Punjab-Haryana High Court
Amarpreet Singh Deol vs Chandigarh Housing Board And Ors on 29 October, 2014
Author: Hemant Gupta
Bench: Hemant Gupta, Jaishree Thakur
1
CWP No.2017 of 1998 &
RSA No.192 of 2012
IN THE PUNJAB & HARYANA HIGH COURT AT
CHANDIGARH
Date of Decision: 29.10.2014
CWP No.2017 of 1998
Amarpreet Singh Deol ...Petitioner
Versus
Chandigarh Housing Board & others ...Respondents
Present: Mr. Girish Agnihotri, Senior Advocate, with
Mr. Kshitij Sharma, Advocate, for the petitioner.
Mr. Sanjay Kaushal, Senior Advocate, with
Mr. A.P.Setia, Advocate, for the respondents.
RSA No.192 of 2012
Suresh Kumar Nangru ...Appellant
Versus
Chandigarh Housing Board & others ...Respondents
Present: Mr. M.L.Sarin, Senior Advocate, with
Mr. Alka Sarin, Advocate, for the appellant.
Mr. Gagandeep S. Wasu, Advocate,
for respondent No.1.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MS. JUSTICE JAISHREE THAKUR
HEMANT GUPTA, J.
This order shall dispose of CWP No.2017 of 1998 and RSA No.192 of 2012, both relating to 'HIG (Independent) Housing Scheme (1996), West of Sector-38, Chandigarh' (hereinafter to be referred as 'the Scheme') framed by the Chandigarh Housing Board (hereinafter to be referred as 'the VIMAL KUMAR 2014.10.29 12:59 I attest to the accuracy and integrity of this document Chandigarh 2 CWP No.2017 of 1998 & RSA No.192 of 2012 Board') constituted under the Haryana Housing Board Act, 1971 (hereinafter to be referred as 'the Act') as extended to Chandigarh.
Brief facts leading to both the cases are that Board published a Scheme for allotment of 252 HIG (Independent) Houses on self-finance basis. Such Scheme was opened on 12.08.1996 i.e. when the applications could be submitted. The last date to submit the applications was 30.09.1996. Such Scheme comprises of three sub-schemes i.e. 'A', 'B' & 'C'. Sub-scheme 'A' comprises of 230 units for the General Public of U.T. Chandigarh; sub- scheme 'B' comprises of 17 units for Group 'A' employees serving with Chandigarh Administration and its Boards, Corporations and Undertakings; whereas sub-scheme 'C' comprises of 5 units for the Oustees of Chandigarh under the Chandigarh Allotment of Dwelling Units to the Oustees of Chandigarh, 1996 Scheme. The relevant conditions of the Scheme read as under:
"II. THE SCHEME
1. The scheme comprises of 252 HIG (Independent) Houses in West of Sector-38, Chandigarh, to be allotted on Self-Finance basis under which an allottee shall be required to make 80% payment of the chargeable price before possession and the balance shall be payable with interest in 60 equated monthly instalments.
2. The scheme comprises of three Sub-Schemes:-
(i) Sub-Scheme 'A' : 230 units for the General Public of U.T. Chandigarh.
(ii) Sub-Scheme 'B' : 17 units for Group 'A'
employees serving with
Chandigarh Administration and
its Boards, Corporations and
Undertakings.
(iii) Sub-Scheme 'C' : 5 units for the Oustees of
Chandigarh under the
Chandigarh Allotment of
Dwelling Units to the Oustees
of Chandigarh, 1996 Scheme.
VIMAL KUMAR
2014.10.29 12:59
I attest to the accuracy and
integrity of this document
Chandigarh
3
CWP No.2017 of 1998 &
RSA No.192 of 2012
3. In case of shortfall of applicants under Sub-Scheme 'B' or 'C', the surplus dwelling units shall be transferred to Sub-Scheme 'A' at the time of the draw of lots for registration.
4. the allotment of dwelling units under the scheme shall be made as per the provisions of Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979, as amended from time to time.
5. 5% of the total number of dwelling units under the Scheme shall be kept for allotment out of the Discretionary Quota of the Administrator, U.T., Chandigarh, as per provisions of Regulation 26.
xxx xxx xxx
IX. MODE OF ALLOTMENT
(i) The Board shall register applicants through draw of lots, the
date of which will be announced in the local newspapers.
