Gujarat High Court
N.K. Parmar And Ors. vs State Of Gujarat And Ors. on 10 September, 1992
Equivalent citations: (1992)2GLR1508
Author: M.B. Shah
Bench: M.B. Shah
JUDGMENT M.B. Shah, J.
1. In this group of petitions, it is prayed by the Government employees, the Gujarat State Road Transport Corporation employees and the employees of the Accountant General, Gujarat, that the Government should be directed to sell them the tenements, which are allotted to them as employees for residential purpose during their service tenure. The dispute pertains to "F", "G", "K" and Meghaninagar Housing Colonies (which are situated in the area known as Asarwa Chamanpura) and few tenements constructed by S.T. Corporation at Nadiad, Baroda and other cities.
2. It is the contention of the petitioners that "F", "G" and Meghaninager Housing Colonies were constructed by the Housing Board in the year 1959-60 at the price of Rs. 3600/- per tenement; on the bifurcation of the bilingual State of Bombay, the State of Gujarat was formed on 1st May, 1960; for accommodating the Government employees the State of Gujarat took the Colonies "A", "B", "C", "D", "E", "F", "G". "H" and "L" from the Gujarat Housing Board. It is the say of the State Government that, to provide accommodation to the Government servants who were working in the State Government departments and who were transferred to the State of Gujarat, the aforesaid Colonies were taken over on lease and accommodation was also provided in the Government owned quarters, flats and bungalows. The Government had also allotted certain quarters of "F" & "G" Colonies to the staff of the Gujarat State Road Transport Corporation on certain conditions and the administrative control for residential accommodation of these quarters 'vested with the State Government. It is also pointed out that by Resolution dated 17th March, 1977 (Annexure "I" to the affidavit-in-reply) the State Government decided to purchase 1154 numbers of tenements from the Gujarat Housing Board situated at various places in Ahmedabad City as under:
(1) "F" Colony, Shah Alam Roza 524 Nos.
(2) "G" Colony, Rajpur Hirpur 414 Nos.
(3) Asarwa Chamanpura
(Meghaninagar Housing Colonies) 216 Nos.
1154 Nos.
The preamble of the said Resolution provides that on formation of the new State of Gujarat on 1st May, 1960, the issue of providing residential accommodation to the Government servants allocated to the new State and posted to work either in Sachivalaya or to the offices of Heads of Departments set up at Ahmedabad cropped up. For this purpose, in addition to requisitioning private houses and undertaking programmes of constructing new quarters on priority basis, 1154 tenements of the Gujarat Housing Board constructed under the subsidised Industrial Housing Scheme were also hired for Government servants. Considering the need of accommodating the Government employees, it was thought proper not to release the said quarters to the Gujarat Housing Board. With regard to "K" Colony, it is an admitted fact that the Government had constructed it and it belongs to the Government.
3. At the time of hearing of these matters, the learned Advocates for the petitioners vehemently contended that-
(1) With regard to "H" and "L" Colonies, the State Government had decided to allot the tenements of the said Colonies in favour of Government employees or other persons who were residing in the said tenements, therefore, the Government should be directed to dispose of these tenements in favour of the petitioners;
(2) "F", "G" and Meghaninagar Housing Colonies were constructed by the Housing Board under the scheme known as "Subsidised Industrial Housing Scheme" with 50% subsidy of the Central Government and the Central Government by its Circular dated 14th February, 1979 has directed the State Government to transfer the tenements on ownership basis to their respective members/workers and, therefore also, the State Government should be directed to transfer these tenements in favour of the petitioners who were allotted the tenements for their residence;
and (3) the State Government had no authority to direct the Gujarat-Housing Board to transfer the tenements in its favour and, therefore, the Resolution passed by the State Government in 1977 for purchase of the said Colonies is illegal.
4. In our view, it is difficult to accept that the Government employees or the employees of the State Transport Corporation have any legal or equitable right to insist that the quarters or blocks which were allotted to them during their service tenure should be sold to them. Normally, residential accommodation is provided to the employees either because of service conditions or for giving facility to them during their service period because of transfer from one place to another and with a view to see that there is no hardship to them in getting the rental accommodation. If this contention of transferring the quarters or blocks in favour of the employees who are residing therein is accepted, the result would be that, for every Government employee or the employee of the Corporation, the Government or the Corporation would be required to construct new houses or blocks. Further, if some tenements/blocks were transferred or sold under some scheme in the past by the Government at the subsidised rate to the Government employees, it cannot be said that for all time to come the Government should go on framing such schemes and transferring the blocks/tenements after constructing the same to the employees.
