The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No.75 of 2024 ----- Kumar Ajay Singh s/o Late Devendra Sinha, aged about 58 years, r/o B-325, Road no.4, Sankalp, Ashok Nagar, P.S. Argora, P.O. Ashok Nagar, Dist. Ranchi. … … Appellant Versus 1. State of Jharkhand through the Secretary, Urban Development and Housing Department, Government of Jharkhand, P.O. & P.S. Dhurwa, District Ranchi. 2. Additional Secretary – cum – appellate Tribunal, Urban Development and Housing Department, Government of Jharkhand, P.O. & P.S. Dhurwa, District Ranchi. 3. Jharkhand State Housing Board, Harmu Housing Colony, P.O. Harmu, P.S. Argora, District Ranchi through its Managing Director. 4. Competent Officer, Jharkhand State Housing Board, Harmu Housing Colony, P.O. Harmu, P.S. Argora, District Ranchi. 5. Executive Engineer, Jharkhand State Housing Board, Harmu Housing Colony, P.O. Harmu, P.S. Argora, District Ranchi. … … Respondents ------- CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE ARUN KUMAR RAI ------- For the Appellant For the Resp. 3 to 5 For the State : Mr. Atanu Banerjee, Advocate : Mr. Sachin Kumar, Advocate : Ms. Surabhi, Advocate : Mrs. Rukmini Kumari, AC to SC(Mines)-III ------ Order No. 06/Dated 28th August, 2024 Per Sujit Narayan Prasad, A.C.J. I.A. No. 5923 of 2024 1. The present Interlocutory Application has been filed for condonation of delay of 52 days in filing the instant appeal. 2. Heard learned counsel for the parties. Having regard to the averments made in this application, we are of the 1 L.P.A. No.75 of 2024 view that the appellant was prevented by sufficient cause from preferring the appeal within the period of limitation. 3. Accordingly, I.A. No.5923 of 2024 is allowed and the 52 days’ delay in preferring the appeal is condoned. L.P.A. No.75 of 2024 Prayer 4. The instant appeal, under clause 10 of the Letters Patent, is directed against the judgment/order dated 02.11.2023 passed by the learned Single Judge of this Court in W.P. (C) No. 4945 of 2023 whereby and whereunder the order dated 13.06.2023 passed in Appeal No.01/2023 by the Respondent No.2 as also the order dated 22.06.2022 passed in Eviction Case No.122 of 2015 has been declined to be interfered with. Factual Matrix 5.
Legal Reasoning
The brief facts of the case, as per the pleading made in the writ petition is required to be enumerated which reads as under:- It is the case of the appellant/writ petitioner that the High Income Group (H.I.G.) Plot No.H-25 situated at Harmu Housing Colony, Ranchi was originally allotted to
Legal Reasoning
one Mr. Nityanand by the Housing Board vide letter no. 3214 dated 27.11.1978. 2 L.P.A. No.75 of 2024 6. The Petitioner’s wife was allotted nearby Plot No.H-73 on 06.02.2001 and said fact was known to all including the respondent Housing Board. 7. Mr. Nityanand made application to the Housing Board for according permission to sell / transfer of the aforesaid plot to the petitioner. The Estate Officer of the Housing Board, Ranchi by its letter dated 02.06.2005 accorded permission to Mr. Nityanand to sell / transfer the aforesaid HIG Plot No. H-25 to petitioner. 8. On the basis of the said permission, Tripartite Lease in perpetuity was entered in between the petitioner, Housing Board and Mr. Nityanand on 22.11.2005 and the petitioner duly paid the consideration amount of Rs.11,66,500/- as price of the aforesaid plot as well as premium of Rs. 5,41,414/- for execution of the Tripartite Lease in favour of petitioner. 9. The petitioner took possession and applied to RRDA for according permission for construction of house. The RRDA sought No Objection from the Housing Board in the matter which was given by Jharkhand State Housing Board, Ranchi vide Memo No. 274/Aa dated 21.02.2007. 10. On the basis of the same, the RRDA sanctioned map vide Memo No.1452/07 dated 04.07.2007. 11. The petitioner accordingly constructed house in the year 2007 by spending Rs. 68,40,000/-. 3 L.P.A. No.75 of 2024 12. After 8 years of the said construction and the petitioner living peacefully in his house, the respondent authorities unilaterally and without affording an opportunity of hearing, by order dated 21.01.2013 cancelled the allotment with immediate effect and directed the petitioner to surrender the lease deed of said plot within 15 days and further to give intimation to the Executive Engineer, Ranchi Division of the Housing Board regarding vacating the aforesaid plot. 13. Being aggrieved by the same the petitioner preferred W.P. (C) No. 729/2013. In the meantime, the respondents initiated Eviction Case No. 122/2015 and the petitioner was noticed. 