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2018 DIGILAW 1689 (JHR)

Jhalwa @ Masomat Jhalwa v. State Of Jharkhand

2018-08-01

ANUBHA RAWAT CHOUDHARY

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JUDGMENT Anubha Rawat Choudhary, J. - Heard Mr. Jitendra Tripathi, counsel appearing for the petitioner. 2. Heard Dr. Ashok Kumar Singh, counsel appearing on behalf of the respondent- Jharkhand State Housing Board. 3. This writ petition has been filed for the following reliefs: "(a) For issuance of Writ of Certiorari for quashing the letter No. 510 Dated 02.07.2011 (Annexure-3) issued by Executive Engineer Jharkhand state Housing Board Hazaribagh, directing the petitioner to vacate house No. H-15 Sarale Housing Colony Hazaribagh given by the Housing Board Hazaribagh on rent vide agreement letter No. 167 dated 05.06.2009 of the then Executive Engineer Jharkhand state Housing Board Hazaribagh in pursuance to letter No. 04/Sachiv dated 25.02.2002 (Annexure-4) (b) The petitioner further prays for issuance of appropriate writ(s), Order(s), Direction(s), Commanding upon the respondent and issue show cause as How and under What Circumstances such type of letter/order has been passed by the respondent against the order passed by respondent No. 2 vide letter No. 4/Sachiv dated 25.02.2002 and against the interest of the Jharkhand state Housing Board. (c) During pendency of this writ petition, petitioner further prays that the respondent may be stayed from taking coercive steps for evicting the petitioner from the Qr. No. H-15 Housing Board Colony, Sarale, Hazaribagh. (Annexure-3)." 4. Counsel for the petitioner submits as under: a) Vide letter No. 167 dated 05.06.2009 the petitioner was allotted a flat on rent under the signature of the then Executive Engineer of the respondent- Housing Board namely, Arjun Prasad who was posted at Hazaribagh. Thereafter the petitioner was handed over the physical possession of the property. Her application for electricity connection was duly forwarded by the respondentHousing Board and accordingly he was also granted electricity connection. b) Counsel for the petitioner further submits that a letter dated 22.09.2010 was issued by the Jharkhand State Housing Board, Harmu, Ranchi wherein the Executive Engineer was asked to ensure the collection of monthly rent from those who were allocated the property on monthly rent basis and accordingly, the petitioner duly deposited the rent with the Board. c) He further submits that vide impugned letter No. 510 dated 02.07.2011 issued by the successor in the office of the Executive Engineer of the respondent Board posted at Hazaribagh, the allotment of the aforesaid flat was cancelled and the petitioner was asked to evict. c) He further submits that vide impugned letter No. 510 dated 02.07.2011 issued by the successor in the office of the Executive Engineer of the respondent Board posted at Hazaribagh, the allotment of the aforesaid flat was cancelled and the petitioner was asked to evict. d) Counsel for the petitioner while justifying the letter of allotment of flat issued by the then Executive Engineer namely Arjun Prasad submits that vide letter dated 25.02.2002 issued by the Jharkhand State Housing Board, Ranchi through its Secretary, all the Executive Engineers were informed that they are entitled to allocate the property of the Board on temporary basis to various persons in order to ensure that the interest of the Board is protected and also to enhance the revenue of the Board and accordingly, he submits that the allotment of flat to the petitioner was in accordance with law in view of the aforesaid letter dated 25.02.2002. e) Counsel for the petitioner further submits that during the pendency of this writ petition, the State of Jharkhand vide Notification No. 1817 dated 17.03.2017 has come up with a Circular whereby the property which has been encroached by various persons and were in their occupation for ten years, the same has to be regularized and the various rules in connection with Jharkhand State Housing Board Rules, 2004 i.e. Rule 9, 10, 12, 20, 25 and 28 were to be relaxed for such encroachers. He submits that appropriate order be issued for consideration of the case of the petitioner in the light of the said notification dated 17.03.2017 which is a part of the affidavit filed in W.P.(C) No. 4122 of 2011 being heard analogously with this case. 5. Counsel for the respondents, on the other hand, submits that the letter dated 25.02.2002 by which the Executive Engineer was empowered to allocate the property on temporary basis has lost its force by virtue of subsequent Notification dated 21.05.2004 wherein elaborate procedure has been laid down in connection with allocation of property on rental or on hire-purchase basis. He has referred to this Notification and with particular reference to Chapter-1 he submits that the principles on the basis of which the allocation of property has to be made by the Housing Board has been laid down in Chapter-2. Further, the procedure for allotment has been laid down in Chapter-3. He has referred to this Notification and with particular reference to Chapter-1 he submits that the principles on the basis of which the allocation of property has to be made by the Housing Board has been laid down in Chapter-2. Further, the procedure for allotment has been laid down in Chapter-3. He submits that in view of this particular Notification, the letter dated 25.02.2002 on which the petitioner is relying is totally meaningless. 