RAM SAROOP vs Chandigarh Housing Board

-THE appellant was the complainant before the State Commission, where he had filed a complaint, alleging deficiency in service on the part of the respondents.

VERY briefly the facts of the case are that the appellant/complainant undoubtedly was allotted a plot by the first respondent Chandigarh Housing Board on 8. 1. 1987 under the "licensing Tenements and Service Scheme, 1979" read with Chandigarh Housing Board (Sites and Service Complex Allotment) Regulations, 1979. It was the case of the appellant/complainant before the State Commission in his complaint, that he had taken the possession of the site No. 1215 allotted to him and had carried out constructions on that, had been paying his instalments as also he had obtained the water connection in 1990, yet he was dispossessed by one Dattu Kishan Gore, the third respondent in early 1990. He was told that his allotment has been cancelled. It is in these circumstances, he approached the Civil Court for injunction. He also approached the Sub-Divisional Magistrate, Chandigarh U. T. for permission/direction to remove his articles from his house at site No. 1215, and also filed a writ petition in the High Court of Punjab, Haryana and Chandigarh. Since earlier petition filed before the High Court was dismissed in default, a review petition was filed before the High Court who according to him vide order dated 20. 7. 1992 was dismissed with permission to pursue any other alternative remedy or to file a fresh suite. In pursuance of this he filed a complaint before the State Commission on 29. 11. 1992. The State Commission after hearing the parties and perusal of material on record dismissed the complaint. Aggrieved by this order this appeal has been filed before us.

Notices were issued to all the three respondents. But despite service of notice, there was none present from the Estate Officer, U. T. Chandigarh. Again a fresh notice was issued on 17. 7. 2006 giving second opportunity to the Estate Officer, U. T. Chandigarh to, be present yet despite service of notice none was present on behalf of the respondent Nos. 2 and 3.

WE had the benefit of hearing the arguments and presentation of case on behalf of the Chandigarh Housing Board alone. Main grievance of the complainant is two fold-one that the complainant had complied with the provisions as per the allotment letter and had raised construction, hence cancellation was wrong and secondly, no notice was served before cancellation as is required under the law.

LEARNED Counsel for the Chandigarh Housing Board appearing before us wishes to rely upon condition Clause 19 of the allotment letter, which is reproduced as under: "19. If the allotment and the tenancy is cancelled or terminated due to any reason whatsoever including at your own request or due to non-fulfilment, of the terms and condition of allotment, the Board''s obligation to allot you a house shall be deemed to have been discharged and your registration with the Board for the allotment of dwelling unit shall be treated as cancelled. Thereafter, your money deposited with the Board shall be refunded after forfeiting a sum as is specified by the Chairman or any other officer authorised by him but not exceeding 20% of the deposit plus interest calculated at Rs. . . . . . . . . . . . per annum. . . . of the dwelling unit allotted to you and adjusting any other amount outstanding against you. The interest shall not be chargeable in cash allotment and tenancy is cancelled or terminated within a period of 60 days from the date of issue of this letter. You as well as your dependent relations including your wife and unmarried children shall not thereafter be considered for allotment in any other scheme. "

As far as the first point is concerned, in our view the State Commission while taking a view with regard to the ration card, failed to discuss about the water connection in favour of the complainant on the site in question. This silence is more eloquent than the speech. Page 23 of the paper book is ample proof that at the request of the complainant the Competent Authority sanctioned " ferrule connection on a prescribed format on the site bearing No. 1215, i. e. , the site in question. Order passed by the Sub-Divisional Magistrate directing the staff to give opportunity for the complainant to remove his belongings from the building from which he has been dispossessed, has also not been dealt in by the State Commission. This in our view resulted in failure of justice to the complainant. There is no disputing the fact that as per para 2 of the allotment letter dated 18. 1. 89, the allotment of this site 1215, was to be governed by the provisions of Haryana Chandigarh Housing Board Act, 1971. Section 51 of this Act reads as under: "the Haryana Housing Board (Act No. 20)1971 Chapter VI power to Evict persons from Board premises. . 51. Power to evict persons from Board premises- (1) if the Competent Authority is satisfied: (a) That the person authorised to occupy any Board premises has- (i) not paid rent lawfully due from him in respect of such premises for a period of more than two months; or (ii) sublet, without the permission of the Board the whole or any part of such premises; or (iii) otherwise acted in contravention of any of the terms, expressed or implied, under which he is authorised to occupy such premises; or

