In the High Court of Judicature at Madras Dated:- 29-10-2009 Coram: The Honourable Mrs.Justice PRABHA SRIDEVAN and The Honourable Mr.Justice M.SATHYANARAYANAN Writ Petition No.35082 of 2007 S.Arokiadoss .. Petitioner Versus 1.The Chief Executive Officer, Puducherry Slum Clearance Board, Puducherry. 2.The Director of Town and Country Planning, Town and Country Planning Department, Puducherry. 3.The Secretary to Government, Housing Department, Government of Puducherry, Chief Secretariat, Puducherry. 4.Union Territory of Puducherry, rep. by its Chief Secretary, Chief Secretariat, Puducherry. 5.The Comptroller and Auditor General, 10, Bahadur Shah Zafar Marg, New Delhi - 110 002. 6.The Central Bureau of Investigation, Shastri Bhawan, Chennai - 600 006. .. Respondents Writ Petition filed under Article 226 of the Constitution of India seeking for the issuance of writ of Mandamus directing the appointment of the Committee headed by a retired High Court Judge to enquire into the violation and diversion of funds disbursed under the Puduherry Perunthalaivar Kamarajar Centenary Housing Scheme for the Houseless Poor Rules, 2003 and suggest remedial measures; to direct the Respondents to implement the Scheme in compliance with the Housing Scheme Rules vide G.O.Ms.No.17/2003-HG dated 05.12.2003; to https://hcservices.ecourts.gov.in/hcservices/ direct the CBI to investigate into the offences arising out of the diversion and misappropriation of funds resulting from violation of aforesaid Housing Scheme Rules. For Petitioner .. Mr.T.V.Sai Srujan For Respondents .. Mr.T.Murugesan, G.P. (Pondicherry) for R1 to R4. Mr.Vijaya Shankar - for R5. ORDER (Order of the Court was made by PRABHA SRIDEVAN,J) This writ petition has been filed in public interest, alleging irregularities in the implementation of the Perunthalaivar Kamarajar Centenary Housing Scheme for the Houseless Poor Rules, 2003. 2. According to the petitioner, the Housing Scheme Rules, 2003 was a laudable scheme intended to provide house to the poor. But for the last three years, the funds have been disbursed by abusing every Rule in the Housing Scheme Rules. The grievance of the petitioner is that the funds have not reached the intended beneficiaries. According to the petitioner, though a sum of Rs.187.50 crores have been disbursed under the Scheme, major portion has been diverted and misappropriated by unscrupulous persons and thereby, a major financial scam has been done in the name of houseless poor. It was also submitted that the Rules provided that the requisite application form may be obtained free of cost in the Office of the Pondicherry Slum Clearance Board, Pondicherry and in the Office of the Deputy Collector, but the forms have been given only to the MLAs and the petitioner was informed on application under the Right to Information Act that in the areas of the Ministers and MLAs of each Constituency being given application form for the Housing Scheme. Therefore, the grievance of the petitioner is that there is scope for manipulation. 3. When the matter came up for hearing on an earlier occasion Mr.T.Murugesan, learned Government Pleader (Puducherry), appearing for the Respondents 1 to 3 filed a counter and also minutes of the Advisory Committee appointed under the Scheme. According to the learned Government Pleader, the application should be submitted in Form-I, which shows that there should be a recommendation of the MLA for grant of subsidy. It also requires scrutiny report by the Sub- Inspector of Survey, Puducherry Slum Clearance Board. it is not as if every application recommended by an MLA is immediately approved by the Advisory Committee. The Advisory Committee has independently scrutinised every application. It was also submitted that the list https://hcservices.ecourts.gov.in/hcservices/ of beneficiaries is hosted on the website of the Union Territory of Puducherry at www.pondicherry.nic.in. Therefore, everything has been done with absolute transparency and the beneficiaries were persons Below Poverty Line i.e. Annual income of Rs.15,000/- or less. 4. In the affidavit it was stated that some of them who were actually in Government employment and whose Annual income was Above Poverty Line i.e. above Rs.15,000/- and below Rs.1,20,000/-, have been granted financial assistance under the Scheme. According to the learned counsel, this meant that particular beneficiaries were not entitled to receive benefit under the Scheme. The petitioner's prayer was for appointment of a retired High Court Judge to go into the aspect. We however, feel that if the list of beneficiaries is prepared it would show us the manner in which the Scheme has been implemented. 