It can be seen that the enforcement of the right of residence as a part of the Fundamental or Human Rights can be enforced against the State under legislation or delegated legislation of the scheme. Though such a right exists the entire populace cannot claim to be given a flat or such other residence from the government under any contract sought to be entered into by them. A right under a contract is a civil right. It can be enforced against the other contracting party whose obligation is set out under the contract. Those rights are enforceable in civil Courts. Consequently for all those rights which arise under any contract or a specific statutory provision can be enforced thereunder in the appropriate forum only. It is for any aberration under State policy, government inaction or as a residuary provision where no statutory rights 15
can be enforced though Civil Courts that the jurisdiction of the Human Rights Commission would come into play. On individual basis for contractual right such jurisdiction is not conferred upon Human Rights Commission.1
Bombay High Court
Maharashtra Housing & Area ... vs The Maharashtra State Human ... on 17 February, 2010
Bench: R. S. Dalvi
1.Rule. Rule is made returnable forthwith.
2.Respondent No.2 is heard in person and her affidavit in reply is considered.
3.The Petitioner has challenged the order of the learned Maharashtra State Human Rights Commission, Mumbai dated 2
22nd October 2009 directing the applicant which is a Statutory Authority for Housing Development in the State of Maharashtra, to allot a residential flat of a certain restriction in a certain area at the specified price within 3 months of the date of hearing. The Petitioner(MHADA) challenges the jurisdiction of the Human Rights Commission to issue an order relating to the proprietary right of citizens.
4.MHADA published an advertisement for sale of 16 tenements of one of its properties being Siddharth Nagar, Goregaon (West), Mumbai in about November 2001. The Respondent No.2 amongst others applied for tenements in pursuance of the advertisement. The Deputy Chief Officer of MHADA informed the Respondent No.2 under his letter dated 1st October 2003 that she would be informed whether she could be admitted in the proposed Co-operative Housing Society and that fact would be communicated to her. The Respondent No.2 contends that MHADA is bound to act upon the said letter and allot to her one residential premises upon her application.
5.However, earlier on 25th November 1998 one Udka Co- operative Housing Society (proposed) of working women had also applied for allotment of tenements. MHADA had passed a resolution No.5469 on 25th June 1999 to allot 3
16 residential tenements and 8 non-residential tenements to Udka Society. On 9th March 2000 the Government of Maharashtra confirmed the said resolution. On 16th May 2000 an offer letter was issued by MHADA to Udka Society. Scrutiny of the members was done. The Society was found ineligible for allotment. On 21st July 2000 Government of Maharashtra modified its earlier directions and directed MHADA to allot 12 tenements to the Society and to allot 4 tenements to one Ashok Paradkar and others instead of other members of Udka Society. That decision was challenged by Udka Society in Writ Petition No.5283/2000, in which Udka Society claimed allotment of 16 tenements to it. As per the Government letter dated 28th January 2004 and order came to be passed by this Court on 16th April 2004 directing MHADA to allot 16 tenements to Udka Society within 8 weeks of the order.
6.16 flats have been allotted to the members of Udka Society in place of the 16 applications received by MHADA inter alia from Respondent No.2. Hence no allotment has been made by MHADA to Respondent No.2 or any other applicants in respect of the advertisement which was published in November 2001 for tenements at Siddharth Nagar, Goregoan (West), Mumbai. MHADA offered to return the earnest money deposits of all the 16 applicants since it was constrained to allot flats 4
to members at Udka Society as per the High Court order. The Respondent No.2 has refused to take the earnest money deposited. She claims the tenement instead. She claims that though she along with others had applied pursuant to the advertisement published in November 2007, the flats have not been allotted to her, but have been allotted to Udka Society instead which she claims as illegal.
7.It may be mentioned that the Respondent No.2 claims contractual rights. Her right is in respect of what she considers a contract between MHADA and herself under which she claims that MHADA was obliged to allot to her a flat.
8.It may be mentioned that there is no contract between the parties. MHADA had only published an advertisement. That is not an offer made by MHADA for sale of any flat. It was an invitation by MHADA to the public to make offer for purchase of the flat. The Respondent No. 2, along with others, made their respective offers. MHADA is required to construct the premises and upon such construction allot the flats. These flats are allotted by lots. It is only when lots are drawn and a letter of allotment is issued that the offer of the party making an application is accepted and the contract is complete.
5
9.A contract is made by way of a proposal and an acceptance as per Section 2(a) and (b) and 7 of the Indian Contract Act, 1872 which run thus:
2. Interpretation clause. - In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:-
(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal;
(b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise;
(c).....
(d).....