(b) that any person is in unauthorised occupation of any Board premises: the Competent Authority may notwithstanding anything contained in any law for the time being in force, by notice served by post or by affixing a copy of it on the outer door or some other conspicuous part of such premises, or in such other manner as may be prescribed, order that the person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month from the date of the service of the notice: provided that no such order shall be passed unless the person has been afforded an opportunity to show cause any such order should not be made "

IF the terms of allotment are governed by certain provisions of law and if a statutory authority does not observe it then it necessarily has to be held against them. There is no evidence that any notice was given before cancellation. If it was so, no evidence of proof to this effect has been produced either before the State Commission or before us. In fact, on our direction the Housing Board has produced the file relating to the Housing Board but this cancellation/deemed cancellation was on the direction of Estate Officer, Chandigarh Administration and since none was present before us and since no evidence has been produced before us about the procedure adopted by the Estate Officer, U. T. Administration Chandigarh about the cancellation in accordance with law, Haryana Housing Board Act, 1971, an adverse inference has to be drawn against the Chandigarh Administration. In spite of the fact that they are arm of the Government, yet they did not follow law, which under the Constitution they are obliged to uphold, in view of which, the order for cancellation ab initio shall be void and bad in law.

NO defence whatsoever has been taken before us or before the State Commission to explain as to why when as per the allotment letter, the allotment to be governed by the Housing Board Act, 1971, then why the provisions of that Act were not followed by issuing a show cause notice before cancelling the allotment (supra) made to a poor slum dweller? So that they could see the light of the day by living in a more congenial atmosphere. Cancellation ''deemed/automatic'' in these circumstances will have no bearing. If the law provides for giving notice, provision of which we have already produced above, then cancellation of the site without issue of notice is a clear case of deficiency in service on the part of the second respondent, the Estate Officer, Chandigarh Administration. They cannot take shelter under Section 27 (2) of the Licensing of Tenements and Sites and Services in Chandigarh Scheme, 1979, which reads as under: " (2) Licence in respect of a site may also be cancelled if: (a) the licensee is offered a tenement and he fails to occupy the same within 15 days of such offer; (b) he contravenes the provisions of Punjab Capital (Develop-ment and Regulations) Building Rules, 1952 in putting up a temporary building; (c) he unauthorisedly occupies in the Union Territory of Chandigarh any land belonging to the Government other than that allotted under this scheme. "

If we see these conditions, as also the letter of allotment issued by the Housing Board, in our view, the respondent seems, to have become wiser after the event. Admittedly, the letter of allottment was issued on 18. 1. 1987, but very importantly there is no reference to this provision in the letter of allotment. In fact, in the letter of allotment, condition 3 (ii) provides a time limit for submitting the certain documents, which had been done.

