Page No.# 1/15 vs The Union Of India And 8 Ors
2024 Latest Caselaw 3843 Gua

Gauhati High Court

Page No.# 1/15 vs The Union Of India And 8 Ors on 3 June, 2024

                                                             Page No.# 1/15

GAHC010178132015




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/4691/2018

          K. ACHIYAMMA AND 3 ORS.
          W/O- LATE DEMRU NO. 7 MARAKHALI
          HARIJAN COLONY
          DR. B BARUAH ROAD
          GUWAHATI- 7

          2: KORAKULA ARJUN
          S/O- LATE DEMRU NO. 7 MARAKHALI
           HARIJAN COLONY
           DR. B BARUAH ROAD
           GUWAHATI- 7

          3: KORAKULA SHANKAR
          W/O- LATE DEMRU NO. 7 MARAKHALI
          HARIJAN COLONY
          DR. B BARUAH ROAD
          GUWAHATI- 7

          4: KORAKULA SARASWATI
          D/O- LATE DEMRU NO. 7 MARAKHALI
           HARIJAN COLONY
           DR. B BARUAH ROAD
           GUWAHATI- 7

          VERSUS

          THE UNION OF INDIA AND 8 ORS
          REP. BY THE SECRETARY DEPTT OF URBAN DEVELOPMENT
          NEW DELHI- 110012

          2:THE SECRETARY DEPTT OF URBAN EMPLOYMENT AND POVERTY
          ALLEVIATION NEW DELHI- 110012

          3:THE STATE OF ASSAM
          REP. BY ITS COMMISSIONER AND SECRETARY GUWAHATI DEVELOPMENT
          DEPTT GOVT OF ASSAM DISPUR GUWAHATI- 6
                                                              Page No.# 2/15

4:THE GUWAHATI MUNICIPAL CORPORATION
REP. BY ITS COMMISSIONER PANBAZAR GUWAHATI- 1 KAMRUP ASSAM

5:THE COMMISSIONERGUWAHATI MUNICIPAL CORPORATION PANBAZAR
GHY- 1 KAMRUP ASSAM

6:THE ADDL COMMISSIONER GUWAHATI MUNICIPAL CORPORATION
PANBAZAR GHY- 1 KAMRUP ASSAM

7:THE OSDJNNURM CELL GUWAHATI MUNICIPAL CORPORATION
 PANBAZAR GUWAHATI- 1

8:THE PROJECT ENGINEER BSUP PROJECT SITE FATASHIL GUWAHATI- 9

 9:APPLARSAMMA MARAKHALI HARIJAN COLONY
 DR. B BARUAH ROAD GUWAHATI- 7
------------

Advocate for : MR. M SHARMA Advocate for : SC GMC appearing for THE UNION OF INDIA AND 8 ORS

Linked Case No. : WP(C)/5149/2015

SMT. APALANARASHA RAO W/O LT. RAJA RAO R/O MARAKHALI HARIJAN TELEGU COLONY DR. B. BAUAH ROAD, P.O. ULUBARI P.S. PALTAN BAZAR, GUWAHATI-7, KAMRUP M, ASSAM.

VERSUS

THE STATE OF ASSAM AND 4 ORS REP. BY THE PRINCIPAL SECRETRY TO THE GOVT. OF ASSAM, GUWAHATI DEVELOPMENT DEPARTMENT, DISPUR, GUWAHATI-6.

2:THE COMMISSIONER GAUHATI MUNICIPAL CORPORATION GUWAHATI -1.

3:THE ADDL. COMMISSIONER GMC GUWAHATI-1.

4:THE OSO INNURM CELL GMC

5:THE PROJECT ENGINEER BSU PROJECT SITE MARAKHALI OFFICE OF THE GMC GUWAHATI -1

Advocate for the Petitioner : MR.M DUTTA

Advocate for the Respondent :

Page No.# 3/15

Linked Case : I.A.(Civil)/571/2021

APALANARASHA RAO W/O. LATE RAJA RAO R/O. MARAKHALI HARIJAN TELEGU COLONY DR. B. BAUAH ROAD P.O. ULUBARI P.S. PALTAN BAZAR GHY- 7 KAMRUP (M)

VERSUS

THE STATE OF ASSAM AND 4 ORS.

REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM GUWAHATI DEVELOPMENT DEPTT.

DISPUR GHY- 6

2:THE COMMISSIONER GAUHATI MUNICIPAL CORPORATION GUWAHATI -1.

3:THE ADDL. COMMISSIONERGMC GUWAHATI-1.

4:THE OSD INNURM CELL GMC

5:THE PROJECT ENGINEERBSU PROJECT SITE MARAKHALI OFFICE OF THE GMC GUWAHATI -1.

------------

Advocate for : MR. B K DAS Advocate for : SC GMC appearing for THE STATE OF ASSAM AND 4 ORS.

Linked Case : I.A.(Civil)/782/2018

SMT. APALANARASHA RAO W/O- LT RAJA RAO R/O- MARAKHALI HARIJAN TELEGU COLONY DR. B. BARUAH ROAD P.O. ULUBARI P.S. PALTAN BAZAR GHY-7 KAMRUP (M)

VERSUS

THE STATE OF ASSAM AND 4 ORS REP. BY THE PRINCIPLE SECRETARY TO THE GOVT. OF ASSAM GUWAHATI DEVELOPMENT DEPTT. DISPUR GHY-6 Page No.# 4/15

2:THE COMMISSIONER GUWAHATI MUNICIPAL CORPORATION GHY-1

3:THE ADDL. COMMISSIONERGMC GHY-1

4:THE OSOINNURM CELL GMC

5:THE PROJECT ENGINEERMARAKHALI OFFICE OF THE GMC GHY-1

------------

Advocate for : MR. B K DAS Advocate for : SC GDD appearing for THE STATE OF ASSAM AND 4 ORS

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

JUDGMENT & ORDER(ORAL) Date : 03.06.2024

Heard Mr. B. K. Das, learned counsel appearing on behalf of the petitioner in WP(c)5149/2015; and Mr. M. Sharma, learned counsel appearing on behalf of the petitioners in WP(c)4691/2018. Also heard Mr. S. Bora, learned standing counsel, Guwahati Municipal Corporation(GMC), appearing on behalf of the respondent authorities in both the writ petitions as well as Mr. B. K. Das, learned counsel appearing for respondent No. 9 in WP(c)4691/2018.

2. The issue involved in the above-noted 2(two) writ petitions being common, they are being taken-up together for consideration and disposal.

3. WP(c)5149/2015 : The petitioner in the present proceeding has prayed for a direction upon the respondent authorities to allot a housing unit to her in terms of the order, dated 14.02.2013, passed by the Guwahati Municipal Corporation(GMC) authorities in the matter.

Page No.# 5/15

4. WP(c)4691/2018 : The petitioner in the present proceeding has raised a grievance with regard to the inaction on the part of the Guwahati Municipal Corporation(GMC) authorities in not initiating steps to vacate respondent No. 9 from the housing unit as allotted to the petitioner, herein, vide a certificate of allotment, dated 28.11.2014.

5. It is to be noted that respondent No. 9 in the present proceeding i.e. WP(c)4691/2018, is the petitioner in WP(c)5149/ 2015.

6. WP(c)5149/2015 :

As projected in the writ petition; the petitioner contends that she is an employee working under the Guwahati Municipal Corporation(GMC) authorities and having the Employee Code No. 501832. The petitioner was staying in a temporary Quarter at Marasali Harizan Colony. Vide a communication, dated 25.03.2010; the petitioner, herein, was directed to shift to a temporary Shed No. 49 constructed below the Railway Overbridge in Marasali Ulubari, Guwahati. The said communication, dated 25.03.2010, further stipulates that her case for allotment of a housing unit under the Basic Services Urban Poor(BSUP) housing project under Jawaharlal Nehru National Urban Renewal Mission(JNNURM), shall be considered. The petitioner further contends that she, in terms of the communication, dated 25.03.2010, shifted to the said temporary Shed No. 49, as directed. Thereafter, the Guwahati Municipal Corporation(GMC) authorities on completion of the construction of the dwelling units, proceeded to issue an order, dated 14.02.2013, selecting the beneficiaries who would now be provided, dwelling units under the Basic Services Urban Poor(BSUP) scheme.

