Jhulan Singh v. State of Jharkhand through the Secretary, Housing Department
2022-04-13
RAJESH SHANKAR
body2022
DigiLaw.ai
ORDER : The present case is taken up through vide conferencing. 2. The present writ petition has been filed for quashing the order dated 18.02.2022 (Annexure-6/1 to the writ petition) passed by the Competent Authority, Jharkhand State Housing Board, Ranchi (the respondent no.6) in Eviction Case No. 17 of 2012 whereby the petitioners have been held to be illegal occupants of a two storied house being MIG House No. M-38(D.S.) having an area of 66’ X 81’= 5,346 sq. ft. (hereinafter to be referred as “the said house”) and have been directed to vacate the said house within 30 days from the said order by depositing penalty of Rs.5,068/- as calculated for the period till 12.05.2012 along with payment at the rate of Rs. 50 per day per 100 sq. meter till the date of eviction from the said house failing which they would be evicted from the said house using police force after deputing magistrate and the expenses incurred for the same would be recovered from them. 3. Learned counsel for the petitioners submits that the said house was allotted by the respondent-Jharkhand State Housing Board (JSHB) to one Akhouri Anand Prakash (hereinafter to be referred as “the original allottee”) vide allotment order no. 7293 dated 23.08.1974 who legally occupied the same on 17.02.1976 after executing agreement but he did not reside in the said house as he was already having another house allotted in his name. The original allottee rented the said house to the petitioners and since then they along with their family members have been residing there i.e. for last more than 40 years after coming in permissive possession of the same. In the year 1994, the original allottee instituted a title suit being T.S. No. 13 of 1994 against the petitioners which was decreed in his favour by the Additional Munsif-III, Ranchi vide judgment and decree dated 17.08.2005 and 23.08.2005 respectively with a direction to the petitioners to vacate the suit premises within two months. Being aggrieved with the said judgment and decree, the petitioners preferred appeal being Title Appeal No. 73/2005, however the same was dismissed vide judgment dated 1.12.2009 passed by the learned Additional Judicial Commissioner, Fast Track Court No.- VI, Ranchi upholding the judgment and decree passed in T.S. No. 13 of 1994.
Being aggrieved with the said judgment and decree, the petitioners preferred appeal being Title Appeal No. 73/2005, however the same was dismissed vide judgment dated 1.12.2009 passed by the learned Additional Judicial Commissioner, Fast Track Court No.- VI, Ranchi upholding the judgment and decree passed in T.S. No. 13 of 1994. Subsequently, the allotment of the original allottee was cancelled on 13.4.2012 by the respondent-JSHB on the ground of violation of clause-20 of the agreement as well as clause-11 of the allotment order. Thereafter, the respondent no. 4 instituted Eviction Case No. 17 of 2012 before the respondent no. 6 against the petitioners in which notices were issued to them for their appearance on 28.9.2012. Pursuant to the said notice, the petitioners appeared on 28.9.2012 and sought a copy of the petition along with other documents filed in said case. However, neither any response was received thereafter nor any further date was intimated to the petitioners. In the meantime, the original allottee namely Akhouri Anand Prakash, being aggrieved with the order dated 13.04.2012 cancelling the allotment of the said house, preferred a writ petition being W.P.(C) No. 5507 of 2012 before this Court in which, vide order dated 21.01.2013, the parties were directed to maintain status-quo and not to create third party interest. The said writ petition is still pending. Subsequently in the year 2017, the Urban Development and Housing Department, Government of Jharkhand, vide notification no. 7/Misc.-11/2016-1817 dated 17.3.2017, took a decision to allot the houses of Jharkhand State Housing Board in favour of those persons who had been unauthorisedly residing in the Board’s houses continuously for a minimum period of 10 years prior to issuance of the notification dated 17.03.2017. Since, the petitioners had been residing in the said house for more than 40 years, they filed an application dated 12.9.2017 before the respondent-JSHB for allotment of the said house in their favour. However, all of a sudden, nearly after 10 years, a notice dated 7.2.2022 was issued to the petitioners by the respondent no. 6 directing them to appear in the court of the said respondent on 18.02.2022 at 11.30 a.m. along with reply supported by evidence failing which ex-parte order would be passed. Though the said notice was received by the petitioners on 14.2.2022, yet they somehow prepared a reply and appeared in the office of the respondent no. 6 on 18.2.2022.
6 directing them to appear in the court of the said respondent on 18.02.2022 at 11.30 a.m. along with reply supported by evidence failing which ex-parte order would be passed. Though the said notice was received by the petitioners on 14.2.2022, yet they somehow prepared a reply and appeared in the office of the respondent no. 6 on 18.2.2022. Thereafter, no information regarding status of the case was given to the petitioners and suddenly, they received a copy of letter as contained in memo No 364 dated 28.2.2022 issued by the Estate Officer, JSHB, Ranchi (the respondent no. 5) to the Executive Engineer, JSHB, Ranchi Division (the respondent no. 4) including a copy of impugned order dated 18.2.2022 passed by the respondent no. 6 in Eviction Case No. 17 of 2012. 4. Learned counsel for the petitioners further submits that the impugned order dated 18.02.2022 has been passed in violation of the principles of natural justice that too without disposing of the application dated 12.9.2017 filed by the petitioners for allotment of the said house in their favour in accordance with notification no. 7/Misc.–11/2016-1817 dated 17.3.2017 issued by the Urban Development and Housing Department, Government of Jharkhand. The eviction case was pending for about 10 years in which the last date was fixed for 28.9.2012 during the relevant period. The respondent no. 6 has committed grave illegality in proceeding with the matter without giving adequate time to the petitioners to file their reply along with supporting documents and as such the said respondent has acted in gross violation of the principles of natural justice. Admittedly, the petitioners and their family members have been residing in the said house for last more than 40 years and as such the impugned order passed by respondent no. 6 directing the petitioners to vacate the said house is illegal and arbitrary. 5. On the contrary, learned counsel appearing on behalf of the respondent-JSHB submits that the petitioners have no right to continue with the possession of the said house since the order of eviction has already been passed against them in which they have been held as illegal occupants of the said house. The petitioners are also liable to pay penalty and the rent till the date of eviction as have been directed vide impugned order dated 18.02.2022.
