IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13154 of 2006 Date of decision :18.02.2010 Param Vaibhav Co-operative Group Housing Society Limited, Panchkula and another. ...Petitioners versus State of Haryana and others ....Respondents II. Civil Writ Petition No.13464 of 2006 Chir Abhinav Cooperative Group Housing Society Limited and others. ...Petitioners versus State of Haryana and others ....Respondents III. COCP No.292 of 2009 Param Vaibhav Cooperative Group Housing Society Limited. ...Petitioner versus Trilok Chand Gupta and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Girish Agnihotri, Senior Advocate with Ms.Binayjeet Sheroran, Advocate, Mr. Arvind Seth, Advocate, and Mr. Vijay Pal, Advocate, for the petitioners. Mr. Ravi Dutt Sharma, Deputy Advocate General, Haryana, for respondent No.1. Mr. Hawa Singh Hooda, Senior Advocate with Mr. Ajay Nara, Advocate, for the respondents-HUDA. ---- Civil Writ Petition No.13154 of 2006 - 2 - 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 ? ---- K.Kannan, J. 1. The petitioners, who had applied for the benefit of allotment of housing plots in a Group Housing Scheme of 2005 challenged the decision of HUDA, which excluded the petitioners’ Societies from consideration on the ground that (i) Ex-MPs and Ex-MLAs in the Society were not eligible for allotment; (ii) if the Ex-MPs and Ex-MLAs were kept out of reckoning, the number of persons that remained as members in the Society, fell short of 20 members, which was the minimum number of members that ought to have been in the Society for favourable consideration. The petitioners’ Society failed on both counts and therefore, they were not considered. 2. At the time when the writ petition was sought for admission before this Court, a Division Bench dismissed the writ petition at the threshold on 22.08.2006 when the standing counsel for HUDA accepted notice and informed the Court that the eligibility conditions had been amended and a specific insertion had been made that the reservation of plots for MPs and MLAs were restricted also only to MPs and MLAs of the State of Haryana and the members of the petitioners’ Societies being MPs and MLAs both past and present were drawn from other States not belonging to Haryana and therefore, they were not entitled to consideration. Against the decision of the Division Bench dismissing the writ petition on 22.08.2006, the petitioners’ Societies had filed Special Civil Writ Petition No.13154 of 2006 - 3 - Leave Petition that was later numbered as Civil Appeal 2272 of 2007 formulated the question whether Ex-MPs and Ex-MLAs were entitled to the benefit of the Group Housing Scheme of 2005 and since that aspect had not been considered by the Division Bench, it was directed to be considered afresh, after setting aside the judgments of this Court. At the time when the Hon’ble Supreme Court disposed of the appeal on 30.04.2007, it was directed that the parties shall maintain status quo as on that date. 3. When the writ petition is posted now before this Court for consideration on whether the benefit could apply to Ex-MPs and MLAs of other States also, the petitioners have another ground to urge namely, the respondents had not communicated the decision of a change in criteria subsequent to the cut-off date for making the applications to all persons and while opportunities had been given to several other applicants to rectify or correct the applications filed by other Societies, after informing them of their formulation that Ex-MPs and Ex-MLAs were not entitled to allotments, the petitioners’ Societies had not been given such an opportunity which if it had been given would have enabled them to make suitable corrections in their applications to render themselves as eligible for allotments within the reserved quota. 4. The case would have to be examined from how the eligibility criteria for the reserved class had been stipulated in the terms and conditions of allotment as originally published. The Group Housing Scheme had plans for housing at Panchkula, Gurgaon, Faridabad, Panipat, Sonepat, Rewari and Palwal. The booking commenced on Civil Writ Petition No.13154 of 2006 - 4 - 14.12.2005 and reported to be closed on 14.02.2006. Of the eligible conditions for allotment, para 2(a), (b) and (f) are relevant, which are as under:- a) Only Group Housing Societies and Welfare Organisations consisting of members who are Indian Nationals and Resident of India are eligible to apply in form ‘APL’. Minors are not