The order, dated 14.02.2013, further stipulates that the names of the persons who actually lived in Marasali Harijan Colony and whose houses were actually demolished Page No.# 6/15

in the process of execution of the Basic Services Urban Poor(BSUP) scheme were mentioned in the list appended as Annexure to the said order, dated 14.02.2013. In the said list as appended to the order, dated 14.02.2013, the name of the petitioner figures at Serial No. 36 as a beneficiary. It is stipulated in the order, dated 14.02.2013, that the beneficiaries are to submit the name of a second beneficiary i.e. nominee within a period of 7(seven) days from the date of publication of the order. Further, the beneficiary was required to furnish an undertaking/affidavit in the format prescribed.

It is contended that the petitioner within a period of 7(seven) days, was not in a position to comply with the conditions as mentioned in the order, dated 14.02.2013. However, on 01.03.2013, the petitioner submitted all the requisite documents and also made the payments thereof.

It is also contended that in spite of completion of submission of the documents mandated; the allotment of dwelling unit to the petitioner in terms of her inclusion in the list of beneficiaries as enclosed to the order, dated 14.02.2013, not having occasioned; the petitioner approached the Harijan Mazdoor Union(HMU), Guwahati Municipal Corporation(GMC), for taking-up her case. The Harijan Mazdoor Union(HMU), Guwahati Municipal Corporation (GMC), vide communication, dated 17.01.2014, required the Guwahati Municipal Corporation(GMC) authorities to allot a unit to the petitioner in view of the inclusion of her name in the list of beneficiaries. The said communication, dated 17.01.2014, also indicates that persons who were not initially short-listed for allotment of a dwelling unit, also came to be included in the list of beneficiaries as appended to the order, dated 14.02.2013.

The said communication, dated 17.01.2014, not having resulted in a favourable response from the Guwahati Municipal Corporation(GMC) authorities; the petitioner Page No.# 7/15

again vide her representation, dated 14.07.2015, approached the respondent authorities, praying for allotment of a dwelling unit to her. In the said representation, dated 14.07.2015, the petitioner highlighted that she was allotted the dwelling unit B1-F6 and accordingly, she prayed that the said unit be formally allotted to her. The said approaches made by the petitioner not having materialized for issuance of a formal order allotting to her a dwelling unit as per her entitlement; the petitioner has instituted the present proceeding.

The Guwahati Municipal Corporation(GMC) authorities have filed an affidavit in the matter and therein, in paragraph No. 7, have contended that on receipt of the communication, dated 17.01.2014, from the Harijan Mazdoor Union(HMU), Guwahati Municipal Corporation(GMC); an inquiry was conducted in the matter and it was found that the petitioner was residing at a temporary Shed No. 49 under the Railway Overbridge at Marasali, but it was also found that she usually used to stay with her mother at the temporary shed of Block 'C' and accordingly; on account of the said fact, it was contended that the allotment of the dwelling unit to the petitioner, was not considered by the Guwahati Municipal Corporation(GMC) authorities.

7. WP(c)4691/2018 :

The petitioners, in the present proceeding, have contended that they were allotted a dwelling unit being B1-F6 in the complex as constructed under the Basic Services Urban Poor(BSUP) scheme at Marasali, Guwahati, vide a certificate of allotment, dated 28.02.2013. It is contended that the petitioners have completed all the requisite formalities for occupation of the dwelling unit, allotted to them, however, the said dwelling unit i.e. B1-F6 was illegally occupied and possessed by the Page No.# 8/15

respondent No. 9 herein[petitioner in WP(c)5149/2015]. It is also contended that the petitioners, herein, have submitted applications before the authorities of the Guwahati Municipal Corporation(GMC) for eviction of the respondent No. 9, however, the same having not materialized; the petitioners have approached this Court by way of instituting the present proceeding.