(ii) A waiting list to the extent of 20% of the total number of units shall also be prepared by draw of lots which shall remain operative for a period of one year from the date of draw of lots for registration. However, the applicants on the waiting list can withdraw from the scheme at any time during the validity of the waiting list and the amount of initial deposit shall be refunded in full, without interest. If the validity of the waiting list has lapsed, the applicant(s) of the said waiting list shall be refunded the initial deposit without interest within 30 days of the date of expiry of the validity period.
(iii) Draw of lots for registration shall be held within six months of the last date of receipt of application forms.
xx xx
(vii) The allotment shall be subject to the provisions of the Haryana Housing Board Act, 1971, as extended to U.T. of Chandigarh, as amended, the provisions of the Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979, as amended, the Capital of Punjab (Development and Regulation) Act, 1952 and the rules and regulations made thereunder from time to time.
xxx xxx xxx
XV. GENERAL
xx xx
VIMAL KUMAR
2014.10.29 12:59
I attest to the accuracy and
integrity of this document
Chandigarh
4
CWP No.2017 of 1998 &
RSA No.192 of 2012
(iii) Mere submission of an application form alongwith initial deposit shall not entitle the applicant to the allotment of a unit. Inclusion of an applicant's name in the draw of lots shall be subject to fulfillment of the eligibility as per the terms of the scheme. Inadvertent inclusion of the name of an ineligible applicant in the draw of lots shall not vest any right of allotment in the applicant and in case an applicant is found ineligible at any stage the registration as well as allotment of the unit shall be cancelled.
xx xx
(vi) The Board reserves the right to withdraw/amend the scheme
due to circumstances beyond its control.
xxx xxx xxx"
The petitioner in the writ petition namely Amarpreet Singh Deol as well as the appellant in the Regular Second Appeal namely Suresh Kumar Nangru (hereinafter to be referred as 'the applicants') applied for dwelling units under the Scheme along with requisite application money. The draw of lots for registration of the applicants in terms of clause IX (i) of the Scheme was held on 19.02.1997. The names of both the applicants herein namely Suresh Kumar Nangru and Amarpreet Singh Deol figured at serial Nos.2 and 8 respectively in the waiting list. It is admitted that the waiting list was valid for a period of one year i.e. upto 18.02.1998, which is evident from the communication dated 21.04.1997 (Annexure P-3) attached with the writ petition.
The grievance of the writ-petitioner is that since there was less number of applicants in Sub-Schemes 'B' & 'C', therefore, the surplus dwelling units are required to be transferred for allotment to the General category applicants. Thus, the petitioner is entitled for allotment of a dwelling unit.
In the Regular Second Appeal, a suit for declaration was filed challenging Regulation 26 of the Chandigarh Housing Board (Allotment, VIMAL KUMAR 2014.10.29 12:59 I attest to the accuracy and integrity of this document Chandigarh 5 CWP No.2017 of 1998 & RSA No.192 of 2012 Management and Sale of Tenements) Regulations, 1979 after its amendment on 05.09.1990 and to declare the auction held on 20.12.2000 as illegal. It is pleaded case that the Board was required and bound to decide the cases of defaulters, if any, under clause X of the scheme, but the cancellation of allotment of three defaulters, who have given wrong information was finalized after the expiry of the validity of the waiting list on 18.2.1998. It was on 23.04.1998, the amount of application money was refunded to the appellant.
The stand of the Board in the reply was that the appellant was in the waiting list, the validity of which expired on 18.02.1998, therefore, no right accrued to the plaintiff-appellant till 18.02.1998, as there was no vacancy on account of any surrender/cancellation in respect of the General category under sub-scheme 'A'. It is also pleaded that even the applicant at serial No.1 was not offered a dwelling unit, therefore, no right had accrued to the plaintiff being at serial No.2 of the waiting list. It is also pointed out that as per the scheme, it was only surplus dwelling units under sub-scheme 'B' falling under General category, which could be transferred to sub-scheme 'A' and that second attempt in case of reserved category was to be made to invite applications and in case sufficient applications were not forthcoming the balance of the dwelling units were to be allotted to the applicants in general category under sub-scheme 'B'.
