U.T. Chandigarh vs PLA

Ritu Bahri, J.—The petitioner has approached this Court by way of instant writ petition filed under Articles 226/227 of the Constitution of India, seeking a writ in the nature of certiorari quashing the order dated 09.09.2009 (P-4) passed by respondent No. 1

Brief facts of the case are that respondent No. 2 was a resident of Jhuggi No. 1243, Khumar colony, Sector 25, Chandigarh. In this Jhuggi, he was carrying out his business of selling meat. Chandigarh Administration framed the scheme namely "Licensing of Tenements and Sites and Services in Chandigarh Scheme, 1979 whereby the Chandigarh Administration taken up an intense programme of housing and rehabilitation of EWS of society in slum conditions in the labour colonies and other parts of Chandigarh by resettling them in low cost tenements and sites and services complexes so as to provide them better civil conditions and hygienic surrounding. Respondent No. 2 never applied under the said scheme. After repelling of this scheme, Chandigarh Administration framed another policy "Chandigarh Small Flats Scheme, 2006. In order to provide flats under the said scheme of 2006, Bio metric survey was conducted in March, 2006 wherein respondent No. 2 was also covered. Accordingly, he was provided flat No. P-876, Sector 52 Chandigarh. After getting this allotment, respondent No. 2 started making representation for allotment of some booth as well.

Thereafter, he approached respondent No. 1 for allotment of shop for his livelihood on a statement given by one Prem Kumar Masih, Sr. Assistant that the application of respondent No. 2 will be considered for allotment of site in accordance with law/rules. In view of the statement, learned Judge passed an order that in case the applicant/respondent No. 2 submits an application for allotment of site in lieu of hut within two months along with documents, Tehsildar (colonies) would consider the allotment of a site in accordance with law/rules. It was further directed that the Tehsildar would decide the application of the applicant within four months from its receipt. Thereafter, the applicant again approached respondent No. 1 for the desired relief on 25.05.2008.

The application of respondent No. 2 was contested before PLA by the authorities by taking a plea that the applicant had not submitted any application pursuant to orders dated 14.05.2002 passed by the Lok Adalat. Moreover, the applicant had been residing in Jhuggi No. 1243, Khumar colony, Sector 25, Chandigarh and is carrying his business of selling meat. The fact that he was allotted a flat by Chandigarh Administration under 2006 scheme, is not being disputed by the applicant.

Despite this fact, respondent no. 1 passed an order dated 09.09.2009 in favour of respondent No. 2 by taking note of the statement given by Prem Kumar Masih, Sr. Assistant on 14.05.2002 that the application of respondent No. 2 will be considered for allotment of site in accordance with law/rules. On this statement, respondent No. 2 made an application.

Keeping in view of the fact that respondent No. 2 had been carrying out his business of selling meat for the last 25 years and respondent No. 1 directed that respondent No. 2 be accommodated by allotting him an alternate site as per Scheme of 1979.

Learned counsel submits that after repelling the scheme of 1979, the petitioner-Administration framed the Rules in 1991 for the allotment of booths which are known as "Allotment/Transfer of Built up Booths in any Sector on lease/Hire Purchase Basis in Chandigarh Rules, 1991. Under the said scheme, respondent No. 2 is not eligible still respondent No. 1 ordered the allotment of an alternative site so that respondent No. 2 can carry on his business of selling meat. Under the said Rules of 1991, the eligibility conditions are contained under Rule 5, which states that the applicant should hold a valid hand cart licence or hawkers license as well as driving license and owns a hand cart or a behengi/khoncha/phari on the date of issue of the notification or on the date as may be prescribed for the purpose by the competent authority. Further he should not own any commercial site/shop in U.T. Chandigarh, Mohali or Pkl, in his own name or in the name of any member of his family.

As per Rule 9, the allotment of booth was to be made to the eligible applicants by draw of lots.

Respondent No. 2 was neither the applicant under the Scheme of 1991 nor he was eligible. As per Rule 9, the allotment were to be made as per draw of lots, therefore, order dated 09.09.2009 passed by respondent No. 1 is not sustainable in the eyes of law and is liable to be rejected.

Learned counsel for respondent No. 2 submits that as per the repelled scheme of 2003, it protected the claims of all such persons, who were eligible under the scheme, had their names in the electoral roll as on 08.12.1996. As per notification of 2003, it has been mentioned that the allotment of such persons was continued to be made in accordance with the scheme of 1979.

It is the case of respondent No. 2 that he applied in the year 1979 nor under the 1991 Rule. Further the statement given by Prem Kumar Masih, Sr. Assistant was only to the effect that the application of respondent No. 2 will be considered for allotment of site in accordance with law/rules. Moreover, respondent No. 2 has already been allotted flat No. P-876, Sector 52 Chandigarh under the 2006 Scheme. It is being admitted in the written statement that respondent No. 2 is carrying on his business of selling meat from Jhuggi No. 1243, Khumar colony, Sector 25, Chandigarh. The license was issued to him by Medical Officer, Chandigarh Administration, Chandigarh (R-2/1)

The PLA had taken in to the account the documents placed on record in the form of slips issued by Medical Officer, slips issued by Slaughter House etc, which are of the year 1985, 1986, 1987 and 1989 to come to a conclusion that respondent No. 2 was carrying on his business from Jhuggi No. 1243, Khumar colony, Sector 25, Chandigarh.

Respondent No. 2 in his written statement, had nowhere stated that after the award was passed, he had made any fresh application before Tehsildar (Colonies) nor any proof the said application has been received by the petitioner, has been placed on record. The consistent stand of the petitioner before PLA in the written statement (P-2 and P-3) was that respondent No. 2 was not eligible for allotment of the built up booth as per Chandigarh Rule, 1991. Under the said Rules of 1991, the eligibility conditions are contained under Rule 5, which states that the applicant should hold a valid hand cart licence or hawkers license as well as driving license and owns a hand cart or a behengi/khoncha/phari on the date of issue of the notification or on the date as may be prescribed for the purpose by the competent authority. Respondent No. 2 had not made any application pursuant to the Rules. The allotment which was made on the basis of 1979 scheme was curtailed in the year 1990 and thereafter in 2006. Respondent No. 2 did not disclose before PLA that he had already been Flat No. P-876, Sector 52 Chandigarh. Respondent No. 2 had not made any representation under 1991 Rules for allotment, pursuant to the order passed by PLA in the year 2002, therefore, he cannot get benefit of the statement given by Prem Kumar Masih, Sr. Assistant which was only to the effect that the application of respondent No. 2 will be considered for allotment of site in accordance with law/rules. Thus, the direction given by PLA to allot him an alternate site to carry on his business is liable to be rejected, as he had been carrying on his business for the last 25 years from Jhuggi No. 1243, Khumar colony, Sector 25, Chandigarh. Moreover, he was provided flat No. P-876, Sector 52 Chandigarh under the 2006 Scheme.

In view of the above facts, order dated 09.09.2009 (P-4) passed by respondent No. 1 is set aside.

The present writ petition is allowed.