The petitioner by way of filing an additional affidavit in the matter, has brought on record a representation, dated 25.01.2013, submitted by the husband of the petitioner No. 1, herein, and the father of the petitioners No. 2 to 4, wherein, the Commissioner, Guwahati Municipal Corporation(GMC), Guwahati, was requested to accommodate the representationists in the new house built under the Basic Services Urban Poor(BSUP) scheme at Marasali Harijan Colony. It was further contended that the representationists including the husband of the petitioner No. 1, herein, were all staying in the Garage Campus after their houses was gutted in a fire in the year 1985. It was also contended therein that at the time of the construction of the new building for the Garage; the petitioners were shifted to a temporary accommodation at Marasali Harijan Colony.

8. The learned counsels appearing for the respective petitioners as well as their respondents have reiterated the facts as noticed hereinabove and accordingly, the said submissions are not reiterated here.

9. I have heard the learned counsels appearing for the parties and also perused the materials available on record.

10. At the first instance, the case of the petitioner in WP(c)5149/2015 [Smt. Page No.# 9/15

Apalanarasha Rao], is being considered. On a perusal of the materials on record; it is seen that the Guwahati Municipal Corporation(GMC) authorities vide an Office Order, dated 30.04.2010, had short-listed 59 beneficiaries to provide to them dwelling units at Marasali under the Basic Services Urban Poor(BSUP) scheme. These 59 beneficiaries so selected were persons who actually lived in the Marasali Harijan Colony and whose houses were actually demolished in connection with the execution of the Basic Services Urban Poor(BSUP) scheme.

For the smooth execution of the said Basic Services Urban Poor(BSUP) scheme; the petitioner, herein, vide communication, dated 25.03.2010; was directed to vacate the Quarter then occupied by her in Marasali Harijan Colony and to shift to a temporary Shed No. 49 under the Railway Overbridge at Marasali, Ulubari. The said communication also highlighted that her case for allotment of a housing unit under the new Basic Services Urban Poor(BSUP) scheme would also be considered.

The petitioner, accordingly, shifted from the Quarter occupied by her at Marasali Harijan Colony and occupied the temporary Shed No. 49 as directed vide the communication, dated 25.03.2010. On completion of the construction activities in connection with the setting-up of the dwelling units under the Basic Services Urban Poor(BSUP) scheme; the Guwahati Municipal Corporation(GMC) authorities, vide the order, dated 14.02.2013, proceeded to make allotment of Quarters in the newly constructed housing unit at Marasali Harijan Colony under the said Basic Services Urban Poor(BSUP) scheme. The beneficiaries so selected for such allotment, was shown in a list of beneficiaries, as appended to the order, dated 14.02.2013, and therein; the name of the petitioner in WP(c)5149/2015, figured at Serial No. 36.

Although the petitioner in terms of the stipulations made in the order, dated Page No.# 10/15

14.02.2013, could not complete the formalities as mandated therein within a period of 7(seven) days, however, the petitioner, on 01.03.2013, completed the requisite formalities and was awaiting for a formal order of allotment in her favour in terms of inclusion of her name as a beneficiary in the list so appended to the order, dated 14.02.2013.

The formal order of allotment not having occasioned; the petitioner through Harijan Majdoor Union, had also approached the Guwahati Municipal Corporation (GMC) authorities, praying for the issuance of a formal allotment order in her favour. The petitioner also approached the said authorities on her own, by highlighting that she was allotted a dwelling unit being B1-F6 and accordingly, a formal order of allotment be issued to her. The Guwahati Municipal Corporation(GMC) authorities had not considered the case of the petitioner and after institution of the present proceeding, in the affidavit filed by the authorities in the matter; it was reflected that the case of the petitioner was not considered for allotment of a dwelling unit in-as- much as although she was residing at the temporary Shed No. 49 in terms of the communication, dated 25.03.2010, it was found that she usually stays with her mother at the temporary shed at Block 'C'.