On the basis of the pleadings of the parties, the learned trial Court framed the following issues:
(1) Whether the plaintiff has applied for allotment of HIG (Upper) Housing Scheme, 1996 of 180 Flats of West of Sector 38, Chandigarh? OPP (2) If, this issue is decided in favour of the plaintiff, whether the plaintiff is entitled for the relief of declaration? OPP VIMAL KUMAR 2014.10.29 12:59 I attest to the accuracy and integrity of this document Chandigarh 6 CWP No.2017 of 1998 & RSA No.192 of 2012 (3) Whether the suit is not maintainable for non-compliance of notice under Section 67 of the Hoard Housing Board Act, 1971? OPD (4) Whether the plaintiff has no cause of action to file the present suit? OPD (5) Relief.
After considering the entire evidence, the trial Court decreed the suit holding that there were 3 or 4 cases of defaulters, but the inquiries were not completed by the Board within the validity period of waiting list. The trial Court found that all cases of cancellation of registration were required to be decided within one year i.e. during the validity period of waiting list. The trial Court held to the following effect:
"23. ........As per sub clause (ii) of Clause X "a waiting list to the extent of 20% of the total number of units shall also be prepared by draw of lots which shall remain operative for a period of one year from the date of draw of lots for registration". This sub clause i.e. Clause (ii) of Clause IX should be read with sub clause (v) of Clause X that the Registration or cancellation will be offered to the next person on the waiting list during the period of its validity. Therefore, it appears that the cases of defaulters were to be decided by the Chandigarh Housing Board i.e. the defendant Board within a period of one year i.e. the period of validity of the waiting list which starts from 19.02.1997 to 18.02.1997. Had these defaulters' cases been decided by the defendant Board, then within the validity period of waiting list the plaintiff certainly would have been able to get his plot/flat being placed at Sr.No.2 of the waiting list. There is no denying the fact that one flat has been reserved by the Hon'ble High Court of Punjab and Haryana in Civil Writ Petition No.2017 of 1998, even than the plaintiff is entitled for the flat because there were three or four cases being made out by the defendant Board as observed from the written statement filed by them dated 02.05.2002."
However, in appeal, the first Appellate Court inter alia held that the suit is not maintainable on account of non-service of notice under Section 67 of the Act. The first Appellate Court held that the act complained of by VIMAL KUMAR 2014.10.29 12:59 I attest to the accuracy and integrity of this document Chandigarh 7 CWP No.2017 of 1998 & RSA No.192 of 2012 the plaintiff was that the allotment was not according to the procedure. Therefore, a notice was required to be served and that the representation dated 03.04.1998 (Ex.P-5) cannot be treated as notice. It has also been found that the complaint made against the allotment of dwelling units to Bharat Bhushan and Harsh Vardhan Bansal could be finalized only after giving show cause notice and affording reasonable opportunity, which would take some time. In fact, Harsh Vardhan Bansal challenged the cancellation by way of a writ petition i.e. CWP No.14904 of 1999, which was dismissed on 21.02.2002. The first Appellate Court further found that as per the terms and conditions of the Scheme, the Board has right to withdraw or amend the Scheme. The auction of the dwelling units, which became available, was conducted as per the orders of the Administrator dated 23.09.2000, therefore, it cannot be said that the Board has acted arbitrarily.
On 19.03.2014, this Court framed the following substantial questions of law in the Second Appeal for consideration:
(i) Whether the lower Appellate Court has erred in law in holding that the suit was not maintainable for non-compliance of notice under Section 67 of the Haryana Housing Board Act, 1971?
(ii) Whether there was any amendment of the scheme which permitted the defendant-respondent No.1 to auction the dwelling units?
(iii) Whether the defendant-respondent No.1 has violated the provisions of the scheme?
(iv) Whether the judgment and decree passed by the lower Appellate Court is perverse and hence liable to be set aside?
Since the issues raised in the writ petition as well as in the appeal are arising out of the same scheme, the same have been taken up for hearing together. Though the arguments of the petitioner in the writ petition and the appellant in Regular Second Appeal are different, but since both claim right of allotment of dwelling unit, as an applicant in the waiting list, it is necessary VIMAL KUMAR 2014.10.29 12:59 I attest to the accuracy and integrity of this document Chandigarh 8 CWP No.2017 of 1998 & RSA No.192 of 2012 that their contentions be dealt with in the common order. It may be stated here that in the writ petition, an order was passed on 20.05.1998 reserving one house for the petitioner.
Mr. Girish Agnihotri, learned Senior Counsel appearing on behalf of the writ petitioner, has vehemently argued that there was no option with the Board, but to allot surplus dwelling units of sub-scheme 'B' & 'C' to the General category applicants falling under sub-scheme 'A' as per sub clause (3) of Clause II, as reproduced above.