5. Today, an exhaustive compilation has been produced before us, giving the list of beneficiaries separately under Phase-I, Phase- II, Phase-III and Phase-IV. The learned Government Pleader appearing for the Puducherry Government also submitted that out of 32,500 beneficiaries, 23,676 have already constructed the house and are residing there. He has also submitted that majority of the beneficiaries are coolies. But however, the compilation would show that some of them are pursuing other avocation. However, it is seen from the compilation that as against the name of every applicant the occupation, Annual income, category of Ration Card and even Ration Card Number has been given. The learned Government Pleader submitted that there is no scope for manipulation in disbursing subsidy amount to any other family members other than Below Poverty Line, since the Ration Card Number is given. 6. The learned counsel for the petitioner has pointed out one instance where according to him both husband and wife had obtained the benefit. However, the learned Government Pleader submitted that the Ration Card Numbers are different and it is the name of different person and that the allegation may be unfounded. We also find from a cursory glance of this compilation that more than 90% of the beneficiaries held the Red category of Ration Card which means they are the persons Below Poverty Line, entitled to get the benefit under the Scheme. We cannot rule out the possibility of some persons who may not be entitled from getting benefit when there are so many beneficiaries. But by and large it would appear that the benefit has been given only those who were homeless and those who held Red Ration Card. https://hcservices.ecourts.gov.in/hcservices/ 7. The Rules read as follows:- 2.Definitions: 3. 2(l) "Poor" means families identified as Below Poverty Line families by the Government from time to time; 2(m) "Houseless" means person or persons (both husband and wife but none else) who do not possess, a pucca house on his/her/their own plot/land, in urban or rural areas and the ownership/title of the said plot shall have been acquired through any one of the following modes, namely:- i. House-site on free of cost assigned by the Government of Pondicherry. ii. Natham Patta/Kudiyiruppu Patta. iii.Acquisition of plot by purchase/ partition/ donation/ settlement/ inheritance, etc., through legally valid documents. Explanation:-In the case of Natham Patta holders, if the Pattadar is dead, then the legal heir to the Pattadar is the owner of the hut. 5. Making of application:- (i)The application for the construction shall be submitted in Form-I by intending poor hut owners to the Chief Executive Officer, Pondicherry Slum Clearance Board, Pondicherry, in respect of Pondicherry and Karaikal regions and to the Deputy Collector/Sub-Collector, as the case may be in respect of other outlying regions like Mahe and Yanam. The requisite application form may be obtained on free of cost in the Office of the Pondicherry Slum Clearance Board, Pondicherry, in respect of Pondicherry and Karaikal regions and in the Office of the Deputy Collector in respect of Mahe and Yanam regions. ii. The application shall be submitted in Form-I along with the following documents: (a) Income Certificate obtained from an officer not below the rank of a Tahsildar or Red Ration Card issued by Civil Supplies Department; (b) Original documentary evidence to prove that the applicant possesses a free plot issued by the Government or having own house-site or having thatched hut in his own plot/house-site; https://hcservices.ecourts.gov.in/hcservices/ (c) Certificate of Nativity by birth or residence, Ration Card and Election Identity Card; (d) In the case of physically disabled, necessary certificates from the competent authority of the Health Department. In the case of widow, Death Certificate of the husband along with her Marriage Certificate and in the case of deserted person, necessary order from the Family Court." The Rules provided that the application should be given free of cost to any one. But Form-I insists