Jharkhand High Court
Bibhash Chandra Mishra vs Jharkhand State Housing Board Through ... on 19 December, 2022
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4870 of 2022
Bibhash Chandra Mishra ... ... Petitioner
Versus
1. Jharkhand State Housing Board through the Managing Director,
near Harmu Housing Colony, Ranchi
2. The Managing Director, Jharkhand State Housing Board, near
Harmu Housing Colony, Ranchi
3. The Executive Engineer, Jharkhand State Housing Board, near
Harmu Housing Colony, Ranchi
4. Competent Authority, Jharkhand State Housing Board, near Harmu
Housing Colony, Ranchi ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Siddhartha Ranjan, Advocate For the Respondents : Mr. Sachin Kumar, Advocate Mrs. Surabhi, Advocate
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Order No. 06 Dated: 19.12.2022 The present writ petition has been filed for quashing the order as contained in memo no. 458/Aa dated 15.04.2015 (Annexure- 5 to the writ petition) issued by the respondent no. 2 - the Managing Director, Jharkhand State Housing Board, Ranchi, whereby allotment of Low Income Group Flat No. R302 (hereinafter referred to as "the said flat") situated at Harmu Housing Colony, Ranchi in favour of the petitioner vide letter no. 593/Aa dated 25.10.2002, has been cancelled. Further prayer has been made for issuance of direction upon the respondents either to allow the petitioner to stay in the said flat on monthly rental basis as per the agreement of allotment executed between the parties on 24.01.2003 or to make allotment of the said flat in favour of the petitioner on Hire Purchase basis since he has incurred considerable expenses in maintaining the said flat. The petitioner has also prayed for quashing the order dated 22.06.22 (Annexure-11 to the writ petition) passed by the respondent no. 4 - Competent Authority, Jharkhand State Housing Board, Ranchi whereby he has been directed to vacate the said flat.
2. Learned counsel for the petitioner submits that various houses/flats under the jurisdiction of Jharkhand State Housing Board (JSHB) remained un-allotted for years after construction which were 2 also in unauthorized occupation and during the year 2002, it was not possible for the JSHB to allot or sale such houses/flats permanently, due to which their condition were deteriorating as well as no revenue was being received by the Board from such houses/flats. Hence, in order to save those from further deterioration as well as to get rid of unauthorized occupants, the petitioner was allotted one of the flats i.e., LIG-R-302 at Harmu Housing Colony, Ranchi on monthly rental basis vide letter no. letter no. 593/Aa dated 25.10.2002 issued under the signature of the respondent no. 2. Thereafter, on deposit of advance rent, an agreement for the said flat was executed between the petitioner and the respondent no. 3 - the Executive Engineer, Jharkhand State Housing Board, Ranchi on 24.01.2003 and vide memo no. 96 dated 25.01.2003, possession of the same was directed to be handed over to the petitioner which was occupied by him on 08.02.2003. Since then, the petitioner has been residing in the said flat and is paying monthly rent to the Board. Surprisingly, a show cause notice was issued to the petitioner by the respondent no. 2 vide memo no. 549 dated 01.04.2015 calling upon him as to why allotment of the said flat be not cancelled and the same be not vacated considering that the allotment made on 25.10.2002 was against the provisions of clause 2(xi) & (xx), 6, 7 and 25 (i), (ii) & (iv) of the Jharkhand State Housing Board (Management and Settlement of Residential Real Estate) Regulations, 2004 (hereinafter referred to as "the Regulations, 2004"). The petitioner submitted his reply before the respondent no. 2 on 11.04.2015 stating that when the flat was allotted to him, it was in dilapidated condition and he had to incur considerable expenses in renovating the same with the consent of the Board and as such, the said flat may be allotted to him on hire purchase basis. However, the respondent no. 2 arbitrarily cancelled the allotment of the said flat vide memo no. 458/Aa dated 15.04.2015. The respondent no. 3 issued Notice No. 445 dated 09.05.2015 to the petitioner under Section 83(A) of the Jharkhand State Housing Board Act, 2000 (hereinafter referred to as "the Act, 2000") and directed him to vacate the said flat within 10 days as well as to deposit penalty with the respondent no. 3 for the damages 3 caused due to said unauthorized occupation, failing which a case would be registered against the petitioner before the respondent no. 4 under Section 59 of the Act, 2000 for removal of unauthorized occupation and payment of damages.
