Research › Search › Judgment

Punjab High Court · body

2000 DIGILAW 604 (PNJ)

Rajinder Ghai v. Chandigarh Housing Board

2000-05-31

R.L.ANAND

body2000
Judgment R.L.Anand, J. 1. Shri Rajinder Ghai has filed the present Civil Writ Petition under Articles 226/227 of the Constitution of India for issuance of an appropriate writ, direction or order especially in the nature of mandamus commanding the respondent to allot him one High Income Group (Upper) Independent built-up house in Sector 43-B, Chandigarh and has further prayed that the respondent be restrained from making allotment of one High Income Group (Upper) Independent built-up house in Sector 43-B, Chandigarh to any other person till the decision of the writ petition. 2. The case set up by the petitioner was that Chandigarh Housing Board (hereinafter referred to as the Board) is a statutory body created under the Haryana Housing Board Act, 1971 as extended to the Union Territory of Chandigarh by Central Notification No. GSR 7E dated 14.1.1975. The Board is headed by the Chief Commissioner, Chandigarh, who is appointed as Administrator. It is further provided in Section 3 that Administrator shall appoint a Board known as Chandigarh Housing Board for carrying out the purpose of the Act. This Board was established to fulfil the public functions. 3. The petitioner was appointed as Law Officer in the respondent-Board in November, 1979 and he is continuing in service. The Board for the first time in the month of May, 1976 invited applications for registration for the allotment of numerous categories of flats according to the income eligibility. In response to this advertisement, about 2200 persons applied for registration for different categories of flats. The Board again on 28.11.1977 invited applications for registration upto 15.1.1978 for the allotment of different categories of flats according to income eligibility. For HIG (L) and HIG (U) the tentative cost of the flat was assessed as Rs. 75,000/- and Rs. 1.15,000/- respectively and those persons whose total monthly family income was Rs. 1,501/- and above were eligible for registration for the flats of HIG(L) and HIG(U) categories. It was further provided in the advertisement that the person should be the bona fide resident of U.T. and he should not own a house in India which he had acquired through government on a concessional rate. The petitioner maintains that in the month of October/November, 1980 the Board again made a policy decision whereby the last date for registration was extended upto 31.3.1981 and this date was further extended upto 30.4.1981. The petitioner maintains that in the month of October/November, 1980 the Board again made a policy decision whereby the last date for registration was extended upto 31.3.1981 and this date was further extended upto 30.4.1981. The petitioner applied on 8.7.1980 vide application dated 30.6.1980 for registration for allotment of HIG(U) category of house. But no action was taken on his application till December, 1981. Two other Board employees namely Shri Jagmohan Sharma and Miss Taranjot Kaur were registered on 29.7.1980 and 8.9.1980 respectively to the discrimination of the petitioner by the Board. The petitioner made a representation on 25.10.1980 and submitted that after filing of his application for registration on 8.7.1980 some other Board employees have been registered and hence in order to avoid any discrimination, permission be granted to him also for the registration for allotment of HIG(U) category house. On 25.10.1980 the Board took a decision that all the employees and members of the Board be given an opportunity to deposit 25% of the cost of the house to earn preference in the allotment of HIG houses. Accordingly, all the three employees and a member of the Board, who were registered for HIG(U) category of houses in the year 1979-80 were invited in the month of November, 1980 to deposit 25% of the costs of the houses in order to earn preference in the allotment of HIG category of houses. These persons deposited the amount in December, 1980 and on the basis of same they were allotted HIG(U) category of houses on 27.3.1981 in Sector 43-B, Chandigarh. However, the petitioner, who applied on 8.7.1980 to the respondent-Board for registration and allotment of HIG(U) category of house was not given such opportunity despite his written request filed on 29.1.1981 followed by many reminders. The petitioner alleges that the failure or the Board to register him for allotment on the basis of his application dated 8.7.1980 resulted in manifest injustice to him. He was not given the opportunity to earn preference and was not allowed to deposit the priority amount. 4. The petitioner further alleges that respondent-Board in the first instance constructed 100 HIG(U) category houses in sector 34-B, Chandigarh. The allotment of 73 houses out of 100 was made by draw of lots on 27.3.1981. He was not given the opportunity to earn preference and was not allowed to deposit the priority amount. 