Civil Writ Petition No.5473 of 1984 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5473 of 1984 Date of decision: February 27, 2008. Vijay Pal Singh ...Petitioner(s) v. The Chandigarh Housing Board ...Respondent(s) CORAM:HON'BLE MR. JUSTICE SURYA KANT 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. Present: Shri R.K. Chopra, Senior Advocate with Shri Amit Chopra, Advocate, for the petitioner. Shri K.K. Gupta, Advocate for the respondent. ORDER Surya Kant, J. This Civil Writ Petition under Article 226 of the Constitution has been directed by the petitioner to seek quashing of the order dated 10.12.1984 vide which the Chandigarh Housing Board (in short the Board) has cancelled the allotment, tenancy and registration of House No.3380 of MIG-II (independent category), Sector 46-C, Chandigarh. The petitioner also seeks a writ in the nature of prohibition restraining the Board from taking possession of the aforesaid house. [2]. In the year 1977, the Board invited applications for registration Civil Writ Petition No.5473 of 1984 -: 2 :- for allotment of different categories of built-up houses. The applications were invited during the period from 1.12.1977 to 15.1.1978. One of the eligibility condition, relevant in the context of the present controversy, was to the following effect:- “ELIGIBILITY:- The applicant should be a domicile of Chandigarh U.T. or should have been a bona fide resident of Chandigarh U.T. for a period of at least three years on the date of submitting he application. The applicant should not own a house/residential site in Chandigarh U.T. or in the Urban Estates of S.A.S. Nagar (Mohali) or Panchkula or should not have acquired a house/residential site anywhere in India through Government/Semi Government/Municipal Committee/Corporation, Improvement Trust, etc. at concessional rates in his/her own name or in the name of any dependent member of his/her family. However, application will be entertained provisionally from a person desirous of settling down in Chandigarh provided he/she gives an undertaking to the effect that he/she shall depose of his/her house/plot prior to allotment of the house sought for from the Chandigarh Housing Board.” [3]. On 13.1.1978, the petitioner applied to the Board along with earnest money of Rs.3,000/- for allotment of a MIG (upper) built-up house. The petitioner stated in his application that he did not own any house/ residential site in the UT Chandigarh nor had he acquired any such property Civil Writ Petition No.5473 of 1984 -: 3 :- through Govt./Semi Govt./Municipal Committee, etc. at concessional rates either in his own name or in the name of any dependent member of his family. At that time, the petitioner was a class-III employee of U.T. Administration. [4]. For a period of more than one year, the Board did nothing with the applications received by it. In other words, neither any draw of lots was held nor the allotments were made in terms of the advertised scheme. [5]. On 7.6.1979, the Notified Area Committee (NAC), Mani Majra (UT Chandigarh) issued an advertisement in the daily newspapers inviting applications for allotment of residential and commercial sites on free-hold basis at Mani Majra. The petitioner applied to the NAC for allotment of a plot measuring 10 marla reserved for backward class and deposited Rs.1500/- as earnest money. [6]. The NAC held draw of lots on 29.9.1979 and the petitioner was one of the successful applicants. The intimation to this effect was received by him on 20.12.1979 (Annexure P-3). The petitioner accepted the offer of allotment on 18.1.1980 and submitted an affidavit to the NAC to the effect that he or any of his dependent family members did not own any house or site in Chandigarh or in the urban estates of SAS Nagar (Mohali) and Panchkula. [7]. The petitioner thereafter paid one more installment towards the allotment price of the above stated plot on 28.12.1981 to the NAC to transfer the said plot in favour of Smt. Kailash Devi, as due to his 'unavoidable family circumstances' and other financial difficulties, he was unable to pay the next due installments or to construct the house. [8]. The NAC, Mani Majra accepted the petitioner's request vide Civil Writ Petition No.5473 of 1984 -: 4 :- letter dated 1.1.1982 (Annexure P-7) and transferred the plot in the name of Smt. Kailash Devi, who admittedly is not related to the petitioner in any manner. [9]. Meanwhile, draw of lots was held by the Board on 27.11.1981 in which house No.3380, Sector 46-C, Chandigarh was allotted to the petitioner though no formal intimation to that effect appears to have been sent to him till the allotment letter was issued on 19.1.1982 (Annexure P-8). As per the allotment letter dated 19.1.1982 (Annexure P-8), the cost of the house was Rs.57,200/- and the petitioner was required to deposit a sum of Rs.12,492.50 within 30 days. The petitioner deposited the said amount on 6.5.1982 and took possession of the house on 10.5.1982, i.e., within extended period. [10]. Before taking possession of the aforesaid house, the petitioner gave yet another affidavit dated 5.5.1982 (Annexure P-9) to the Board and paragraphs 3 and 4 thereof read as follows:- “3. That I have not acquired a house/residential site anywhere in India through Government/Semi Govt./ Municipal Committee/Improvement Trust at concessional rate in my name or in the name of any member of my family. 