IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP.NO.1753 of 2008 DATE OF ORDER: 01.05.2008 Parmeshwar Dutt Sharma ....Petitioner(s) through Shri Amar Vivek, Advocate. Versus U.T Chandigarh and Others .....Respondent(s) through Sh.Sanjeev Sharma, Advocate CORAM: HON'BLE MR. JUSTICE VIJENDER JAIN,CHIEF JUSTICE HON'BLE MR. JUSTICE JASWANT SINGH .*.*. 1. Whether Reporters of Local Newspapers 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? VIJENDER JAIN, CHIEF JUSTICE The petitioner has filed the present writ petition for quashing the impugned sub clauses (iii) and (iv) of Clause III (eligibility clause) of the Housing Scheme dated 14.1.2008 (Annexure P.1) floated by respondent No.2-Chandigarh Housing Board and further to quash clause 5 of the impugned tripartite agreement executed during the month of October 2005 (Annexure P.4) being illegal,against the regulations and violative of Article 14 of the Constitution of India. He has further prayed for issuance of direction to the respondents to accept and consider his application for allotment of dwelling unit under the Housing Scheme dated 14.1.2008 (Annexure P.1). Broadly, the facts are that the Chandigarh Housing Board, respondent No.2 (hereinafter referred to as “the Board”) notified a housing scheme on 14.1.2008 namely “Self Financing Housing Scheme-2008 on leasehold basis for 90 years for employees of Chandigarh” (hereinafter referred to as “SFH Scheme 2008”). In pursuance thereof, applications were invited from eligible Group A, B, C and D employees of Chandigarh Administration or its Board/Corporation or Punjab and Haryana High Court or on deputation with Chandigarh Administration on the dates of the opening of the scheme i.e 14.1.2008. The SFH Scheme 2008 comprised of CWP.NO.1753 of 2008 #2# four storey flats with different number of bed-rooms to be constructed in Sectors 52 and 56, Chandigarh or any other place earmarked by Chandigarh Administration. Details of accommodation and approximately area is given in the scheme. Clause III of the scheme prescribes the eligibility, which is as under: “III ELIGIBILITY (i) The applicant should be a regular employee of Chandigarh Administration or its Board/Corporation or Punjab & Haryana High Court or on deputation with the Chandigarh Administration on the date of the opening of the scheme or should have retired in last three years from the date of opening of the scheme. (ii) The applicant will be eligible for allotment of a dwelling unit in case he/she or his/her spouse or any of his/her minor children does not own on free hold or leasehold or on hire- purchase basis a residential plot/house in the Union Territory of Chandigarh or in either of the Urban Estates of Mohali or Panchkula. (iii) However, an applicant who has ever been allotted a residential plot/dwelling unit in the Union Territory Chandigarh or in any of the Urban Estates of Mohali or Panchkula, through Govt/Semi Government/Statutory Corporation/Board/Municipal Committee/Corporation/Registered Society like A.W.H.O or a Co-operative House Building Society, in his/her name or in the name of his/her spouse or any minor child, shall not be eligible for allotment. (iv) Similarly, an applicant who is holding a residential plot/dwelling unit in the U.T of Chandigarh or in any of the Urban Estates of Mohali or Panchkula on the basis of an Agreement to Sell and G.P.A etc executed in his/her favour or in favour of his/her spouse or any of his/her minor children, shall not be eligible. (v) The applicant shall further be required to continue to fulfil the eligibility conditions at (ii) to (iv) above, from the date of opening of the Scheme to the date of delivery of possession of the dwelling unit by the Chandigarh Housing Board. (v) The applicant can submit only one application and in one category only according to his/her eligibility. In case both the CWP.NO.1753 of 2008 #3# husband and wife are eligible under the Scheme, both of them can apply. However, in case both of them are successful only one will be eligible for allotment.” The petitioner claims himself to be a regular Group A Employee of High Court of Punjab and Haryana working as Secretary and has completed 28 years of service. The grievance of the petitioner is that he has been rendered ineligible to apply in view of Sub Clause (iii) of Clause III as he had earlier been allotted a similar dwelling unit by the Board, which not being suitable to the status of the petitioner, had been sold and transferred with the permission and payment of transfer fee of/to the Board. Hence the present writ petition. In the writ petition, petitioner has stated that he had sold the earlier dwelling unit allotted to him on payment of Rs.40,000/- transfer fee as it was only a two room dwelling unit. It is further alleged that in the Chandigarh Housing Board (Allotment Management and Sale of Tenements) Regulations, 1979 (hereinafter referred to as “Regulations 1979”), there is no provision to debar a person like the petitioner. However, by incorporating the words “ever” in the