2013(3) ALL MR 717
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
A.P. LAVANDE AND U.V. BAKRE, JJ.
Mrs. Rose Mary Fernandes Vs. The Administrator Of Communidades & Ors.
Writ Petition No.126 of 2006
1st April, 2013
Petitioner Counsel: Shri D.J. Pangam
Respondent Counsel: Shri Pankaj Vernekar
(A) Code of Communidade (1961), Art.334A, Explanation I - Allotment of plot - Petitioner Government servant working as staff nurse in Medical College - Petitioner applied for allotment of plot for construction of residential house - Art.334A was introduced in 1985, Explanation I was introduced in year 1985 - Application made by petitioner was pending even after coming into force of Explanation 1 to Art.334A - Contention that Explanation I not applicable as petitioner's application is prior to insertion of Explanation I - Contention liable to be rejected.
As per Art.334-A land can be granted to Government Servants who are landless , which in other words means that land cannot be granted to persons who are not Government servants and who are not land less. Both qualifications of being Government Servant and landless must coexist. Requirement, as above, would apply from date of application till date of grant. Therefore, application of grant of land has to be decided according to law in force on date of decision, despite fact that there is long delay since date of application, as alleged. Period between date of making application till date of disposal of application i.e. date of allotment or rejection of allotment is relevant. Hence merely because initially petitioner had made application in year 1980, she cannot claim that Art.334-A which came into force in year 1985 and Explanation I to it which came into force in year 1993, was not applicable to her. Art.334 A is fully applicable to petitioner along with Explanation I.
(B) Code of Communidade (1961), Art.334A, Explanation I - Allotment of plot - Petitioner Government servant working as staff nurse in Medical College - Allotment of plot for residential house to landless Government servant - 'Landless' means neither that person nor his or her spouse or minor child owns plot, house, flat, apartment in State of Goa.
1994 (5) SCC 562 Ref. to. [Para 19]
(C) Code of Communidade (1961), Art.334A, Explanation I - Allotment of plot - Application for allotment of plot for residential house to landless Government servant i.e. petitioner - Petitioner already availed benefits of H.B.A from Goa Medical College for purchase of flat - Installments for H.B.A. were recovered from petitioner's salary till her retirement - Plot was purchased by Society and flat was allotted on ownership to minor daughter of petitioner, share was transferred in her favour - Later flat was transferred in name of petitioner - On date of rejection of allotment application, her daughter had become major but that would not make good the breach - Petitioner cannot be termed as landless - Rejection to allotment of plot, upheld. (Paras 20, 21)
(D) Code of Communidade (1961), Art.334A, Explanation I - Allotment of plot - Application for allotment of plot for residential house to landless Government servant - Flat already purchased in name of daughter of petitioner - Explanation I clearly says that word 'house' shall also include flat or apartment - Contention that having flat does not disentitle petitioner to allotment of plot, is liable to be rejected. (Para 22)
Michael Charles D'Souza Vs. Ganesh V. V. Gaonkar & Ors., 1991 Mh. L.J. 1432 [Para 5,6,11,16,22]
Union of India and Others Vs. Devraj Gupta and Others., (1991) 1 SCC 63 [Para 9,17]
Mohd. Noor and Others Vs. Mohd. Ibrahim and others., (1994) 5 SCC 562 [Para 10,11,19,22]
State of Tamil Nadu Vs. Hind Stone and Ors., AIR 1981 SC 711 [Para 12,17]
(A) This Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the Respondents to allot Plot No. 4 in survey no. 57/1 of Village of Pilerne, belonging to the Communidade of Pilerne (Respondent no. 2 herein).
(AA) This Honourable Court be pleased to issue a declaration that Explanation 1 to Article 334-A of the Code of Comunidades is ultra vires, unconstitutional and violative of Article 14 of the Constitution of India.