5. With regard to the first contention, it is vehemently sought to be contended by the learned Advocates for the petitioners that, as tenements of 'H' and 'L' Colonies which were allotted for residence to the Government employees are transferred to the Government employees and other persons who were residing in the said tenements on the particular date, the Government should be directed to pass such resolution in favour of the employees who are residing in 'F', 'G', 'K' and Meghaninagar Colonies. In our view, the submission is totally misconceived. It is an admitted fact that the tenements of 'K' Colony were constructed by the Government. It is also apparent from the record that 'F', 'G' and Meghaninagar Colonies were purchased by the Government. For the purchase of these Colonies, the Government passed Resolution dated 17th March, 1977. By the said Government Resolution, the Government had decided to purchase 1154 tenements from the Gujarat Housing Board of 'F' Colony, Shah Alam Roza, 'G' Colony, Rajpur Hirpur and Asarwa Chamanpura area (Meghaninagar Colony). After the purchase of the tenements the same vested absolutely in the State Government. Prior to that, the State Government had taken the aforesaid tenements on lease from the Gujarat Housing Board because of bifurcation of the bilingual State of Bombay to accommodate the Government employees who were to work either in Sachiyalaya or in the offices of the Heads of Departments set up in Ahmedabad. With regard to 'H' & 'L' Colonies, the Government had passed a Resolution on 18th February, 1975 which is Annexure 'E' to Special Civil Application No. 1024 of 1979. As per the said resolution the Government has directed that all the existing 396 'Law Income Group Houses' constructed by the Gujarat Housing Board at Paldi, Ahmedabad, shall be converted from Rental Scheme to Hire-Purchase Scheme for allotment on hire purchase basis on conditions mentioned therein. It should be noted that the aforesaid resolution passed by the State Government was challenged before this Court in group of Special Civil Applications in the case of U.K. Acharya v. State . After considering the arguments at length the Division Bench of this Court has rejected the petitions. It is held in the said judgment that tenements of 'H' & 'L' Colonies were constructed by the Housing Board for making tenements available for housing needy persons by allotment on rental basis under low income group housing scheme. Therefore, the tenements which were constructed were to be made available for occupation to persons belonging to the low income group. The Court further observed that after formation of the State of Gujarat, to meet its housing requirements allotments of these houses were made to the transferred Government servants. In those cases also the Court negatived the contentions that the resolution was violative of Article 14, that it was contrary to Section 74 of the Gujarat Housing Board Act and that it was issued by the State of Gujarat under Section 82 of the Act without following the procedure laid down therein. In our view, in the present petitions it would suffice to say that tenements constructed in 'H' & 'L' Colonies were not owned by the Government and the Government had not decided to purchase them from the Gujarat Housing Board. They remained as those of the Gujarat Housing Board. They were constructed as per the Circular of the Central Government under a scheme known as 'Low Income Group Housing Scheme'. By the Resolution dated 18th February, 1975 the Government had converted the said scheme from rental scheme to hire-purchase scheme for allotment on hire-purchase basis on certain terms and conditions. Therefore, it cannot be said that the petitioners, who are residing in 'F', 'G', 'K' and Meghaninagar Colonies which are owned by the Government, are discriminated. Admittedly 'K' Colony was constructed by the Government. 'F', 'G' and Meghaninagar Housing Colonies were no doubt constructed by the Gujarat Housing Board but thereafter those tenements were purchased by the State Government. The tenements of 'H' and 'L' Colonies were taken on lease by the State Government but were not purchased. Subsequently, the State Government had passed a resolution converting them from rental to hire-purchase scheme for allotment on hire-purchase basis. Therefore, employees who were residing in 'H' and 'L' Colonies would stand on a different footing and they formed a different class. It cannot be said that the State Government ought to have decided to purchase 'H' and 'L' Colonies and as 'H' and 'L' Colonies are not purchased, it ought not to have purchased 'F', 'G' and Meghaninagar Housing Colonies constructed by the Gujarat Housing Board under some special scheme. Similarly, it would be difficult to accept the contention that because the State Government has permitted the Gujarat Housing Board to dispose of tenements of 'H' and 'L' Colonies, the State Government should be directed to dispose of tenements of other Colonies constructed by the Gujarat Housing Board in favour of the employees who are residing there as tenants. In our view, in this type of cases, there is no question of violation of Article 14 because it cannot be said that the petitioners are discriminated against because of fortuitous circumstances of sale of tenements of 'H' and 'L' Colonies in favour of some Government employees or employees of the S.T. Corporation or other persons. If by a fortuitous circumstance a chance or benefit of purchasing the tenements is given by a Government Resolution, it does not amount to a privilege having conferred upon some Government employees and, therefore, similar privilege should be granted to rest of the employees. Fortuitous circumstance in this case would be that some employees were allotted tenements in 'H' and 'L' Colonies during their service tenure and others were allotted in other Colonies and that by chance or for some reasons the Government had issued a resolution converting the rental scheme for 'H' and 'L'. Colonies to hire-purchase scheme. In the case of Union of India v. E.S. Soundara Rajan , the Court inter alia held as under
It is equally important to remember the well established proposition that there cannot be a case of discrimination merely because fortuitous circumstances arising, out of some peculiar developments or situations create advantages or disadvantages for one group or the other although in the earlier stages they were, more of less, alike. If one class has not been singled out for special treatment, the mere circumstance of advantage accruing to one or the other cannot result in breach of Article 14 of the Constitution.