IT cannot be denied that letter of allotment is the contract between the parties and in the letter there is no reference to the provision of Section 27 (2) of the Scheme in the body of the letter of allotment, which lays down several conditions of allotment. Allotment letter speaks of allotment of ''sites and Services'' as a subject as also in Para 1 of the letter. As already referred to earlier Para 2 is categorical that allotment shall be governed by Haryana Housing Board Act, 1971 as also Capital of Punjab (Development and Regulation) Act, 1952. Keeping in view the language used in Para 1 and Para 2 of the allotment letter, we are left in no doubt that while the sites have been developed under the ''licensing of Tenement and Sites and Services in Chandigarh Scheme, 1979'' the allotment was to be governed by the above-mentioned two Acts, i. e. , Haryana Housing Board Act and Punjab (Development Regulation) Act, 1952. In our view a Scheme (provisions, i. e. , Para 27 (2) of the Site and Services Scheme, 1979) even when notified in the Gazette, could neither substitute nor over-ride the provisions of a Statute, i. e. , in this case the two Acts referred to earlier. No notice for cancellation required under Section 51 of Haryana Housing Board Act, 1971 was given, a clear case of deficiency in service. No provision of Punjab (Development and Regulation) Act, 1952 has been relied upon by any party in support of any contention, hence we refrain from going into it. There is no dispute that the appellant/ complainant had approached the Civil Court but there is no disputing the fact that it was with regard to getting the injunction against his being dispossessed by a third party, i. e. , the respondent No. 3. Whatever be the outcome of such a suit, will have no bearing on the question of rendering ''deficient'' service to the complainant. It is also true that the complainant had approached the Hon''ble High Court who vide order dated 22. 4. 1992 dismissed the writ petition with the direction that this be taken up before a Civil Court. Again in July 1992, it was dismissed on account of absence of the plaintiff. On a review application, the Hon''ble High Court, dismissed the review petition by giving liberty to the complainant/petitioner to pursue his remedy in view of the order of the Hon''ble High Court. The complainant decided to file complaint before the State Commission.

LEARNED Counsel for the Housing Board has taken two pleas before us, firstly, that the complaint was barred by limitation as also the State Commission had no pecuniary jurisdiction, Undoubtedly, the allotment was made in June 1987. The complainant was dispossessed in early 1990 cancellation order was issued by the Estate Officer, Chandigarh Administration to the Housing Board on 31. 1. 1990. After it a civil suit was filed for injunction order; and the matter also reached before the Hon''ble High Court and it is not in dispute that vide order dated 24. 7. 1992, the High Court permitted the complainant to seek his remedy before an alternative Forum which was done and the com-plaint was filed in November 1992. In view of the order of the High Court the complaint filed within a period of 4 months of that order could be said to be time barred. Even if there is any delay in aforesaid circumstances, the aforesaid facts would justify condonation of delay in view of the aforesaid order of Hon''ble High Court granting liberty to seek his remedy, and seeing that the poor helpless complainant was seeking relief against the mighty officials of Chandigarh Housing Board and the State. As far as pecuniary jurisdiction is concerned, the complainant has asked for a compensation of Rs. 5 lakh. There is no disput-ing the fact that cost of the plot was only Rs. 5,500, but we are constrained to observe that no view has been taken in the order passed by the State Commission about the compensation asked for, one way or the other, and have only gone on to observe that plot was worth Rs. 5,500. No view has been expressed on the cost of construction reportedly done on the site by the appellant/complainant, and for mental agony and harassment, etc. We are unable to appreciate this part of the order passed by the State Commission beside others. If the State Commission was apprehensive on the point of pecuniary jurisdiction, then it need not have waited for four long years to tell the complainant about the pecuniary jurisdiction of the State Commission. In view of the fact that the State Commission was to look into whole gamut, i. e. , a person who was allotted a plot, which was cancelled without notice, he allegedly had constructed some price, got water connection, yet no view has been taken on these points. In these circumstances holding the point of pecuniary jurisdiction against the complainant, in our view, at such a late stage, is contrary to facts on record. If they were of such a view then this issue should have been dealt at the time of admitting/entertaining the complaint. There is no disputing the fact that as per allotment letter dated 8. 1. 1987, the appellant/complainant was allotted site-bearing No. 1215 by the Chandigarh Housing Board. Subsequent to this, the correspondence makes the whole chain of events murkier. Letter dated 29. 9. 89 emanating from Estate Officer of U. T. of Chandigarh Administration, reads as under: "sub:-Allotment of Plot No. l381 to Dattu Krishan in Dhanas Colony. Memo kindly refer to this office Memo No. 739/the (c) dated 16. 5. 89 on the subject noted above. You are requested to cancel the allotment in favour of Sh. Behari Lal and Nand Kishore allottee of Plot No. 1216 and 1215 in Dhanas Colony, as they have been allotted plot in M. C. Dhanas. They are not eligible to retain plots in Dhanas Colony. You are requested to issue allotment letter in favour of Shri Dattu Krishan for site No. 1215 instead site No. 1381 already recommended. "