2. The petitioner was a Government servant working in Goa Medical College as Staff Nurse, who retired on 31/8/2004. In the year 1980, she had applied for a plot bearing no. 4 under survey no. 57/1 of village Pilerne belonging to respondent no. 2, for the purpose of constructing a residential house. According to the petitioner, she was fully eligible for grant of such plot and neither she nor her husband owns flat, land or house in the State of Goa. She further alleged that the total formalities in respect of allotment of the plot were followed. Notice dated 2/1/1981 under Article 330 of the Code, inviting objections from public to the application of the petitioner, came to be published in the Official Gazette. On 19/4/1997, the petitioner had paid an amount of Rs. 1000/- towards processing fees. Thereafter, the petitioner was directed to submit certain documents. The petitioner says that these documents were already submitted in the year 1990. According to the petitioner, however, as a matter of abundant precaution, vide communication dated 31/3/1997, she furnished all the relevant documents, again. On 28/7/1997, the petitioner was directed to pay an amount of Rs. 2460/- as processing fees, which the petitioner paid. The petitioner alleged that since for several years the file was not processed, she addressed communication dated 7/8/1997 requesting the respondents to immediately grant the said plot of land to the petitioner. According to the petitioner, to her shock and surprise, the respondents treated the said application as a fresh application. A notice dated 8/8/1997 was published under Article 330 of the Code, in the Official Gazette, calling for objections, if any, from public. On 15/11/1997, the petitioner was directed by office of respondent no. 2 to deposit an amount of Rs.19,841/- towards development charges, shifting of electricity poles charges and towards conversation charges and the petitioner paid the said amount. Thereafter, the respondent no. 2 conveyed meeting of General Body of the Comunidade to consider case of the petitioner for allotment of the said plot. However, the petitioner was directed to file a fresh Affidavit and certificate of income, which the petitioner did in order to avoid further delay. The petitioner was directed by respondent no.1 to appear on 6/1/1999 in order to appoint Appraiser, for the purpose of inspection of site and on 12/2/1999, inspection of the said plot was carried out and the lease rent was fixed at Rs. 3000/- per year at the market rate of Rs. 150/- per square metre and evaluation of the plot at Rs. 60,000/-. However, on 5/3/1999, the respondent no.1 again directed the petitioner to submit some more documents/information, which she did. In the meantime, the Dy. Collector, North Goa, Mapusa, was pleased to grant conversion sanad dated 28/1/1998 in respect of the said plot under the provisions of Land Revenue Code. On 29/6/1999, the petitioner requested respondent no.1 to submit his file to the competent authority, but on 19/8/1999, the respondent no. 3 returned the file to the petitioner to furnish detailed affidavit as approved by the Government, stating that income certificate does not indicate family income. Thereafter, the petitioner made several requests and consequently addressed lawyer's notice dated 1/10/2002 to the respondents to complete all the formalities in respect of allotment of the said plot to the petitioner within 30 days from the receipt of the said notice. On 24/6/2003, the petitioner was directed to furnish fresh documents along with an assurance that once the documents were received, further action will be taken to obtain Government approval. On 5/8/2003, the petitioner submitted all the said documents to respondent no.1 through her lawyer's notice. Again by letters dated 3/2/2004 and 12/2/2004, the petitioner requested the respondent no. 4 to grant the said plot to the petitioner and thereafter on 5/5/2004, she filed Writ Petition no. 270/2004. On 30/8/2004, this Court disposed of the said writ petition in view of the statement made by the learned Advocate General that the petitioner's application for allotment of the said plot will be disposed of within a period of four months. On 25/10/2004, the Mamlatdar in the Collectorate called upon the petitioner to furnish information as regards flat no. B-2, which was in the name of Ms. Valencia C. Fernandes and whether the plot in survey no. 53/1 belonging to Comunidade of Pilerne has been transferred to the petitioner. By letter dated 29/10/2004, petitioner informed the Collectorate office that the said flat no. B-2 belongs to the Progressive Farmers, Builders and Contractors and the same has been allotted to Ms. Valancia C. Fernandes. It was also informed by the petitioner that the plot in survey no. 53/1 was never allotted to the petitioner. On 24/12/2004, the petitioner was informed that her application has been rejected. On 21/3/2005, the petitioner made requests to the Collector, Chief Secretary and the Secretary (Revenue) to give reasons for rejection of her application and by letter dated 18/4/2005, the petitioner was informed by the Under Secretary (Revenue) that her application has been rejected as she possesses a flat bearing no. B-2 in Block I, contrary to Section 334-A of the Code of Comunidade.
3. Alleging that the rejection of allotment of plot to her is illegal and contrary to Article 334-A of the Code and further contending that Explanation 1 to Article 334-A is unconstitutional and ultra vires Articles 14, 21 and 308 of the Constitution of India, petitioner filed the present petition.