In any case, rightly or wrougly if some bounty is granted by the State Government in favour of those who were residing in "H" and "L" Colonies, it cannot be said that the State Government should be directed to confer the similar bounty to all the employees. If the petitioners were aggrieved by the said order of the State Government granting the tenements of "H" and "L" Colonies in favour of the persons who residing therein, they ought to have challenged it at the relevant time. The validity of the said resolution cannot be decided in this petition. (In the case of U.K. Acharya v. State , this Court has upheld the validity of the resolution of 1975 in the petitions filed by other employees with which we are not concerned in these petitions.) If by the said resolution of 1975, some employees were arbitrarily favoured, then at the most the Court would strike down the said resolution, but it would hardly mean that the Court can issue direction to the State Government that similar resolution should be passed giving largesse or bounty to the petitioners.
6. Regarding the second contention it should be noted that admittedly the aforesaid "F", "G" and Meghaninagar Colonies were constructed under the Scheme known as "Integrated Subsidised Housing Scheme for Industrial workers and Economically Weaker Sections of Community" by the Housing Board with the financial assistance by the Government of India to the State Government and to the Housing Board. In the amdavit-in-reply filed on behalf of the Union of India in Special Civil Application No. 1105 of 1979 it has been pointed out that the financial assistance was not admissible under the said Scheme for the housing of employees of Central and State Government, local authorities (including municipal bodies) and of statutory bodies, even through their workers are covered by the Scheme; the statutory bodies, corporations of companies owned in part or in full by Central or State Government, if liable to income tax in respect of their earnings or a part thereof, were, however, entiled to financial assistances for housing of their eligible workers; according to the provisions of the Scheme the houses built for industrial workers were required to be retained for allotment to the eligible workers on rental basis only and were not to be sold; however, with regard to the houses made by the State Governments and their designated agencies the policy was reviewed in 1978 and it was decided in February 1978 to permit the State Government to sell the houses built under the Scheme to the existing occupants on certain conditions. Before appreciating this aspect, it would be necessary to bear in mind that under the Integrated Subsidised Housing Scheme, financial assistance was admissible as under:
__________________________________________________________________________________ **Construction agency Financial Assistance Admissible __________________________________________________________________________________ Loan Subsidy State Government/ 50% 50% of the approved Statutory Housing Boards cost of construction and Local Bodies Employers 50% 25% Reg. Co-operative Societies ** 65% 25% of eligible Worker ** The balance 10% (annd the additional amount, if any, over and above the approved ceiling cost) is to be contributed by the menbers themselves ___________________________________________________________________________________ From the aforesaid table, it is clear that financial assistance was given to the State Governments, Statutory Housing Boards and Local Bodies as stated above. It was also given too the remployers, (i.e., excluding the State Governments, Statutory Housing Boards and Local Bodies) and registered Co-operetive societies of eligible workers. Bya Circular dated 9th February, 1978 after considering the representations received from various sources the Central Government decided to permit the State Governments to transfer the tenements built under the Integrated Subsidised Housing Scheme to those in occupation of the tenements subject to the conditions mentioned therein. The relevant directions in paragraphs 3 & 4 of the aforesaid Circular dated 9th February, 1978 are as under:
3. In the light of the above facts, the existing policy of the Government in this regard has been reviewed and it has been decided to permit the State Governments to transfer the tenements built under the Integrated Subsidised Housing Scheme for Industrial Workers and Economically Weaker Sections of Community (previously known as the Subsidised Housing Scheme for Industrial Workers) to those in occupation of the tenements subject to the following conditions:
xxx xxx xxx
4. In view of the above decision, the State Governments/Union Territories Administration may issue necessary orders, in specific cases, for the sale of houses built for the Industrial Workers under the Scheme. Copies of such sanction should invariably be endorsed to this Ministry and the Principal Accounts Officer, Ministry of Works and Housing, Nirman Bhavan. New Delhi, quoting inter alia, the particulars of houses sold and the particulars of this Ministry's sanctions under which the relevant projects were approved and the amount of subsidy released.
