Jharkhand High Court
Smt.Kusum Lata & Anr vs Jharkhand State Housing Board on 27 August, 2014
Equivalent citations: 2016 (2) AJR 1, (2015) 1 JCR 202 (JHA)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 5065 of 2010
1. Smt. Kusum Lata
2. Nand Lal Tiwary ... ... Petitioners
Versus
1. Jharkhand State Housing Board Ranchi through
its Managing Director
2. Estate Officer, Jharkhand State Housing Board, Ranchi
3. The executive Engineer, Jharkhand State Housing
Board, Ranchi
4. Raghuvansh Narayan Singh ... ... Respondents
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioners : Mr. Anil Kumar Sinha, Sr. Advocate
Mr. Kripa Shankar Nanda, Advocate
For the Housing Board : Mr. Sumeet Gadodia, Advocate
For the Respondent No. 4 : Mr. Amrendra Kumar, Advocate
th
Order No. 20 Dated: 27
August, 2014
Assailing the decision of the Jharkhand State Housing
Board denying the allotment of plot to either of the petitioners, as
waiting list required under the Regulation Nos. 28 and 32 of the
Jharkhand State Housing Board (Management and Disposal of
Housing Estate) Regulation, 2004 was not prepared, a writ petition
was filed seeking a direction upon the respondentJharkhand State
Housing Board to consider allotment of a Middle Income Group
(MIG) TypeB, Housing No. 150 situated at Harmu Housing Colony,
Ranchi to the petitioners and/or alternatively, to direct the
respondents to conduct lottery between the remaining two valid
applicants for allotment of the abovementioned House No. 150 at
Harmu Housing Colony, Ranchi.
2. The brief facts of the case are that, an advertisement
was issued on 16.02.2010 inviting applications for allotment of
plots and houses at Harmu, Argora and Bariyatu at Ranchi. Vide
notice dated 10.03.2010, the applicants were required to furnish a
residential certificate issued by the Circle Officer of the area besides
2
furnishing certificate of annual income, money receipt, caste
certificate etc. The petitioners submitted their applications
alongwith the requisite certificates and those were found in order
and accepted by the respondentJharkhand State Housing Board.
For the House No. 150 besides the petitioners, one Smt. Shyama
Singh also submitted her application. On 26.04.2010, the
respondentHousing Board published a list of applicants whose
applications were rejected being defective, one of the defects being
submission of defective or improper residential certificate. In the
lottery drawn on 26.04.2010 though the application of
Smt. Shyama Singh was not accompanied by valid residential
certificate, she was declared successful and she was allotted House
No. 150 at Harmu Housing Colony, Ranchi by order dated
27.04.2010. On 10.05.2010 and 12.05.2010, the petitioner no. 2 submitted representations to the Managing Director, Jharkhand State Housing Board bringing to his notice that Smt. Shyama Singh was not eligible for participating in the lottery conducted on 26.04.2010 as she had failed to produce a proper residential certificate issued by the Circle Officer of the State of Jharkhand. Since Smt. Shyama Singh had applied under two different categories and she was allotted House No. B150 and H1250, vide her letter dated 10.05.2010 she requested cancellation of allotment with respect to House No. B150. The allotment with respect to House No. B150 was cancelled vide letter dated 05.06.2010 and the petitioner no. 2 again represented to the Managing Director, Jharkhand State Housing Board to consider his case for allotment of House No. B150, as the successful allottee namely, Smt. Shyama Singh had surrendered the allotment. The representations of the petitioners were not considered by the respondents and therefore, the petitioners approached this Court by filing the present writ petition on 3 29.09.2010 and the counsel for the Housing Board appeared on 13.01.2010. During the pendency of the writ petition, a second advertisement dated 25/29.06.2011 was issued inviting applications for allotment of House No. B150. The said advertisement has been challenged by the petitioners by filing amendment application being I.A. No. 6927 of 2013. Pursuant to the lottery conducted on 10.09.2011, one Raghuvansh Narayan Singh was allotted the said plot. The said allotment was challenged and a prayer for impleading him as respondent no. 4 was also made. The said Raghuvansh Narayan Singh also preferred an application being I.A. No. 6985 of 2013 for getting himself impleaded in the writ petition. Vide order dated 10.09.2013, the amendment as sought by the petitioners was allowed and Raghuvansh Narayan Singh was added as respondent no. 4.
3. The Jharkhand State Housing Board filed counteraffidavit dated 14.07.2011 denying that the allotment was made in violation of any rules or guidelines of the Board. However, it was admitted that Smt. Shyama Singh was allotted two houses and since only one house can be allotted to members of a family, Smt. Shyama Singh requested cancellation of allotment of House No. B150 and her request was accepted by the Housing Board.
