IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 9680 of 2007 DATE OF DECISION: November 17, 2008 Anuj Aggarwal …Petitioner Versus Union Territory, Chandigarh and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JORA SINGH Present: Mr. K.K. Goel, Advocate, for the petitioner. Mr. Anupam Gupta, Advocate, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. This petition filed under Article 226 of the Constitution challenges order dated 26.6.2007 (P-1), passed by the Secretary, Chandigarh Housing Board, Chandigarh (for brevity, ‘the respondent Board’), cancelling allotment of Second Floor flat under the Two Bed Room Flat Self Finance Housing Scheme-2006 in Sector 49, Chandigarh (for brevity, ‘the Scheme’), which was allotted in favour C.W.P. No. 9680 of 2007 of the petitioner vide allotment letter dated 19.7.2006 (P-3), on the ground that he was not found eligible for allotment under the Physically Challenged Persons Category due to non-fulfilling of Condition No. III (4) of the eligibility condition of the Scheme concerning age. 2. Brief facts of the case are that the respondent Board floated the Scheme for allotment of 112 two bed room four storeyed flats in Sector 49, Chandigarh on freehold basis. The opening and closing dates of the Scheme were 31.1.2006 and 1.3.2006 respectively. As per condition No. 4 of the terms and conditions disclosed in the brochure, an applicant was required to be 18 years of age on the opening date of the Scheme. The petitioner through his father Shri Parmodh Kumar being his natural guardian, applied for allotment of flat by depositing Rs. 2.50 lacs (P-2) under Physically Challenged Person Category. In the draw of lots held on 17.4.2006, he was declared successful for allotment of a flat on the second floor. However, the Property Allotment Committee constituted by the respondent Board on scrutiny of the application form of the petitioner found certain discrepancies and in this regard a letter dated 19.7.2006 was issued in the name of the father of the petitioner asking him to remove personally the shortcomings/discrepancies upto 2.8.2006, failing which he was to be declared ineligible. At Sr. No. 17 of the discrepancies it was pointed out that the petitioner-Anuj Aggarwal did not complete 18 years of age and Guardianship certificate was not furnished. On 26.9.2006, the respondent Board again sent a letter pointing out that the Guardianship Certificate duly countersigned by 2 C.W.P. No. 9680 of 2007 the Secretary, Social Welfare, UT, Chandigarh, was not furnished (P-4). It is claimed that after receipt of aforementioned letter, the petitioner applied for issuance of Guardianship Certificate with the Nodal Officer, National Trust, Government Institute for Mentally Retarded Children, Chandigarh on 29.9.2006 (P-5). 3. On 16.10.2006, a show cause notice was issued by the respondent Board. In para 3 it was mentioned that since the petitioner did not complete 18 years of age on the date of opening of the Scheme, therefore, as per the terms and conditions of the Scheme he was not eligible for allotment of flat under any category including Physically Challenged Persons Category (P-6). It is pertinent to mention here that as per certificate issued by the Government Institute for Mentally Retarded Children, Sector 32, Chandigarh, the date of birth of the petitioner is 24.7.1991 (P-8). 4. Before submitting reply to the show cause notice, the father of the petitioner sought information from the respondent Board under the Right to Information Act, 2005, as to whether any flat, house or booth has been allotted to a person who has applied for the allotment of a flat on behalf of physically handicapped person i.e. parents, guardian and other kith and kind in any scheme (P-9). The respondent Board while supplying the information, vide letter dated 23.11.2006 (P-10), in response to para 1 gave the following reply:- “Para 1. In this connection, it is intimated that Chandigarh Housing Board had allotted flats to the Legal guardians of Mentally Retarded persons without any age bar who 3 C.W.P. No. 9680 of 2007 were duly issued Legal Guardian Certificate by the Govt. Institute for Mentally Retarded Children of Chandigarh Administration, Sector-32, Chandigarh in the Special Housing Scheme for the Welfare of Disabled Persons-2003. However, it is clarified that initially, in the above referred scheme, age bar of minimum 18 years for Mentally Retarded Persons was there in the original scheme but later on the said scheme was amended following a string of representations filed by the parents of Mentally Retarded Children/persons. A copy of press note notifying the said amendment in the Special Housing Scheme for the Welfare of Disabled Persons-2003 is annexed herewith.” 5. On 12.12.2006, the father of the petitioner submitted reply to the show cause notice and after referring to the aforementioned information supplied by the respondent Board requested that the show cause notice be withdrawn and allotment may not be cancelled because of non-fulfilling of age criteria. The reply, however, did not find favour with the respondent Board and the allotment has been cancelled vide order dated 26.6.2007 (P-1), which is subject matter of challenge in the instant petition. 4 C.W.P. No. 9680 of 2007 6. After hearing learned counsel for the parties and perusing the paper book with their able assistance we find that there is no merit in the instant petition and the same deserves to be dismissed. It is conceded position that the age of the petitioner was much less than 18 years on the date of opening of the Scheme i.e. 31.1.2006, inasmuch as, the date of birth of the petitioner is 24.7.1991 as is evident from certificate issued by the Government Institute for Mentally Retarded Children, Sector 32, Chandigarh (P- 8). In the brochure issued by the respondent Board (R-1), under the heading ‘Eligibility’ at Sr. No. 4 it has been specifically mentioned that “the applicant must have completed 18 years of age on the date of opening of the scheme”. The reliance of the petitioner that the respondent Board has allotted flats to the legal guardian of the mentally challenged persons without any age bar in a earlier Scheme in the year 2003, would not come to his rescue because it has come on record that a Special Housing Scheme for the Welfare of disabled Persons was floated in the year 2003. At the time of floatation of that scheme there was age bar of 18 years, however, after taking a conscious decision and issuance of corrigendum before close of the 2003 Scheme, the age bar for that category was withdrawn. Moreover, it has been specifically asserted by the respondent Board that the said scheme was limited to disabled persons, being a special scheme for them and no person other than a disabled person was eligible for allotment thereunder. The position is different in the present case. A perusal of the brochure (R-1) shows that the respondent Board has issued the Scheme to the general public. 5 C.W.P. No. 9680 of 2007 Anyone who fulfilled various terms and conditions could apply under the Scheme. Reservation in favour of different categories was provided and as per sub-clause (e) of clause V(1) only 3% flats under Sub Scheme ‘A’ were to be allotted to the physically challenged persons. As has been mentioned earlier, the petitioner admittedly is ineligible for allotment of flat under the Scheme being underage on the cut off date. He was yet to attain the age of 18 years as per the requirement of terms and conditions disclosed in the brochure. It is, thus, evident that although the petitioner belongs to the physically challenged category but did not fulfill the criterion regarding age. His claim for allotment of a flat under the Scheme cannot be accepted in accordance with the terms and conditions disclosed in the brochure, which has been published to the whole world. Therefore, the writ petition fails and the same is dismissed. 7. However, we direct the respondents to refund the entire amount deposited by the petitioner within a period of two weeks from the date of receipt of a certified copy of this order. (M.M. KUMAR) JUDGE (JORA SINGH) November 17, 2008 JUDGE Pkapoor 6