11. At this stage; it is to be noted that although the petitioner had completed the requisite formalities involved in the matter on 01.03.2013, and the name of the petitioner continued to figure in the list of beneficiaries as appended to the order, dated 14.02.2013, however, the Guwahati Municipal Corporation(GMC) authorities proceeded to allot the said dwelling unit i.e. B1-F6, as constructed under the Basic Services Urban Poor(BSUP) scheme, to one Smt. K. Achiyama [petitioner in WP(c)4691/2018], vide a certificate of allotment, dated 28.11.2014. However, on account of the fact that the petitioner in WP(c)5149/2015 had already occupied the Page No.# 11/15

said dwelling unit i.e. B1-F6; the petitioner in WP(c)4691/2018 could not possess the same.

12. A perusal of the materials brought on record in both the writ petitions would reveal that the name of the petitioner in WP(c)4691/2018 was not a beneficiary identified for allotment of a dwelling unit in the newly constructed building under the Basic Services Urban Poor(BSUP) scheme at Marasali Harijan Colony.

13. The name of the petitioner in WP(c)4691/2018, neither, figured in the order, dated 30.04.2010, nor, in the list of beneficiaries as appended to the order, dated 14.02.2013. It is seen that the allotment as made in respect of the petitioner in WP(c)4691/2018, was on the basis of a representation made in this connection for allotment of a dwelling unit by her deceased husband along with other similarly situated persons.

14. The representation as made in the matter by the husband of the petitioner No. 1 in WP(c)4691/2018 reveals that they were living at Marasali Harijan Colony till the year 1985 and thereafter, were shifted out therefrom on account of a fire incident occasioning in the area.

15. The policy as coming to light in the matter as seen from the communication, dated 25.03.2010, and also the order, dated 14.02.2013, available at Annexures-II and III to WP(c)5149/2015; it is clear that the dwelling units as constructed under the Basic Services Urban Poor(BSUP) scheme at Marasali Harijan Colony, were for persons who were already possessing dwelling units at Marasali Harijan Colony which units were demolished for construction of new units under the Basic Services Urban Page No.# 12/15

Poor(BSUP) scheme.

16. Accordingly, the petitioner in WP(c)5149/2015, being one of the persons who was occupying a Quarter in Marasali Harijan Colony and who was required to shift out therefrom vide communication, dated 25.03.2010, for the purpose of construction of new dwelling units at the same site; naturally would have a preference with regard to allotment of Quarters in the matter once the project is completed and as per the assurance held out to her in the matter by the Guwahati Municipal Corporation(GMC) authorities.

17. The reason as assigned by the Guwahati Municipal Corporation(GMC) authorities in the affidavit filed by the authorities in WP(c)5149/2015 that the case of the petitioner therein, for allotment of a new dwelling unit was not considered in view of the fact that while she was occupying the temporary Shed No. 49; also had stayed with her mother at temporary Shed Block 'C', does not inspire confidence. Further, the materials basing on which such conclusion was reached, has also not been disclosed before this Court.

18. Further, a perusal of the order, dated 14.02.2013, would reveal that wherever there was a dispute with regard to the eligibility of a person to possess a unit in the newly constructed dwelling units, the same was dealt with by the respondent authorities in the said order itself. However, there is no discussion with regard to the petitioner in the said order, dated 14.02.2013, and the ineligibility as projected in paragraph No. 7 of the affidavit filed by the respondent authorities in WP(c)5149/2015 was also not highlighted in the said order. Accordingly, it is held that the reasoning as advanced for the purpose of denying to the petitioner a dwelling unit as per her entitlement, not being shown to be so arrived at basing on materials available in the matter and the petitioner not having been demonstrated to have violated any of the Page No.# 13/15

conditions as stipulated in the order, dated 14.02.2013; it is the considered view of this Court that the petitioner could not have been denied a dwelling unit as per her entitlement and also on account of the inclusion of her name in the list of beneficiaries as appended to the order, dated 14.02.2013.