impugned sub clause (iii) of Clause III, the respondent-Board has travelled beyond the provisions of Regulations 6(1) of Regulation 1979, which is impermissible in law. It is further averred that as per Regulations 2 (15) of the Regulation 1979, eligible persons, means a person, who is entitled to the purchase of property, in accordance with the provisions of the scheme and these Regulations 2 (26) defines 'scheme' which means a scheme prepared by the Board for the construction of a group of houses for dwelling purposes. Respondent No.2, upon notice has filed his counter affidavit and has, interalia, averred that in order to provide accommodation to all, the proposed flats or for that matter any flat/dwelling unit or residential unit are allotted on a concessional rate by a government agency and rate of allotment is always much lower than the prevalent market rate, so as to enable each and every person own an affordable residential accommodation. The allotment is made on cheaper and concessional rates once in his or her life time to fulfil the constitutional obligations, provided under Article 38 of the Constitution of India, by the Board and thereafter it is the turn of others, CWP.NO.1753 of 2008 #4# to be allotted dwelling units/residences on concessional basis. It is further submitted that if the claim of the petitioner is accepted, then it would lead to a situation that persons like the petitioners, who are allotted residential accommodation on concessional rates, sell the same at market rates and again come back seeking another allotment at concessional rates and thus defeating the very purpose of the scheme. It has been further submitted in para 10 of the Counter Affidavit that the petitioner has relied and reproduced the un-amended Regulation 6(1), 1979 Regulations, which is no longer in force. No replication has been filed rebutting this fact. It is further submitted that the impugned clauses (iii) and (iv) of Clause III is in strict conformity with the amended Regulations 6(1), which reads as under: “Regulation 6(1)- Eligibility of allotment:- A dwelling unit or flat in the Housing Estates of the Board shall be allotted only to such person who or his wife/her husband or any of his/her minor children does not own on free hold or lease hold or on hire-purchase basis, a residential plot or house in the Union Territory of Chandigarh or in any of the Urban Estates of Mohali or Panchkula. Further, persons who have been allotted a residential plot/dwelling unit in the Union Territory of Chandigarh or in any of the Urban Estates of Mohali or Panchkula, through Govt/Semi Government/Statutory Corporation/Board/Municipal Committee/Corporation/Registered Society like A.W.H.O or a Co-operative House Building Society, in their name or in the name of their spouse or any minor children, shall also not be eligible for allotment of a dwelling unit or flat. The applicant shall further continue to fulfil these eligibility conditions from the date of opening of the scheme to the date of delivery of possession of the dwelling unit by the Chandigarh Housing Board. In addition to the above provisions, the applicant should be a bonafide resident of U.T Chandigarh on the date of opening of the scheme.” (emphasis supplied) Learned counsel for the petitioner has argued that insertion of word “ever” in sub clause (iii) of Clause III is beyond Regulation 6(1) of 1979 Regulations and thus being ultra vires is liable to be set aside. He has further argued that clause 5 of the tripartite agreement dated October 2005 (Annexure P.4) is unconscionable and therefore, liable to be quashed. CWP.NO.1753 of 2008 #5# On the other hand, learned counsel for the respondents has argued that impugned sub clauses (iii) and (iv) of the Scheme 2008 are in strict conformity with the amended Regulations 6(1) of the 1979 Regulations and further the petitioner of his own free will and volition had entered into the tripartite agreement and availed of the benefits and thus he, now, cannot turn around and challenge the said clause as being unconscionable. In support of his arguments, learned counsel for the respondents has relied upon a judgment of Hon'ble Supreme Court rendered in Chandigarh Housing Board and Another v. Narender Kaur Mokal, 2000(6), SCC 415. We have heard learned counsel for the parties and perused the record carefully. It is apparent from the amended regulation 6(1) of 1979 Regulations, reproduced hereabove, that no person, who or his wife/her husband or any of her/his minor children owns freehold or leasehold or on higher purchase basis a residential plot or house in Union Territory of Chandigarh or any other Urban Estates of Mohali or Panchkula, shall be eligible for allotment of a dwelling unit. It is further provided that the persons, who have been allotted a residential plot/dwelling unit in the Union Territory of Chandigarh or in any of the Urban Estates of Mohali or Panchkula through Government/ Semi Government/ Statutory Corporations/ Board/ Municipal Committee/ Corporation/ Registered Society