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2021 DIGILAW 786 (GAU)

Nang Homcha Chakap v. State of Arunachal Pradesh

2021-12-10

ROBIN PHUKAN

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JUDGMENT : ROBIN PHUKAN, J. 1. In this petition, under Article 226 of the Constitution of India, the petitioner, Smt. Nang Homcha Chakap, put to challenge the Order No. DOH/ACCOM-02/2012-13 (Vol-II)/ 5986-93, dated 19.12.2016, issued by the Director (Housing), Directorate of Housing, Itanagar, Government of Arunachal Pradesh. It is to be mentioned here that vide impugned order, the Director (Housing), without any notice to the petitioner and without cancelling the order dated 15.11.2016, by which one Quarter No. 604/T/II located at D-Sector, Naharlagun was allotted her, was allotted again to the private respondent No. 4-Shri Kak Nabam. 2. The factual background leading to filing of the present writ petition is adumbrated here in below: “The petitioner, Smt. Nang Homcha Chakap is serving as Senior Judicial Assistant (SJA) in the Gauhati High Court, Itanagar permanent Bench, Naharlagun. On 13.12.2010, she has applied to the Director (Housing), for allotment of a quarter, in the prescribed format. Her application was forwarded by the Deputy Registrar, with recommendation vide letter dated 13.12.2010, No. HC(IB)07/2001/2637-38. But she was not allotted any quarter at that time due to non-availability of the same. Thereafter, in the year 2016, the petitioner came to know that one Government Quarter No. 604/T/II, located at D-Sector, Naharlagun, is likely to be vacated in the month of December 2016, by its occupant-Shri A.K. Choudhury, who is presently serving as Superintendant in the Civil Secretariat of Arunachal Pradesh, Itanagar, and will be retiring on superannuation in the month of December 2016, vide her letter dated 16.09.2016. Thereafter, vide order dated 15.11.2016, filed No. DOH/ACCOM-02/2012-13 (Vol-II)/58874-77 the Director (Housing) allotted quarter No. 604/T/II, located at D-Sector, Naharlagun, on being vacated by Shri A.K. Choudhury, Section Officer, Arunachal Pradesh, Civil Secretariat. Thereafter, on 17.11.2016, Shri A.K. Choudhury submitted one report to the Director (Housing), about vacating the said quarter. The petitioner then accepted the allotment and reported the matter to the Director (Housing) vide her letter dated 17.11.2016. She also occupied the same on the said date and submitted her occupation report to the Director (Housing). But, unfortunately, the said quarter, No. 604/T/II is again allotted to one Shri Kak Nabam, UPO, Department of Urban Development, Govt. of Arunachal Pradesh, vide his letter dated 19.12.2016, vide memo No. DOH/ACCOM-02/2012-13 (Vol-II)/5986-93, without cancelling the earlier order of allotment made in favour of the petitioner, and without giving her any notice and opportunity of being heard. But, unfortunately, the said quarter, No. 604/T/II is again allotted to one Shri Kak Nabam, UPO, Department of Urban Development, Govt. of Arunachal Pradesh, vide his letter dated 19.12.2016, vide memo No. DOH/ACCOM-02/2012-13 (Vol-II)/5986-93, without cancelling the earlier order of allotment made in favour of the petitioner, and without giving her any notice and opportunity of being heard. Then being highly aggrieved the petitioner approached this Court by filing the present petition, for cancellation and setting aside of the order dated 19.12.2016, being the same not inconformity with the principles of natural justice and administrative fair play.” 3. Being highly aggrieved, the petitioner inquired about the matter in the Office of the Director (Housing), on 28.12.2016, and came to know that the earlier allotment order made in favour of her, was not cancelled, and without cancelling the same the State respondent again allotted the same to private respondent No. 4. It is the contention of the petitioner that, she has already occupied the quarter and she has also paid electricity and water charges of the same. And she is residing there with her two school going children and she has been put to great hardship, and that the respondent authorities have allotted the quarter to the private respondent without following the rules in a unfair manner and apply their discretion in an arbitrary and irrational manner. It is her further contention that once the quarter is allocated in her favour, her valuable right is accrued upon the same and without assigning any reason, the authorities could not have issued the impugned order. Fair play in action demands that before any prejudicial or adverse action is taken against a person, he/she must be been given the opportunity of being heard. But, the Director (Housing), without giving any opportunity of being heard, allotted the quarter to the private respondent No. 4, vide impugned dated 19.12.2016, and thereby, violates