14. The petitioner appeared and requested the respondent no. 4 and 5 to provide him copy of the Eviction Case No. 122/2015 and also sought for time of one month to submit his reply. However, no copy was served nor the petitioner was communicated about the next date in the matter. 15. On 30.05.2022, the petitioner was handed over copy of notice dated 25.05.2022 wherein the next date of Eviction Case no. 122/2015 was fixed on 02.06.2022. 16. The petitioner appeared on 02.06.2022 and brought to the notice of the respondent no. 4 that he has filed W.P. (C) No. 729/2013 and accordingly prayed for time of one 4 L.P.A. No.75 of 2024 month in the matter. The respondent no. 4 orally acceded to the petitioner’s prayer. 17. But, without hearing the petitioner, the order dated 22.06.2022 was passed by the respondent no. 4 after holding that a false affidavit has been sworn by the petitioner in getting HIG Plot No. H 25 in spite of the fact that plot No. H 73 is duly allotted to the petitioner’s wife and petitioner is doing commercial usage therein and the allotment in favour of the petitioner has been cancelled and still the petitioner has not vacated the plot and petitioner was directed to hand over possession and pay fine of Rs.43,000/-. 18. In the first week of December 2022, the petitioner was informed of the said order dated 22.06.2022 whereafter the petitioner preferred appeal against the same being Appeal No. 1/2023 and requested to stay and specifically raised the plea of not giving of opportunity of hearing. 19. The matter was heard on 28.04.2023 and immediately on the said date and keeping in view that principles of natural justice has been violated, stay was granted. However, without hearing the petitioner and without considering that there was no material, the respondent no. 2 dismissed the appeal on merit without hearing the petitioner by order dated 13.06.2023. 5 L.P.A. No.75 of 2024 20. The writ petitioner, being aggrieved with the order dated 22.06.2022 passed in Eviction Case No.122 of 2015 and the order dated 13.06.2023 passed in Appeal No.01 of 2023, has preferred writ petition being W.P.(C) No.4945 of 2023. 21. The learned Single Judge, after taking into consideration the rival submission, has dismissed the writ petition vide order dated 02.11.2023, which is the subject matter of the instant appeal. 22. It is evident from the aforesaid factual aspect that the plot in question was allotted in favour of the petitioner but subsequent to the said allotment, an order was communicated to the writ petitioner vide Memo No.136 dated 21.01.2013 by which the allotment of the aforesaid plot being Plot No.H-25, Harmu Housing Colony, Ranchi had been cancelled on the ground of violation of provision of Regulation 8(D) of the Jharkhand State Housing Board Regulation, 2004. 23. The aforesaid order was challenged by filing writ petition being W.P.(C) No.729 of 2013 but the learned Single Judge has refused to interfere with the same by dismissing the writ petition vide order dated 27.07.2023 which is appended at Page 134 of the paper book, for ready reference, the operative part of the said order is being referred hereunder as :- 6 L.P.A. No.75 of 2024 “8. From the rival submissions, it is apparent that petitioner was an alottee in terms of the tripartite deed of perpetual lease executed on 22nd November 2005 which was cancelled for material concealment that wife of the petitioner had a plot of land earlier allotted and also for swearing a false affidavit to that effect. On enquiry it was found that one HIG Plot no.H-73 situated at Harmu Housing Colony, Ranchi was allotted in the name of his wife. Petitioner by swearing the false affidavit not only violated the lease agreement and the regulation of Housing Board, but had also committed a criminal offence. On similar fact here false affidavits were sworn to get allotment, it has been held in NOIDA v. Ravindra Kumar Singhvi, (2022) 5 SCC 591:- 21. Therefore, affidavits filed were not mere sheet of paper but a solemn statement made before a person authorised to administer oath or to accept affirmation. The plaintiff had breached such solemn statement made on oath. Petitioner has also availed of the remedy of appeal in Appeal No.1/2023 wherein the petitioner having been heard, the appeal has been dismissed vide order dated 13.6.2023. The eviction was thus ordered under rule 8(d) of the Bihar State Housing Board Regulation. I do not find any merit in the instant Writ petition which accordingly stands dismissed.” 24. The eviction proceeding was also initiated being Eviction Case No.122 of 2015 in which the order was passed on 22.06.2022 which is on the basis of the cancellation of allotment order dated 21.01.2013. 