4. That prior to the allotment of this house I or my wife/husband or dependent relations including unmarried children have not transferred the registration or allotment of residential plot or house in the Union Territory of Chandigarh or in any of the Urban Estates of Mohali or Panchkula in the name of Civil Writ Petition No.5473 of 1984 -: 5 :- my blood relations.” [11]. On 13.7.1984, the petitioner was served with a notice (Annexure P-10) to show cause as to why the allotment of House no.3380, Sector 46-C, Chandigarh be not cancelled for furnishing a “false affidavit” dated 5.5.1982 wherein the fact that he was allotted a residential plot measuring 10 marla by the NAC, Mani Majra by draw of lots held on 29.7.1979 and which he had subsequently transferred in the name of Smt. Kailash Devi was concealed. The petitioner gave his reply dated 20.7.1984 (Annexure P-11). The Board, however, vide its impugned order dated 10.12.1984 (Annexure P-12) cancelled the allotment, tenancy and registration of the allotted house by invoking Clause 19 of the allotment letter, after holding that the aforesaid allotment was obtained by the petitioner by filing a false affidavit dated 5.5.1982. [12]. Aggrieved, the petitioner has filed this writ petition. [13]. It may be noticed here that while issuing notice of motion, this Court vide order dated 15.12.1984 stayed operation of the impugned order, Annexure P-12, which was made absolute while admitting the writ petition for final hearing. [14]. I have heard Learned Counsel for the parties and perused the material on record. [15]. Learned Counsel for the Petitioner has made two-fold submissions. Firstly, it is contended that the eligibility for allotment of the subject house by the Board was to be considered on or before the cut-off date, i.e., 1.12.1977 to 15.1.1978 and at that time, the petitioner undisputedly did not own any house/residential site in Chandigarh or in the urban estates of Mohali and Panchkula nor did he acquire any Civil Writ Petition No.5473 of 1984 -: 6 :- house/residential house anywhere in India through the government agencies at a concessional rate in his own name or in the name of any dependent family member. Secondly, it is contended that the allotment of residential plot by the NAC, Mani Majra was not at a “concessional rate”. In support of this contention, Learned Counsel for the Petitioner has placed reliance upon a letter dated 25.1.1985 addressed by the President of NAC, Mani Majra to the Chairman of the Board (Annexure P-13). Vide the aforesaid letter, the NAC informed the Board that residential plot measuring 10 marla was allotted to the petitioner “@ Rs.60/- per square yard which was a general price for all categories, through draw of lots....”. (emphasis applied) [16]. Learned Counsel for the respondent, on the other hand, contends that the petitioner is guilty of furnishing a false affidavit on 5.5.1982, which alone was sufficient for cancelling his allotment. It is argued that the residential plot was allotted to the petitioner by the NAC at a “fixed price” which amounts to allotment at a 'concessional rate', as held by two Division Bench judgments of this Court in the cases of (i) RC. Bhatia v. Chairman, Chandigarh Housing Board and Others, 1995(4) AIJ 200; and (ii)Dr. O.P. Juneja v. Chandigarh Housing Board, (CWP No.4318 of 1994), decided on July 9, 1997. [17]. Adverting to the “scheme” in question for “Registration of Applications from Intending Purchasers” of different income groups issued by the Board, it may be noticed that:- (i) the applicants were required to get themselves registered during the period from 1.12.1977 to 15.1.1978; (ii) an applicant was required to be a domicile of Chandigarh or should have been a bona-fide resident of Chandigarh continuously for at least 3 years before applying; (iii) the applicant ought not to have owned a house/ residential Civil Writ Petition No.5473 of 1984 -: 7 :- site in U.T. Chandigarh or in the Urban Estates of Mohali or Panchkula; (iv) the applicant should not have acquired a house/residential site anywhere in India through Govt./Semi Govt./Municipal Committee etc. at “concessional rates” in his own name or in the name of dependent member of his family; (v) an applicant was provisionally eligible if he was desirous of settling down in Chandigarh provided that he gives an undertaking to the effect that he “shall dispose of his house/plot prior to allotment of the house sought for from the Chandigarh Housing Board”; and (vi) the applicant's monthly family income from all sources was also within the specified categories. [18]. It would, thus, be seen that an applicant who owned a house/ residential site in Chandigarh, Mohali or Panchkula as also a previous allottee of such house/residential site at “concessional rates” through a government agency (anywhere in India) was ineligible to apply under the scheme in question. [19]. It is not in dispute that at the time when the petitioner applied