4. A supplementary counteraffidavit dated 19.10.2011 has been filed addressing the contention of the petitioners that the respondents should have prepared waiting list and after cancellation of the allotment to the successful allottee, the house in question should have been allotted to the persons in the waiting list. In the supplementary affidavit a stand has been taken that the Housing Board conducts lottery however, it does not prepare any waiting list for allotment of houses left over due to various reasons including cancellation of allotment made pursuant to the lottery in favour of one or the other successful persons. On the contrary, the 4 Housing Board according to the procedure, conducts fresh lottery inviting applications from the people at large with respect to the allotment of left over houses/available houses. In terms of the policy of the respondentHousing Board, a fresh advertisement dated 25/29.06.2011 was issued for allotment of House No. B150 and the said house has already been allotted in favour of Shri Raghuvansh Narayan Singh vide allotment letter dated 10.09.2011.
5. The petitioners filed rejoinder to the counteraffidavit bringing on record certain documents indicating that in the lottery conducted on 20.08.2011, the respondents have prepared waiting list of allottees in different categories.
6. Heard the learned counsel appearing for the parties and perused the documents on record.
7. Mr. Anil Kumar Sinha, the learned Senior Counsel appearing for the petitioners has submitted that the decision of the respondentJharkhand State Housing Board is faulted for two reasons namely, (i) though a discretion has been given to the Housing Board for preparing a waiting list in the Jharkhand State Housing Board (Management and Disposal of Housing Estate) Regulation, 2004, the respondentHousing Board has failed to exercise such discretion in terms of the Regulation, 2004 and,
(ii) by accepting an incomplete application of Smt. Shyama Singh and making allotment in her favour, the petitioners have been unfairly denied the allotment of House No. B150. It is submitted that in the category in which the petitioners had applied there was only one house being House No. B150 for which only three applications were received. The petitioners are husband and wife and if the application of Smt. Shyama Singh is excluded as it was not accompanied with the necessary residential certificate in proper format, one of the petitioners could have been allotted the said house. Even if the allotment in favour of Smt. Shyama Singh was 5 cancelled vide order dated 05.06.2010 and the petitioners submitted several representations, the Housing Board arbitrarily proceeded to issue another advertisement inviting applications for allotment of House No. B150, which cannot be sanctioned in law. In support of his contention, the learned Senior Counsel has referred to order dated 07.09.2011 and the order of statusquo dated 21.09.2011 passed in the present proceeding. It is further submitted that since the Jharkhand State Housing Board (Management and Disposal of Housing Estate) Regulation, 2004 prescribes a procedure for preparing a waiting list, the respondent Housing Board is required to exercise its discretion only in accordance with the Regulations and not otherwise and since the exercise of discretion by the respondentHousing Board is contrary to the Regulation of 2004, the subsequent decision of the respondentHousing Board allotting House No. B150 to another person should be interfered with.
8. The learned Senior Counsel has relied on decisions in "Rajasthan State Housing Board through its Chairman Vs. Shivraj Singh Bhandari", reported in (2006) 9 SCC 390, "Chandigarh Housing Board & Anr. Vs. Gurmit Singh", reported in (2002) 2 SCC 29, "Keshav Baljee Vs. Bangalore Development Authority", reported in (2010) 14 SCC 398 and "Government of A.P. & Anr. Vs. Maharshi Publishers Pvt. Ltd. & Ors.", reported in (2003) 1 SCC 95.
9. The learned counsel for the respondentHousing Board has submitted that the requirement of the Regulations under the Jharkhand State Housing Board (Management and Disposal of Housing Estate) Regulation, 2004 are substantially complied with in so far as the residential certificate of Smt. Shyama Singh is concerned and since the petitioners have failed to demonstrate any discrimination, the present writ petition is liable to be dismissed. It is submitted that till the year, 2010 the Housing Board had adopted 6 a practice of not preparing the waiting list and that was the reason when the draw of lottery was conducted pursuant to advertisement dated 16.02.2010 no waiting list was prepared for any of the categories. Subsequently, in the year, 2011 the Board decided to prepare waiting list and therefore, the petitioners cannot claim that they were discriminated from others. Referring to Regulation 24(vii) the learned counsel for the respondentHousing Board has submitted that the decision to prepare a waiting list has been left to the wisdom of the Housing Board and once the Housing Board took a decision not to prepare the waiting list, the High Court cannot find fault with such exercise of discretion.