25. The petitioner preferred appeal against the order dated 22.06.2022 passed in Eviction Case No.122 of 2015 being Appeal No.01 of 2023 but the same has also been dismissed. 7 L.P.A. No.75 of 2024 26. The writ petitioner, being aggrieved with the order dated 22.06.2022 passed in Eviction Case No.122 of 2015 and the order dated 13.06.2023 passed in Appeal No.01 of 2023, has preferred writ petition being W.P.(C) No.4945 of 2023. 27. The ground has been taken that the order dated 22.06.2022 which has been passed in the Eviction Case No.122 of 2015 was without giving an opportunity of hearing to the petitioner. 28. The learned Single Judge has considered the rival submissions and taking into consideration the fact that the statutory provision as contained under Rule 8(d) of the Bihar (now Jharkhand) State Housing Board Regulation, 2004 has been flouted while allotting the plot in question in favour of the petitioner and, as such, refused to interfere with both the orders passed by the original as well as the appellate authority which is the subject matter of the present appeal. Submission made on behalf of the appellant 29. Mr. Atanu Banerjee, learned counsel appearing for the appellant, has submitted that the order of eviction has been passed without providing any opportunity but the same has not been taken into consideration by the learned Single Judge and hence, the impugned order suffers from error. 8 L.P.A. No.75 of 2024 30. It has been contended that the violation so far as the allotment having not been done in consonance with Rule 8(d) of the Regulation, 2004 is concerned, for which no opportunity has ever been provided. 31. Learned counsel based upon the aforesaid grounds, has submitted that since there is no consideration with respect to the issues by the learned Single Judge, hence, the order passed by the learned Single Judge suffers from error. 32. Submission made on behalf of the Respondent 33. Mr. Sachin Kumar, learned counsel appearing for the Jharkhand State Housing Board, has submitted that the eviction proceeding has been initiated on the consequence of the cancellation of the allotment which was vide order dated 21.01.2013. 34. The ground has been taken while cancelling the allotment that the allotment is not in consonance with the provision of Rule 8(d) of the Regulation, 2004. 35. It has been contended that the authority has passed the eviction order on consideration of the fact that the very allotment dehors the provision of Rule 8(d) of the Regulation, 2004 and in consequence thereof, the allotment has already been cancelled. 36. The said order passed by the original authority has also been affirmed by the appellate authority. 9 L.P.A. No.75 of 2024 37. It has been contended that the very issue of allotment made in violation to Rule 8(d) has been taken into consideration by the learned Single Judge which led in declining to interfere with the impugned order, therefore, the impugned order cannot be said to suffer from an error. Consideration 38. Heard learned counsel for the parties, gone across the pleading made in the paper book and the finding recorded by the learned Single Judge in the impugned order. 39. The admitted fact herein is that a piece of land had been allotted in favour of the writ petitioner being Plot No.H-25, Harmu Housing Colony, Ranchi. The said allotment is on the basis of the provision as made under Bihar (now Jharkhand) State Housing Board Regulation, 2004. The said statutory provision contains a provision as under Rule 8(d) whereby the parameters have been fixed for allotment of the piece of land, for ready reference, Rule 8(d) is required to be referred herein which reads as under :- “8. A dwelling unit or flat or house site shall be allotted only to such persons- (a) … … (b) … … (c) … … (d) Who or his wife /her husband or his/her dependant minor children do not own any land or house fully or partly either on free hold or lease-hold basis in the town within 8 km of the area of the 10 L.P.A. No.75 of 2024 Municipal Corporation, Municipality or notified Area of the Housing Estate of the Board, Improvement Trust or any other Government undertakings for which application is made.” 40. The respondent authority, after coming to know that while allotting the land, there is suppression of fact, since, the writ petitioner is having land or house within 8 km of the area of the Municipal Corporation which fact has been considered to be suppressed and, hence, an order was passed on 21.01.2013 as contained in Memo No.136 by
Decision