IT is an undisputed fact that Plot No. 1215 in Dhanas Colony was never allotted to Nand Kishore but to the appellant/complainant who had never been allotted any plot in Dhanas. No body cared to take note of this fact of vital importance with the result the plot allotted to Nand Kishore in Dhanas Colony would have remained untouched and instead of plot of Nand Kishore, plot of the appellant had been allotted to Dattu Krishan, leading the present messy situation.

THIS was followed by a letter dated 31. 1. 90 from the Estate Officer of U. T. of Chandigarh Administration to the Chandigarh Housing Board, which reads as follows: "sub. : Allotment of Site and Services No. 1215, Dhanas Complex. It is informed to you that the allottee of the above mentioned site has failed to occupy the allotted site within stipulated period as provided in the Scheme. You are, therefore, requested to consider this site as cancelled and may be allotted to Shri Dattu Krishan Gorey son of Sh. Krishan Gorey as already recommended for the allotment of site No. 1381. "

After going through these two letters, we are unable to appreciate as to how, even before the letter of cancellation dated 31. 1. 1990, for which we have got no record/ background, whatsoever from the Estate Officer of Chandigarh Administration, as to how way back in 29. 9. 1989, they talk of cancellation of the plot No. 1215 allotted to some Nand Kishore, whereas in actual fact and as per record it already stood allotted to the complainant Mr. Ram Saroop way back in 1987 of which cancellation was done only as per letter 30. 1. 1990? Obviously before that date it was in the name of Mr. Ram Saroop, which should have been shown as allottee in letter dated 29. 9. 1989. Much more seems to have been concealed than revealed by these letters. The mischief is already started by the Chandigarh Administration, with a view to give plot to some one else on the specious plea that allottee of plot No. 1215 has failed to occupy the allotted site within stipulated period as provided in the scheme.

These aforesaid two letters in our view appear to contradict the stand taken by the Estate Officer, Chandigarh Administration, before the State Commission. In fact the affidavit filed by way of evidence by Shri Abhay Singh Yadav, Assistant Estate Officer, makes a very interesting reading. In this an attempt is made to wash their hands of any liability and attempt is to pass on the back to Chandigarh Housing Board. To the extent in para 20 of the affidavit it states ". . . . . . . . . since the allotment was cancelled by the Chandigarh Housing Board, it does not relate to the answering respondent". The stand of the Chandigarh Housing Board is that, the Competent Authority under Section 3 (b) ''licensing of Tenements and Sites and Services in Chandigarh Scheme, 1979'', was the Estate Officer appointed under the capital of Punjab (Development and Regulation) Act, 1952. . . . ". It is the letter from the Estate Officer, Chandigarh dated 31. 1. 1990, who advise the Housing Board "you are therefore requested to consider this site as cancelled and may be allotted to Dattu Krishan Gorey, s/o Krishan Gorey as already recommended for the allotment of site 1381".

WE have also gone through the affidavits filed by way of evidence before the State Commission as also the cross-examination of the deponents even though, we like to produce them in toto but we refrain from doing so, as we do not want to burden this order. The following is what Shri P. C. Rana, Accounts Officer, Chandigarh Housing Board has to state in cross-examination: "the allotment in favour of Ram Sarup was cancelled in view of para 12 (ii) of the letter of cancellation dated 8. 1. 1987 which was served on the complainant. The relevant conditions find mention in para Nos. 5 and 12 (ii) of the allotment letter. Besides this we also abide by the recommendations received from the Estate Officer. I am not aware of any correspondence except the letter dated 31. 1. 1990 which finds mention in para No. 4 of my affidavit. I am also not aware if any letter was issued to Ram Saroop regarding cancellation of this site by the Chandigarh Administration or by the Housing Board. I am further not aware whether the copy of letter is endorsed to Ram Saroop or Estate Officer. There was no other reason except conveyed in letter dated 31. 1. 1990 for cancellation of the allotment. "