7. From the aforesaid instructions/directions, it cannot be said that the Central Government had directed the State Government to transfer the tenements constructed by the Housing Board in favour of the persons who were in occupation of the tenements. Only the ban on transfer of the tenements is lifted. It only means that it was open to State Governments to transfer the tenements constructed under the Scheme to those who were in occupation. This policy decision was taken because of the representation of the effect that it was practically impossible to dispossess superannuated workers or workers who had crossed the income limit of eligibility for the retention of tenements in their occupation and that occupants were not paying even the subsidised rent with the result that the arrears have mounted and that the rents were not sufficient to meet the maintenance cost. Further, the question of transfer in favour of the occupants would not arise when the State Government itself has purchased the said tenements from the Housing Board. As stated earlier, by the Resolution dated 17th March, 1977 the Government had decided to purchase the said Colonies from the Housing Board. Therefore, this Circular would not mean that the Central Government had directed the State Government or the Housing Board to transfer the tenements constructed under the said Scheme in favour of the occupants of the tenements.
8. It should be noted that the reliance placed upon the Circular dated 14th February, 1979 is totally misconceived. The said Circular only applies to the tenements constructed under the said Scheme by employers Cottier than the State Governments, Statutory Housing Boards, and Local Bodies) and by the Registered Co-operative Societies of eligible workers. The relevant paragraph 4 of the said Circular is as under:
4. As a result of the above decision, representations have been received from M.P.'s Co-operative Societies, Workers' Associations, etc., that the houses built by the Employers and the Co-operative Societies under the Scheme should also be sold to the occupants on ownership basis. The existing policy of Government in this regard has been further reviewed and it has been decided to permit the Co-operative Societies and employers, who are willing to sell the houses, to transfer the houses built for the Industrial Workers under the Integrated Subsidised Housirg Scheme for Industrial Workers and Economically Weaker Sections of Community (previously known as the Subsidised Housing Scheme for Industrial Workers), on ownership basis, to their respective members/workers, subject to the following conditions.
xxx xxx xxx xxx Even the aforesaid direction only permits the co-operative societies and the employers, who are willing to sell the houses, to transfer the houses on ownership basis to their respective members/workers subject to certain conditions. That means, if the co-operative society is not willing to transfer the houses, there is no direction by the Central Government that they should be transferred in favour of occupants. In this view of the matter, there is no substance in the second contention raised by the learned Advocates for the petitioners.
9. Regarding the third contention, it should be noted that it is made without referring to Rule 10 of the Gujarat Housing Board Rules, 1977. Rule 10 in terms provides that any land or building vesting in the Board may be transferred by the Board to the State Government. Even with regard to lease, sale, exchange, mortgage or otherwise disposal of any immovable property vesting in the Board, and situate in the area comprised in any housing scheme sanctioned under the Act, it has to obtain prior approval of the Government. This would be clear from Rule 10 which is as under:
10. (1) Any land vesting in the Board may be transferred by the Board to the State Government and when such transfer is made, the loans advanced by the Government to the Board shall be reduced to the extent of the purchase value of the land so transferred plus the charges incurred on the establishment for its maintenance and on its development.
(2) Any building vesting in the Board may be transferred by the Board to Government and when such transfer is made, the loans advanced by Government to the Board shall be reduced to the extent of the cost of the buildirg so transferred plus the charges incurred on the establishment for its maintenance but less a reasonable amount to be deducted on account of depreciation.
(3) Subject to the provisions of Sub-rules (1) and (2), the Board shall not lease, sell, exchange, mortgage or otherwise dispose of any immovable property vesting in it and satiate in the area comprised in any housing scheme sanctioned under the Act, without the prior approval of Government. Such transfer shall be subject to such terms and conditions as Government may determine in each case in that behalf:
Provided that in the case of a lease, the Board shall communicate to Government the terms and conditions of the proposed agreement and if no approval is received by the Board from Government within thirty days from the date of receipt of such communication by Government, the Board may proceed to settle the "proposed agreement as if Government has approved of the proposed:
Provided further that no such approval shall be required:
(a) for allotment of tenements and premises according to the regulation made by the Board in that behalf;
(b) for leasing any vacant land for a period not exceeding two years at a time; and
(c) for sale or demolition of any building or structure, which is in a dangerous condition or beyond repair.