4. Rule was issued on 13/8/2007. It was observed that no case for interim relief was made out, considering the fact that at the relevant time after filing of the application as well as at the time of decision rejecting the application of the petitioner, there was a flat allotted in favour of minor daughter of the petitioner. The prayer for interim relief was rejected.
5. The Under Secretary (Revenue) filed affidavit on behalf of respondent no. 4 contending that the petition is not maintainable. It was alleged that the Constitutional validity of Article 334-A has been already upheld by this Court in the case of "Michael Charles D'Souza Vs. Ganesh V. V. Gaonkar & Ors.", reported in 1991 Mh. L.J. 1432. The petitioner retired from service w.e.f. 31/08/2004 and hence is no more a Government servant and therefore is not entitled for a plot in terms of Article 334-A of the Code. It was further stated that the petitioner, as a Government servant, at the relevant time availed of benefits of House Building Advance (H.B.A.) of Rs. 1,20,000/- from Goa Medical College to purchase a flat bearing No. B-2, Block I, situated at "Firguchem Xett", Santa Cruz in the year 1989. The installments towards the recovery of said H.B.A. were recovered from the petitioner's salary until the time she retired on 31/08/2004 and the lumpsum outstanding was recovered from her dues of Death-Cum-Retirement Gratuity (D.C.R.G.). The said flat which was purchased against the H.B.A. stood mortgaged to the Government until the entire dues were recovered. According to respondent no. 4, the petitioner, therefore, had a residential flat in her name from the year 1989 till 2004. The said flat was owned by the petitioner herself and not her daughter. It was further alleged that even otherwise, the said Valencia Fernandes was a minor in the year 1989 and also in the year 1996, when the entire building comprising of the said flat was transferred in favour of M/s. Domingos Co-operative Housing Society Ltd. It was alleged by respondent no. 4, therefore, that the petitioner cannot be called as "landless" person in terms of Explanation 1 to Article 334-A of the Code. It was, therefore, urged that the petition is devoid of merits and deserves to be dismissed.
6. Learned counsel appearing on behalf of the petitioner has specifically given up the challenge to Explanation 1 to Article 334-A of the Code. Even otherwise, in terms of the view taken by Division Bench of this Court in the case of "Michael Charles D'Souza" (supra), with which we respectfully agree, the said challenge cannot lie. Thus, the amended prayer (AA) does not survive.
"Article 334-A - Notwithstanding anything contained in Art. 334, but subject to Art. 327, a Comunidade may subject to such guidelines as the Government, may, from time to time, issue, grant on lease, not more than 10,000 sq. metres of land to educational societies for construction of playgrounds and not more than 400 sq. metres of land for construction of houses or buildings, without auction, to any of the following categories or for purposes, except that the Co-operative Housing Societies of landless person may be granted land not more than 800 sq. mts:
i) Public, Charitable or Religious Institutions;
ii) For any scheme of providing housing to the economically weaker sections;
iii) Small scale industrial purposes;
iv) Government Departments or local bodies;
v) Co-operative Housing Societies of landless persons;
vi) Government servants or employees of the Comunidades, who are landless;
vii) Landless Jonoeiros;
viii) Landless Freedom Fighters;
ix) Such other categories or purposes as may be notified by the Government from time to time.
Provided that every notification issued under this clause shall be laid as soon as may be, after it is issued, before the Legislative Assembly;
Provided further that institutions of public utility and associations of professional bodies duly recognized by the Government may also be granted not more than 10,000 sq.metres of Comunidade land on lease for construction of houses or buildings, without auction.
Provided further that the educational societies, institutions of public utility, social organization and associations of professional bodies duly recognized by the Government and have been granted Comunidade land under any other provisions of law or are in actual possession of the land, shall be deemed to have granted the same under the provisions of this Legislative Diploma, on payment of annual lease rent.
Provided further that the Government may, with the prior consent of the concerned Comunidade, grant on lease, land admeasuring up to 2 lakh sq. mts to any educational or health institution or any charitable and/or social trust or society or any similar social institution of public utility or engaged in the field of education or health, duly recognized by the Government, for the purpose of any scheme, without auction:
Provided further that the scheme for which grant is made on lease shall be scheme which is duly approved by the Government and for which a certificate of "No objection" has been issued by the Government.