3. It is further submitted that the petitioner cannot be said to be in unauthorized occupation as he has not violated any of the conditions of his tenancy and the allotment has been cancelled unilaterally without terminating the agreement dated 24.01.2003 executed between the parties. Thereafter, Eviction Case No. 121 of 2015 was filed by the respondents against the petitioner before the respondent no. 4, wherein a show cause notice as contained in memo no. 1668 dated 05.08.2015 was issued to the petitioner calling upon him as to why an order of eviction from the said flat be not passed considering that his occupation was unauthorized since 15.04.2015 i.e., the day on which the allotment of the flat was cancelled. After almost seven years of issuance of pervious notice, the respondent no. 4 again issued notice dated 27.05.2022 to the petitioner for appearing before him on 02.06.2022 at 11:30 a.m., failing which an ex-parte order would be passed. Thereafter, the petitioner appeared before the said respondent and informed about pendency of similar matters before this Court, however, the petitioner was served with order dated 22.06.2022 passed by the respondent no. 4 in Eviction Case No. 121/2015 directing him to vacate the said flat within 30 days as well as to pay the amount of damages, failing which the same would be vacated through the assistance of district administration by deputing magistrate and police force and the entire cost incurred in vacating the said flat would be recovered from the petitioner.
4. Learned counsel for the petitioner also submits that the respondent no. 3 exceeded his jurisdiction in issuing letter to the Sub-Divisional Officer, Sadar, Ranchi vide memo no. 997 dated 13.09.2022 for deputing adequate number of police force (including female police force) in order to remove encroachment from all the concerned properties including the said flat possessed by the petitioner. A copy of the said letter was also communicated to all the 4 alleged unauthorized occupants directing them to vacate the respective houses/flats/land within two days, failing which they would be evicted forcefully and the cost incurred in this would be recovered from them.
5. According to the learned counsel for the petitioner, the allotments of various other flats of the allotees were also cancelled in the same manner as that of the petitioner out of which some of the similarly situated allotees/tenants moved before this Court by filing writ petitions, wherein the orders of status quo were passed. Since various writ petitions were pending against the decision taken by the Board of Directors, Jharkhand State Housing Board in its 40th meeting dated 07.04.2015 (Annexure-R/1 of the rejoinder to the counter affidavit), the petitioner thought it appropriate not to challenge the order dated 15.04.2015 passed by the respondent no. 2. It is also submitted that once an issue was sub-judice before this Court and the interim orders were already passed, it was not necessary that every allotee whose allotment was cancelled by reasons of the order of the respondent no. 2 pursuant to the decision taken by the Board of Directors, JSHB in its 40th meeting, was required to move before this Court, rather the authorities of the Housing Board should have restrained themselves from taking coercive measures against all such similar matters.
6. Learned counsel for the petitioner emphatically argues that the Managing Director, JSHB has no power to review the order of erstwhile Managing Director and to change the decision earlier taken by the said authority. The show cause issued to the petitioner was merely an eye wash since the decision to cancel the allotment of the flat in question was already taken on 07.04.2015 in the 40th meeting of Board of Directors, JSHB itself prior to submission of the show cause reply by the petitioner on 11.04.2015 and hence, such action was in violation of the principles of natural justice. As per learned counsel for the petitioner, since the petitioner has maintained the said flat and thereby the property of the Board has been prevented from further deterioration by incurring continuous expenses on it, the said flat should have been allotted to him on Hire Purchase basis instead 5 of cancelling the allotment itself.