like A.W.H.O or Cooperative Housing Building Society in their name or in the name of their spouse or minor children, shall also not be eligible for allotment of dwelling unit or a flat. It has also been provided that the applicant shall further continue to fulfil these eligibility conditions from the date of opening of the scheme to the date of delivery of the possession of the dwelling unit by the Chandigarh Housing Board. Admittedly, the petitioner was allotted a dwelling unit No.292, Category III(part of 1750 flats, Sector 45-A, Chandigarh) as discretionary allotment and on concessional basis by the Board on an earlier occasion, therefore, he is not eligible for allotment of a dwelling unit/ plot as per sub clause (iii) of Clause III of the said SFH Scheme 2008 and also Regulation CWP.NO.1753 of 2008 #6# 6(1) of 1979 Regulations. Further it is apparent that even sub clause (iii) of Clause III is in conformity with the mandate of amended Regulations 6(1) of 1979 Regulations (reproduced hereabove). It is further clear from Regulation 2(15) that eligible persons means a person, who is entitled to the purchase of property in accordance with provisions of Housing Scheme of 2008 and amended Regulation 6(1) of 1979 Regulations. It is clear from the record, that admittedly the petitioner of his own volition and free will had sold/transferred the earlier dwelling unit allotted to him at concessional rates in favour of a third party and executed a tripartite agreement (Annexure P.4). Clause 5 of the said agreement provides that the petitioner shall not be eligible for allotment of any dwelling unit under any scheme of the Chandigarh Housing Board for ever from the date of transfer. The petitioner, therefore, is estopped from challenging the said clause at this stage, as he executed the agreement with his own free will and has acted upon the basis of that and the said dwelling unit was also transferred, therefore, arguments raised by the learned counsel for the petitioner are rejected being devoid of any merits. In Chandigarh Housing Board and Another's case (supra), the facts were that the husband of Narender Kaur Makol was allotted a commercial plot on freehold basis by the Chandigarh Administration, who had raised two residential floors above the said plot since it was permitted under the Rules/Regulations concerned. When the scheme for allotment of residential houses was floated by the Chandigarh Administration, she declared that neither she nor her husband owned any residential house in Union Territory, Chandigarh, although her husband owned two residential floors above the said commercial plot. The Hon'ble Supreme Court interpreting unamended Regulation 6(1) of 1979 Regulations held that though the declaration made by Narender Kaur was bonafide but not correct and thus not eligible for allotment. The Hon'ble Supreme Court further laid down that the purpose of the scheme and the Regulation is to ensure that the plots/flats at concessional rates are available as far as possible to the largest number of persons and for preventing the same persons/family members from getting more than one plot or house for the same purpose. The relevant para 12 of the said judgment reads as under: CWP.NO.1753 of 2008 #7# “In our opinion, in view of the admitted fact that there is a residential flat on the second and third floors of the ground floor commercial plot, it must necessarily be held that the husband of the respondent owned a residential house within the territory in question and that therefore the respondent (wife of the first allottee) is not eligible for allotment of another residential plot from the said authority. It must be realised that these plots are allotted on concessional basis to the allottees by the public authority and the relevant regulations must therefore be interpreted in such a manner as to save (sic serve) their real purpose so that the plots are available, aas far as possible, to the largest number of persons, and for preventing the same family members, husband or wife or dependants, as the case may be, from getting more than one plot or house, for the same purpose. We are of the view that the words “residential house” in Regulation 6(1) must be treated as including a flat constructed above the commercial flat on the ground floor. This will be so even if originally the plot was allotted for commercial purposes, if incidentally construction of residential flat above the ground floor commercial plot is permitted as per the plans. In other words, even though the plot is allotted as a commercial plot, if it is permissible to build a residential flat above the commercial plot, and is so constructed, then such a residential flat will come within the prohibition in Regulation 6(1).” Keeping in view the ratio of the abovesaid judgment of Hon'ble Supreme Court and the facts of the present case as discussed above, we find no merit in the writ petition. Hence, the same is dismissed with no order as to costs. (VIJENDER JAIN) CHIEF JUSTICE May 01 , 2008 (JASWANT SINGH) manoj JUDGE