19. Accordingly, the petitioner having occupied a dwelling unit being B1-F6 in the newly constructed dwelling unit under the Basic Services Urban Poor(BSUP) scheme at Marasali Harijan Colony; this Court is of the considered view that the said unit now occupied by the petitioner, should be permitted to be continued to be occupied by her and orders formalizing such accommodation by the petitioner in the said quarter, is now required to be issued by the Guwahati Municipal Corporation(GMC) authorities.

20. In view of the said conclusion; the Commissioner, Guwahati Municipal Corporation(GMC) authorities, shall now issue orders towards formally allotting the dwelling unit i.e. B1-F6 now possessed by the petitioner in terms of her entitlement as well as inclusion of her name in the list of beneficiaries as appended to the order, dated 14.02.2013. Necessary orders in this connection shall be so passed by the respondent authorities within a period of 1(one) month from the date of receipt of a certified copy of this order.

21. The above conclusions having been drawn with regard to the rights of the petitioner in WP(c)5149/2015; this Court would now examine the right of the petitioners in WP(c)4691/2018.

22. This Court having held the petitioner in WP(c)5149/2015 to be eligible to be allotted a Quarter in the newly constructed dwelling units under the Basic Services Page No.# 14/15

Urban Poor(BSUP) scheme on the ground that the said dwelling units were so built on the land wherein, the petitioner had earlier occupied a quarter. The petitioner in WP(c)4691/2018, admittedly, was not occupying the quarter at Marasali Harijan Colony at the time when a decision was taken to construct new dwelling units therein, under the Basic Services Urban Poor(BSUP) scheme and was at that relevant point of time; staying in a temporary accommodation, at a different site.

23. The materials brought on record in the writ petition by the petitioner in WP(c)4691/2018 would show that she and her family members had left the Marasali Harijan Colony way back in the year 1985 on their houses being destroyed due to a fire incident. Accordingly, the petitioner in WP(c)4691/2018, not being included in the list of beneficiaries as published vide the order, dated 30.04.2010, and her name also not figuring in the list of beneficiaries as appended to the order, dated 14.02.2013; it is held that the petitioner in WP(c)4691/2018 would have no right to claim a dwelling unit at Marasali Harijan Colony from the newly constructed dwelling units under the Basic Services Urban Poor(BSUP) scheme and accordingly, the certificate of allotment as issued to her on 28.11.2014, would be of no consequence and the petitioner would not be entitled to occupy the said Quarter as allotted to her i.e. B1-F6 which has been allowed by this Court to be occupied by the petitioner in WP(c)5149/2015. The Guwahati Municipal Corporation (GMC) authorities would now be required to cancel the allotment of dwelling unit No. B1-F6 as made in favour of the petitioner in WP(c)4691/2018, vide the Certificate of Allotment, dated 28.11.2014.

24. Having so held; it is provided that the petitioners in WP(c)4691/2018, shall now approach the Commissioner, Guwahati Municipal Corporation(GMC), along with the her representation staking a claim to be allotted a dwelling unit, fit for human habitation at any of the sites wherein such dwelling units of the Guwahati Municipal Page No.# 15/15

Corporation(GMC), are available in the city of Guwahati and the Commissioner, Guwahati Municipal Corporation(GMC), on receipt of such representation, shall consider the same expeditiously and identify a dwelling unit fit for human habitation and allot the same to the petitioners in WP(c)4691/2018.

25. The above exercise would now be carried-out by the Commissioner, Guwahati Municipal Corporation(GMC), within a period of 2(two) months from the date of receipt of a representation along with a certified copy of this order from the petitioners in WP(c)4691/2018.

26. With the above directions and observations, these writ petitions stand disposed of.

JUDGE

Comparing Assistant