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2002 DIGILAW 175 (PNJ)

Raj Kumar v. Chandigarh Housing Board

2002-02-07

V.K.BALI

body2002
JUDGMENT V.K. Bali, J. (Oral) - Challenge herein is to order dated 14.8.1997 Annexure P/16 vide which Development Officer, Chandigarh Housing Board, second respondent herein has cancelled the registration and allocation of Second Floor flat made in the name of the petitioner in Sector 61 (Kajheri), Chandigarh and forfeited the entire amount deposited by him for concealment of the material facts as also for furnishing false information in his application form No. 3862 in order to acquire the aforesaid flat for which he was not otherwise eligible. 2. Brief facts giving rise to the present petition reveal that in the year 1995, the Chandigarh Housing Board had floated a housing scheme for General Public, Government employees and accredited journalists on hire-purchaser basis in Sector 61 (Kajheri), Chandigarh. Petitioner applied for the allotment of MIG House/Flat in the above mentioned scheme on 5.10.1995 and submitted the application form No. 3862 duly attested by Oath Commissioner. It was stated in the application that "he was a member of NFL Employees Co-op. Housing Society to which land was allotted by Chandigarh Housing Board and land not allotted to individual till now". On the basis of information furnished in the application aforesaid, Allotment Committee of Chandigarh Housing Board found the petitioner eligible and his name was considered in the draw of lots for registration. In draw of lots, which was held on 7.3.1996 petitioner was registered and allotted a Second Floor Flat in Sector 61 (Kajheri), Chandigarh and was directed to deposit 60% of total payment for possession, as per allotment letter Annexure P/1. It was further mentioned by the Chandigarh Housing Board in para 11 of the allotment letter that his name was included in draw subject to production of following documents/information :- A. "Employer certificate does not contain despatch number and date and the same is not attested by Gazetted Officer." 3. It is further stated that in case deficiency is not settled within 30 days from the issue of this letter, his allotment would be cancelled. On 12.3.1996, petitioner submitted desired information from the employer. On 25.3.1996, petitioner was given "No Objection Certificate to take loan from the office/bank and at that time eligibility for allotment of petitioner was checked by the respondent/Chandigarh Housing Board. On 12.3.1996, petitioner submitted desired information from the employer. On 25.3.1996, petitioner was given "No Objection Certificate to take loan from the office/bank and at that time eligibility for allotment of petitioner was checked by the respondent/Chandigarh Housing Board. On 25.3.1996 respondent Board informed the petitioner to pay instalments at regular intervals as per terms of allotment letter and respondent would not accept entire amount in lumpsum though petitioner deposited all the instalments at the rate of Rs. 44, 000/- well in time. On 10.6.1996, petitioner requested the President, NFL Employees Co-op. Housing Building Society to refund the amount deposited as Chandigarh Housing Board had allotted a flat to him under the scheme of 1995. On 14.6.1996, President of NFL Employees Co-op. House Building Society in a detailed letter (Annexure P/6) requested the respondent-Board to refund the money to the petitioner. However, on 28.1.1997 respondent-Board issued a show cause notice (Annexure P/8) for cancellation of registration and allocation of Second Floor Flat under Scheme 1995 on the ground of furnishing false information that land had not been allotted to the said society. Petitioner responded to the aforesaid show cause notice vide his reply dated 10.2.1997 (Annexure P/9). On 19.8.1997, petitioner received the cancellation order dated 14.8.1997. It is this order as mentioned above which has been challenged in the present writ petition on the only ground that since the petitioner has neither concealed any material information nor misrepresented to respondent-Board at any point of time and submitted all facts in his application form the impugned order could not be passed on the ground of concealment of material facts as no house had been allotted to the petitioner till date by NFL Employee Co-op. House Building Society and even site plan for the construction of the said property had not been approved as well. There was no bar for the petitioner, applying for the aforesaid flat. 4. Pursuant to notice issued by this Court, respondents have entered defence and opposed the cause of the petitioner. 5. It has been pleaded in the written statement that on the basis of application form submitted by the petitioner, his name was considered in the draw of lots held on 18.2.1996 and he was registered for the allotment of a second floor flat in Sector 61 (Kajheri), Chandigarh. 