan for clearing the Notified Colonies according to the availability of alternative flats and may implement such plan in accordance with the provisions of the Scheme. (b) A general notice of at least 21 days shall be given by the Competent Authority, before the residents of a Notified Colony are required to vacate the colony or part thereof. xxx xxx xxx D. Eligibility and Mode of Allotment 6. (a) With respect to every block of a Notified Colony selected for clearance, allotment of a flat shall be made as under: (i) All persons whose names appear in the biometric survey and voter list as on 01.01.2006 shall be eligible for allotment of a flat on license basis. The name of the person should also appear in the latest voter list of the year in which allotment is to be made. The name of the person should also appear in the latest voter list of the year in which allotment is to be made. (ii) A person who owns more than one habitation in any of the Notified Colonies in his own name or in the name of any dependent member of his family shall be entitled to the allotment of only one flat under this Scheme. (iii) A family unit shall be entitled to one flat, provided it fulfils all the conditions under this Scheme. (b) All allotments of flats under this Scheme will be on monthly license fee basis consisting of One Room Flat in a multi-story building. 7. Notwithstanding anything contained in the Scheme, no person shall be eligible for allotment of a flat unless he fulfils the following conditions: (a) The applicant must himself be residing in the colony. Mere ownership, unless accompanied by actual physical habitation of a building or structure or covered site shall not be sufficient to make a person eligible for allotment under this Scheme. (b) The person does not own or have ever been allotted whether on free-hold or lease-hold basis, a residential site in the Union Territory, Chandigarh, Panchkula or Mohali by the respective Government/Administration or its Agency either in his own name or in the name of any member of his family dependent on him." 6. The eligibility, as per the Scheme notified, contemplates two conditions that the name must appear in the biometric survey and also in the voter list as on 01.01.2006. The dwellers who meet the twin conditions alone shall be eligible for allotment of a flat on license basis. The name of the person was also required to appear in the latest voter list of the year in which allotment is to be made. Since the condition of name in the voter list as on 01.01.2006 was creating lot of difficulties inasmuch as it was felt that the name in the voter list of 2006 may be omitted for one or the other reason, therefore, an amendment was carried out vide notification dated 09.11.2009 (Annexure P-2) to tide over such problem. Since the condition of name in the voter list as on 01.01.2006 was creating lot of difficulties inasmuch as it was felt that the name in the voter list of 2006 may be omitted for one or the other reason, therefore, an amendment was carried out vide notification dated 09.11.2009 (Annexure P-2) to tide over such problem. The definition of "Recognised Resident" was also substituted to read as under: "Recognised Resident" means a resident of a Notified Colony, whose name is included both in the voter list of 2006 as well as in the Bio Metric Survey conducted by the Chandigarh Administration in the year 2006 and is continuously residing in the colony and shall also include a resident of a notified colony whose name does not appear in the voter list as on 01.01.2006, but appears in the voter list as on 01.01.2004, 01.01.2005, 01.01.2007 and 01.01.2008. Provided that in case of the demise of the Recognised Resident, one member of his family, as defined above, who fulfils the conditions of the Recognised Resident will be eligible for being a licensee." Vide aforesaid notification; a proviso was also inserted under sub-clause (1) of clause 6(a), which reads as under: "Provided that any person whose name appeared in biometric survey but does not appear in the voter list as on 01.01.2006, shall also be eligible for allotment of flat under the scheme if his name appears in the voter list as on 01.01.2004 or 01.01.2005 and 01.01.2007 or 01.01.2008." 7. Mr. Sharma has also produced the proceedings of the meeting held on 09.04.2010, wherein clarifications were issued for effective implementation of the Scheme. The clarifications were to ignore minor difference in name/father's name in the voter list or in the bio-metric survey. But if, there is major deviation in the name of the applicant in bio-metric survey and in the latest voter list, the claim was to be rejected. But if the photograph in the bio-metric survey and in the latest voter list matches, the claim may be processed accordingly. But if, there is major deviation in the name of the applicant in bio-metric survey and in the latest voter list, the claim was to be rejected. But if the photograph in the bio-metric survey and in the latest voter list matches, the claim may be processed accordingly. While observing that the jhuggi dwellers do not stay at one place and they keep on moving from one place to other, even the hut numbers are not marked properly nor have any authenticity, it is clarified that as long as the identity of the jhuggi dweller gets established from the data of bio-metric survey and his name exists in the voter list though hut number may be different from that in biometric survey or the hut number may be different in voter list of different years, the difference in hut number/jhuggi number may be ignored. 8. Learned counsel for the petitioners has vehemently argued that insistence of the name in voter list is arbitrary, discriminatory and without any reasonable nexus with the objective to be achieved. If the objective is to ensure that the person was a resident of any of the colonies, the respondents could verify such residence on the basis of ration card or any other document, which supports the proof of residence of the jhuggi dweller, but the requirement of the voters card alone deprives the genuine residents of the right of allotment of a tenement. 9. On the other hand, Mr. Sanjeev Sharma, learned senior counsel appearing on behalf of the Administration, pointed out that the Administration has taken a view that it is not necessary for a person, whose name appear in the bio-metric survey, that his name should appear in the voter list of 2006, but his name can appear in any voter list of two years prior to 2006 i.e. prior to conduct of the bio-metric survey or even two years after the bio-metric survey. The purpose of insisting of name in the voter list is that that the person, who is residing in the colony, alone is rehabilitated and not a person, who is found at the time of bio-metric survey or causes his name to be included in the survey seeks allotment of a flat. The purpose of insisting of name in the voter list is that that the person, who is residing in the colony, alone is rehabilitated and not a person, who is found at the time of bio-metric survey or causes his name to be included in the survey seeks allotment of a flat. The voter list was made condition of eligibility for the reason that it is prepared under a Statute i.e. The Representation of the People Act, 1950 and after door-to-door survey. Therefore, the bio-metric survey conducted by the Administration in the month of March, 2006 was sought to be corroborated by another survey conducted in pursuance of a statute. Therefore, the condition of the voter list cannot be said to be unjustified. 