allowed to be members and a member can apply for only one flat/share in a society. b) Societies/Welfare Organisations shall have at least 20 members and should be registered with Registrar Cooperative Societies/Registrar Firms and Societies, Haryana. A declaration along with list of members in form ‘L’ (specimen enclosed) duly attested by First Class Magistrate/Public Notary and duly verified by Registrar Cooperative Societies/ Registrar Firm and Societies shall accompany the application form. c) ------ d) ------ e) ------ f) The Societies of MLA/MPs are eligible for allotment under the reserved category of the same. 5. The first contention of the learned senior counsel Shri Agnihotri appearing on behalf of the petitioners, was that the booking closed on 14.02.2006 and on that date, there had been no specific exclusion of MPs and MLAs. The decision to exclude them was purported to have been taken subsequently on 17.08.2006 when the Chief Administrator, HUDA communicated in response to a query sought through under the Right to Information Act the following:- “Since the scheme did not define MLAs of Haryana, so, strictly MLAs of other States will also be included as eligible, if it does not have any Ex-MLA as its members. Decision regarding 3 & 4 above may kindly be taken please. Sd/- 3.7.2006 S.S.Dhillon, CA, HUDA Sd/- Shakuntala Jakhu F.C.T.C.P. Civil Writ Petition No.13154 of 2006 - 5 - C.M. has approved CA’s proposal. Sd/- 17.8.2006 Chhattar Singh” 6. The decision clearly spelt out that there were not excluding MPs and MLAs of other States but they had spelt out the expression “MPs and MLAs’ would not include Ex-MPs or Ex-MLAs. It is also brought out through records that in the matter of allotment of plots for the reserved category, they had not made any allotment to Ex-MPs or Ex- MLAs. The learned Advocate General appearing on behalf of HUDA, Shri Hawa Singh Hooda would submit that there was no discrimination at all and persons from Jharkhand and Bihar were also ultimately allotted within the reserved quota. I am of the view that the decision taken on 17.08.2006 to exclude Ex-MPs and Ex-MLAs was not really in the nature of fresh restriction of exclusion but in the nature of explanation which was already there. A Society of MPs and MLAs could not have made Ex-MPs/Ex-MLAs also, for, it is too obvious that Ex-MPs/Ex- MLAs were a distinct class and unless they had been specifically excluded even in the original terms and conditions, there was no warrant for having a belief that Ex-MPs and Ex-MLAs would also fall for consideration. If the terms and conditions merely had stated that MPs and MLAs were eligible for allotments under the reserved category, there could have been no scope for any form of doubt that such a category could not have included Ex-MPs and Ex-MLAs also. On the other hand, the confusion was only because the eligible applicants were required to be Societies of MLAs/MPs. Society has normally a longer life than the Civil Writ Petition No.13154 of 2006 - 6 - tenure of office of MP and MLA which under the constitutional scheme of things are only for 5 years at a time. It could have therefore caused some confusion that a Society of MPs or MLAs could have included Ex- MPs and Ex-MLAs also. An explanation became necessary and such explanation was given, although subsequent to the last date when applications were received. I therefore find that the explanation given by the Chief Administrator and for which approval had also been taken from the Chief Minister was not really setting out a new restriction to the eligible class of persons but they only went to explain how the initial terms and conditions had to be read. From the list of persons, who were found eligible for allotment disclosed by the respondents, it is conceded even by the petitioners that no Ex-MPs and Ex-MLAs of even the Haryana State or any other State have been considered. The petitioners cannot therefore complain of any discrimination and the terms and conditions had not been changed subsequent to the last date in the manner explained by me above. 