5. It has been pleaded in the written statement that on the basis of application form submitted by the petitioner, his name was considered in the draw of lots held on 18.2.1996 and he was registered for the allotment of a second floor flat in Sector 61 (Kajheri), Chandigarh. The acceptance-cum- demand letter was issued to the petitioner on 7.3.1996 giving therein the schedule of payments to the made by the petitioner and also asking him to produce the Employer Certificate duly attested by the Gazetted Officer and bearing despatch No. and date since the one already submitted by him did not contain the same. It was further stipulated in the said letter as under :- "The acceptance of the deposits under the scheme is subject to your fulfilling the eligibility conditions and the same would not vest any legal right in the allotment of a flat in case, at any time, you are found ineligible due to your furnishing false information or suppressing material facts or otherwise. Notwithstanding anything contained in the letter your registration shall be regulated in accordance with the terms and conditions of the scheme contained in the brochure and shall further be subject to the provisions of Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979 as amended from time to time." 6. It has further been pleaded that in order to mis-lead the Board for securing the flat under the scheme fraudulently, the petitioner cleverly used the words "land not allotted to individual members till now in the application form. Show cause notice was issued to the petitioner for concealment of material facts and furnishing false information in the application form No. 3862 dated 5.10.1995 regarding the allotment of land to the society, in order to fraudulently acquire the flat under the scheme from the respondent-Board for which he was not otherwise eligible. The land had been allotted to the Co-operative Society constituted by the petitioner and the other members for the construction of multi-storyed flats for its members and intimation regarding allotment was given by the society to its members including the petitioner on 29.12.1994 and so much so petitioner had deposited Rs. 36, 300/- vide pay order dated 18.7.1994, after the possession vide cheque dated 6.12.1995 amounting to Rs. 47, 421/-. 36, 300/- vide pay order dated 18.7.1994, after the possession vide cheque dated 6.12.1995 amounting to Rs. 47, 421/-. Therefore, the petitioner was not eligible under the scheme to apply for the allotment of a flat and for considering his name in the draw of lots held for registration and allocation of floors on 18.2.1996. Petitioner concealed the material fact from the respondent-Board even upto the date of draw of lots held on 18.2.1996. 7. It is not disputed that one of the condition of eligibility for allotment of dwelling unit is that unit 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 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 the Urban Estates of Mohali or Panchkula. Similarly, person who have acquired a house/residential site anywhere in India through Government/Semi- Government/Municipal Committee/Corporation/Improvement Trust at concessional rate in their names 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. This condition of eligibility also forms part of the regulation. Regulation 6(1) of Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979 reads thus:- "Eligibility of Allotment. - (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 free-hold or lease-hold or on hire-purchaser 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 Government/Semi- Government/Municipal Committee/Corporation/Improvement Trust at concessional rate in their names 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 provisions, the applicant should be a domicile of U.T. of Chandigarh or should have been a bona fide of U.T. Chandigarh for a period of at least three years on the date of submitting the application." 8. Subject to the above provisions, the applicant should be a domicile of U.T. of Chandigarh or should have been a bona fide of U.T. Chandigarh for a period of at least three years on the date of submitting the application." 8. Counsel representing the petitioner on the basis of decision recorded in Civil Writ Petition No. 17855 of 1997, Subhash Chand v. Chandigarh Housing Board and another, decided on 7.2.2000 pertaining to the very scheme in question contends that petitioner cannot be said to have concealed the material facts pertaining to allotment of dwelling unit to him. The facts of the case aforesaid reveal that in the application made by the petitioner of the said case it was stated that though he was a member of the Co-operative House Building Society, Sector 34, Chandigarh, he was not a beneficiary of any allotment as on that date. The society had been allotted land on 8.12.1994 and the possession had also been handed over on 29.12.1994 whereas he had filed an application on 6.10.1995. On the facts stated above, it was held that petitioner had clearly stated in the application Annexure R/1 that he was a member of the Sector-34, Society but despite this information respondent- Board vide Annexure P/3 informed the petitioner that his name had been included in the draw of lots, subject to his resigning from the society. This was admittedly done by the petitioner and the information conveyed to the Chandigarh Housing Board. The Court deciding the Civil Writ Petition was of the further opinion that respondent-Board could not, at this stage, turn around and say that as the petitioner was a member of the Society, he was not entitled to the allotment of a flat. 9. In considered view of this Court, the facts of the case in