7. Acceptance must be absolute. - In order to convert a proposal into a promise the acceptance must-
(1) be absolute and unqualified;
(2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may,within a reasonable time after the acceptance is
6
communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but, if he fails to do so, he accepts the acceptance.
No allotment is shown to be made by MHADA. The letter of MHADA dated 1st October 2003 merely informs the Respondent No.2 that she would be informed in future whether she could be admitted in the Co-operative Society where she had applied for allotment of a flat. That letter, therefore, does not conclude/complete the contract. It does not grant any legal rights upon Respondent No.2. It does not oblige MHADA to allot the flat to her. It does not verify the assent of MHADA to the application of Respondent No.2. It is neither absolute, nor unqualified. It is not accepted by allotment of any flat as called upon by Respondent No.
2.
10.Besides the contract/offer if any is frustrated and rendered impossible of performance by MHADA consequent upon the High Court order being passed. It would fall squarely within the second part of Section 56 of the Indian Contract Act, 1872. The relevant part of Section 56 runs thus:
56. Agreement to do impossible act.-An agreement to do an act impossible in itself is void. 7
Contract to do act afterwards becoming impossible or unlawful.- A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
11.The contract, if any, of MHADA with Respondent No.2 became impossible of performance upon the High Court order passed in respect of the same building constructed by MHADA after such contract with Respondent No.2 was made which MHADA could not prevent.
12.The Respondent No.2 though claiming rights under that contract did not sue in a Civil Court for enforcement of her right. She instead filed the Petition before the Human Rights Commission. She claims that her human rights are effected.
13. Human Rights as defined in Section 2(d) of the Protection of Human Rights Act, 1993 (the Act) means:
The rights relating to life, liberty,
equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India .
The Universal Declaration of Human Rights set out the 8
rights of all humans qua their residence and property thus:
Article 3: Everyone has the right to life, liberty and security of a person.
Article 13(1): Everyone has the right to freedom of movement and residence within the borders of each state.
Article 17(1): Everyone has the right to own property alone as well as an in association with others.
Article 17(2): No one shall be arbitrarily deprived of his property.
14.The Respondent No.2 eloquently argued in person and urged that the right to obtain a residence by a women such as her, who is a spinster, upon performance of her part of the contract by payment of the consideration required for the allotment, is a human right because if the tenement is not allotted to her she would be shelterless and her right to life as well as dignity as a human being would be adversely effected. It is on this premise that the order impugned by MHADA as being without jurisdiction has been passed by the State Human Rights Commission under the Protection of Human Rights Act, 1993 directing MHADA to give her one tenement as aforesaid.
15.Mr. Mattos, on behalf of MHADA, equally eloquently 9
urged that the order of MHADA is without jurisdiction and suffers from a gross error of law in as much as proprietary rights do not fall within the right to life enshrined in the Constitution under Article 21 and hence cannot come within the purview of the recommendations that could be passed by the Human Rights Commission for infringement of Human Rights of Citizens.
16.Mr.Mattos would contend that property rights cannot fall within the purview of Human Rights. He referred to the judgment in the case of State of Maharashtra Vs. Shobha Vitthal Kolte & Ors. 2006(1) Bom.C.R. 468. The challenge by the Government to the order of a Human Rights Commission, upon a complaint by a Teacher, recommending her approval by the Education Department was set aside as an order without jurisdiction. It was observed that the commission could intervene in case there were violation of human rights to life and livelihood and the right to appointment as a teacher was not even Fundamental Right. It was further observed that the right to employment in the absence of Legislation guaranteeing such employment cannot be equated with the right to livelihood. Upon considering the definition of Human Right under Section 2(d) of the Act, it was held that in a case where upon seeing lack of educational qualifications and consequently lack of 10
eligibility when the services came to be terminated, a recommendation providing the appointment could not be accepted. This was so held even though it was observed that the right to life and livelihood would include the right to receive wages, but the deprivation of the wages do not effect the very right of life and livelyhood itself. The test which was considered was whether the right which was sought to be protected was a Fundamental Right. Hence in that case it was seen whether right to be appointed could be a Fundamental Right. Article 41 in Chapter-IV of the Constitution of India laying down the Directive Principles of State Policy was considered. Under that Article the State, within the limits of its economic capacity and development, was enjoined to make provision for securing the right to work etc. It was held that the right to employment, in the absence of specific legislation, could not be placed on the same footing as the right to livelihood. Taking into consideration the Supreme Court judgment in the case of A.I.R. India Statutory Corporation Vs. United Labour Union, 1997(9) S.C.C. 377 it was observed that despite the observation of the Supreme Court in paragraph 21 of that judgment the right to work would become as much as Fundamental Right to life, but only upon the appointment of the person. Since appointment per se could not made of any person except under the procedure established by law 11
which would be under the provisions of a specific law relating to a specific employment, considering the eligibility of a candidate, it was concluded that the right to work would become a Fundamental Right where there is a legislation in that behalf. Until it fell within the expression life under Article 21, would not fall within the definition of human rights as set out under Section 2(d) of the Act.