4. The petitioner further alleges that respondent-Board in the first instance constructed 100 HIG(U) category houses in sector 34-B, Chandigarh. The allotment of 73 houses out of 100 was made by draw of lots on 27.3.1981. Thereafter 21 more houses were allotted to various persons and six houses are still lying unallotted for some reserved category for which there is no registered applicant. 5. The petitioner again vide application dated 16.4.1981 followed by the reminders and representations urged the Board for the registration and allotment of HIG(U) category of house out of 100 HIG houses constructed in March; 1981. Ultimately, the representation dated 21.12.1981 of the petitioner was considered by the Board on 23.12.1981. The Chairman of the Board stated in the meeting that petitioner was not allowed to register his name because his case was not taken up in time. The Chairman was further under the impression that only such employees should be registered who had completed 2 years service on the date of the application. He further stated that this was not, in fact, the position since some employees with less than 2 years service had been registered and allotted houses. With this situation the Chairman proposed that in the first instance the petitioner should be registered. The Board decided that the petitioner be allowed registration if in case it had been done earlier for the Board employees for HIG houses after the last date of receipt of applications. The petitioner further alleges that the respondent-Board decided to allow the registration to him on 23.12.1981 without any condition. But in spite of his request on letter was communicated to him till 11.3.1982, as a result of which he was again deprived of the opportunity to earn preference. In the letter dated 11.3.1982 conveyed to the petitioner on the basis of decision dated 23.12.1981 the following two conditions were imposed besides others:- 1. "That in the event of leaving the service of the Board on any account, the deposit would be refunded after deduction of 10% of the amount and; 2. That you would be allotted a HIG(U) category of house after all the existing old registered applicants are alloted houses." 6. "That in the event of leaving the service of the Board on any account, the deposit would be refunded after deduction of 10% of the amount and; 2. That you would be allotted a HIG(U) category of house after all the existing old registered applicants are alloted houses." 6. The petitioner also challenges these two conditions on the ground that no such condition was imposed on any other person. Moreover, when the registration of the petitioner was permitted no such condition was ever stipulated. The second condition has made virtually impossible for him to be considered for allotment of a house. Though the petitioner earlier submitted the application dated 8.7.1980 and his name was not registered, yet in pursuance of the decision dated 23.12.1981 of the Board and in terms of the letter dated 11.3.1982 issued by the Board the name of the petitioner was registered for HIG(U) category on 17.3.1982. The petitioner also made a representation for the waiving of the conditions and for the allotment of H1G(U) category house in Sector 43-B, Chandigarh against priority deposit of 25% as was done in the case of other Board employees. 7. The petitioner further states that the Board at the second instance constructed 62 HIG(U) houses in different sectors of Chandigarh and issued a public notice regarding holding of draw of lots on 19.11.1982. In the said notice the respondent-Board stated that list of all the valid applicants would be displayed in the office of Chairman of the Board and the objections, if any, would be entertained. The list was displayed. But the name of the petitioner did not figure. He filed objections with the respondent-Board on 8.11.1982 but no action was taken by the Board and the draw was allowed to be made on 17.12.1982. Summing up the case, the petitioner alleges that the action on the part of the Board in not allotting him a house was illegal, void, discriminatory and against the rules of natural justice. He shall be deemed to have been registered since 8.7.1980 and the non-registration of his name is through the obvious mistake of the respondent and this mistake was even realised by the Chairman in 62nd meeting which was held on 23.12.1981. The petitioner cannot be allowed to be punished for the fault of the respondent. He shall be deemed to have been registered since 8.7.1980 and the non-registration of his name is through the obvious mistake of the respondent and this mistake was even realised by the Chairman in 62nd meeting which was held on 23.12.1981. The petitioner cannot be allowed to be punished for the fault of the respondent. He has been denied the opportunity for allotment because he has not been allowed to deposit the priority money. Otherwise he would have definitely been allotted house on 27.3.1981 when the first draw took place. 