7. The learned counsel refers to a public notice issued under Annexure P-8 when the names of eligible Societies/Welfare housing organizations for allotment of plots were said to have been notified at the offices of the Chief Town Planner both at Panchkula and at the Estate Officer’s office at Rewari, Palwal and Panipat. The list of persons were also notified www.huda.nic.in.. The public notice declared that the Societies/Welfare housing organizations which had not been found eligible, had been informed through letters and those Societies could contact the offices of the Chief Town Planner, HUDA, Panchkula on Civil Writ Petition No.13154 of 2006 - 7 - 20.07.2006 or prior to that for removing the objections. This public notice is said to have never been received by the petitioners’ Societies which if they had known they would have approached the Chief Town Planner, HUDA, before 20.07.2006 for removing the objections. According to the petitioners, if the objections had been that in their list, ex-MPs and MLAs had also been included and if they were to be removed, the numbers fell below the minimum members of 20 and they would have made good the list by including sufficient number of persons rendering themselves eligible. The learned senior counsel appearing for the petitioners also points out through application no. 5406 of 2009 several such situations when the respondents had given such opportunities for removal of deficiencies had been pointed out. From the details set out in the application, it is seen that 16 Societies had been granted such occasions to change the ‘L’ form which was a prescribed proforma for making applications. The learned counsel’s contention is even if they were not eligible as Ex-MPs and MLAs, they ought to have been considered at least in the general category in the draw of lots; The total non-consideration of the members of the petitioners’ Societies was, therefore, not justified. 8. The total number of plots reserved for the preferential allotment were 16 and the exclusion of the petitioners’ Societies completely without affording an opportunity to correct the deficiencies was definitely unjustified. There is nothing on record to indicate that the decision of the HUDA to exclude from Ex-MPs and Ex-MLAs were communicated specifically to the petitioners. I have already held that Civil Writ Petition No.13154 of 2006 - 8 - there was definitely confusion whether the Society of MPs and MLAs could have included Ex-MPs and Ex-MLAs also. If the expression had been merely MPs and MLAs as eligible persons for reserved allotments, there could have been no confusion. On the other hand, it made a reference to Societies of MPs and MLAs, it was bound to create a confusion and an explanation which was given, though justified, ought to have been brought home to the petitioners’ Societies so that there had an opportunity to make appropriate corrections and apply afresh within the time stipulated. I also find strength in the arguments that several Societies which had been granted opportunities to make good the deficiencies in the ‘L’ forms and such opportunity ought to have been provided to the petitioners also and a consideration for allotment to all persons in the reserved category must have been on an uniform non- discriminatory manner. In excluding the petitioners totally out of consideration, there had been a gross prejudice and the allotments made already in so far as it has not given an opportunity to the petitioners after specific information of the exclusion of Ex-MPs and Ex-MLAs was unjustified. 9. The allotment of plots to the reserved categories of MPs and MLAs is alone set aside. The petitioners’ Societies shall be given an opportunity to submit fresh ‘L’ forms by rectifying the deficiencies by excluding Ex-MPs and Ex-MLAs and re-submit within a specified period given by HUDA. This opportunity shall not be to any other persons. The eligibility shall be only for MPs and MLAs who held such status on the last date for application for allotment namely on 14.02.2006. The Civil Writ Petition No.13154 of 2006 - 9 - HUDA shall select the list of eligible allottees by draw of lot within a period of 4 weeks from the date when the extended date is given to the petitioners’ Societies to make their applications. The writ petitions are allowed to the above extent only namely by giving an opportunity to the petitioners to make good the deficiencies in ‘L’ form by excluding Ex- MPs and Ex-MLAs and setting out the list of members of the Society, who were MPs and MLAs as on 14.02.2006. No change in terms and conditions in the brochure already issued would be permitted. 10. The writ petitions are allowed on the above terms. No costs. 11. In view of the disposal of the writ petitions on merits, I do not think it is necessary to pass any specific orders in COCP No.292 of 2009. It may be treated as closed. (K.KANNAN) JUDGE 18.02.2010. sanjeev