Provided further that the members of Co-operative Housing Societies and the persons belonging to the categories (vi), (vii) and (viii) above are residing in Goa for preceding 15 years:
Provided also that no person or members of the Co-operative Housing Societies, as the case may be whose annual income exceeds Rs. 3,50,000/- or such amount as may be prescribed by the Government shall be eligible for grant of land on lease without auction.
Explanation 1 - For the purpose of this Article, the word "landless" means that neither the person nor his or her spouse or minor child owns a plot of land or house in the State of Goa. The word "house" shall also include a flat or apartment."
Explanation 2 - For the purpose of this Article, the annual income of the person shall be construed to mean the annual income of the person and of his or her spouse or minor child.
8. Learned Counsel for the petitioner submitted that the plot is still available as per the instructions given to him by the petitioner and all the formalities for allotment were completed long back. According to the learned counsel, though the petitioner had retired on 31/8/2004, she is still entitled to allotment of the plot since tenure has nothing to do with entitlement and qualification of being a Government servant required for allotment does not get washed away by retirement. He urged that the right accrued to her as a Government servant cannot be defeated by subsequent events. He submitted that merely because the respondents no.1 and 2 waited for the petitioner to retire that would not defeat her right. He submitted that eligibility has to be decided as on the date of application and not on the date the decision is taken. He contended that Article 334-A of the Code does not provide that the moment a Government servant retires, he is out. Learned counsel appearing on behalf of the petitioner submitted that even otherwise, retirement of the petitioner is not a ground on which her application for allotment of plot has been rejected.
9. Learned counsel appearing on behalf of the petitioner further submitted that since the petitioner's application for grant of plot was made in the year 1980, the amendment by which Explanation 1 to Article 334-A has been introduced will not apply to the case of the petitioner. He, therefore, contended that whether grant of plot is referable to the date of application or to the date of allotment/grant is the main question for determination. In this regard, learned Counsel, relied upon "Union of India and Others Vs. Devraj Gupta and Others" [(1991) 1 SCC 63].
10. Petitioner's Counsel further submitted that the ground for rejection of the petitioner's application is mainly that she owns a flat. According to him, the petitioner does not own any plot or house or flat in Goa and that her daughter Valencia has shares in M/S. Domingos Co-operative Housing Society, which is a tenant's Co-operative Housing Society. He submitted that a tenant cannot be termed as an owner. He relied upon "Mohd. Noor and Others Vs. Mohd. Ibrahim and others" [(1994) 5 SCC 562], wherein the concept of ownership has been explained in detail. He submitted that considering the said meaning of "ownership" given in the case supra, the petitioner or her daughter cannot be considered as owner of any flat. He, therefore, urged that rejection of allotment of plot to the petitioner is totally illegal and contrary to the provisions of Article 334-A of the Code and, therefore, the petition be allowed.
11. Per contra, learned Additional Government Advocate appearing on behalf of the respondents no.1, 3 and 4 submitted that Article 334-A is a beneficial piece of legislation and that the same is enacted in public interest in order to assist landless people. In this regard, he relied upon "Michael Charles D'Souza" (supra). He submitted that the application dated 7/8/1997 made by the petitioner was treated as fresh application for allotment of the plot, for which no objection was raised by the petitioner. He further submitted that the petitioner retired on 31/8/2004 and since then she was no more a Government servant. According to the learned counsel, in order to be entitled to allotment of the plot under Article 334-A of the Code, the petitioner had to continue to be a Government servant. He further submitted that the letters dated 24/12/2004 and 18/4/2005 are orders of the Government rejecting application of the petitioner for allotment of the plot. He pointed out that the petitioner has not challenged these orders. He invited our attention to the Deed of Sale dated 23/8/1996 between M/S. Progressive Farmers and Builders and M/S. Domingos Co-operative Housing Society Ltd., wherein it is mentioned that the flats in the said buildings have been allotted on ownership basis to various persons who are members of the said Co-operative Housing Society. He further pointed out that in paragraph 6 of the additional Affidavit filed by the petitioner, she has stated that in the year 1989 she agreed to purchase a flat from M/S. Progressive Farmers and Builders. He further submitted that admittedly the daughter of petitioner namely, Ms. Valencia Fernandes became a member of the said society and she was allotted the said flat bearing no. B-2, Block I. Leaned Counsel further submitted that the said flat was mortgaged by the petitioner to the Government for obtaining a loan and even after the retirement of the petitioner, the balance H.B.A. was adjusted against D.C.R.G. He invited our attention to the ration card of the petitioner, which reveals that Valencia was only 16 years old in the year 1996. He submitted that on 27/6/2007, the said shares of her daughter were transferred in favour of the petitioner and thus she became the allottee of the flat. According to the learned Additional Government Advocate, the concept of ownership, as is envisaged in Article 334-A cannot be taken in the strict sense as defined by the Apex Court in the case of "Mohd. Noor and others" (supra). According to the learned counsel, as per the document itself, the allotment is by way of ownership and therefore, the petitioner has made wrong averments in para 10 of the additional affidavit.