8. Notice of the writ petition was given to the respondent. If was maintained by the respondent that the application dated 30.6.1980 was not available in the office of the Board. Its unattested copy was, however, produced by the petitioner on 23.10.1981 and no action could be taken in the absence of said application. The representations dated 13.3.1981,25.10.1980 and 29.1.1981 made by the petitioner are also not available. Even the representations dated 24.3.1981, and 27.3.1981 are not available in the office of the Board. Keeping in view the interest of the existing applicants of HIG list it was the policy of the Board to register HIG applicants on the similar conditions as have been prescribed in the case of the petitioner. These conditions were necessary in order to avoid any possibility of the litigation keeping in view the general policy. The name of the petitioner was to be included in the draw only in accordance with the conditions referred in the decision of the Chairman dated 11.3.1982. No HIG house was available on 19.3.1982. However, according to the then policy of the Board, no HIG house was to be allotted to any Board employee out of alleged 2% quota. The petitioner will be deemed to have been registered only from the actual date of registration i.e. 17.3.1982. 9. During the pendency of this writ petition, C.M.No. 8677 of 1997 was moved by the Board under order 6 Rule 17 C.P.C. for the amendment of written statement. Through this application the Board wanted to amend its original written statement so that the true facts may be brought on the record for the just decision of the writ petition. Notice of the application was also given to the petitioner, who filed the reply and denied the averments.. Through this application the Board wanted to amend its original written statement so that the true facts may be brought on the record for the just decision of the writ petition. Notice of the application was also given to the petitioner, who filed the reply and denied the averments.. For the larger interest of the case I am inclined to allow the application under order 6 Rule 17 C.P.C. filed by the Board and on going through the amended written statement this Court is of the opinion that the stand initially taken up by the Board has not been substantially changed. The case of the Board is not likely to improve for the reasons which I will set forth in the subsequent portion of this judgment. 10. The petitioner has also placed on record certain documents such as Annexure P1, which is an extract of the scheme for the registration of the applicants from intending purchasers of different categories of houses. Annexure P2 is the application dated 30.6.1980 moved by the petitioner for the allotment of HIG(U) house. Annexure P3 is the reminder to the application dated 30.6.1980. Annexure P4 is yet another representation made by the petitioner for the allotment of HIG(U) house and for allowing him to deposit 25% of the cost. Annexure P5 is the letter issued from Chairman to the petitioner in which the decision of the Board taken in 62nd meeting held on 23.12.1981 was conveyed to the petitioner and he was permitted to get himself registered for HIG(U) category of house. In this very letter Annexure P5, two conditions were imposed which in my opinion with the passage of time have lost their force. To continue with the documents of the petitioner, Annexure P6 is the representation dated 24.3.1982. Similarly, Annexure P7 is another representation. Annexures P8 and P9 are advertisements issued by the Chairman vide which it was intimated to the public that draw of lots of certain categories of houses would take place. Annexure P10 is yet another representation dated 8.11.1982 made by the petitioner. The respondent-board has also placed documents Annexures R1 to R9 on the record. 11. During the course of submissions this Court also took into consideration the agenda of additional item No. 62.11 and the decision taken by the Board vide item No. 62. It has also taken note of the noting dated 6.3.1982. 12. The respondent-board has also placed documents Annexures R1 to R9 on the record. 11. During the course of submissions this Court also took into consideration the agenda of additional item No. 62.11 and the decision taken by the Board vide item No. 62. It has also taken note of the noting dated 6.3.1982. 12. I have heard Mr. Hemant Gupta, Advocate on behalf of the petitioner, Mr. R.N. Raina, Advocate, on behalf of the respondent and with their assistance am disposing of one of the oldest writ of 1982 pending in the High Court. 13. The opinion which I have formulated from the pleading, documents, office noting and resolution is that petitioner though was a Law Officer of the respondent-Board itself but he has been discriminated in the matter of allotment of the house or at least the things did not find favour for the reasons which can only be explained by the then office holders, who were managing the affairs of the Board, It is proved on the record that petitioner Rajinder Ghai submitted an application dated 30.6.1980. Annexure P1 is the abundant proof. This application was entertained in the office on 8.7.1980. As per the advertisement the last date of registration was of course 15.1.1978. Subsequently the Board decided that there shall be no final date for registration and receipt of the