10. The learned counsel for the respondent no. 4, who has been subsequently allotted House No. B150, has submitted that the respondent no. 4 has been declared a successful allottee, pursuant to which the allotment order has been issued in his favour and though the possession of the property has not been handed over to him however, the respondent no. 4 cannot be denied allotment of House No. B150. The learned counsel has further stated that he has instructions to submit that, if a suitable alternative plot is offered to the respondent no. 4, he would be satisfied with such allotment.
11. I have carefully considered the submissions of the learned counsel appearing for the parties and examined the documents on record.
12. A perusal of letter dated 10.03.2010 reveals that an applicant who is employed in government/semigovernment organization was required to submit a certificate from the employer to the effect that he/she has worked for minimum 5 years in the State of Jharkhand and other candidates were required to submit residential certificate issued by the Circle Officer.
713. From the communication dated 26.04.2010, it appears that for various reasons the residential certificate produced by the applicants have not been accepted by the respondentHousing Board and consequently, the applications of those persons have been rejected. It is apparent from Annexure 6 containing the list of applicants whose applications were rejected due to one or the other reasons that as many as 84 applications were not entertained on the ground that either improper/incomplete residential certificate was submitted or residential certificate was not submitted at all. The reasons communicated by the Housing Board for not accepting the residential certificate indicate that the residential certificate given on private school letter pad or the residential certificate issued by the private school or in place of residential certificate if Identity Card of Election Commission is attached or if Ration Card or Driving Licence is submitted as proof for residential certificate or Bank Passbook is attached in place of residential certificate or if the residential certificate was not issued by the Circle Officer, the Housing Board summarily rejected the applications. The original record which has been produced in the Court reveals that the domicile certificate dated 16.03.2010 submitted by Smt. Shyama Singh was issued by the Assistant Administrative Officer of Indian Bureau of Mines. The certificate has been issued in the name of the husband of Smt. Shyama Singh and it has been certified that Smt. Shyama Singh has been staying with her husband. When the residential certificate submitted by Smt. Shyama Singh is examined in the light of the reasons indicated in communication dated 26.04.2010 containing the list of the applicants whose applications were rejected on the ground of defective residential certificates, prima facie, it appears that the residential certificate submitted by Smt. Shyama Singh was not in accordance with the requirement prescribed in notice dated 10.03.2010.
814. The learned counsel for the petitioners has referred to Regulation No. 22 and submitted that in terms of Regulation, 2004 the application of Smt. Shyama Singh was liable to be rejected summarily however, the respondentHousing Board accepted her incomplete application and allotted her House No. B150 which should have been allotted to one of the petitioners being the only eligible applicants.
15. In "Rajasthan Housing Board through its Chairman Vs. Shivraj Singh Bhandari" (supra), when it was found that other ineligible persons were also included in the draw and were ultimately provided with houses to the exclusion of the respondent who was a legitimate claimant, the Hon'ble Supreme Court refused to interfere with the direction of the High Court to the Board to provide a completed house of required specification within the scheme to the respondent.
16. In "Chandigarh Housing Board & Anr. Vs. Gurmit Singh"
reported in (2002) 2 SCC 29, the respondent did not furnish any information in column no. 13 regarding his being bonafide resident of Chandigarh and the required period of stay in Chandigarh. Since he did not furnish a residential certificate, his allotment was cancelled. In the present case it is not in dispute that Smt. Shyama Singh is a housewife and the residential certificate submitted by her was not issued by the Circle Officer.
17. The learned counsel for the respondentHousing Board next submitted that the Regulation 25(vii) only provides that the Housing Board or the Selection Committee "if considers necessary", a waiting list may be prepared and therefore, the petitioners cannot claim that in every case the Housing Board should have prepared a waiting list.
18. Lord Mansfield in "R. Vs. Wilkes", (1770) 4 BURR 2527, observed that, a "discretion", when applied to a court of Justice 9 means sound discretion guided by law. It must be governed by rule not by humour. "It must not be arbitrary, vague, fanciful but "legal and regular".
19. In "Narendra Singh Vs. Chhotey Singh & Anr.", reported in (1983) 4 SCC 131, the Hon'ble Supreme Court has held that, "discretionary jurisdiction has to be exercised keeping in view the purpose for which it is conferred, the object sought to be achieved and the reasons for granting such wide discretion".
20. In "Clariant International Ltd. & Anr. Vs. Securities and Exchange Board of India", reported in (2004) 8 SCC 524, the Hon'ble Supreme Court in the context of the expression, "as it deems fit" observed that, "the discretional jurisdiction, it is wellknown, although may be of wide amplitude as the expression "as it deems fit" has been used but in view of the fact that the civil consequences would ensue by reason thereof, the same may be exercised fairly and bonafide".