12. Learned Additional Government Advocate submitted that the law as is applicable on the date of allotment is relevant and not the law applicable as on the date of application. In this regard he has relied upon the case of "State of Tamil Nadu Vs. Hind Stone and Ors." [A.I.R 1981 SC 711]. He, therefore, urged that the petition is devoid of any merit and is therefore liable to be rejected.
13. In Rejoinder, Mr. Pangam, learned Counsel for the petitioner, contended that since the respondents are saying that the application of the petitioner is to be decided as per the law applicable on the date of rejection of allotment i.e. in December 2004, then on that date her daughter Valencia was admittedly not a minor. He further submitted that if the criteria of 1996, when her daughter was a minor was to be applied, then the petitioner was a Government servant in that year. According to him, the process of granting of land was already over. He further submitted that there is no document of transfer of flat in the name of the petitioner. He contended that in terms of the provisions of Transfer of Property Act, there can be no transfer without a registered sale deed.
14. We have carefully gone through the entire material on record and we have also considered the submissions made by the learned counsel for the parties and the judgments relied upon by them. In our considered view the petitioner is not entitled to allotment of the plot.
15. In Writ Petition No. 270/2004, learned Advocate General, on behalf of respondent no. 4, made a statement that the petitioner's application for allotment of plot would be considered expeditiously and as far as possible within a period of four months from the date of the order. By order dated 30/8/2004, the said Writ Petition was disposed of in terms of the said statement. The petitioner retired on 31/8/2004. By letter dated 24/12/2004, the petitioner was informed that her application for allotment of plot has been rejected by the Government on the ground that the same is contrary to prescribed guidelines under the Code. Subsequently, by letter dated 18/4/2005, the petitioner was informed that while scrutinizing her proposal it was found that she has purchased a flat bearing No. B-2, Block-I at Firguenchem Xette, Santa Cruz by availing H.B.A. and therefore her proposal for allotment of plot has been rejected. Thus, the petitioner's application was not rejected on the ground that she was no more a Government Servant. Therefore, we are not inclined to go into the controversy whether the petitioner was still eligible for the allotment of land or not, after her retirement.
16. The original application for allotment of land was made by the petitioner in the year 1980. Article 334-A of the Code was introduced in the year 1985. Explanation 1 was inserted in the year 1993. Therefore, it is the contention of the petitioner's Counsel that Explanation 1 is not applicable to the petitioner. First of all, in the petition, filed in the year 2006, there is no averment that the said Explanation 1 is not applicable to the petitioner since her application was prior to the insertion of said Explanation. On the contrary, the petitioner has claimed in the petition that in terms of Article 334-A of the Code, she is entitled for a plot of land admeasuring 400 square metres "without auction". In the case of "Michael Charles D'Souza" (supra), the applications for allotment of land without auction were originally made by the respondents no. 1 to 12 on 1/1/1984, which applications had remained pending and in the meanwhile on 5/1/1985, the Amending Act introduced Article 334-A. It was urged that the respondents no. 1 to 12 were not landless. The learned Division Bench of this Court held that since the order of allotment was actually issued after the enactment of Article 334-A, the action of the State Government in allotment of land on lease has to be judged in the light of provisions of Article 334-A introduced by Amending Act. The order dated 10/2/1985 of allotment of land to respondents no. 1 to 12 was set aside and the Competent Authority was directed to make fresh inquiry in regard to eligibility of respondents no. 1 to 12 for allotment of land. Similarly, in the present case, since the application for allotment of land made by the petitioner was pending even after the coming into force of Explanation 1 to Article 334-A of the Code, the question of allotment had to be judged in the light of provisions of Article 334A, including the said Explanation 1.