Civil Writ Petition No. 17855 of 1997 have no parity with the facts of the case in hand. In the present case, petitioner stated that he was a member of NFL Employees Co-op. 9. In considered view of this Court, the facts of the case in Civil Writ Petition No. 17855 of 1997 have no parity with the facts of the case in hand. In the present case, petitioner stated that he was a member of NFL Employees Co-op. House Building Society, Chandigarh but at the same time he also stated that he had since not been allotted any dwelling unit though the land was allotted to the Society for its members, prior to the date of submitting the application by the petitioner for allotment of dwelling unit under the scheme in question and so much so petitioner had paid even the instalments to the Society on information to him that land has been allotted to the Society. Further, in the case of Civil Writ Petition No. 17855 of 1997, respondent- Board clearly told the petitioner to resign from the Society in which he had already made an application and far before the date of draw of lots he had resigned from the society and intimation was given to the concerned authority. 10. Faced with this situation, learned Counsel then contends that the amount deposited by the petitioner could not be forfeited as that would amount to penalty. In support of his contention, counsel relies on a judgment of this Court in Bhupinder Nagpal v. Chandigarh Housing Board, 1999(3) P.L.R. 634. The facts of the case in Bhupinder Nagpal (supra) would reveal that petitioner therein held (had ?) bona fide thought himself to be accredited journalist, which plea fell on technical ground, however, dealing with the forfeiture all that was held in paragraphs 11 and 12 is as under :- "11. Learned Counsel Shri Ravinder Chopra then submitted in the alternative that the respondent cannot retain the amount which was given by the petitioner alongwith the allotment application and the deposit of the subsequent instalments cannot be forfeited by the department and this action is totally illegal. 12. On the contrary Mr. Suri submitted that under clause-II of the terms and conditions of the advertisement, the department had the right to forfeit this amount. I am not in a position to subscribe the arguments raised by the counsel for the respondent. The clause is a penalty, which is unreasonable." 11. I do not find any merit in this contention as well. Suri submitted that under clause-II of the terms and conditions of the advertisement, the department had the right to forfeit this amount. I am not in a position to subscribe the arguments raised by the counsel for the respondent. The clause is a penalty, which is unreasonable." 11. I do not find any merit in this contention as well. The facts of the aforesaid case would reveal that learned Single Judge was dealing with the clause-II of the terms and conditions of the advertisement whereas the case in hand is governed by Regulation 6 of Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979 relevant part whereof reads as under :- "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 state, the Board shall be entitled to cancel the registration or the allotment or 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." This precise Regualtion came up for interpretation by Division Bench of this Court in Civil Writ Petition No. 18221 of 1996, Ranjit Singh Anand v. Chandigarh Housing Board and another, decided on 28.7.2000. The Honble Division Bench observed as follows :- "Shri Sanjeev Sharma justified the forfeiture of the amount deposited by the petitioner by arguing that this was done in accordance with the conditions stipulated in the advertisement and the provisions of the Chandigarh Housing Board (Allotment, Management and Sales of Tenements) Regulations, 1979 (for short, "the 1979 Regulations). He further argued that after having agreed to abide by the conditions stipulated in the advertisement and the application form, the petitioner cannot plead ignorance about their implications and cannot wriggle out of the consequences of non-compliance thereof. He referred to the averments made in the preliminary objections contained in the written statement and the contents of application Annexure R.1 to show that the petitioner had deliberately made a false declaration in column 12(a) and reiterated the same in the affidavit Annexure R.2 for the purpose of securing allotment and submitted that he cannot escape the adverse consequences embodied in column 20(d) of the application form. Shri Sharma pointed out that as per the information supplied by the Estate Officer, Urban Estate, Mohali, House No. 521, Phase III-A, Mohali stands in the name of the petitioner and, therefore, the finding recorded in the order of the Chairman that he secured allotment by making a false declaration cannot be termed as erroneous. Learned Counsel submitted that the action taken by the Chairman of the Board to forfeit the entire amount is consistent with the conditions embodied in the advertisement, application Annexure R.1 and the 1979 Regulations." I am in respectful agreement with the observations made by Division Bench in Ranjit Singh. Anands case supra. Finding no merit in the petition, I dismissed the same, however, leaving the parties to bear their own costs. Petition dismissed.