upon Recommendation of MLA. This reads as follows:- "Recommendation of the Member of Legislative Assembly Thiru/Tmt./Selvi.......................H/o, W/o, or S/o, D/o.................................. is residing in the hut situated in the patta issued by the Government/in the plot owned by him/her. I recommend him/her for the grant of subsidy under the scheme the Pondicherry Perunthalaivar Kamaraj Centenary Housing Scheme for the Houseless Poor." Place: Signature of the Date: Legislative Assembly Member, ........................Constituency. According to writ petitioner this is contrary to Rule. 8. It was submitted on behalf of the Government Pleader this recommendation is required in order to ensure that the deserving people are benefited by the scheme and to obtain the genuineness of the claim of the applicants and there is no impersonation. 9. However, the distribution of the forms by the MLA instead of distribution of forms to the beneficiaries free of cost may lead to some complaints and in order to prevent the same, it is better that Rule 5 should be strictly adhered to. 10. As regards transparency, Rule 4 provides for eligibility for providing financial assistance to the applicant who shall be: (i) a Citizen of India; (ii) a native/resident of Union territory of Puducherry; (iii) a poor person whose annual family income is not more than Rs.24,000/- or a person who is having Red Ration Card; (iv) Houseless as defined in Rule 2(m). On processing the application submitted by the eligible applicant, the final selection of the beneficiaries lies with the Advisory https://hcservices.ecourts.gov.in/hcservices/ Committee under the Chairmanship of the Chairman, Puducherry Slum Clearance Board as per Rule 8. The Advisory Committee is comprised of the above said official, Chief Engineer, (PWD), Joint Secretary (Revenue), Chief Town Planner, Town and Country Planning Department and the Under Secretary to the Government (Housing) as Members. The Chief Executive Officer of the Puducherry Slum Clearance Board is to act as the Member Secretary. The eligible beneficiaries have been identified in accordance with the procedure contemplated under the above said Rules. 11. This Court on a perusal of the compilation produced by the Respondents 1 to 3 is of the opinion, that by and large the identification of the beneficiaries have been done in accordance with the Rules. In fact one of the office instructions reads as follows:- "The Advisory Committee constituted under the Scheme Rules is required to be convened for the selection of beneficiaries out of the recommended cases. The list placed below does not provide the required inputs to the Committee for making appropriate recommendations. The details of land holding, namely, name of the Revenue village, survey number, extent, ownership/possession, documentary proof, etc. apart from the eligibility or otherwise of the applicant have not been indicated in the list. The eligibility, on otherwise of the applicants may be got verified and certified by the officers of the Board, before placing for consideration of the Advisory Committee. It is requested that the proposal may kindly be resubmitted to the Committee after attending the above. It is suggested that at least in future, as a measure of social audit the draft list of beneficiaries may be got published calling for objections, if any to avoid extension of benefits to ineligible persons and to ensure transparency in public dealing. " This is a good suggestion worth considering. 12. The learned counsel for the petitioner also submitted that after the directions were given by this Court, Rules are scrupulously adhered to. When a scheme such as this is announced in the name of a great leader of the country, with an object to provide home to the houseless persons who are Below the Poverty Line, it is better, nay imperative to ensure that the Rules are complied with in the true spirit in which the scheme has been announced. There should be no room for manipulation or abuse of the Scheme. The number of homeless poor in this country are millions and the laudable object should be achieved and for that, there should not be any diversion of funds https://hcservices.ecourts.gov.in/hcservices/ which is meant for those oppressed people. Separate counters have been filed by each of the Respondents. But we extract the latest counter by R4 signed on 