7. It is further contended that the show cause notice issued under Regulations, 2004 cannot be made applicable retrospectively since the allotment was made in the year 2002. The Bihar State Housing Board (Management and Disposal of Housing Estates) Regulations, 1983 is also not applicable in the present case since it is meant only for disposal of the properties through sale or on hire purchase basis and not with respect to the houses/flats which have been rented out. The Act, 2000 makes provision for renting out houses and a detailed procedure has been made for eviction and recovery of rents under Section 59 on violation of the terms and conditions of the tenancy as well as to recover payment of damages after termination of tenancy under Section 83(A) of the said Act. In the present case, the petitioner has not violated the terms of allotment and the exercise to cancel the allotment undertaken by the Jharkhand State Housing Board contrary to the provisions of the Act, 2000. The persons who attended the said Board's meeting were mostly of the Jharkhand State Housing Board and there was neither ex-officio member of the State Government nor any non-official member as would be evident from the minutes of the 40th meeting of Board of Directors, Jharkhand State Housing Board conducted on 07.04.2015. The Urban Development and Housing Department, Government of Jharkhand has issued notification no. 1817 dated 17.03.2017 for regularization of residential units/houses/flats/ estates of the Jharkhand State Housing Board constructed in different Divisions under various schemes to those persons who have been in occupation of the same for the last ten years by evaluating those on the basis of current value on depositing lump-sum amount of 30% of the evaluated property along with amount of penalty fixed for concerned residential estates. The said regularization scheme is applicable for the residential units/flats/houses which are in unauthorized occupation and for that, the relevant provisions of the Regulations, 2004 concerned with the income groups, quota, procedure under hire purchase scheme, issuance of public notice inviting application for allotment as well as other allotment 6 procedures have been relaxed. Section 28(1)(d) of the Act, 2000 provides for rental allotment and, therefore, it cannot be said that the allotment of the said flat in favour of the petitioner was against the law.
8. On the contrary, learned counsel for the respondents submits that the said flat is earmarked for allotment under Hire Purchase Basis through lottery as per the Regulations, 1983 and the Regulations, 2004 framed by the State Government whereas the said flat was allotted to the petitioner without following any due procedure. Moreover, the agreement was terminable by giving one month notice to the petitioner. Neither the respondent no. 2 nor the respondent no. 3 had any power to allot the said flat that too in the manner it was allotted to the petitioner. The allotment could have been made after approval of the Board of Directors by following due procedure as provided under Regulations, 1983 wherein Chapter-III of the same deals with the Procedure of Allotment. As per regulation 25 of the Regulations, 1983, Bihar State Housing Board was entitled to allot property in Patna by inviting public notice whereas for allotment of property in other areas, the Board was to constitute a committee at the Divisional level to be called as the "Divisional Allotment Committee" consisting of Commissioner of the concerned Division as Chairman whereas Managing Director or his nominee, concerned District Magistrate and one non-official member of the Board nominated by the Government were to be inducted as members of the said "Divisional Allotment Committee". The concerned Executive Engineer of the Board was inducted as convenor (Member Secretary) of the said Committee. However, in the case in hand, the allotment has been made by the respondent no. 2 that too in a format not prescribed or approved by the Board.
9. Learned counsel for the respondents further submits that the Regulations, 2004 is pari-materia to Regulations, 1983 and thus reference of Regulations, 2004 in the show cause notice as contained in memo no. 549 dated 01.04.2015 has not caused any prejudice to the petitioner in any manner. The Regulations, 1983 does not provide for rental allotment. Moreover, the decision for allotment of the said 7 flat on rent was not of the Board as was stipulated under regulation 6 of the Regulations, 1983. In several similar cases, this Court has dismissed the writ petitions holding that the respondent no. 3 has no authority to allot any property without approval of the Board.
10. It is also submitted that in the eviction proceeding, the notices for appearance were issued to the petitioner on 05.08.2015, 01.04.2015 and 27.05.2022, however, he appeared only on 02.06.2022 and requested for time which was allowed, but thereafter he did not appear before the Competent Authority, hence, the order of eviction has finally been passed against him. Otherwise also, the agreement was not registered and thus the tenancy provided to the petitioner can at the best be said to be on monthly rental basis which was terminable by giving 30 days' prior notice. It is further submitted that the allotment was cancelled vide order dated 15.04.2015, whereas the petitioner has filed the present writ petition after seven years and, therefore, the same is also liable to be dismissed on the ground of delay. The order dated 22.06.2022 has been passed under Section 59 of the Act, 2000 which is general in nature. As per "Explanation" under Section 59, a person continuing in occupation of any Board premises after the determination or ceasing of the authority under which he was allowed to occupy, such person shall be deemed to be in "unauthorized occupation" in spite of the fact that he had paid any amount as rent.