which the allotment made in favour of the writ petitioner of Plot No.H-25, Harmu Housing Colony, Ranchi has been cancelled with immediate effect on the ground of violation of provision of Rule 8(d) of the Regulation, 2004. 41. The said order of cancellation of allotment was challenged by filing writ petition being W.P.(C) No.729 of 2013 which was disposed of on 27.07.2023. 42. The learned Single Judge, after taking into consideration the import of the provision of Rule 8(d) of the Regulation, 2004, has declined to interfere with the impugned order of cancellation. 43. The learned Single Judge has also taken the ground of dismissal of appeal being Appeal No.01 of 2023 which was preferred against the order of eviction dated 22.06.2022 passed in Eviction Case No.122 of 2015. 11 L.P.A. No.75 of 2024 44. It is admitted fact that the order passed by the learned Single Judge in W.P.(C) No.729 of 2013 decided on 27.07.2023 has not been challenged before the higher forum and, as such, it has attained its finality. 45. The original authority has decided the Eviction Case No.122 of 2015 prior to disposal of the writ petition being W.P.(C) No.729 of 2013, i.e., on 22.06.2022 as also disposal of Appeal No.01 of 2023 vide order dated 13.06.2023 which has been taken note by the learned Single Judge while disposing of the writ petition being W.P.(C) No.729 of 2013 which was disposed of on 27.07.2023 which is subsequent to disposal of Eviction Case No.122 of 2015 and Appeal No.01 of 2023 which were disposed of on 22.06.2022 and 13.06.2023 respectively. 46. However, the order passed by the learned Single Judge dated 02.11.2023 has been assailed in the instant appeal on the ground that no opportunity of hearing has been given. 47. The eviction case is in consequence of the order of cancellation of the allotment dated 21.01.2013. The cancellation of the allotment, at the time of initiation of the eviction proceeding and even on the date of disposal, was lying pending for its consideration before this Court by way of W.P.(C) No.729 of 2013 which finally has been decided on 27.07.2023. 12 L.P.A. No.75 of 2024 48. The cancellation order which had been considered in W.P.(C) No.729 of 2013 decided on 27.07.2023 has not been assailed before the higher forum, meaning thereby, the order dated 27.07.2023 has become final so far as it relates to the cancellation of allotment is concerned. 49. Now the question arises that when the cancellation itself has attained finality, then where is the requirement to provide an opportunity of hearing even if it has not been provided in the eviction proceeding. It is on the principle that when there is no chance of change in the outcome then where is the requirement to follow the principle of natural justice for the sake of following the aforesaid principle, otherwise the same will lead to futile exercise and empty formality, for ready reference, the judgment rendered by Hon’ble Apex Court in the case of Escorts Farms Ltd. vs. Commissioner, Kumaon Division, Nainital, U.P. & others, reported in (2004) 4 SCC 281, is required to be made herein wherein at paragraph no.64 it has been held which reads as under :- “64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, 13 L.P.A. No.75 of 2024 more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India.” 50. In Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati and Ors., (2015) 8 SCC 519 wherein their Lordships have held at paragraph-39 which is being reproduced as under:- “39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason- perhaps because the evidence against the individual is thought to be utterly compelling- it is felt that a fair hearing “would make no difference”- meaning that a hearing would not change the ultimate conclusion reached by the decisionmaker.” 51. Herein also, the order of cancellation has become final and eviction is consequence of the cancellation of allotment, as such, the ground which has been taken that no opportunity of hearing has been provided, is not applicable and attracted also in view of the fact that after 14 L.P.A. No.75 of 2024 the cancellation of the allotment having become final, there is no chance of change in the outcome of the factual aspect since the normal outcome of the cancellation of allotment will be eviction which cannot be disputed after the cancellation order having been final on adjudication made by this Court in W.P.(C) No.729 of 2013. 52. The learned Single Judge has taken into consideration the aforesaid aspect of the matter which led the learned Single Judge not to interfere with the order passed in eviction case, therefore, this Court, on consideration of the aforesaid fact, is of the view that the appeal lacks merit. 53. Accordingly, the instant appeal fails and is dismissed. 54. Pending interlocutory application, if any, also stands disposed of. (Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) Birendra/A.F.R. 15 L.P.A. No.75 of 2024