1.8.2009:- "11. I submit that the allegations in para 5 of the writ petition stating that a major portion of Rs.187.50 crores disbursed under the scheme has been diverted and misappropriated is totally incorrect. On the contrary to that amount of Rs.155,61,25,000/- (Rupees One Fifty Five Crores Sixty One Lakhs and Twenty Five Thousand only) has actually been so far utilized under this scheme as shown hereunder: (as on 27th July 2009) Year Target in houses No.of houses completed Amount released (in Lakhs) So far disbursed (In Lakhs) 2003-04 7500 6996 3000 2911.05 2004-05 7500 6643 3000 2836 2005-06 7500 3750 3275.1 2006-07 10000 2501 7086.9 6539.1 13. I submit that the Advisory Committee which has been constituted vide G.O.Ms.No.9/2004-Hg., dated 10.11.2004 comprises of Chairman, Puducherry Slum Clearance Board as Chairman of the committee and Chief Engineer, Public Works Department, Joint Secretary (Revenue), Chief Town Planner, Town & Country Planning Department and Under Secretary to Government (Housing) as members. The Chief Executive Officer, Puducherry Slum Clearance Board discharges duty as the Member Secretary for the Advisory Committee. The scrutiny of all applications submitted by the applicants with the recommendation of a Member of the Legislative Assembly is undertaken by the Chief Executive, Puducherry Slum Clearance Board and the selection of beneficiaries is done by the Advisory Committee. 15. I further submit that the purpose of the scheme is to benefit the persons who are below the poverty line and who do not posses a pucca house on his/her/their own plot/land in urban or rural areas. The scheme also facilitate construction of pucca houses by the recipients of house sites free of cost assigned by the Government of Puducherry, Natham patta/Kudiyiruppu patta holders who has to construct a pucca house in the allocated land within period of ten years as per the condition incorporated in their patta documents. The identification of Below Poverty Line (BPL) status of the applicants is made by verifying whether they possess red or yellow ration card and in case https://hcservices.ecourts.gov.in/hcservices/ of yellow card if the income peer annum does not exceed more than Rs.24,000/- the applicant is considered as BPL applicant. They must belong to Union of Puducherry. It is only upon satisfaction of above eligibility conditions the physical verification of the place where such a person is taking shelter is made and then the application is further processed notwithstanding Member of the Legislative Assembly's recommendation. Thereafter the verified applications are forwarded to the Advisory Committee for approval as per Rules. The procedure for selection of beneficiaries for housing scheme is well laid down by the Rules, and the whole procedure is undertaken by the Officials up to the stage of payment to the beneficiary in accordance with the Rule 8. Therefore the entirety of the allegations by the Petitioner is contrary to the above as such denied. Copies of the minutes of various meetings of Advisory Committee held for the year 2004-05, 2005-06 & 2006-07 are enclosed as Annexure I to III of this reply. The list of beneficiaries approved by the Advisory Committee for 2003-04, 2004-05 is hosted on website w.w.w.pondicherry.nic.in. The minutes of the Advisory Committee for the year 2003-04 are not traceable though the list of beneficiaries selected are placed in the above website. The list of beneficiaries for the year 2005-06, 2006-07 are enclosed as annexure IV & V. 16. I submit that the allegation in para 8 made by the Petitioner that 65 Nos. of ineligible persons were granted financial assistance is not correct. I hereby submit that the financial assistance under Perunthalaivar Kamarajar Centenary Housing Scheme was extended based on the documentary proof for Below Poverty Line (BPL) status submitted by these beneficiaries in addition to other necessary documents along with their applications. I submit that out of 65 Nos. of beneficiaries, 33 Nos. possess Red Ration Card or Below Poverty Line (BPL) Ration Card and 32 Nos. had submitted income certificate issued by Revenue Department, Government of Puducherry certifying their annual income is below Rs.24,000/- which in turn places them under Below Poverty Line (BPL) status. I submit that none of these 65 Nos. of beneficiaries were in Government service at the time