applications moved by the employees of the Board. It is also proved on the record that about 40 employees of the Board submitted applications on different dates and such applications were entertained by the Board upto 30.4.1981, but the application of the petitioner dated 30.6.1980 received in the office of the Board on 8.7.1980 was not considered and there is no satisfactory explanation to this extent by the Board justifying the petitioner to make a representation to the authorities of the Board that he should not be discriminated in the matter of even entertaining of the applications. The mistake was realised by the Board when it was brought to the notice of the Chairman that the Board had been entertaining the applications of its employees after the stipulated date, therefore, the representation of the petitioner was considered in that light as is evident from item No. 62.11 of the agenda of the meeting dated 23.12.1981. The mistake was realised by the Board when it was brought to the notice of the Chairman that the Board had been entertaining the applications of its employees after the stipulated date, therefore, the representation of the petitioner was considered in that light as is evident from item No. 62.11 of the agenda of the meeting dated 23.12.1981. In the meeting note there is a clear mention that petitioner applied vide application dated 30.6.1980 which was received in the office of the Board on 8.7.1980 vide diary No. 2117. In the said application the petitioner also made a request to give him a chance to deposit 25% of the cost of the house to earn preference in the allotment of house. There was also a decision of the Board dated 25.10.1980 in the 47th Meeting that it shall deposit upto 25% of the cost of the house to be accepted from the employees and members of the Board so as to earn eligibility for priority allotment and accordingly letters were issued to three employees of the board for higher deposits upto 5.12.1980. but strange enough no letter was issued to the petitioner. So much so, three Board employees were allotted houses out of priority category on 27.3.1981, but again there was a discrimination so far as the petitioner was concerned. The note of the agenda further indicates that the petitioner was not allowed to register for the allotment of HIG(U) category of houses since his case was not taken up in time and further the Chairman was of the view that only such employees could be registered who complete two years of service on the date of the application. Ultimately the Board took a decision to the following effect:- The Law Officer explained the position in person to the members of the Board. He has completed two years service in this Board. He pleaded that he is being discriminated for not registering though he is requesting the Board from time to time and the Board has registered LWS, LIG & MIG applicants as a result of Boards decision dated 25.10.1980. It was decided that registration may be allowed in case it has been done earlier for the Board employees for HIG houses after the last date of receipt of application. After this decision the Chairman of the Board wrote another letter to the petitioner Annexure P5. dated 10/11.3.1982. It was decided that registration may be allowed in case it has been done earlier for the Board employees for HIG houses after the last date of receipt of application. After this decision the Chairman of the Board wrote another letter to the petitioner Annexure P5. dated 10/11.3.1982. which reads as follows:- Consequent upon the decision of the Board taken in its 62nd meeting held on 23.12.1981 you are hereby permitted, by virtue of your being an employee of the Board, to get yourself registered for H1G(U) Category of houses. The application in the prescribed form along with the prescribed amount of initial deposit in the form of bank draft should be made upto 25.3.82, failing which it will be presumed that you are not interested in registration of your name. In case you are already registered for allotment of a lower type of house, and that now you are interested for higher category on account of eligibility, you are advised to submit a fresh application form with the difference in amount of earnest money already paid and the amount payable for the higher category. This registration is subject to the following conditions:- i). that in the event of leaving the service of the Board on any account, the deposit would be refunded after deduction of 10% of the amount:- and ii) that you would be allotted a H.I.G. (U) category of house after all the existing old registered applicants are allotted houses. 