Authority vs Commission & Ors on 17 February, 2010

Bombay High Court
Authority vs Commission & Ors on 17 February, 2010
Bench: R. S. Dalvi


                         APPELLATE SIDE

                 WRIT PETITION NO.10453 OF 2009

Maharashtra Housing & Area Development

Authority                                            ...Petitioner
The Maharashtra State Human Rights
Commission & Ors.                                    ...Respondents

Mr.G.W.Mattos, Advocate for the Petitioner
Ms. Sai M. Dalvi, Respondent No.2 in person
Mrs. Neha Bhide B Panel for Respondent No.3

                                CORAM : SMT.ROSHAN DALVI, J.

          Date of  reserving the Judgment :    27TH JANUARY, 2010
          Date of pronouncing the Judgment :17TH FEBRUARY, 2010


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

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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
                                  ig    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

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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. igThat 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

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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. igHer 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.

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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;



7. Acceptance must be absolute. – In order to

convert a proposal into a promise the acceptance

(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

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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 doesig 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.


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.

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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

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 ig 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

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rights of all humans qua their residence and property

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

15.Mr. Mattos, on behalf of MHADA, equally eloquently

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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

16.Mr.Mattos would contend that property rights cannot
fall within the purview of Human Rights.

ig 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

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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

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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

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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

ig 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

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

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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

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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


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

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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


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


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).

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27.The orders/recommendations of the Human Rights

Commission dated 22nd October 2009, 18th December 2007
and 31st August 2007 are set aside.


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