HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 21
Civil Misc. Writ Petition No. 30055 of 2017
Dr. Ravindra Kumar Gautam ——- Petitioner
State of U.P. Ors. ——- Respondents
Hon’ble Krishna Murari, J.
Hon’ble Ashok Kumar, J.
Validity of a Government Order dated 08.03.2001 imposing a condition to include his/her spouse as a co-owner compulsorily in the conveyance deed to be executed in favour of allottees of a property by U.P. Avas Vikas Parishad and other Development authorities, is in question in this petition.
The aforesaid question arises for consideration in the background of the following facts.
Respondent no. 2-Gorakhpur Development Authority launched a housing scheme known as Vasundhara Enclave Phase-I and invited application for allotment in the prescribed form. The application form required the intending applicant to disclose his name in capital letters and to also disclose the name of his/her wife or husband, as well as of the father. Petitioner also made an application dated 23.02.2015 for allotment of a MIG flat in the said housing scheme in the prescribed format disclosing all the requisite information, as required therein. The petitioner was seeking allotment of the flat solely in his name. After processing of the application, he was allotted Flat No. 103 in Block No. 16. Petitioner availed a housing loan from the State Bank of India and deposited all the regular instalments. After deposit of the entire instalments, petitioner also obtained a No Objection Certificate and made a request for execution of the sale deed. However, respondent no. 2 refused to execute the sale deed insisting that his wife has to be necessarily joined as a co-owner in the conveyance deed. Petitioner thereafter made an application dated 22.06.2017 before the Vice Chairman of the Development Authority informing that he has paid all the instalments due towards the flat allotted to him and since the relations with his wife are estranged and a divorce petition No. 90 of 2015 is pending between them before the Family Court, Gorakhpur, as such, the conveyance deed has to be executed exclusively in his name. Vide letter dated 24.06.2017, respondent no. 3 informed the petitioner that in view of the Government Order dated 8th March, 2001, it is imperative that the conveyance deed in favour of the allottees of the U.P. Avas Vikas Parishad and different Development Authorities has to be executed jointly with the spouse and unless there has been a divorce, the sale deed cannot be executed in the exclusive name of the petitioner.
Aggrieved by the same, petitioner has approached this Court by filing the instant writ petition. During the pendency of the petition, by way of an amendment, legality and validity of the Government Order dated 08.03.2001 has also been challenged.
It is contended by the learned counsel for the petitioner that petitioner was the sole applicant and the entire cost of the flat was paid solely by him and, in case, the petitioner does not want his wife to be included as a co-owner, he cannot be coerced or forced to include her name in the conveyance deed as a co-owner. It is further pointed out that even otherwise since the relations with his wife are estranged and divorce proceeding is going on between them, there appears to be no justification to compel him to get the sale deed executed in the joint name along with his wife. It is also submitted that the impugned Government Order requiring the spouse to be compulsorily joined as co-owner of conveyance deed along with the applicant-allottee is illegal, arbitrary and without jurisdiction and placing such a restriction on the right to acquire a property is violative of the constitutional right guaranteed by Article 300A of the Constitution of India.
In reply, a counter affidavit has been filed on behalf of respondent nos. 2 and 3 stating that the aforesaid condition is required to be fulfilled in view of the Government Order 08.03.2001 and since the Government Order prescribes that unless there is a decree of divorce, both the husband and wife have to be necessarily joined as co-owners in the conveyance deed and, as such, the sale deed cannot be executed exclusively in the name of the petitioner.
The fact that the petitioner was the sole applicant and he was allotted Flat No. 103 in Block 16 by the lottery and the entire instalments have been paid by him solely, has not been denied in the counter affidavit. In the counter affidavit to the amendment application, it has been mentioned that the Government Order has been issued to sustain social relationship between the families.
Shri Ajit Kumar Singh, learned Additional Advocate General assisted by learned Standing Counsel reiterated what has been stated in the counter affidavit that the Government Order is just and valid and was issued to maintain social harmony between the families. This is the sole argument, which has been raised before us by the learned Additional Advocate General.
We have considered the argument advanced by the learned counsel for the parties and perused the record.
It is now well settled by the judicial pronouncements that right to acquire a property, although is not a fundamental right, but is a constitutional right and human right. Before a person can be deprived of his right to acquire a property, the law must expressly and explicitly states so. Reference may be made in this connection to the pronouncement of Hon’ble Apex Court in the case of Chandigarh Housing Board Vs. Devinder Singh Anr., AIR 2007 SC 1723, wherein while considering the conditions of eligibility for allotment of a housing plot, the right to acquire a property has been held to be a constitutional right and a person can be deprived of this right only by an express and explicit law.
Unless and until there is an express provision in a statutory enactment or in the Rules, no such Government Order can be issued on the administrative side to deprive a person of a right guaranteed by the Constitution. The State Government, while taking recourse to the executive power of the State under Article 162 of the Constitution of India, cannot deprive a person of his right to acquire a property, which is a constitutional right under Article 300A of the Constitution of India. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162 opens with the words “subject to the other provisions of the Constitution”. This makes it clear that executive power of the State Government conferred by said Article with respect to which the Legislature of the State has power to make laws, is subject to the provisions of the Constitution. Thus, the executive power of the State Government is necessarily subject to Article 300A of the Constitution.
The State, in exercise of its executive power, is charged with the duty and responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed, provided in exercise of the executive power under Article 162, State Government does not issue orders, which contravene the constitutional provisions or that of a Statute or are inconsistent with the same. In such a situation, the executive power is circumscribed.
On the touchstone of the above principles, the impugned Government Order dated 08.03.2001 imposing a condition to compulsorily join the spouse of the applicant as a co-owner in the conveyance deed to be executed in favour of an allottee by Development authorities and such other bodies, is in clear violation of the constitutional right to acquire a property guaranteed by Article 300A of the Constitution of India.
Apart from above, the condition of compulsorily joining the spouse of the applicant as a co-owner, is also arbitrary and violative of Article 14 of the Constitution, inasmuch as it only requires a spouse to join as co-owner discriminating other family members related by blood, such as father, mother, brother or sister. This is not only arbitrary and hostile discrimination, but appears to have no nexus with the purpose sought to be achieved, namely, sustaining the social relations between the family providing strength to the social binding.
In view of the facts and discussions, the impugned Government Order dated 08.03.2001 is not only arbitrary, violative of Article 14 of the Constitution of India, but also infringes the right to acquire property guaranteed by Article 300A of the Constitution and, thus, cannot be sustained and the same, accordingly, hereby stands quashed. A writ of mandamus is issued commanding respondent no. 2-Gorakhpur Development Authority to execute the sale deed of the Flat No. 103 in Block 16 allotted to the petitioner exclusively in his name, subject to the completion of other legal formalities. Writ petition, accordingly, stands allowed.
However, in the facts and circumstances, we do not make any order as to costs.