within the prescribed period, he did not own any house or residential plot in Chandigarh U.T. or anywhere else. There can, thus, be no dispute that he was fully eligible at the time when he applied for allotment of the dwelling unit. It is equally undisputed that during pendency of his application with the Board, the petitioner was allotted a residential plot by the NAC, Mani Majra in a draw of lots. The aforesaid plot was, however, got transferred by the petitioner in the name of Smt. Kailash Devi before actual allotment of the house in question in his favour by the Board. In stricto senso, the petitioner did not own any house or residential plot even on 5.5.1982 nor he transferred any such property “in the name of his blood relations”. [20]. This, however, does not absolve the petitioner of the allegation Civil Writ Petition No.5473 of 1984 -: 8 :- that he knowingly withheld material information while furnishing the affidavit dated 5.5.1982 (Annexure P-9), may be with an oblique motive. [21]. From the contents of the show cause notice as well as the impugned order, it is apparent that the Board itself is not clear as to on what ground the petitioner's allotment has been cancelled. As per the show cause notice, the Board authorities were of the tentative view that the allotment of residential plot in favour of the petitioner by the NAC was at a concessional rate. The second ground taken by them was that the petitioner submitted a false affidavit on 5.5.1982. [22]. Adverting to the first ground, namely, allotment of residential plot by NAC at a concessional rate, reference may be made to the Division Bench judgment in R.C. Bhatia's case (supra), relied upon by the respondent. Para 7 thereof reads as follows:- “7. The expression “concessional rate” carries a special significance in the context of the Scheme notified by the respondent-Board. This expression has been used with reference to reserved/fixed price. Therefore, where allotment of a property has been made in favour of an individual at a reserved/fixed price, such person cannot participate in a Scheme formulated by the respondent – Board which is primarily intended to subserve the interest of that segment of society which is without any residential flat or building. In this context, interpretation adopted by the respondent-Board in Annexure P-13 deserves to be quoted below:- Civil Writ Petition No.5473 of 1984 -: 9 :- “As the Board experience practical difficulties in adopting the above said definition of 'concessional rate', the matter was again referred to the Finance Department, U.T., Chandigarh vide this office letter No.HB9S)-85/9319 dated 10.6.1985. In reponse to our reference, the Finance Department vide their No.UTFI(20-62/1753 dated 12.12.1985 clarified that 'concessional rate' means the allotment of residential plots/houses at a fixed/reserved price by Government/ Semi Government/Municipal Board/ Improvement Trust/Development Authority/Hosuing Board or such like agencies'”. (emphasis applied) [23]. It can, thus, be noticed that the allotment of a residential plot/house at a “fixed/reserve price” by a government agency was decided to be treated as an allotment on “concessional rates” by the Board after taking opinion of the Finance Dependent on 12.12.1985. [24]. In the present case, the scheme was launched in the year 1977 and no such decision taken by the Board before the impugned order dated 10.12.1984 was passed that allotment of a residential plot/house at a fixed price by a government agency shall be taken to be an allotment at 'concessional rate', has been shown or placed on record. The aforesaid administrative decision, which has serious civil consequences, therefore, cannot be applied retrospectively. [25]. Coming to the second ground of cancellation, namely, submission of false affidavit by the petitioner on 5.5.1982. Firstly, it cannot be strictly construed that the contents of the affidavit were false. It was a Civil Writ Petition No.5473 of 1984 -: 10 :- case of withholding of 'material information' and not of giving 'false information'. The petitioner appears to be guilty of withholding material information by drafting the affidavit dated 5.5.1982 (Annexure P-9) quite intelligently but the contents thereof cannot be termed as false. [26]. There is yet another strong circumstance which persuades this Court to tilt the balance in favour of the petitioner. The cancellation of allotment of the subject house was stayed by this Court more than 23 years back. There is nothing on record to suggest that thereafter the petitioner has acquired any other residential house or plot in UT Chandigarh or anywhere else. In this era of spiraling prices of real estate and the fact that the petitioner who was a class-III employee, might have even retired from service by now or may be nearing retirement, if the cancellation of the house in question is upheld, he may not be in a position to see a roof over- head during the remainder of his life. [27]. Consequently, and for the reasons aforesaid, this writ petition is allowed and the impugned order dated 10.12.1984 is quashed, however, with no order as to costs. February 27, 2008. [ Surya Kant ] kadyan Judge