11. Heard learned counsel for the parties and perused the materials available on record. The petitioner is aggrieved with the order of cancellation of the allotment of the said flat by the respondent no. 2 vide memo no. 458/Aa dated 15.04.2015 as well as the order of eviction dated 22.06.2022 passed by the respondent no. 4.
12. On perusal of letter dated 25.10.2002 issued by the respondent no. 2, it appears that the said flat was given to the petitioner on rent purely on temporary basis with a stipulation that he would neither claim his title nor the right of allotment of the said flat and to that effect, he would have to submit an affidavit in prescribed 8 form. So far as the unregistered agreement executed between the petitioner and the respondent no. 3 is concerned, the period of tenancy was not fixed and, therefore, the same will have to be treated as month to month tenancy terminable by the Board by giving one month prior notice to the petitioner. The petitioner was served with the notice to show cause as to why the allotment of the said flat to him on rent be not cancelled as the same was to be allotted only under hire purchase scheme. The petitioner replied the said letter requesting inter alia to allot the said flat to him undermining the condition mentioned in letter dated 25.10.2002 that he would not claim allotment on the basis of the possession of the flat on rent. The respondent no. 2 finally cancelled the allotment of the petitioner vide order as contained in memo no. 458 dated 15.04.2015 observing that the said flat was constructed under the Hire Purchase scheme and the allotment was to be made through lottery. Thereafter on 09.05.2015, the petitioner was issued letter of eviction under Section 83(A) of the Act, 2000 by the respondent no.
3. The petitioner, however, did not challenge the said order and kept silent. Thereafter, Eviction Case No. 121 of 2015 was instituted against him by the Jharkhand State Housing Board, wherein he was issued notice as contained in memo no. 1668 dated 05.08.2015 by the respondent no. 4, but he did not file his show cause reply and finally the order of eviction was passed on 22.06.2022.
13. I find no infirmity in the order of eviction passed by the respondent no. 4. The petitioner has failed to show any sufficient ground before this Court on which he wants to retain the said flat. Since the petitioner was specifically informed vide letter of allotment dated 25.10.2002 that the same was on rent that too on purely temporary basis and in future, he would not claim allotment, the authorities have not committed any wrong in not accepting such request of the petitioner. Moreover, the flat was allotted to the petitioner contrary to the purpose and object for which it was constructed i.e., under the Hire Purchase Scheme. Even if the argument of learned counsel for the petitioner to the effect that the same was allotted to the petitioner to raise revenue and to prevent it 9 from unauthorized occupants as well as he has made huge investment in its renovation is treated to be true, then also the petitioner is not entitled to any relief from this Court as he voluntarily agreed to the said terms and conditions of the agreement.
14. It is surprising that the Managing Director of the Board had allotted the said flat vide letter dated 25.10.2002 contrary to the Scheme and in violation of the Regulations of allotment in vogue. The petitioner was allowed to retain in the said flat for about 20 years on payment of rent of Rs.1020 per month though the allotment was purely temporary in nature. It is due to the inaction and laches of the said officer of the Board, the petitioner is now claiming retention in the said flat. Otherwise also, it is well settled principle of law that in the matter of grant of state largesse, resort should be had to public auction or transfer by way of inviting tenders from the public. The State must ensure that it receives adequate compensation for the allotted resource. The purpose of public auction in granting state largesse is to give equal opportunity to the public at large to participate and the State is also benefitted by the said process. If indoor extension of any contract/agreement is allowed to continue, the very purpose of public auction would be frustrated. In the present case, no open lottery was conducted while allotting the said flat to the petitioner and thus the same violated the right of equal opportunity to other interested persons. The specific stand of the respondents is that the allotment of the said flat was to be made on Hire Purchase basis through lottery as per the regulations framed by the government.