17.It may at once be mentioned that the right to the property which was earlier a Fundamental Right under Article 31 to the Constitution, was omitted therefrom by the 44th amendment to the Constitution (w.e.f.20th June 1979).
18.The term Human rights itself denotes rights relating to the aspects enunciated in the definition. Hence it would be rights of humans relating to their life, liberty, equality and dignity as against the rights with regard to their properties.
19.Such Human Rights relating to life, liberty, dignity and equality effectively come into play when the act of State by virtue of any legislation or delegated legislation is considered: to cite it was considered by the Supreme Court in the case of M/s.Shantistar Builders Vs. Narayan Khimalal Totame & Ors. (1990) 1 12
S.C.C.520 whilst upholding the Urban Land (Ceiling and Regulation) Act, 1976 as a Social legislation thus:
The right to life would take within its
sweep the right to food, the right to
clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation which would allow him to grow in every aspect physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well- built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fire- proof accommodation.
The growing realisation of the disparity between the increase in the home-less urban population and lack of corresponding rise in accommodation led to the passing of the Urban Land (Ceiling and Regulation) Act and acquisition of vacant sites for purposes of housing.
20.This would not apply to individual rights of parties even against the State which require to be effectuated upon contracts entered into between parties.
21.Following the case of Shantistar Builders the Supreme 13
Court upheld the notification of the Government under Section 17(1A) of the Land Acquisition Act upholding the urgency for grant of residential accommodation to persons from Scheduled Caste and Scheduled Tribes.In the case of Chameli Singh Vs. State of U.P. A.I.R. 1996 S.C.1051 the Supreme Court observed that the right to life included the right to food, clothing and housing. Therefore State was enjoined to promote with special care the interest of weaker sections of the society. It was held that the right to residence and settlement was a Fundamental Right under Article 19(1)(c)of the Constitution and a facet of the right to life. Consequently,the planned development by way of massive housing scheme undertaken by the State as its economic policy was considered. The opportunity and facility to be provided by the State to build the houses was appraised. The infrastructure necessary to enable weaker sections to live and develop as a human being was cogitated. The requirement of having a property and capacity for acquiring property was essentially considered. The squalid residential environment which is a constant threat to health and life was required to be removed as provided in the UN Centre for human settlement by way of a global strategy. Judicial notice was taken of the condition in which weaker sections lived. Following the case of Pahwa Vs. Lt. Governor of Delhi ((1985)1SCR588: (A.I.R1984(1)SC1721), it was held 14
that the notification issued under Section 17(4) of the Land Acquisition Act would be valid and could not interfered with because the urgency for providing houses to weaker sections was always urgent. It being a national problem and a constitutional obligation, it was observed that the provision for compensation to the persons whose land was acquired for being provided to weaker sections under Section 23(1) of the Land Acquisition Act was a factor which obligated urgent acquisition.
22.It can be seen that the enforcement of the right of residence as a part of the Fundamental or Human Rights can be enforced against the State under legislation or delegated legislation of the scheme. Though such a right exists the entire populace cannot claim to be given a flat or such other residence from the government under any contract sought to be entered into by them. A right under a contract is a civil right. It can be enforced against the other contracting party whose obligation is set out under the contract. Those rights are enforceable in civil Courts. Consequently for all those rights which arise under any contract or a specific statutory provision can be enforced thereunder in the appropriate forum only. It is for any aberration under State policy, government inaction or as a residuary provision where no statutory rights 15
can be enforced though Civil Courts that the jurisdiction of the Human Rights Commission would come into play. On individual basis for contractual right such jurisdiction is not conferred upon Human Rights Commission.
23.In this case the contractual right is not available to the Respondent No.2 though she has made an application for being allotted a flat in MHADA premises since about November 2001. She has not been allotted any specified flat. It must be appreciated that there are thousands of applicants for a single premises consequent upon a single advertisement of MHADA. All applicants do not have any legal rights vested in them by virtue of their application. They would be vested with legal rights only upon the issue of allotment letter when the contract between the applicants and MHADA would be concluded.
24.Consequently it is seen that the impugned order of the Human Rights Commission is completely without jurisdiction and is required to be set aside.
25.Hence the Writ Petition succeeds.
26.Rule is made absolute in terms of prayer clause (a). 16
27.The orders/recommendations of the Human Rights Commission dated 22nd October 2009, 18th December 2007 and 31st August 2007 are set aside.
(SMT.ROSHAN DALVI, J.)
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