CHANDIGARH HOUSING BOARD vs LILY BAWA

THIS first appeal is directed against the impugned order dated 8.3.1999 of the State Commission. The State Commission set aside the letter of cancellation of allotment in favour of respondent/complainant and directed the appellant to give possession of dwelling unit No. 5122, Category I, Modern Complex, Manimajra to complainant/respondent within a period of three months and also to pay interest @ 18% p.a. on the amount deposited by the complainant from the date of institution of complaint till possession of the flat is delivered with cost of Rs. 3,000.

BRIEFLY stated, the relevant facts in this appeal are as under: Lt. Col. I.B.S. Bawa was Commanding Officer of 4/5 Gorkha Rifle (FF) of the Indian Army and lost his life during operation in Jaffna in Sri Lanka on 13.10.1987. He was awarded Mahavir Chakra posthumously. His widow, Mrs. Lily Bawa applied for residential accommodation to the Governor of Punjab/Administrator, UT, Chandigarh. On her second representation on 29.4.1989 the Governor of Punjab acting as Administrator, Union Territory, Chandigarh issued a letter dated 7.12.1989 indicating intention to allot a flat on the certain conditions. The relevant conditions would be referred to hereinafter. The complainant fulfilled the required conditions and also deposited a sum of Rs. 20,000 by means of bank draft on 18.12.1989. Thereafter certain amounts were demanded in terms of letter dated 21.3.1991. In the meanwhile, Mrs. Lily Bawa had acquired along with her children a house No. 775, Sector 12, Panchkula on 30.4.1990. But she filed an affidavit to the effect that she continued to be eligible even thereafter. However, on finding that house No. 775, Sector 12, Panchkula was allotted to her, vide letter dated 9.7.1996 the registration of the Dwelling Unit No. 5122, Category I, Manimajra was cancelled. Later on, on 24.5.1995 letter was sent by Lily Bawa indicating that House No. 775, Sector 12, Panchkula was in the joint names of her son, Mr. Tejinder Singh, Mrs. Lily Bawa and her daughter Miss Manmeet Kaur, and both of her children were major. But the allotment was cancelled by letter dated 9.7.2006. We have heard the learned Counsel for the parties and gone through the record. A short question which arises for our consideration relates to interpretation of Regulation 6 which is as under: "Eligibility of allotment-(1) A dwelling unit or flat in the Housing Estate of the Board shall be allotted only to such a 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 Urban Estates of Mohali or Panchkula. Similarly, persons who have acquired a house/residential site anywhere in India through Government/Semi-Government/Municipal Committee/Corpora-tion/Improvement Trust at concessional rate i.e. allotment at reserved fixed price, in their name or in the name of their spouse or any minor children will not be eligible to apply to the Board for allotment of a dwelling unit or flat. Subject to the above provision, the applicant should be a domicile of Union Territory of Chandigarh or should have been a bona fide resident of Union Territory of Chandigarh for a period of atleast three years immediately preceding the date of opening of the scheme: Provided that the condition of eligibility regarding the applicant being a bona fide resident of U.T. Chandigarh for at least three years on the date of submitting the application or of his being a domicile of U.T. Chandigarh shall not apply to the following categories of persons: (i) Defence/ex-defence personnel including pensioners belonging to the defence forces; and (ii) Employees of the Government of India, Punjab Government, Haryana Government and the U.T. Administration and then Boards/Corporations and Undertakings. (iii) Retired employees of Govern-ment of India, Punjab Govern-ment, Haryana Govern-ment and the Chandigarh Adminis-tration and their Boards/Corporations/ Undertakings. (2) The applicant shall furnish an affidavit in the prescribed form with regard to his eligibility along with the application. In the event of the affidavit being found false at any stage, the Board shall be entitled to cancel the registration of the allotment of dwelling unit or flat as the case may be, and to forfeit the deposit received with the application and all the payments made to the Board thereafter. (3) The Board shall have the right to impose any additional condition of eligibility as may be deter-mined and notified from time-to-time."

Mrs. Rachna Joshi Issar, learned Counsel for the appellant submits in context of the aforesaid rule that eligibility of the applicant for allotment out of discretionary quota is required to be considered both at the time of registration as well as at the time of allotment. She might be eligible at the time of registration but she was not eligible to get any allotment of any premises out of discretionary quota after acquiring House No. 775, Sector 12, Panchkula.