In view of the aforesaid rule, it would be apparent that it is always open to the State Government to purchase the land or building constructed by the Housing Board. Further Section 49 provides that the Board may retain, lease, sell, exchange or otherwise dispose of, any land, building or any apartment therein or other property vesting in and situate in the area comprised in any housing scheme sarctioned under the Act. Therefore the Housing Board can retain the tenements which are constructed by it under a particular scheme including the houses constructed under the scheme known as 'Integrated Subsidised Housing Scheme for Industrial Workers and Economically Weaker Sections of Community'. Further, under Section 82 of the Gujarat Housing Board Act the State Government is empowered to give such directions as in its opinion are necessary or expedient for carrying out the purposes of the Act. Section 82 reads as under:
82. The State Government may give the Board such directions as in its opinion ate necessary or expedient for carrying out the purposes of this Act, after giving an opportunity to the Board to slate its objections, if any, to such directions and after considering the said objections. It shall be the duty of the Board to comply with such directions.
Therefore, if the State Government has issued a direction to the Housing Board with regard to the Colonies constructed under a particular scheme, which were let out to the State Government, to transfer them in favour Of the State Government, then it cannot be said that the said direction is without any authority of law. It should be noted that a similar contention is raised in the case of U.K. Acharya v. State , and the Court has negatived it. In any case, it cannot be said that the petitioners would have any right to challenge the directions issued by the State Government to the Gujarat Housing Board.
Re: Special Civil Application No. 1105 of 1979 and Others:
10. In Special Civil Application No. 1105 of 1979 and others filed by the Employees of S.T. Corporation, an additional contention was raised by the learned Counsel for the petitioners that the State Transport Coiiporation has constructed the Colonies in different cities of the State under the 'Integrated Subsidised Housing Scheme for Industrial Workers and Economically Weaker Sections of Community'. After taking advantage of the said Scheme it is not opan to the State Transport Corporation to refuse to transfer the said tenements constructed under the said Scheme in spite of the directions issued by the Central Government. In our view, this submission is totally misconceived as stated earlier. By the Circular dated 9th February, 1978 the Central Government has lifted ban on the transfer of the tenements because as per the Scheme the State Government "or the Statutory Housing Boards and Local Bodies were not permitted to transfer the houses constructed under the Scheme. They were constructed for letting out to the workers on a subsidised rent. After lifting of the ban on transfer of the tenements constructed under the Scheme, it is open to the State Transport Corporation to transfer the said tenements in favour of the persons who are in occupation of the tenements. But that does not mean that even though the State Transport Corporation is not willing to transfer the same, a direction can be issued by this Court to transfer the said tenements in favour of the occupants. On behalf of the State Transport Corporation, an affidavit-in-reply is filed in Special Civil Application No. 1105 of 1979 wherein it is stated that there are 462 quarters constructed under the said Scheme by the State Road Transport Corporation. It is also pointed out that in all over Gujarat the Corporation had got 2902 quarters with respect to Class I to Class IV employees and 90 quarters are hired from the Government. It is also pointed out that in all 55,500/- employees are working with the Corporation all over Gujarat State; therefore, the limited quaiters or houses are required to be allotted on the basis of the State Government's rules; the Corporation is having a big waiting list of workers seeking facility of quarters and, therefore, if the persons in occupation are not evicted, then the persons on the waiting list cannot get accommodation; therefore, the State Transport Corporation has decided not to transfer the tenements constructed under the said Scheme and that it has continued letting out as per the original scheme on rental basis In our view, the aforesaid stand of the State Transport Corporation cannot be said to be in any way unreasonable or arbitary or against any direction issued by the Central Government. Hence, there is no question of giving any direction to the State Transport to sell the tenements constructed under the Integrated Subsidised Housing Scheme for Industrial Workers and Economically Weaker Sections of Community in favour of the petitioners.
In the result, as there is no substance in the contentions raised by the petitioners, these petitions are rejected. Rule discharged in each petition with no order as to costs. The interim relief stands vacated. However, at the request of the learned Advocates for the petitions, the interim relief to continue upto 15th November, 1992.