The petitioners are also liable to pay penalty and the rent till the date of eviction as have been directed vide impugned order dated 18.02.2022. It is further submitted that due opportunity of hearing was provided to the petitioners before passing the impugned order dated 18.02.2022 and hence the same needs no interference under extraordinary writ jurisdiction. 6. Heard learned counsel for the parties and perused the materials available on record 7. The petitioners are aggrieved with the impugned order dated 18.02.2022 passed by the respondent no. 6 in Eviction Case No. 17 of 2012. 8. The main contention of the learned counsel for the petitioners is that the petitioners have been in possession of the said house for more than 40 years and in view of the notification dated 17.03.2017 issued by the Urban Development and Housing Department, Government of Jharkhand, they are entitled for allotment of the said house in their favour, however the respondent no. 6 in gross violation of the principles of natural justice, has issued the impugned order dated 18.02.2022 directing them to vacate the same. 9. The respondent no. 6 has passed the impugned order denying the petitioners’ claim for allotment of the said house in their favour in view of the notification dated 17.03.2017 by holding that one of the requirements under the said notification to allot any illegally occupied house of the JSHB is that the occupant must have been residing in the said house for a minimum period of ten years prior to issuance of the said notification. The respondent-JSHB has treated the petitioners as illegal occupants of the said house since 13.04.2012 and thus they have been considered as illegal occupants from the said date till filing of their application dated 12.09.2017 i.e. for about five years. The respondent no. 6 has further observed that pursuant to the said notification, the time for regularization has already ended and since the petitioners have already been allotted another LIG house being house no. L.S.-88, they are not entitled to take benefit of notification dated 17.03.2017. 10. Be that as it may.
The respondent no. 6 has further observed that pursuant to the said notification, the time for regularization has already ended and since the petitioners have already been allotted another LIG house being house no. L.S.-88, they are not entitled to take benefit of notification dated 17.03.2017. 10. Be that as it may. Even if the contention of the learned counsel for the petitioners that the petitioners have been in possession of the said house for a considerable period of time, is taken to be true, the writ petition i.e. W.P.(C) No. 5507 of 2012 filed by the original allottee challenging the cancellation of the allotment is still pending wherein an order of status-quo has been passed. Thus, the original allottee has not forgone his claim over the said house. Moreover, if the petitioners’ request for allotment is entertained pursuant to notification dated 17.03.2017, the same will amount to violating the order of status-quo passed in W.P.(C) No. 5507 of 2012. Admittedly, the petitioners came in the possession of the said house as tenants of the original allottee and the decree of eviction against them was also not interfered by the court of Additional Judicial Commissioner, Fast Track Court No. VI, Ranchi in Title Appeal No. 73 of 2005 filed by the petitioners. 11. So far the claim of violation of the principles of natural justice is concerned, the petitioners have themselves stated in the writ petition that notice dated 07.02.2022 issued by the respondent no. 6 in Eviction Case No. 17 of 2012 was received by them on 14.02.2022 wherein last date for hearing was fixed as 18.02.2022 and the petitioners were directed to file their show cause reply with evidence otherwise ex-parte order would be passed against them. Pursuance to the said notice, the petitioner-Jhulan Singh appeared on the date fixed for hearing and filed reply. On perusal of the impugned order dated 18.02.2022, it appears that the stand taken by the petitioners claiming allotment of the said house in their favour has elaborately been dealt with by the respondent no. 6. The Hon’ble Supreme Court in the case of Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise and Others reported in (2015) 8 SCC 519 , has held that a writ is not to be issued on the ground of violation of the principles of natural justice if only one conclusion is possible while passing an order.
6. The Hon’ble Supreme Court in the case of Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise and Others reported in (2015) 8 SCC 519 , has held that a writ is not to be issued on the ground of violation of the principles of natural justice if only one conclusion is possible while passing an order. Every violation of a facet of natural justice may not lead to a conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of “prejudice” caused to the affected party. The principles of natural justice cannot be applied in straitjacket formula, rather it is a flexible principle to be applied on the given facts of a case. 12. In view of the aforesaid discussion, this Court finds that the petitioners have no right to continue with the possession of the said house. Hence, no interference is warranted with the impugned order dated 18.02.2022 passed by the respondent no. 6 in Eviction Case no. 17 of 2012 under extraordinary writ jurisdiction of this Court. 13. The writ petition is, accordingly, dismissed.