On the other hand, Mr. M.L.Sarin, learned Senior Counsel representing the appellant, has argued that the appellant has requested for allotment of a dwelling unit vide communications dated 18.02.1998 (Ex.P-4) and 03.04.1998 (Ex.P-5). Such notices substantially comply with the mandate of Section 67 of the Act. The respondent-Board was required to finalize the cases of such applicants, who misrepresented for allotment of dwelling units within the validity period of the waiting list. Still further, once the appellant has requested for extending the validity of the waiting list, the same could not have been cancelled by the Board in an arbitrarily manner. Mr. Sarin also refers to an order reported as Fateh & others Vs. Gram Panchayat Village Wazirabad & others (1994) 2 PLR 704 to contend that the present Regular Second Appeal can be treated as a writ petition, as in the said case a revision petition was treated as writ petition and decided accordingly.
Learned counsel for the respondents has referred to a Division Bench judgment of this Court reported as Paramjit Singh Vs. State of Punjab & others 2013 (3) PLR 103, wherein it has been held that the petitioner being a candidate in the waiting list has no indefeasible right to seek allotment only because some plots have become available after the expiry of the prescribed validity period of the waiting list.
VIMAL KUMAR2014.10.29 12:59 I attest to the accuracy and integrity of this document Chandigarh 9 CWP No.2017 of 1998 & RSA No.192 of 2012 Having heard learned counsel for the parties at length, we do not find any merit either in the writ petition or in the Regular Second Appeal. One of the reasons, which weighted with the learned first Appellate Court in a suit filed by Suresh Kumar Nangru-appellant, that the suit is not maintainable for the reason that no notice under Section 67 of the Act was served upon the Board. Though learned counsel for the appellant vehemently argued that Exs.P-4 & P-5 can be treated to be notices, as contemplated under Section 67 of the Act, but we do not find that such documents can even remotely be said to be notices. The request in both the documents is for extension of time. There is not a whisper that the plaintiff intends to file a suit before the Civil Court. Therefore, the finding recorded by the learned first Appellate Court cannot be said to be illegal. However, since the issue in respect of entitlement of waiting list applicants is being examined in a writ petition filed by Amarpreet Singh Deol, we have examined the arguments raised on behalf of the plaintiff as well.
The Brochure contemplated that the surplus dwelling units shall be transferred to sub-scheme 'A' at the time of the draw of lots for registration. The provision of draw of lots for registration is dealt with in Clause IX, which contemplated that the Board shall register applicants through draw of lots. The registration by way of draw of lots was held on 19.02.1997.
It is pointed out in an affidavit dated 06.05.2005 filed by the Board in the writ petition that there were only 3 applicants in sub-scheme 'C' as against five units available for them. In the said affidavit, it is also pointed out that one dwelling unit each in sub-scheme 'B' became available in the category of Other Backward Classes and in the category of employees of Punjab & Haryana Governments and Chandigarh Administration and Boards, VIMAL KUMAR 2014.10.29 12:59 I attest to the accuracy and integrity of this document Chandigarh 10 CWP No.2017 of 1998 & RSA No.192 of 2012 Corporations & Undertakings of Chandigarh Administration, who may retire within three years from the last date of receipt of application. Apart from the above, one dwelling unit was surplus in sub-scheme 'A' meant for Other Backward Classes. It is also pointed out that 3 dwelling units were put to public auction after due publicity on 20.12.2000. Out of the said 3 dwelling units, 2 dwelling units were either surrendered or cancelled. It is also pointed out that such dwelling units were included in the subsequent scheme framed by the Board and were allotted through draw of lots held on 30.12.2003.
We find that the writ petitioner or the appellant have no right to claim allotment of dwelling units merely for the reason that they were in the waiting list. Firstly, sub-clause (iii) of Clause XV clearly stipulates that mere submission of an application form shall not entitle the applicant to the allotment of a unit. Such is the settled principle of law, as laid down by the Full Bench of this Court in Surjit Singh Vs. State of Punjab, (1979)81 PLR 413 as well as by the Hon'ble Supreme Court in Chaman Lal Singhal Vs. Haryana Urban Development Authority & others (2009) 4 SCC 369 and Greater Mohali Area Development Authority and others Vs. Manju Jain and others, (2010) 9 SCC 157.