10. We have heard learned counsel for the parties at length and found that the purpose of relying upon voter list is to corroborate the biometric survey to ensure that jhuggi dweller was, in fact, residing in one of the colonies and is required to be resettled. Though 2006 Scheme has been modified subsequently so as to permit a jhuggi dweller entitled for allotment of a flat even if his name appear in any of the voter list two years prior to 2006 or even two years later and that such condition cannot be said to be unjustified, as it is to advance the public cause so that only genuine jhuggi dweller is allotted flat rather than a person, who was simply found at the time of bio-metric survey. The twin conditions i.e. appearance of the name in the bio-metric survey corroborated by other proof of residence in the shape of voter list, are to advance the purpose of the scheme, thus cannot be said to be arbitrary. But having said so, we find that simply relying upon the name in the voter list without proof of residence in other documents cannot be said to be justified. 11. Though the petitioners have contended that the ration card should also be relied upon to find the genuineness of the claim of the jhuggi dweller, but we find that the ration card is not issued under any statute. In fact, in the ration cards relied upon by the petitioners, there is a disclaimer to the effect that "Ration Card shall not be used as document of identity. In fact, in the ration cards relied upon by the petitioners, there is a disclaimer to the effect that "Ration Card shall not be used as document of identity. Ration Card is meant for drawl of rations and not for any other purpose". Since the ration card is not issued under any statute and in view of the disclaimer on the ration card itself, we find that the ration card cannot be made reasonable basis to determine the eligibility of the jhuggi dweller for allotment of a flat. However, there are other proofs of residence under other statutes such as Driving License issued under the Motor Vehicles Act, 1988 or Passport issued under the Passport Act, 1967. Therefore, not only the voter list, but the Driving License issued or valid between 2004 to 2008 or the Passport issued or valid between the said years, having residence address as that of any of the 18 colonies, would be sufficient compliance to examine the genuineness of the claim of the jhuggi dweller. Apart from the two statutory documents, which are pointed out, there can be any other proof of residence under any other statute as well. Therefore, we find that the proof of residence from the year 2004 to 2008 should not be restricted only to the voter list, but to any other document issued under any of the Statute as proof of residence of one of the 18 colonies. 12. We find that the clarifications issued are for effective implementation of the Scheme for rehabilitation, but restricting the corroborative document of voter list is not tenable. It can be any of the proof of residence issued under any Statute. 13. It is also pointed out that in some cases, the jhuggi dweller has voter card for a year prior to 2004, therefore, that voter card should be taken into consideration for determining the eligibility of the said jhuggi dweller. The name of a person, who stays in one of the colonies, is expected to appear in the voter list. It is a matter of policy that a proof of residence is required for how many years. The condition of proof of residence i.e. two years prior to bio-metric survey or two years later, per se cannot be said to be arbitrary or unreasonable. It is a matter of policy that a proof of residence is required for how many years. The condition of proof of residence i.e. two years prior to bio-metric survey or two years later, per se cannot be said to be arbitrary or unreasonable. The name of a dweller in a voters list prior to two years may not be justified, as he might have moved out in the intervening period. The period so fixed is in tune with the objective of the Scheme i.e. of rehabilitation of genuine residents of the slums. 14. It was also pointed out that in the data of bio-metric survey, the finger print impressions of large number of claimants are not available, as is required in the procedure given in Annexure-A with the affidavit dated 01.12.2014. Therefore, if thumb impressions are not available either by the mistake of the survey team or the data being corrupt, the jhuggi dwellers should not be made to suffer. 15. We find the argument of learned counsel for the petitioners to this aspect to be meritorious. The quality and availability of finger prints impressions was a responsibility of the survey team. If the team has failed to obtain finger print impressions or the quality of such finger print impressions is not good or the data has been lost by the survey team, the jhuggi dweller cannot be blamed for such acts of omission and commission. 16. In view of the above, the present writ petition as well as the other connected writ petitions is allowed with the following observations: (i) That the condition in the Scheme in respect of name appearing in the bio-metric survey and in the voter list of two years prior to such survey and/or two years later cannot be said to be arbitrary, unjust & irrational. (ii) However, in addition to the voter list, the Administration shall consider the documents towards proof of residence issued under any of the Statute such as the Motor Vehicles Act, 1988 and the Passport Act, 1967, as a proof of residence between the years 2004 to 2008. (ii) However, in addition to the voter list, the Administration shall consider the documents towards proof of residence issued under any of the Statute such as the Motor Vehicles Act, 1988 and the Passport Act, 1967, as a proof of residence between the years 2004 to 2008. (iii) If the finger print impressions are not available or the quality of the same is poor, the jhuggi dweller shall not be deprived for the allotment of a flat only for that reason provided the Administration establishes the identity of the applicant on the basis of such other evidence, as the Committee may consider appropriate. 17. The respondents are directed to complete the process of allotment in terms of the observations enumerated above.