THE cross-examination of Mr. Abhe Singh Yadav, Assistant Estate Officer, reads as under: "it is correct that Ram Saroop, complainant was allotted site No. 1215 in Dhanas Colony on 8. 1. 1987 by the Chandigarh Housing Board. It is correct that on 29. 9. 1989 a letter was issued by the LAO, on behalf of Estate Officer to Chandigarh Housing Board informing that site No. 1216 and 1215 in Dhanas Colony already stand in the name of Bihari Lal and Nand Kishore and that it be allotted to Dattu Krishan Gorey instead of Site No. 1381 which was earlier recommended. Photocopy of this letter is Annexure R2. It is not on record that site No. 1215, Dhanas Colony, stood allotted to Ram Saroop on 29. 9. 89. I have seen the letter dated 31st January, 1990 and the name of Ram Saroop does not find mention there. It is clear that word ''allottee'' relates to Ram Saroop from letter dated 31. 1. 1990. The Chandigarh Housing Board, allots plot to a person and it should know it can be cancelled and possession resumed. "

It is important to note that from the cross-examination of the representative of the first respondent, we are not sure about the-identity of the allottee as it appears in letter dated 31. 1. 1990. Letters dated 29. 9. 1989 and 31. 1. 1990 leave us no wiser to ascertain or be sure as to whose allotment was cancelled? No record or evidence is adduced before us by Estate Officer, Chandigarh Administration to share with us to whom had they in mind at the time of cancellation Nand Kishore (letter dated 29. 8. 1989) or Ram Saroop? (no name in letter dated 31. 1. 1990) Mis-mention is too obvious and bungling is staring at our face.

AN application was moved by the com plainant for re-examination of the respondent No. 1, which was refused. Perhaps that would have actually brought the cat out of the bag.

AS aside also, merits a reference. As per material on record, it cannot be disputed that cancellation letter emanates from The Estate Officer, Chandigarh on 31. 1. 1990 and allotment letter is issued in favour of the 3rd respondent on 1. 2. 1990. How very efficient the system is? How we wish that the system was to be efficient in all cases uniformly and not a selective basis? In the aforementioned circumstances, we have no option but to set aside the order passed by the State Commission, which is not based on the correct facts and for law. The second respondent, i. e. , the Estate Officer, Chandigarh Administration, is directed to make an allotment of an alternative site within a period of 8 weeks from the date of passing of this order along with compensation of Rs. 4 lakh being the estimated cost of escalation of construction over the allotted plot from 1987 to 2007 along with exemplary cost of Rs. 1,00,000. No deficiency in service can be fastened against the 1st respondent, Chandigarh Housing Board.

Here we would also like to reproduce what the Hon''ble Supreme Court had to say on the point of indemnifying a citizen for injury suffered due to abuse of power by Public Authorities in the case of Lucknow Development Authority v. M. K. Gupta, III (1993) CPJ 7 (SC)=air 1994 SC 787, which reads as under: "11. Today the issue thus not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socio-economic outlook. The authority empowered to function under a statue while exercising power discharge public duty. It has to act to subserve general welfare and common good. In discharging this duty honesty and bona fide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. But where the duty is performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose? In a modern society no authority can arrogate to itself the power to act in a manner, which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man, in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets, frustrated and it erodes the credibility in the system. Public administration; no doubt involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved then it has a statutory obligation to award the same. It was never more necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the Court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers'' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing propor-tionately where there are more than one functionaries. "

WHILE discussing the whole question of cancellation-completely illegal in our view, as described above, liability of causing harassment and agony to the complainant squarely will be with the then Estate Officer or whoever ordered cancellation, without observing due care and caution and without following the procedure as per law of Chandigarh U. T. Administration of Chandigarh, in view of which U. T. Administration Chandigarh is directed to recover that above stated amount of Rs. 5,00,000 from the concerned officer (s) but only after holding due inquiry on the subject at issue. Appeal allowed.