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2017 DIGILAW 1000 (GAU)

Daisy Rani Devi v. State of Assam

2017-07-28

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER : Heard Mr. S.K Roy, learned counsel for the petitioner, Mr. C. Goswami, learned counsel appearing for the respondent Assam Housing Board authorities, Mr. G. Pegu, learned State Counsel appearing for the State respondent authorities and Mr. S. Borthakur, learned counsel appearing for the respondent No.5. 2. The petitioner was allotted a flat being LIG Building No.2, Flat No.6 for residential purpose at a monthly rent of Rs. 1500/- per month and against a security deposit of Rs. 15,000/-. The allotment was made vide order No. SHB/Rent/19/2004/26-A dated 16.12.2004. It is the case of the petitioner that after 10(ten) years of her occupying the aforesaid apartment, the respondent No.4 being the Commissioner, Assam State Housing Board had issued a letter dated 15.02.2014 to the petitioner requiring her to submit an affidavit that she has no other landed property in her name in greater Guwahati. It is stated that the said notice was issued at the instance of Sri Pradip Barman, who is the respondent No.5 herein. The petitioner accordingly submitted an affidavit dated 26.02.2014 before the respondent No.4 stating on oath that she has no landed property in her name in greater Guwahati. 3. The respondent authorities again issued a letter dated 07.03.2015 enclosing a copy of the electricity bill addressed to the petitioner, thereby concluding that the petitioner has some other landed property in Guwahati. The petitioner was required to clarify whether the concerned electricity bill was of her own or not. The petitioner replied thereto that although the electricity bill was in her name, but she was not the owner of the premises, for which the said electricity bill was issued. It is stated that on the other hand, the said premises was in the name of her mother, which is a Government land. 4. In the aforesaid circumstances, a letter dated 11.08.2015 was issued by the respondent authorities requiring the petitioner to vacate her allotted flat being LIG Building No.2, Flat No.6 under the rental housing scheme at Borsojai (Bakulban) as one flat will be given to the petitioner by her mother. 5. Subsequently, a final notice dated 08.09.2015 was issued requiring the petitioner to hand over the concerned flat. Mr. 5. Subsequently, a final notice dated 08.09.2015 was issued requiring the petitioner to hand over the concerned flat. Mr. C. Goswami, learned counsel appearing for the respondent Housing Board submits that although the notice dated 08.09.2015 indicates that it was the final notice, but however, subsequent notices had also been issued to the petitioner being the notices dated 19.10.2015, 24.12.2015 and 15.11.2016. The aforesaid notices requiring the petitioner to vacate the aforesaid flat LIG Building No.2, Flat No.6 has been assailed in this writ petition. 6. This Court by an interim order dated 04.10.2016 had given the interim protection to the petitioner. The petitioner refers to paragraph-15 of the affidavit in opposition dated 08.12.2016 of the respondent Housing Board Corporation, wherein certain averments had been made that for a better clarification, the Board had directed one Junior Engineer on 10.11.2016 to make an enquiry as regards the occupation of Flat No.6, LIG Building No.2. After making the enquiry, the said Junior Engineer vide letter dated 15.11.2016 had submitted a report before the concerned authority stating that on several occasion he had found no one in the said flat and the house is under lock and key. In paragraph-16, it is stated that the writ petitioner had already shifted to her own house and the flat in question is kept under lock and key without handing over the same to the Board. 7. Mr. C. Goswami, learned counsel for the Housing Board has taken a stand that the aforesaid notice of eviction can be assailed by the writ petitioner in the form of an appeal u/s 57 of the Assam State Housing Board Act, 1972 inasmuch as, the impugned notices had been issued by the respondent Board u/s 54 of the said Act. 8. This Court is also of the view that in order to decide the dispute at hand, certain factual determination would also have to be made as to whether the petitioner actually owns certain other landed property within greater Guwahati in order to disentitle herself from the allotment of the concerned flat under the respondent Housing Board Corporation. 9. 8. This Court is also of the view that in order to decide the dispute at hand, certain factual determination would also have to be made as to whether the petitioner actually owns certain other landed property within greater Guwahati in order to disentitle herself from the allotment of the concerned flat under the respondent Housing Board Corporation. 9. In such view of the matter, this Court deems it appropriate that an appeal u/s 57 of the Assam State Housing Board, 1972 would be a better course of remedy for the petitioner to pursue against the final notice of eviction and the appellate authority while deciding the appeal shall give due consideration to all such factual aspects that the respective parties may raise. 10. However, the petitioner is concerned that paragraphs-15 and 16 of the affidavit dated 08.12.2016 discloses certain events, which had taken place after the final notice of eviction had been issued and therefore, the appellate authority while deciding the issue should not take into account such facts as stated in paragraphs 15 and 16 of the affidavit. 11. The said contention of the learned counsel for the petitioner is found to be acceptable in view of the provisions of the law laid down by the Hon’ble Supreme Court in the judgment rendered in Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others, reported in (1978) 1 SCC 405 . 12. In view of such law laid down by the Hon’ble Supreme Court, it is not permissible for the respondent Housing Board to refer any other subsequent event or reason to justify an event that had already occurred prior to it. Therefore, the appellate authority while deciding the appeal of the petitioner, shall take into consideration only such facts that were available before the Assam State Housing Board Corporation at the time or prior to issuing the aforesaid notice of eviction. While deciding the issue, the appellate authority shall give the petitioner as well as the respondent Housing Board all due opportunities to present their respective cases and also allow them to produce any relevant materials or information that they may desire to produce. The appellate authority shall also give appropriate opportunity of hearing as aforesaid to the respondent No.5 Sri Pradip Barman. 13. Mr. The appellate authority shall also give appropriate opportunity of hearing as aforesaid to the respondent No.5 Sri Pradip Barman. 13. Mr. S. K. Roy, learned counsel for the petitioner submits that as per the prevailing act and the rules, the concerned flat owner is entitled to an opportunity of filing an affidavit. 14. The appellate authority while considering the matter, shall give the petitioner such opportunity to file her affidavit. 15. The aforesaid decision be preferably taken by the appellate authority within a period of three months from the date of receipt of a certified copy of this order. Till such final decision is given by the appellate authority, the earlier interim order dated 04.10.2016 of this Court shall continue. In terms of the above, the writ petition stands disposed of.