ON the other hand, learned Counsel for the respondent, Mr. Takkar, submits that the eligibility is required to be seen only at the time of submission of application for registration dated 29.4.1989 and the submission of documents thereafter. The respondent had complied with the requirement by filing affidavits within 15 days as was required by letter dated 19.12.1989. ON completion of formalities and deposit of required amounts, one house would be deemed to be allotted to the respondent vide letter dated 21.3.1991. In such circumstances, she was eligible on the date of deemed allotment also. And, her allotment could not be cancelled on the specious plea of subsequent acquisition. It is submitted by the learned Counsel for the respondent that the fact regarding acquiring a house in the year 1990 is not material. Before we proceed further, it would be essential to reproduce last two paras of the said letter dated 21.3.1991: "Notwithstanding anything con-tained in the letter, your registration will be regulated strictly in accor-dance with terms and conditions in the brochure and will further be subject to the provision of Chandigarh Housing Board (Allotment, Mangement and Sale of Tenements) Regulations Act, 1979. The acceptance of the deposit is subject to the eligibility conditions and it would not vest any legal right in the allotment for getting a house in case you, at any time, are found ineligible due to your furnishing if wrong information or otherwise."

IT may be mentioned that simply filing of application and an intention to allot a house out of turn on compassionate ground would not be effective from the date of application and date of letter indicating any intention to allot a house subject to certain conditions. Supposing for the sake of argument if it is accepted that letter dated 21.3.1991 should be accepted as letter of allotment the conditions were fulfilled on 19.12.1989. This by itself would not be sufficient to say that eligibility has been accepted by the Chandigarh Housing Board. IT is very much apparent that the letter dated 21.3.1991 was issued after acquisition of the house in the name of Lily Bawa and her two children. As has already been mentioned this letter also did not create any right and registration would be regulated strictly in accordance with the terms and conditions contained in the brochure which indicate that on that date she was not eligible for allotment of a house. She continued to deposit the amount and further she sent various affidavits last being 24.5.1995. But she did not disclose the fact that she had acquired the house in the year 1990. IT is very much surprising that on the one hand letter dated 24.5.1995 (Annexure A-2) was sent mentioning that she had acquired House No. 775, Sector 12, Punchkula in her name along with Ms. Manmeet Kaur, her daughter and Mr. Tejinder Singh, her son on 19.4.1990 but she filed the affidavit contrary to this fact on the same date. We do appreciate that her husband has lost life in Army operation in Sri Lanka but she was not right in filing affidavit that she or any of her unmarried children had not acquired house in the Union Territory of Chandigarh and in the Urban Estate of Mohali or Panchkula. In Chandigarh Housing Board & Anr. v. Narinder Kaur Makol, V (2000) SLT 507=(2000) 6 SCC 415, Regulation 6 came to be considered in view of the permissibility to build a residential flat above the commercial plot the Supreme Court upheld the objection raised by the Chandigarh Housing Board that it was sufficient to hold that the respondent had acquired a residential premises and was not eligible for allotment of any premises out of discretionary quota. The Supreme Court observed in para 12 as under: "12..........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, as 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(l) 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 purpose, 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 of Regulation 6(l)."

THE learned Counsel for the appellant has further relied upon the decision in the case of Chandigarh Housing Board v. Avtar Singh, (1995) 5 SCC 313 relating to similar question of cancellation of allotment. THE Apex Court has observed in para 4 as under: "Having considered the facts and circumstances, we find that when the regulations prohibit allotment to wife/husband or dependants and if any one has got a house or a flat, by necessary implication both or all, except one among the members of the unit, are ineligible to make separate applications. THEre need not be any specific rule prohibiting making separate application in that behalf. So long as the couple are tied by marriage bond, both are bound by the regulations for allotment. THErefore, the cancellation per se is not illegal. THE question then is whether the entire amount should be forfeited. Obviously, the power of forfeiture was intended to prevent fraud and malpractice in allotment and in case of positive finding in that behalf, Courts would be Lathe to interfere with the exercise of the power under Regulation 6(2)."

WE feel that the idea was to provide a house to a houseless war widow of a decorated soldier and not to provide additional house. In view of the aforesaid reasons, we find that the order passed by the State Commission cannot be sustained. However, Since the amount has been used during this period by the appellant; it was not gratuitously deposited, the Housing Board is bound to compensate the respondent in respect of the deposits made in terms of Section 70 read with second part of Section 73 of the Contract Act. The amount deposited with the Chandigarh Housing Board shall be refunded to the respondent along with interest @ 6% p.a. from the respective dates of deposit till payment within four weeks. The appeal is allowed in above terms. Appeal allowed.