CHANDIGARH HOUSING BOARD vs SURINDER PALL SONI

CHANDIGARH Housing Board has filed this revision petition against the judgment and order dated 2.4.2002 passed by the State Commission (U.T.), CHANDIGARH in Appeal No. 99 of 2001 directing the petitioner to refund amount received from the complainant which was deposited for the allotment of 2 flats with 18% interest from the respective date of deposit till its refund.

IT is the contention of the petitioner that impugned order is on the face of it contrary to the evidence brought on record. IT is pointed out that, (a) petitioner committed fraud in submitting application for registration and allotment of Category I and Category IV flats in the year 1989 under two different Housing Schemes, namely (i) Self Financing Housing Scheme, 1989 for General Public (Categories I and II), and (ii) Hire Purchase Housing Scheme (Categories III and IV) in Modern Residential Complex, Chandigarh; (b) prior to the said applications, respondent had acquired a shop-cum-flat No. 385 in the Motor Market, Chandigarh, with full proprietary rights and thereafter he had filed an affidavit dated 15.9.1988 before the Authority that he was absolute owner and in possession of the said site and be permitted to construct building over the same; and (c) he had also executed Indemnity Bond to the Authority so that building plan submitted by him be sanctioned. That Indemnity Bond was executed by Shri Surinder Pall Soni (respondent) which is signed in presence of his Advocate Mr. Surinder Mohan Sharma and is attested and identified by the Executive Magistrate, Chandigarh. The petitioner has also produced on record the Memo dated 22.9.1988 issued by the President, Notified Area Committee that building plan was sanctioned. At this stage, it is to be stated that respondent filed application for Category I flat by mentioning Shri Surinder Pall Soni by giving address as House No. 170, Soni Niwas, Manimajra, U.T., Chandigarh, while for Category IV he filed application by mentioning Shri Surinder Pall by giving address as Delhi Motors, 488, New Motor Market, Manimajra. At the time of hearing, the learned Counsel for the petitioner submitted that in view of Regulation 6, respondent was not eligible to apply for either Category I or Category IV flat, and affidavit filed by respondent was found to be false, the Board was entitled to cancel the registration or the allotment of dwelling unit or flat, as the case may be, and forfeit the deposit received with the application and all the payments made to the Board thereafter. It is, therefore, contended that as there was violation of Regulation 6, the order passed by the Authority was justified and the State Commission was not justified in interfering with the same.

For appreciating the contention we would refer to the Regulation 6 of the Chandigarh Housing Board (Allotment, Management and Sale of Tenements Regulations) 1979, which is as under : "Regulation 6. Eligibility of Allotment : 6(1). 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 dependent relations including unmarried children does not own on freehold or leasehold or on higher purchase basis, a residential plot or house in the Union Territory of Chandigarh or in any of the Urban Estates of Mohali or Panchkula. Similarly, persons who have acquired a house/residential site anywhere in India through Govt./Semi Govt./Municipal Committee/Corpora-tion/Improvement Trust at concessional rate in their name or in the name of any dependent member of their family 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 U.T. of Chandigarh or should have been a bona fide resident of U.T. of Chandigarh for a period of at least three years on the date of submitting the application.

6(2). The applicant shall furnish an affidavit in the prescribed form with regard to his eligibility alongwith the application. In the event of the affidavit being found false at any stage, the Board shall be entitled to cancel the registration or the allotment of dwelling unit or flat, as the case may be, and forfeit the deposit received with the application and all the payments made to the Board thereafter."

FROM the facts narrated above, it is apparent that respondent had acquired Motor Shop No. 385 through auction sale on 27.3.1988. Therefore, he was not entitled to apply for allotment of flat either in Category I or Category IV. It is also apparent that before applying for the said flats, he had not disclosed that he had acquired the site in Motor Shop area. It is undisputed that in respect of Category I flat which was under Self Financing Scheme, complainant deposited Rs. 3,55,000/- and with respect to Category IV complainant deposited Rs. 95,912/-, and thereafter he made an application for cancellation of allotment of Category I flat on 11.4.1994. He was allotted Category IV flat vide allotment letter dated 9.5.1994. When this came to light, a show cause notice dated 12.9.1994 was issued to the complainant. After considering the facts and reply given by the complainant, the allotment of flat in favour of the complainant was cancelled vide order dated 7.2.1995.

DESPITE the aforesaid facts, the State Commission arrived at the conclusion that complainant did not own any dwelling unit at the Motor Shop site at the time when he applied for allotment of dwelling unit under Categories I and IV. It appears that attention of the State Commission was not drawn to the fact that the respondent had filed an affidavit dated 15.9.1988 before the competent authority that he was absolute owner and in possession of a shop-cum-flat No. 385 in Motor Market, Chandigarh with full proprietary rights. He had also executed the Indemnity Bond for having construction plan sanctioned. Because of this clinching evidence, the order passed by the State Commission cannot be justified. Further, the State Commission also held that at the time of allotment of dwelling unit under Category IV on 9.5.1994, the complainant had applied for cancellation of his registration in Category I vide application dated 11.4.1994. Therefore, there was no ground for cancellation of registration relating to allotment of Category IV House. This reason is also contrary to what is held by the Apex Court in Chandigarh Housing Board v. Narinder Kaur Makol, V (2000) SLT 507=(2000) 6 SCC 415. A bare reading of the aforesaid judgment makes it crystal clear that Regulation 6 is required to be complied with. The Court in this case held thus : "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 their real purpose so that the plots are available, as far as possible, to the largest numbers of persons, and for preventing the same family members, husband or wife or dependents, 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 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)."

In the present case also, facts stated above clearly reveal that respondent has suppressed the fact that he had acquired a plot for construction of shop and the flat. Therefore, the cancellation of the allotment in favour of the respondent by the authorities was justified. For the aforesaid reason, the orders passed by the Consumer Disputes Redressal Commission, Union Territory, Chandigarh, and by the Consumer Disputes Redressal Commission Forum-I, Union Territory, Chandigarh, directing the petitioner to refund the amount of Rs. 3,55,000/- which was deposited for dwelling unit under Category I and the sum of Rs. 95,912/- deposited for dwelling unit under the hire-purchase scheme with 12% interest cannot be justified. It is, therefore, set aside.

THE next question would be whether the respondent is entitled to have refund of the amount deposited by him. Firstly, it should be made clear that respondent has tried to suppress the material fact in applying for flats in Category I and Category IV and he has filed false affidavit. It is apparent that he wanted to take undue advantage of getting more and more flats contrary to the regulation.

FURTHER, Regulation 6 empowers the authority to forfeit the deposited amount, but that forfeiture clause gives discretion to the authority either to forfeit entire amount or a portion thereof after taking into consideration all relevant facts. In the facts and circumstances of the case, we direct that after deducting 10% of the said amount, petitioner shall refund the remaining amount without interest. Revision petition is allowed accordingly. Revision Petition allowed.