14. The contention of the learned counsel for the petitioner is that letter Annexure P5 has no statutory force behind it because this was not the decision of the Board but was the decision of the Chairman and any decision of the Chairman which has not been approved by the Board loses its sanctity and validity. There is merit in the contention raised by the learned counsel for the petitioner. The condition imposed in this letter was not the decision of the Board, therefore, it does not carry any sanctity. There is merit in the contention raised by the learned counsel for the petitioner. The condition imposed in this letter was not the decision of the Board, therefore, it does not carry any sanctity. Even it is assumed for the sake of argument that the Chairman was authorised to write letter Annexure P5 and he could impose the two conditions referred to above, still the case of the petitioner is not deteriorated because this Court has been given to understand by the learned counsel appearing on behalf of the respondent, who stated at the Bar on the instructions given to him by the officer concerned that every applicant has been allotted HIG(U) category house after all the old registered applicants were accommodated. In this view of the matter, even if it is assumed for the sake of argument that petitioner will stand last in the queue, still he will be entitled to the allotment of the house because everybody standing in the queue before him has been adjusted. One house of HIG(U) category has been reserved and has not been allotted by the Board under the orders of the Court. From that angle also the case of the petitioner gets strength and nod of this Court for the allotment of the house. Even if it is assumed that there was no registration of the name of the applicant at the first instance on 8.7.1980 on the basis of the application dated 30.6.1980, still there is a registration of the petitioner on 17.3.1982 admittedly and as per clause (II) of the letter Annexure P5 the petitioner was to be allotted a HIG(U) category house after all the old registered applicants were allotted houses. The petitioner fulfilled all the eligibility criteria for the allotment of HIG(U) category house and, therefore, the relief claimed by the petitioner has to be allowed to him. 15. Mr. Raina the learned counsel appearing for the respondent then submitted that if the house is allotted to the petitioner by the Court in pursuance of this judgment then the petitioner is bound to pay the price of the house as prevalent today. The submission of the learned counsel for the respondent cannot be accepted. The organ of the state cannot be allowed to become unduly rich. It is the fault of the respondent itself that the petitioner has been deprived of consideration for registration. The submission of the learned counsel for the respondent cannot be accepted. The organ of the state cannot be allowed to become unduly rich. It is the fault of the respondent itself that the petitioner has been deprived of consideration for registration. Moreover, the second chain of allotment of 62 houses was made on 17.12.1982, meaning thereby that the houses had already come into existence. The Board had not incurred any additional expenses after the construction of the houses. Therefore, it is not open to the Board to say that it can claim the present price of the house to be allotted to the petitioner. Had the house which has been reserved for the petitioner been constructed in recent times, there would have been some force in the contention of the respondent. In these circumstances, the petitioner will be liable to pay only that amount which he would have paid as per advertisement. It was held in LR. Roojam v. R. Banarji, 1985 HRR 220 that when the Board made allotment of houses in favour of some officers and ignored the petitioner, who was similarly situated, and when all the officers had applied for the allotment within the time for the reserve quota of houses, such order of discrimination of the Board is wholly unjustified. My attention has also been invited to other decision dated 10.3.1994 given by the Honble Division Bench in C.W.P. No. 11778 of 1993 Smt. Gurmeet v. The Chairman when the Honble Division Bench while setting aside the order of the Board directed it to allot one flat to the petitioner at the price on which the flats were allotted to similarly situated persons in the draw of lots held by the Board. Reliance can also be placed on the order dated 1.10.1992 passed in C.W.P. No. 112 of 1993 Shimro Devi v. The Chairman, Chandigarh Housing Board. 16. In view of my above discussion, the present writ petition is hereby allowed and directions are issued to the respondent to allot to the petitioner one HIG(U) independent built up house in Sector 43-B, Chandigarh which was already reserved vide order dated 17.12.1982 passed by this Court against the price which was charged by the Board from other applicants in the draw of lots held on 17.12.1982. The Board, however, will give the adjustment for all those amounts which have been received by it from the petitioner by way of earnest money. Since the petitioner is getting this relief after a lapse of about 18 years, this Court hopes and expects that the Board this time will do justice to the petitioner and would issue the allotment letter within 15 days from the receipt of the copy of the order and would further deliver the possession of the house so allotted within 15 days from the date when the petitioner deposits the amount as per the allotment letter. 17. I do not want to burden the respondent with the costs of the litigation.