21. Regulation 24 in 2004 Regulations mandates that if an application is incomplete in any manner whatsoever, then it would be considered invalid and would be rejected. Regulation 25 provides for categorization of the applicants in terms of Rule 10(ii) and the same would be entered in the register. Regulation 25(iii) provides for preparation of categorywise list of the applicants who fulfilled all the conditions. In Regulation 25(vii) a discretion has been vested in the Housing Board or the Committee to prepare a waiting list and Regulation 28 mandates that the number of candidates in waiting list would be restricted to 10% of the total number of candidates.
22. It is a matter of record that after the allotment of House No. B150 to Smt. Shyama Singh was cancelled, a fresh advertisement was issued during pendency of the writ petition. The Regulation 25 (vii) provides for preparation of waiting list through 10 a fresh draw of lottery from amongst rest of the applicants who were successful in the first instance. No doubt a provision for preparing a waiting list has been incorporated in the 2004 Regulations for the benefit of the applicants and for avoiding multiplicity of procedure. Regulation 25(vii) appears to have been incorporated to ensure fairness in action. When Regulation 32 (ii) is examined in the context of Regulation 25(vii) and Regulation 28, it is apparent that in case an allotment is cancelled, the property in question has to be allotted to the persons in the waiting list. The respondentHousing Board has taken a stand that before the year, 2010 no waiting list was prepared and such procedure has been adopted only in the year, 2011. What was the reason due to which no waiting list was prepared till the year, 2010 has not been brought on record. No decision of the Housing Board indicating reasons for deviating from the past practices has been brought on record. I further find that no reason has been indicated by the respondentHousing Board for not complying with provisions under Regulation 32(ii). I further find under Regulation 25 (vii) a waiting list is required to be prepared only by a fresh draw of lottery and thus, I do not find any rationale in the decision taken by the Housing Board to readvertise the house/plot which either has been surrendered or the allotment of which has been cancelled.
23. In "Nazir Ahmad Vs. The KingEmperor", reported in (193536) 63 IA 372, it has been held thus, "where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden".
24. In "Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala & Ors.", reported in (2002) 1 SCC 633, a Constitution Bench of Hon'ble Supreme Court reaffirmed the general rule that when a statute vests certain power in an authority 11 to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.
25. The exercise of discretion by the respondentHousing Board cannot be carried to the extent of disabling the petitioners an opportunity of getting allotment of the house for which the petitioners were admittedly eligible.
26. The petitioners who applied in response to advertisement issued by the respondentHousing Board and whose applications were found in order and were accepted by the respondentHousing Board had legitimate expectation that in the event a successful allottee either surrenders the property or it is cancelled, they would be considered for allotment in terms of the Regulation made by the Jharkhand State Housing Board.
27. In "Haryana Financial Corporation & Anr. Vs. Jagdamba Oil Mills & Anr.", reported in (2002) 3 SCC 496, the Hon'ble Supreme Court has observed that, the obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasijudicial authorities are bound to observe.
28. From the above discussions it emerges that without deciding the issue whether either of the petitioners was entitled for allotment in place of Smt. Shyama Singh had her defective application been not entertained by the Housing Board, the present writ petition deserves to be allowed on the ground that the respondentHousing Board acted contrary to its own regulation in not preparing a waiting list and consequently, denying one of the petitioners his/her legitimate expectation of being considered for allotment of House No.B150.
29. It is a matter of record that the respondentHousing Board appeared in the present proceeding on 13.01.2011 and three 12 weeks' time was granted for filing counteraffidavit. Vide order dated 07.09.2011, the counsel for the respondentHousing Board was directed to ascertain certain facts and vide order dated 21.09.2011 an order of statusquo was passed by this Court. In view of the Regulation 24(vii) and Regulation 32(ii), I am of the opinion that the respondentHousing Board was not justified in issuing 2nd advertisement for allotment of House No. B150 however, since the counsel for the respondent no. 4 has submitted that if a suitable alternative plot is offered to the respondent no. 4, he would be satisfied with such an arrangement, without probing into the validity of 2nd advertisement, I am of the opinion that it would serve the ends of justice, if the respondentHousing Board is directed to consider the claim of the petitioners afresh and if their claim is accepted, the Housing Board would offer a suitable alternative plot to the respondent no. 4. Such a direction is required to be issued in the peculiar facts and circumstances of the case as noticed hereinabove and the fact that immediately after cancellation of the allotment to Smt. Shyama Singh, the petitioners approached this Court and during the pendency of the present writ petition the respondents opted to issue a fresh advertisement with respect to the property in question.
30. In the result, the writ petition is allowed and it is ordered that the respondent no. 1 would consider the claim of the petitioners in the light of observations made hereinabove and take a decision within a period of four weeks.
(Shree Chandrashekhar, J.) Manish