of their selection under the housing scheme. The tabular column shown here under which is made based on the records available with the Puducherry Slum Clearance Board will clearly point out that these 65 Nos. of persons had satisfied the prescribed norms and therefore the Advisory Committee, which scrutinised their claim of entitlement to receive the benefit, found them to be eligible. The Puducherry Slum Clearance Board had posted the name list of all the beneficiaries selected by the Advisory Committee https://hcservices.ecourts.gov.in/hcservices/ during the Phases-I & II of the Housing Scheme in the website of w.w.w.pondicherry.nic.in. I submit that the names of 27 Nos. of beneficiaries under Phase-I and 20 Nos. beneficiaries under Phase-II of the housing scheme out of above mentioned 65 Nos. of beneficiaries are included in the published selection list. I submit that the approval granted by the Advisory Committee for the remaining 18 Nos. of beneficiaries under Phase-III of the scheme is included in pages 1 to 7 and 10 to 13 in 5th batch of approved list and also in 16th page in 7th batch of approved list for the housing scheme during the year 2005-06. Therefore the allegations to the contrary made by the petitioner are without merits and unsustainable. Year No.of Beneficiaries Red Ration Card BPL Income Certificate 2003-04 27 Nos. 12 Nos. 15 Nos. 2004-05 20 Nos. 11 Nos. 9 Nos. 2005-06 18 Nos. 10 Nos. 8 Nos. Total 65 Nos. 33 Nos. 32 Nos. 17. I submit that this scheme is very successfully implemented and so far 21,830 hutments have been converted into pucca R.C.C. houses. This by itself stands testimony to the accomplishment of the objective of providing a decent shelter to the Citizens of India in accordance with the fundamental right of 'Right to Life' as per the Article 21 of the Constitution. 18. I submit that at no point of time there was any disbursement of subsidy without the approval of the Advisory Committee or Inspection Reports or Physical Verification by the Government officials concerned. I submit that the scheme has been implemented in strict compliance of the Rules. I submit that the role of the Members of Legislative Assembly is only recommendatory in nature as per the rules and all the allegations to the contrary in Ground E of the affidavit are denied as incorrect and misleading. However, I submit that his request for sanction of housing subsidy under the Perunthalaivar Kamarajar Centenary Housing Scheme can be considered subject to his eligibility and procedure under the rules if he submits a fresh application for the same." 13. With regard to distribution of public largesse, we extract the following paragraph from the judgment of the Supreme Court of India in Onkar Lal Bajaj v. Union of India - (2003) 2 SCC 673 : https://hcservices.ecourts.gov.in/hcservices/ "The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision-making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions." That was a case relating to allotment of retail outlets of petroleum products, LPG distributorships and SKO-LDO dealerships. 14. We therefore, dispose of this writ petition with the direction that the scheme should be implemented strictly in accordance with objects and the beneficiaries must only belong to that category of persons as described in Rule 2(l) and (m). There should be complete transparency and all steps to ensure that must be adopted. We also record our appreciation of the meticulous way in which these compilations have been prepared by the officers. gr. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1. The Chief Executive Officer, Puducherry Slum Clearance Board, Puducherry. 2. The Director of Town and Country Planning,Town and Country Planning Department, Puducherry. 3. The Secretary to Government, Housing Department, Government of Puducherry, Chief Secretariat, Puducherry. 4. The Chief Secretary, Union Territory of Puducherry, Chief Secretariat, Puducherry. https://hcservices.ecourts.gov.in/hcservices/ 5. The Comptroller and Auditor General, 10, Bahadur Shah Zafar Marg, New Delhi - 110 002. 6.The Central Bureau of Investigation, Shastri Bhawan, Chennai - 600 006. 1 cc to Government Pleader Pondicherry, Advocate SR.57534 1 cc to Mr.V. Vijayshankar, Advocate SR.57800 1 cc to M/s. P.V.S. Giridhar, Advocate SR.57605 W.P.No.35082 of 2007 SSK(CO) Eu 26.11.2009. https://hcservices.ecourts.gov.in/hcservices/