the principle of natural justice and also violates her right guaranteed by Article 14 of the Constitution of India. And therefore, according to the petitioner the action of the respondent suffers from vice of arbitrariness, unreasonableness, non-uniformity and abuse of discretion and is also violative to the fundamental rights as enshrined under Article 14 of the Constitution of India. And therefore, according to the petitioner the action of the respondent suffers from vice of arbitrariness, unreasonableness, non-uniformity and abuse of discretion and is also violative to the fundamental rights as enshrined under Article 14 of the Constitution of India. Therefore, it is contended to set aside the impugned allotment order dated 19.12.2016, passed by the Director (Housing), Directorate of Housing, Government of Arunachal Pradesh, Itanagar. 4. The respondent No. 1 to 3, have submitted affidavit-in-opposition, wherein, it is stated that Smt. Nang Homcha Chakap is junior to Shri Kak Nabam, as per the application seniority by date because her application (Annexure-A), was received and initiated by the respondent No. 3, on 30.09.2016. And that the private respondent No. 4-Shri Kak Nabam, has applied for the same quarter prior to her, vide his application (Annexure-B), dated 27.09.2016, and that due to over side, the application of Shri Kak Nabam, dated 27.09.2016, the quarter was allotted to the petitioner Smt. Nang Homcha Chakap, superseding the first applicant Shri Kak Nabam and accordingly, her allotment was cancelled vide Order No. DOH/ACCOM-02/2012-13 (Vol-II)/5993-100, dated 20.12.2016 (Annexure-C) and the same was cancelled and that the allotment was done as per the rule and it is justified and that cancellations of the allotment of the petitioner was done to maintain first come first serve principle and to maintain transparency in allotment of Government quarter. Therefore, it is contended to dismiss the petition, which is devoid of merit. 5. Heard Mr. D. Panging, learned counsel for the petitioner and Ms. P. Pangu, learned Junior Government Advocate. 6. Mr. Panging, the learned counsel for the petitioner submits that the impugned order dated 19.12.2016, passed by the Director (Housing) suffers from manifest illegality. Referring to the Annexure-A, Mr. Panging submits that vide that letter dated 16.09.2016, the petitioner informed the Director that Quarter No. 604/T/II, located at D-Sector, Naharlagun is likely to be vacated by its occupant-Shri A.K. Choudhury, who is retiring from service on superannuation in December 2016, and that was not her application, and it was simply an intimation. Again referring to, Annexure-III, Mr. Panging submits that, in fact the petitioner applied for the Government quarter in proper format, as prescribed in the guidelines (Annexure-I), in respect of allotment of Government quarter at Capital Complex, and her application was forwarded by the Deputy Registrar, Gauhati High Court, Itanagar Permanent Bench, vide letter dated 13.12.2010, No. HC(IB)07/2001. Again referring to, Annexure-III, Mr. Panging submits that, in fact the petitioner applied for the Government quarter in proper format, as prescribed in the guidelines (Annexure-I), in respect of allotment of Government quarter at Capital Complex, and her application was forwarded by the Deputy Registrar, Gauhati High Court, Itanagar Permanent Bench, vide letter dated 13.12.2010, No. HC(IB)07/2001. Her letter dated 16.09.2016, as contended by the respondent Nos. 1 to 3, in their affidavit-in-opposition is not her application. Again, making a reference to Annexure-II, of the affidavit-in-opposition, Mr. Panging submits that the private respondent No. 4, has not applied for the allotment of quarter in the prescribed format as provided in Annexure-I, and that the said petition was admittedly filed on 21.01.2016, and received by the authority on 27.09.2016, and as such the contentions of the petitioner, according to Mr. Panging got no legs to stand upon and the impugned order is suffering from manifest illegality and therefore, it is contended to allow the petition by setting aside the same and also the cancellation order (Annexure-C), dated 20.12.2016. 7. Ms. Pangu, the learned Junior Government Advocate has not controverted the submission made by Mr. Panging, but she stand by contents of the affidavit submitted by the State respondents. 8. Having heard the submission of learned Advocates of both sides, I have gone through the pleadings of the parties and the documents placed on record, and I find sufficient force in the submission of Mr. Panging, learned counsel for the petitioner. 