1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIGINAL SIDE WRIT PETITION NO.2490 OF 1996 Arun Sarja Gaikwad, Indian Inhabitant, residing at A-13, Muslim Nagar, 90 Feet Road, Dharavi, Bombay-400 017. .... Petitioner - Versus - 1. State of Maharashtra, through Housing Deve- lopment Ministry, Mantralaya, Bombay-400 023. 2. Maharashtra Housing and Area Development Authority, a statutory authority, having its office at Griha Nirman Bhavan, Bandra (East), Bombay-400 050. .... Respondents Shri S.R. Waghmare for the Petitioner. Shri G.W. Mattos, Asst. Government Pleader, for the Respondents. CORAM: J.N. PATEL AND A.P. BHANGALE, JJ. DATED: APRIL 07, 2010 ORAL JUDGMENT (Per A.P.Bhangale, J.): 1. Rule. The learned AGP waives service 2 of notice on behalf of the respondents. By consent, rule is made returnable forthwith. Heard the learned counsel for the petitioner and the learned AGP for the respondents. 2. It is the case of the petitioner that he made repeated applications through the office of the Sheriff and otherwise also requesting for allotment of residential accommodation from the 2% discretionary quota, usable by the State Government in the matter of allotment of residential accommodation in Mumbai. According to the petitioner, since the year 1991 he made applications from time to time to the State Government for allotment of a residential accommodation but there was inaction on the part of the State Government as it did not take steps to issue allotment of residential accommodation in favour of the petitioner. 3. The learned counsel for the petitioner urged that the petitioner has right to shelter which is comprehended under the fundamental right guaranteed under Article 21 of the Constitution of India. The learned counsel placed reliance upon the ruling of the Apex Court in M/s. Shantistar Builders v. Narayan 3 Khimalal Totame and others {(1990) 1 SCC 520 = AIR 1990 SC 630} to argue that basic needs of human beings have been traditionally accepted as food, clothing and shelter and it is the duty of the State Government to construct houses at reasonable costs and make them easily available to poor people. The argument, though attractive, is not convincing enough to persuade us to accept it. The scheme of providing homes to poor homeless people by the State Government is certainly desirable and laudable, if implemented by the State Government but, at the same time, the petitioner cannot claim to have a legal right to insist upon the State Government to issue to him an allotment order for a residential accommodation on the ground that he had made repeated requests to the Government. 4. In our opinion, the petitioner s contention that he is deprived of personal liberty as guaranteed under Article 21 of the Constitution of India by refusal or inaction on the part of the State Government to allot a residence to him cannot be accepted for the reasons that follow hereinafter. The Government of Maharashtra 4 established the Maharashtra Housing and Area Development Authority (MHADA) under an enactment to carry out the functions under the MHADA Act, 1976 (in force from 5-12-1977). The tenements constructed by MHADA are sold by adopting the procedure under its Regulations of 1981, by issuing advertisement in newspapers, inviting eligible applicants to apply for allotment of tenements/flats, subject to reservation of quotas for the backward classes, journalists, freedom fighters, handicapped persons, the Defence personnel, ex-servicemen, all sitting and ex-members of the State Legislative Assembly and Legislative Council, MHADA employees, Government employees and artists, totaling to 49% and 51% for the general public, out of which the State Government has 2% discretionary quota which may be used by it as desired. If it is the pure discretion of the State Government to use and exhaust the 2% discretionary quota in the manner it may choose in its wisdom in exceptionally deserving cases, nobody can claim that he/she is lawfully entitled, as a matter of right, to get a residential accommodation from the discretionary quota from the State Government in the absence of specific law in that regard. It is always open for the 5 petitioner to apply pursuant to the publication of advertisement by MHADA in newspapers or its website for allotment of a residential accommodation and if found eligible, the MHADA would allot a residence to the petitioner in accordance with the prevalent schemes and regulations. It is true that food, clothing and shelter are the basic needs of human beings and an active and continuous efforts on the part of the Government are indeed needed to provide residence to every needy and poor citizen who is shelterless in urban city like Mumbai, but the petitioner cannot, as a legal or constitutional right, insist upon for allotment of a residential accommodation by the Housing Minister concerned or the State Government from its discretionary quota of 2%. 5. In M/s. Shantistar Builders s case (supra), the Apex Court proposed to give some directions regarding future monitoring of the scheme in respect of construction permitted on exempted land under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. The Apex Court had made it clear that its discretions were restricted to that particular project only. In para 13 of the ruling, the Apex Court has observed thus: 6 13. In recent years on account of erosion of the value of the rupee, rampant prevalence of black money and dearth of urban land, the value of such land has gone up sky-high. It has become impossible for any member of the weaker sections to have residential accommodation anywhere and much less in urban areas. Since a reasonable residence is an indispensable necessity for fulfilling the constitutional goal in the matter of development of man and should be taken as included in `life in Article 21, greater social control is called for and exemptions granted under Sections 20 and 21 should have to be appropriately monitored to have the fullest benefit of the beneficial legislation. We, therefore, commend to the Central Government to prescribe appropriate guidelines laying down the true scope of the term `weaker sections of the society so that everyone charged with administering the statute would find it convenient to implement the same. 6. The Apex Court proceeded to give directions to the State Government of Maharashtra with a view to ensure transparency in the matter of timely construction of flats on exempted lands under the Urban Land Ceiling Act and for the allotment thereof in a systematic manner by a committee headed by an efficient Judicial Officer not below the rank 7 of an Additional District Judge. The State Government was directed to suitably modify its code and re-circulate it. But, in the facts and circumstances of the present case, the petitioner has no legal right to claim allotment of a residential accommodation from the State Government s 2% discretionary quota, as is pleaded in the petition. The ruling in M/s. Shantistar Builders case can be of no help to the petitioner in the absence of any statutory duty/legally enforceable obligation on the part of the State Government to provide a residential accommodation to the petitioner, as is insisted by him. 7. Further more, from the affidavit in- reply filed by Shri Prakash Laxman Pathak, Deputy Secretary, Housing Department, Mantralaya, Mumbai on behalf of the State, it is clear that the State Government by its letter dated 13-1-2000 had offered to the petitioner a tenement admeasuring 428.79 sq.feet at Samata Nagar, Kandivili (East), Mumbai under the 2% discretionary quota. The said letter was duly served on the petitioner on the very date through a special messenger and his acknowledgement was also obtained. Despite having been offered the said tenement, 8 the petitioner declined to accept the same. Hence, in the circumstances aforestated, the petitioner is not entitled to the relief asked for in the petition. 8. In view of the foregoing discussion, the petitioner has failed to make out a case for interference by this Court in the discretionary quota of the State Government and hence the petition is liable to be dismissed and is accordingly dismissed. The rule is discharged. No order as to costs. J.N. PATEL, J. A.P. BHANGALE, J.