Secondly, Sub-clause (vi) of Clause XV of the Brochure contemplates that the Board has a right to withdraw/amend the scheme due to circumstances beyond its control. The decision not to transfer the units falling to the reserved categories for sale from amongst the General Category is, thus, within the power and jurisdiction of the Board.
Still further, sub-clause (3) of Clause II empowers the Board to transfer the surplus dwelling units. The mere use of word 'shall' does not make it mandatory. Such clause is an enabling clause to permit transfer of surplus dwelling units for allotment. It was for the Board to take a final VIMAL KUMAR 2014.10.29 12:59 I attest to the accuracy and integrity of this document Chandigarh 11 CWP No.2017 of 1998 & RSA No.192 of 2012 decision; whether dwelling unit is to be allotted amongst the General category applicants or not. It is well settled that the use of word 'shall' is not determinative of the mandatory nature. It is the intention, the purpose and the consequence, which have to be examined. There is no consequence in not transferring the dwelling unit for allotting the same to the General category applicants. The provision appears to be that the dwelling units should not remain un-allotted in the absence of enough applicants. In the scheme in question, only 3 or 4 dwelling units became available that too in reserved category of sub-scheme 'B' or one unit in sub-scheme 'A'. It will not confer a right on General category applicant to seek allotment of the dwelling unit meant for the reserved category from amongst the applicants belonging to the General category.
Still further, the name of the writ petitioner appears at Serial No.8 of the waiting list of General category. In the presence of applicants higher in waiting list, the writ petitioner could not be considered for allotment of a dwelling unit without examining the claim of all the waiting list applicants. In Paramjit Singh's case (supra), it has been observed as under:
"21. That apart, we are of the considered view that the petitioner being in waiting list has got no indefeasible or vested right to seek allotment only because some plot(s) measuring 200 square yards also have become available after expiry of the prescribed validity period of the waiting list. Similarly, waiting list cannot be kept alive for an indefinite period, more so, when its validity period of two years was expressly specified in the Information Brochure itself."
Mr. Sarin has further argued that it was inaction of the Board, which delayed the cancellation of the units within one year. The action to cancel allotments was required to be completed within the validity of the waiting list i.e. on or before 18.2.1998. It is argued that 3 dwelling units were put to auction after cancellation and that such auction was set aside by the VIMAL KUMAR 2014.10.29 12:59 I attest to the accuracy and integrity of this document Chandigarh 12 CWP No.2017 of 1998 & RSA No.192 of 2012 learned trial Court. But none of the purchasers have disputed the judgment and decree passed by the trial Court. Therefore, such dwelling units are available for allotment.
We do not find any merit in the said argument as well. The cancellation of the dwelling unit could be carried out only after complying with the principles of natural justice. The right of the appellant is based on fortuitous circumstance of the cancellation being effected within one year. The right of a candidate in the waiting list would arise only if a dwelling unit becomes available. The Board was not required to create a vacancy so as to allot a dwelling unit. None of the dwelling unit became available within one year of the period of waiting list. The unit allotted to Harsh Vardhan was cancelled on 26.08.1999, whereas the show cause notice issued to Bharat Bhushan was withdrawn on 24.01.2000. Since admittedly, no dwelling unit became available within the validity period, the appellant does not get any right for allotment of a unit merely on submission of his application for extension of time. The application of one applicant could be accepted. Since, there was no condition of extension of time nor Board has granted extension to any applicant, the appellant cannot seek extension of the waiting list unilaterally in the absence of any condition in the Scheme or in the Regulations. Once the validity period of the waiting list has come to an end, the claim of the appellant will not survive.
There is categorical assertion that such dwelling units were taken into consideration while floating other scheme and two of such units have been allotted. One unit stands reserved as per the orders passed by this Court, but it cannot be allotted to the appellant for the reason that during the validity of the waiting list, no unit became available. The cancellation of allotment of applicants-defaulters was after the validity period. VIMAL KUMAR 2014.10.29 12:59 I attest to the accuracy and integrity of this document Chandigarh 13 CWP No.2017 of 1998 & RSA No.192 of 2012 In view of the above discussion, we do not find any merit in the writ petition as well as the Regular Second Appeal. Consequently, the same are dismissed.
(HEMANT GUPTA)
JUDGE
29.10.2014 (JAISHREE THAKUR)
Vimal JUDGE
VIMAL KUMAR
2014.10.29 12:59
I attest to the accuracy and
integrity of this document
Chandigarh