9. It appears from the Annexure-III that, the petitioner had applied for the quarter in format prescribed in Annexure-I, on 13.12.2010, and her petition was duly forwarded to the Director on the same day by the Deputy Registrar, Itanagar Permanent Bench. It also appears that vide her letter, dated 16.09.2016, the petitioner has only intimated the Director, that the Quarter No. 604/T/II, located at D-Sector, Naharlagun is likely to be vacated in December 2016, on account of superannuation of Shri A.K. Choudhury. But, unfortunately, the respondent No. 3 treated the same as petition for allotment of quarter. Further, it appears that the petitioner was allotted the quarter on 15.11.2016, and pursuant to the said allotment order of the Director, the petitioner occupied the quarter and started residing there with her children, and she also paid electricity and water charges of the said quarter. Further, it appears that the petitioner was allotted the quarter on 15.11.2016, and pursuant to the said allotment order of the Director, the petitioner occupied the quarter and started residing there with her children, and she also paid electricity and water charges of the said quarter. Thereafter, on 19.12.2016, the said quarter was again allotted to the private respondent No. 4. The basis of the said order is that, due to inadvertent the quarter was allotted to the petitioner and that the petition filed by the private respondent No. 4, was prior to the petition of the petitioner. But, such ground cannot sustain in view of the simple reason that the petitioner had applied for the quarter long back in the year 2010 on 13th December. 10. It also appears from the order dated 20.12.2016, No. DOH/ACCOM 02/2012-13 (Vol-III)/5993-100, (Annexure-C), that the Director (Housing) has cancelled the allotment order of the petitioner, due to super-session of seniority of Shri Kak Nabom, i.e. the private respondent No. 4. But, it appears from the said order that it was passed without following the principal of natural justice. No notice was given to her, and no opportunity of being heard was afforded to her before cancellation of her allotment order. Mr. Panging, learned counsel for the petitioner, is absolutely right in his submission that the principle of natural justice is completely ignored by the respondent authority here in this case. Mr. Panging has also referred one case law the State of Punjab vs. Ranjit Singh and Others, (2016) 1 SSC 724, to make good of his submission. It is to be mentioned here that in the said case it has been held by the Hon’ble Supreme Court that every decision of an administration and executive nature must be composite and self-sustaining one and in that it should contain all the reasons which prevail the official taking the decision to arrive at its conclusions. It is beyond cavil that any authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned action. Public order, publicly made in exercised of a statutory authority cannot be construed in the light of explanation subsequently given by the Officer making the order of what he mean or of what was in her mind or what he intended to do. Public order, publicly made in exercised of a statutory authority cannot be construed in the light of explanation subsequently given by the Officer making the order of what he mean or of what was in her mind or what he intended to do. Public orders made by the public authorities are mean to have public effect, and are intended to affect the acting and conduct of those whom they are addressed and must be construed objectively with reference to the language using the order itself.” There is substance in the submission, so advance by Mr. D. Panging, and the ratio led down in the case law, referred by him, also fortified the same. 11. As already discussed, this is a clear case of violation of the principle of justice by the respondent authorities. The respondent authorities have cancelled the allotment order to the petitioner dated 15.11.2016, vide No. DOH/ACCOM-02/2012-13 (Vol-II)/5874-77, without following the due process of law. It is worth mentioning here in these contacts that discretion to disobey the mandate of law is not available to any authority. 12. Thus, the petitioner has succeeded in establishing the violation over fundamental rights as guaranteed under Article 14 of the Constitution of India, and also violation of the principle of natural justice in her case. And, therefore, the impugned order and also the cancellation order dated 19.12.2016, DOH/ACCOM-02/2012-13 (Vol-II)/5986-93 warrants interference of this Court. 13. In the result, the petition stands allowed. The impugned order, Vide No. DOH/ACCOM-02/2012-13 (Vol-II)/5986-93, dated 19.12.2016, and also the cancellation order vide No. DOH/ACCOM-02/2012-13 (Vol-II)/5993-100, dated 20.12.2016, stands set aside and quashed for being passed in contravention of the principle of natural justice, and in violation of the fundamental rights of the petitioner, as guaranteed under Article 14 of the Constitution of India. The parties have to bear their own cost.