6. Counsel for the respondent- Housing Board further submits that the then Executive Engineer of the Board namely, Shri Arjun Prasad had requested the Housing Board vide letter dated 11.11.2008 to permit him to allocate the properties to various persons on rent and in response to this letter, a letter dated 29.11.2008 was issued wherein it was clearly directed that he may not allocate any property to any person without prior permission of the Housing Board at Ranchi. 7. Counsel for the respondents also submits that in spite of aforesaid communication, Shri Arjun Prasad, the then Executive Engineer, allocated the property to the petitioner. Accordingly, he submits that the issuance of allotment letter was wholly without jurisdiction and without authority of law and in total defiance to the instructions issued by the respondent- Housing Board to the then Executive Engineer Shri Arjun Prasad. 8. Counsel for the respondents further submits that otherwise also, from the perusal of the letter of allotment, it is apparent that the allotment was on purely temporary basis and accordingly, no right whatsoever crystalized in favour of the petitioner pursuant to this letter of allotment. 9. He further submits that allotment letter has been issued in total disregard to the Notification dated 21.05.2004 which not only provides the principles of allotment of property by the Housing Board but also provides the procedure which is to be followed. He submits that the principles of allotment and the procedure for allotment is in consonance with public policy as this will curb the arbitrariness in the action of the Board in connection with allocation of property . 10. He submits that the principles of allotment and the procedure for allotment is in consonance with public policy as this will curb the arbitrariness in the action of the Board in connection with allocation of property . 10. Counsel for the respondent- Housing Board further submits that there are certain pre-conditions as laid down in this Notification for the purposes of allocation of property and the Notification dated 21.05.2004 has been given a complete go-by and the allotment letter dated 17.06.2009 was issued to the petitioner and accordingly, he submits that the petitioner does not deserve any relief from this Court under Article 226 of the Constitution of India. 11. Counsel for the respondents further relied upon the judgments passed by this Court in W.P.(C) No. 2261 of 2010 and other analogous cases dated 04.08.2010 which was subject matter of L.P.A. No. 380 of 2010 and other analogous cases and was decided on 15.06.2011 and another judgment passed in W.P.(C) No. 1862 of 2007 which has followed the judgment passed in L.P.A. vide its order dated 24.07.2012. He submits that same person namely Arjun Prasad who had allotted the flat to the petitioner had allotted flats to a large number of person which was under consideration in the said Writ Petitions and Letters Patent Appeal and it was held that he had no power to make allotment and cancellation of flat was upheld. 12. So far as the subsequent development in this case is concerned, counsel for the respondents submits that the petitioner has not made any prayer in connection with subsequent developments by amending the writ petition and accordingly, no such mandamus can be issued against the respondents. 13. He further submits that so far as the Notification No. 1817 dated 17.03.2017 is concerned, it has been issued in exercise of powers under Section 109 of Jharkhand State Housing Board Act, 2000 which empowers the Government to issue such directions, as, inter-alia, in their opinion, are necessary and expedient for carrying out the purpose of the Act. 13. He further submits that so far as the Notification No. 1817 dated 17.03.2017 is concerned, it has been issued in exercise of powers under Section 109 of Jharkhand State Housing Board Act, 2000 which empowers the Government to issue such directions, as, inter-alia, in their opinion, are necessary and expedient for carrying out the purpose of the Act. But during the course of argument, he could not satisfy the Court as to how this Circular dated 17.03.2017 can be said to have been issued for the purpose of carrying out the purpose of the Act as the same has the effect of regularizing properties encroached by the encroachers and by this Notification, the various provisions of Notification dated 21.05.2004 containing Jharkhand State Housing Board Rules 2004, which were issued pursuant to Section 28(3) of Jharkhand State Housing Board Act, 2000 has been directed to be relaxed. 14. However, counsel for the respondents submits that the said Notification dated 17.03.2017 is not a subject matter of this writ petition and the legality and validity of this particular Notification is not under challenge and since no amendment has been carried out by the petitioner in the writ petition, therefore, no mandamus be issued in connection with the Notification dated 17.03.2017 and the subsequent steps taken by the petitioner. 