17. Let us deal with the contention of the learned Counsel for the petitioner that it is the date of the application and not the date of decision rejecting the application, which is relevant. In the case "Devraj Gupta and Others" (supra), the question was not regarding the legality of the lease granted by the Governor General. The question was as regards the base year for the calculation of the charges for conversion of the land from the residential to commercial purpose. It was held that conversion fees had to be levied as on the date of application and not as on the date of order. The facts and circumstances of the case supra which pertain to payment of conversion fees are not at all applicable to those of the present case. In the case of "Hind Stone and Ors.", (supra), pertaining to grant or renewal of leases for quarrying black granite, the Apex Court has held thus:
"13. Another submission of the learned Counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of G.O. Ms. No. 1312 (2-12 1977) should be dealt with as if Rule 8C had not come into force. It was also contended that even applications for grant of leases made long before the date of G.O Ms. No. 1312 should be dealt with as if Rule 8C had not come into force. The submission was that it was not open to the Government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant or renewal of leases made long prior to the date of G.O Ms. No. 1312 should be dealt with as if Rule 8C did not exist."
18. In terms of Article 334-A, land can be granted, interalia, to Government servants who are landless, which in other words means that land cannot be granted to persons who are not Government servants and who are not landless. Both the qualifications of being Government Servant and landless must co-exist. The requirement, as above, would apply from the date of application till the date of grant. Therefore, as has been rightly submitted by the learned Additional Government Advocate, the application for grant of land has to be decided according to the law in force on the date of decision, despite the fact that there is long delay since the date of application, as alleged. The period between the date of making the application till the date of disposal of the application i.e. the date of allotment or rejection of allotment is relevant. Hence, merely because initially the petitioner had made the application in the year 1980, she cannot claim that Article 334-A, which came into force in the year 1985 and Explanation 1 to it which came into force in the year 1993, was not applicable to her. Article 334-A of the Code is fully applicable to her, along with Explanation 1.
19. In the case of "Mohd. Noor and others." (supra), the theoretical concept of absolute ownership as compared to tenancy has been dealt with by the Apex Court. It has been held that a person can be considered to be owner if he has absolute dominion over the property in all respects and is capable of transferring such ownership. Heritability and transferability are no doubt some of the many and may be most important ingredients of ownership. It has been held that they, however, cannot be considered as sufficient for clothing a person with absolute ownership. Their absence may establish lack of ownership, but their presence by itself is not sufficient to establish it. The ownership concept does not accord with the status of a person who is paying the rent. A tenant under various legislations, either urban or rural property, agricultural or otherwise, enjoys right of heritability and transferability. At the same time, he does not become owner of the property. It has been observed that it is true that after abolition of Zamindari in various States the tiller of the soil has become owner of the land. But the proprietorship of the land vests in the State to whom the rent is payable. Transfer of ownership is distinct and different from transfer of interest in the property. It has been held that a licensee or even a tenant may be entitled by law to transfer his interest in the property but that is not a transfer of ownership. In the present case, the petitioner wants the above theoretical definition of absolute ownership to be read into the provision of Explanation 1 to Article 334-A, which says that "landless" means that neither the person nor his spouse or her spouse or minor child owns a plot of land or house or flat or apartment in the State of Goa.
