Gauhati High Court
Smti Meenakshi Gogoi vs The State Of Assam And 3 Ors on 15 February, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/5
GAHC010007512020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/359/2020
SMTI MEENAKSHI GOGOI
W/O SRI ANUP KUMAR DEKA, PHUKOON NAGAR, SIVASAGAR, P.O.-
SIVASAGAR, DIST-SIVASAGAR, ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, DEPARTMENT OF URBAN DEVELOPMENT,
DISPUR, GUWAHATI-781006
2:THE COMMISSIONER
ASSAM HOUSING BOARD
R.G. BARUAH ROAD
GUWAHATI-781005
3:THE CHAIRMAN
ASSAM STATE HOUSING BOARD
R.G. BARUAH ROAD
GUWAHATI-781005
4:THE COMPETENT AUTHORITY
ASSAM STATE HOUSING BOARD
R.G. BARUAH ROAD
GUWAHATI-78100
Advocate for the Petitioner : MR. P BOIRAGI
Advocate for the Respondent : GA, ASSAM
Page No.# 2/5
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
15.02.2022 Heard Mr. P. Boiragi, learned counsel for the petitioner; Mr. R. Talukdar, learned Junior Government Advocate for the respondent no. 1; and Ms. A. Bora, learned counsel appearing on behalf of Mr. I. Choudhury, learned Standing Counsel, Assam State Housing Board for the respondent nos. 2 - 4.
2. The background facts, in brief, leading to the institution of this writ petition under Article 226 of the Constitution of India whereby an order dated 26.07.2019 has been assailed, can be stated as under :-
2.1. The petitioner was allotted a flat being Flat no. EWS C/18 at RHS Complex at Bhetapara under the rental housing scheme of the respondent Assam State Housing Board ['the ASHB', short] by an order dated 28.02.2006. The monthly rent was fixed at Rs. 650/-
per month with effect from the date of occupation of the flat under the terms and conditions as laid down in the Assam State Housing Board Act and the rules framed thereunder. After allotment of the flat, the petitioner started living in the said flat with her husband. Subsequently by an office order dated 30.11.2007, another flat being Flat no. EWS D/2, was allotted to the petitioner and the petitioner shifted to Flat no. EWS D/2. After allotment of the said flat, the petitioner shifted to Flat no. EWS D/2. On 29.08.2017, petitioner gave birth to a baby. It was in order to take care of her baby and the deteriorating health conditions of her parents, the petitioner stated to have gone to her native place at Sivasagar.
2.2. In the meantime, the petitioner allowed one Sri Raj Kumar Boro as a caretaker for the said flat. On 30.06.2018, the respondent authorities in the ASHB served a first show- cause notice to Sri Raj Kumar Boro terming as an unauthorized occupant of Flat no. EWS D/2. The petitioner, in response to the said first show-cause notice, submitted a reply stating the Page No.# 3/5 reasons behind allowing Sri Raj Kumar Boro to live in the said flat as a caretaker. Thereafter, second show-cause notice was served upon Sri Raj Kumar Boro on 30.07.2018 as an unauthorized occupant of Flat no. EWS D/2 in continuation of the first show-cause notice dated 30.06.2018. By the said notice, Sri Raj Kumar Boro was asked to vacate the flat which was allegedly in his unauthorized occupation and he was asked to show-cause within a period of 15 days as to why he should not be forcibly evicted from the said flat under the provisions of the ASHB Act and the rules framed thereunder. No reply to the second show-cause notice was submitted by Sri Raj Kumar Boro.
2.3. The respondent authorities in the ASHB served an eviction notice dated 26.07.2019 whereby Sri Raj Kumar Boro was informed that the respondent ASHB had fixed 06.09.2019 as the date of eviction for the Flat no. EWS D/2. Sri Raj Kumar Boro was thereby asked to hand over the possession of the said flat before 06.09.2019 or otherwise, he would be evicted by a process of eviction led by Executive Magistrate and police force. After the eviction notice, the petitioner had submitted a representation before the respondent no. 2 on 17.10.2019 with a prayer not to act upon the eviction notice dated 26.07.2018. In the subsequent period, the flat in question was vacated. It was on 08.11.2019, the respondent no. 2, by his letter of even date, had informed that the request of the petitioner to stay in the flat could not be considered.
3. This writ petition has been preferred by the writ petitioner assailing the second show- cause notice served upon Sri Raj Kumar Boro whereby he was asked to hand over the possession of the flat on or before 06.09.2019.
4. The respondent no. 2 has filed an affidavit-in-opposition on 02.03.2020 and an additional affidavit on 09.04.2021. By the additional affidavit, the respondent no. 2 has brought on record a letter dated 06.03.2018 passed by him. By the said order dated 06.03.2018, the allotment of the flat made in favour of the petitioner was cancelled and the petitioner was asked to hand over the possession of the allotted flat within 15 days from the date of issuance of the said order. It was further reflected from the said order that the copies of the said order dated 06.03.2018 were forwarded to the petitioner at her addresses - [i] at Page No.# 4/5 Flat no. EWS D/2, and [ii] in District - Sivasagar.
5. Mr. Boiragi has submitted that the order dated 06.03.2018 was never served upon the petitioner and as such, the order of cancellation is in violation of the principles of natural justice.
6. Be that as it may, the order dated 06.03.2018 was brought on record by the respondent authorities in the ASHB by way of an additional affidavit filed on 09.04.2021. Despite elapse of more than 10 months, the petitioner has not challenged the said order of cancellation dated 06.03.2018. It has also brought to the notice of this Court by the respondent ASHB authorities about an order dated 21.10.2019 passed by the respondent no. 2, by annexing a copy of the said order with the additional affidavit. By the said order dated 21.10.2019,, Flat no. EWS D/2 has been allotted to one Sri Rekibuddin Ahmed as per the terms and conditions mentioned therein. It has been averred that Sri Rekibuddin Ahmed has shifted to the Flat no. EWS D/2 in the meantime.
7. The petitioner has not traversed the above contentions of the respondent ASHB authorities by way of any re-joinder affidavit.
8. From the above, it has clearly emerged that it is the order dated 06.03.2018, whereby the allotment made in favour of the petitioner in respect of Flat no. EWS D/2, allotted vide the order dated 28.02.2006, was cancelled. The second show-cause notice dated 30.07.2018 was served upon one Sri Raj Kumar Boro who was found to the unauthorized occupant of Flat no. EWS D/2. When the original order of cancellation dated 06.03.2018 has not been challenged by the writ petitioner, this writ petition challenging the second show-cause notice served upon a third party viz. Sri Raj Kumar Boro who was found to be an unauthorized occupant of Flat no. EWS D/2, is found to be not maintainable. Moreover, by the office order dated 21.10.2019, the concerned flat i.e. Flat no. EWS D/2 has already been allotted to another person and as a result, third party rights have been created in respect of the said flat on 21.10.2019 prior to the institution of the writ petition as the present writ petition was filed on 08.01.2020. Thus, the writ petition also suffers from non-joinder of a necessary party. In Page No.# 5/5 view of the discussions made above, this writ petition, which has not challenged the order of cancellation dated 06.03.2018, is found not maintainable and accordingly, the same is not entertained. Consequently, the writ petition is dismissed. No cost.
JUDGE Comparing Assistant