15. One of the arguments of learned counsel for the petitioner is that the allotment of the flat was made in favour of the petitioner in the year 2002 and as such, the provisions of Regulations, 2004 will not apply in his case. On the contrary, the contention of learned counsel for the respondents is that the provisions of Regulations, 1983 is pari-materia with those of Regulations, 2004 and thus on mere mentioning the provisions of Regulations, 2004 does not make the order of cancellation of allotment as illegal. In support of the said contention, learned counsel for the respondents has produced a 10 comparative chart of both the Regulations before this Court and on bare perusal of the same, it appears that Regulations, 1983 also speaks about holding of lottery for the purpose of allotment of the dwelling units or flats or sites. Regulation 20 provides for issuance of public notice for allotment indicating general features of the housing scheme, number of dwelling units or flats or sites to be allotted by inviting applications for allotment. Further, regulation 26 provides that the allotment has to be made through draw of lots by the Board giving notice to all the applicants and the procedure of draw of lots has to be decided by the Managing Director. Thus, the Regulations, 1983 provides for maintaining transparency and to give equal opportunity to all the interested persons in the matter of allotment.
16. I find that the petitioner has not been put to any prejudice by mere mentioning of the provisions of the Act, 2000 and Regulations, 2004 in the order of eviction. The same can be said to be a lapse or omission on the part of the respondent no. 2, but it does not vitiate the entire proceeding of cancellation of allotment.
17. The next argument of learned counsel for the petitioner is that neither Regulations, 1983 nor Regulations, 2004 is applicable in the case of the petitioner since these regulations do not provide for renting out the houses/flats, rather provide for transfer either through sale or on hire purchase basis. The Bihar State Housing Board Act, 1982 do not prohibit giving the houses/flats on rent, rather speaks of the procedure for recovery of rent and eviction on default of payment of rent.
18. To appreciate the said contention of learned counsel for the petitioner, I have gone through the Act, 1982 wherein Section 28(1) provides for types of housing and improvement schemes out of which one of the Schemes is Rental Housing Scheme under regulation 28(1)(d). Section 28(3) mentions that the Board may provide for renting out, leasing out, outright sale or sale on hire purchase of houses or house sites, constructed under the schemes specified in sub-section (1). However, the Board shall prepare regulations for the allotment of houses/flats/sites with the approval of 11 the Government and those allotments which are not in accordance with such regulations shall be considered to be illegal.
19. Thus, the Act, 1982 contemplates for framing of regulations for allotment of houses under various schemes and any transfer made in violation of such regulations has to be treated as illegal. The Bihar State Housing Board framed Regulation, 1983 for allotment of houses/flats by sale or on hire purchase which also provides the procedure for allotment, but no rental housing scheme has been framed by the Board for disposal of the flats on rent. Thus, the petitioner cannot claim that the allotment of the said flat to him on rent was in accordance with law. Moreover, in view of regulation 6 of Regulations, 1983, the property of the Board is to be disposed of either by sale or on hire purchase or in such other manner and subject to such terms and conditions to be decided by the Board from time to time. Further, regulation 25 of Regulations, 1983 provides that in any area other than Patna, there has to be a committee namely, "Divisional Allotment Committee" for making allotment of property of the Board. However, in the present case, the allotment of the flat to the petitioner was made by the then Managing Director, Jharkhand State Housing Board which was contrary to the regulation
25. Otherwise also, the order of cancellation of allotment was not challenged by the petitioner within a reasonable period, rather he kept waiting till the order of eviction was passed by the Competent Authority of Jharkhand State Housing Board. I find no substance in the argument of learned counsel for the petitioner that since several other persons had challenged the decision of 40th meeting of Board of Directors, Jharkhand State Housing Board, there was no need for the petitioner to challenge it separately. I am of the view that since order of cancellation of the said flat was issued separately to the petitioner, he should have challenged the same within a reasonable period. Thus, the challenge to the impugned order of cancellation issued vide memo no. 458/Aa dated 15.04.2015 also fails on the ground of inordinate delay of about seven years in filing the writ petition.
20. So far the claim of the petitioner for regularising the said 12 flat in his favour in terms with the notification dated 17.03.2017 is concerned, the same cannot be entertained by this Court since the order of cancellation of allotment of the flat was already passed before issuance of notification dated 17.03.2017. Moreover, the petitioner has also failed to show before this Court that he had made any application before the JSHB for regularising the said flat as per the notification and only after passing of the order of eviction by the Competent Authority, JSHB, he has raised such a plea. Thus, the petitioner has failed to make out any case to get relief under the equitable writ jurisdiction.
21. The writ petition being devoid of merit is accordingly dismissed.
(Rajesh Shankar, J.) Manish/AFR