20. The contention of the learned counsel appearing on behalf of the petitioner that her minor daughter did not own any flat, during the relevant period, is totally misconceived. The petitioner, admittedly, had, at the relevant time, availed of the benefits of H.B.A of Rs. 1,20,000/- from the Goa Medical College to purchase the flat bearing no. B-1, Block -I, situated at "Firguchem Xett", Santa Cruz, in the year 1989. The installments towards the recovery of the said H.B.A. were deducted from the petitioner's salary until she retired on 31/8/2004 and the huge outstanding was recovered from her D.C.R. G.. The Flat No. B-1, Block-I was mortgaged in favour of the Government against the said H.B.A.. Hence, until the entire dues were paid, it was the petitioner who held the said flat, from the year 1989 till 2004. It is true that there is no individual sale deed of the said Flat in the name of the daughter of the petitioner or the petitioner herself. The sale deed dated 23/8/1996 is between M/S. Progressive Farmers and Builders and M/S. Domingos Co-operative Housing Society Limited. A perusal of the said sale deed reveals that there were previous agreements between the builders and individual purchasers of built-up area in the said buildings whereby it was agreed that the builders would form a Co-operative Society in whose favour the property would be conveyed and pursuant thereto the Society namely M/s. Domingos Co-operative Housing Society Ltd. was formed. This was done conveniently, to take advantage of exemption of stamp duty and registration fees for the execution of the deed. By the said sale deed, M/S Domingos Housing Co-operative Society Limited had purchased the land, whereas the flats/shops in the said buildings constructed in the said property have been allotted on ownership basis to various persons who are the members of the said Housing Society. The petitioner herself has admitted in paragraph 10 of her Additional Affidavit that in the year 1989, she agreed to purchase flat from M/S. Progressive Farmers and Builders at St. Cruz, Ilhas, Goa and that her daughter Ms. Valencia was allotted flat no. B-2, Block-I and on 27/6/2007, the said society had transferred the shares in her favour. It is therefore not proper to say that the daughter of the petitioner was never the owner of the said Flat as there was no individual sale deed in her name.
21. In the affidavit filed by the Under Secretary (Revenue), it is specifically stated that a perusal of the copy of Ration card annexed to the petition, reveals that the date of birth of Valencia, daughter of the petitioner, is 04/02/1980 and therefore Miss Valencia was minor in the year 1989 when the petitioner agreed to purchase the said Flat and also in the year 1996 when the entire building comprising the said flat was transferred in favour of M/S Domingos Co-operative Housing Society Limited. These facts have neither been denied by the petitioner by filing rejoinder nor has she produced the birth certificate of her daughter. Thus, the flat was allotted as owner to the minor daughter of the petitioner and it was transferred in the name of the petitioner on 27/6/2007. Merely because, as on the date of rejection of the application for allotment, Valencia had already become major, that would not make good the breach.
22. In the petition, there is no averment that daughter of the petitioner did not own the said Flat. On the contrary, in paragraph 31 of the petition, it is stated that the said Flat which is at St. Cruz is in the name of Miss Valencia Fernandes, the same being allotted by the Society in her name. It was alleged in the petition that assuming without admitting that the Flat at St. Cruz belongs to the petitioner, in terms of the Code, a landless parson who does not possess a house is entitled for a plot of land without auction and hence merely because a person has a Flat, that does not disentitle her of a plot of land. The Explanation 1 clearly says that the word "house" shall also include a flat or apartment. In the case of "Michael Charles D'Souza" (supra), learned Division Bench of this Court has observed that the intention behind the enactment of Article 334-A is to allot land without auction to the landless for construction of building or houses. It is held that public interest is the guiding principle behind the enactment of Article 334-A. When land is granted by auction it may not be possible for the needy persons to get the land, although their need for residential or for building purpose is genuine because in auction, it is the highest bidder who may, whether he actually needs the land or not, get the land. Thus, by the process of auction it is only the people with money power who would get as much land as possible in public auction without there being any genuine need for the same whereas the needy persons with meagre resources would not be able to get any land for their genuine housing needs. It is further observed by the Division Bench that the State Government has regulated the grant of land on lease keeping in mind the limited availability of the land and the growing need of the people for the same for their housing needs. Providing land at suitable rates to the needy persons who cannot afford to bid in public auction is the purpose behind Article 334-A, introduced by the Amending Act. It is held that if persons belonging to category of Class (vi) and (viii) already own land or buildings or houses, no public interest is served by granting them the benefit of getting land without public auction. In view of the object behind enacting Article 334-A of the Code, we are inclined to accept the submission of the learned Additional Government Advocate that the concept of theoretical definition of absolute ownership as envisaged in the case of "MOHD. NOOR and Others", (supra), cannot be made applicable to the concept of ownership, as envisaged in Article 334-A. Since the minor daughter of the petitioner owned a flat in her name by way of allotment on ownership basis, after the petitioner applied for allotment of land, the question of she being allotted a plot under Article 334-A of the Code does not arise.