15. Counsel for the respondent-State has also taken a similar stand and submitted that the validity of this Notification dated 17.03.2017 is not under challenge and therefore, no pronouncement on this be made by this Court and he further submits that since no prayer has been made in connection with Notification dated 17.03.2017 and the subsequent action taken by the petitioner, therefore, no mandamus be issued pursuant to such action which has been taken by the petitioner. 16. After hearing the counsel for the parties and after considering the materials on record this Court finds that the properties involved in this case are governed by the provisions of Jharkhand State Housing Board Act, 2000 and the officers of the Board are required to act as per the provisions of the acts, rules, notifications, orders and directions issued under the said Act. 17. 17. Although from the perusal of the records of the case, this Court finds that a letter dated 25.02.2002 was issued by the Jharkhand State Housing Board, Ranchi empowering the Executive Engineers of the respondent- Board to allocate the property on temporary and rental basis in order to safeguard the interest of the Board, but, subsequently the Notification dated 21.05.2004 was issued by the Board in exercise of powers under Section 28(3) of Jharkhand State Housing Board Act, 2000 wherein elaborate procedure in connection with the allocation of property as well as the principles for allocation of property was laid down. This Court finds that a letter was specifically written by the Executive Engineer, Jharkhand State Housing Board, Hazaribagh namely, Arjun Prasad to the Board on 11.11.2008 seeking permission to allocate certain properties at Hazaribagh to persons on rental basis. But, such permission was declined by the Board vide its letter dated 29.11.2008. 18. Accordingly, this Court finds that no reliance can be placed by the petitioner on letter dated 25.02.2002 to the writ petition to justify the allotment. 19. This Court further finds that in spite of refusal of permission vide letter dated 29.11.2008, said Arjun Prasad allocated the property involved in this case to the petitioner. In such circumstances, this Court finds that the allotment made to the petitioner is wholly illegal and without jurisdiction and is accordingly void ab-initio. 20. This Court further finds that the issue regarding allotment to the petitioner by the aforesaid person is squarely covered by the aforesaid three judgments passed in the cases of such similarly situated persons i.e. the judgments passed in W.P.(C) No. 2261 of 2010 and other analogous cases, L.P.A. No. 380 of 2010 and other analogous cases and W.P.(C) No. 1862 of 2007 which has followed the judgment passed in L.P.A. vide its order dated 24.07.2012 wherein it was held that Arjun Prasad who had allotted the flat had no power to make allotment and cancellation of allotment of flat was upheld. 21. Further, this Court finds that otherwise also the letter of allotment was issued on purely temporary basis as is apparent from the said letter itself and accordingly, the petitioner cannot claim a right to continue with that property. 21. Further, this Court finds that otherwise also the letter of allotment was issued on purely temporary basis as is apparent from the said letter itself and accordingly, the petitioner cannot claim a right to continue with that property. In such circumstances, this Court does not find any illegality in issuance of impugned letter No. 510 dated 02.07.2011 whereby, the petitioner was directed to evict and the allotment letter dated 05.06.2009 was cancelled. 22. So far as subsequent event in connection with Notification dated 17.03.2017 read with application submitted by the petitioner for regularization of her property is concerned, this Court finds that no mandamus can be issued in that connection, firstly, on the ground that no such prayer has been made by the petitioner in the instant writ petition and no such steps have been taken by the petitioner for amendment of the writ petition, secondly, even the counsel for the respondent- Jharkhand State Housing Board could not satisfy this Court as to how this Notification dated 17.03.2017 could totally ignore the Notification dated 21.05.2004 providing the criteria for allocation and also providing elaborate detailed procedure for allocation of property. Although the court under Article 226 of the constitution of India has power to mould the relief and take notice of subsequent developments but this Court under the facts and circumstances of this case is not inclined to exercise such power on account of the aforesaid reasons. Since the legality and validity of this Notification dated 17.03.2017 is not under challenge, therefore, this Court is refraining itself from making any pronouncement on the legality and validity of the Notification dated 17.03.2017. 23. Accordingly, this writ petition is dismissed. 24. Interim order, if any, stands vacated.