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2014 DIGILAW 801 (PNJ)

Harjeet Singh v. Chandigarh Housing Board

2014-05-07

AMOL RATTAN SINGH, SURYAKANT

body2014
Judgment Amol Rattan Singh, J. The petitioner in this petition (since deceased and now represented by his legal representatives), sought a writ of mandamus to the respondents-Chandigarh Housing Board and the Chandigarh Administration, to deliver possession of dwelling unit No.3032/1 of the HIG-II category in Sector 44D, Chandigarh, which has not been so delivered despite the allotment letters dated 25.10.1989 and 30.04.1991, issued by the first respondent. 2. The facts of the case are that in response to an advertisement issued by the Chandigarh Housing Board, in the year 1997, the petitioner had applied for allotment of a dwelling unit in the HIG-II category, in Sector-44D, Chandigarh, on a hire -purchase basis. Along with the application form, he submitted the demand draft for the requisite amount and consequent upon the draw of lots held, he was issued a letter of general allotment on 25.10.1989, to the effect that he had been allocated a first floor dwelling unit as per the scheme and was further directed to deposit the consideration amount for the dwelling unit as per the schedule given in the letter. That too having been complied with by him, he was issued an allotment letter for a specific dwelling unit, i.e. No.3032/1, Sector-44D, Chandigarh, on 30.04.1991. He was required to deposit an additional amount of money which he did not deposit in time but deposited within the extended time given in the allotment letter itself along with the additional amount for late payment. Thus, the requisite amount was deposited by him along with other necessary documents, vide letter dated 13.08.1991. Up till this point, there is no dispute. 3. However, as per the reply filed by the Housing Board, the petitioner, in terms of Clause 3 of the allotment letter, was required to submit an affidavit to the effect that neither he, nor his wife, nor any dependant relations, including unmarried children, owned in full or in part, on free hold/lease hold or on hire-purchase basis, a residential plot or house in the Union Territory of Chandigarh, or in the neighbouring urban estates of Mohali and Panchkula. Further, that neither he, nor his dependant relations, have acquired a house/residential site anywhere in India from the Government/semi Government agency/Municipal Committee/Government Trust at a concessional rate. Further, that neither he, nor his dependant relations, have acquired a house/residential site anywhere in India from the Government/semi Government agency/Municipal Committee/Government Trust at a concessional rate. The affidavit was also required to state that prior to the allotment of the house(dwelling unit) in question, neither the petitioner, nor his wife or dependent relations, including unmarried children, had transferred the registration or allotment of a residential plot or house either in Chandigarh or in Mohali and Panchkula, in the name of any blood relations. The said affidavit was duly sworn by the petitioner and submitted along with his letter dated 13.08.1991. 4. The reply of the first respondent further states that after the receipt of the above affidavit, it came to the notice of the Housing Board that the petitioners' daughter, Ms. Rajeena Khera, (now one of his legal representatives), who was stated to be a student in 1991, but was above 18 years of age and was residing with the petitioner and was dependent upon him, had also applied for a Category II flat under the same Scheme on 29.6.1987 and she had also been allotted Flat No. 261/2, Sector 45-A, Chandigarh, in a draw of lots held on 26.5.1990 and an allotment letter in respect of the said flat had been issued to her on 23.1.1991. His daughter had furnished an affidavit dated 25.4.1991, to the effect that she belonged to a farmer family and owned agricultural land from which she was earning Rs.6,000/-per month. The said affidavit was also accompanied by a certificate from an IAS officer, certifying that her income from her land at Tohana, then in District Hisar, was Rs.60,000/- per annum. Consequently, the Board, before releasing possession of dwelling unit No.261/2, Sector 45-A, to the petitioners' daughter, asked her to furnish information as to whether she was married at the time of submitting the application form and to further submit proof that she owned landed property at Tohana. Consequently, the Board, before releasing possession of dwelling unit No.261/2, Sector 45-A, to the petitioners' daughter, asked her to furnish information as to whether she was married at the time of submitting the application form and to further submit proof that she owned landed property at Tohana. In response thereto, the daughter, Rajeena Khera, submitted a copy of a civil court decree dated 3.12.1990, passed by the Sub Judge Ist Class, Tohana, decreeing a suit filed by both the daughters of the petitioners, i.e. Rajeena Khera and Sharina Khera, against their brother Anoop Singh, by which the daughters were declared to be owners in possession of the land which was subject matter of the suit and were held entitled to get their names entered in the revenue records, as such owners in possession, in equal shares, to the exclusion of their brother, i.e. the defendant in the suit. The decree in favour of the petitioners' daughters was sought on the basis of a family settlement earlier stated to have been entered into. The total land, as is discernible from a copy of the decree sheet annexed with the reply filed by the first respondent, is about 15-1/2 acres, thereby making the share of Rajeena Khera to be slightly above 7-1/2 acres. 5. The petitioner was also called upon, vide letter dated 8.10.1991, to supply a copy of the plaint, which led to the passing of the decree mentioned above, along with a copy of the revenue record for the years 1988-89 and 1989-90 with respect to the land which was subject matter of the suit. He was also asked to submit an attested copy of any family settlement made in writing, with respect to the suit land and other properties belonging to the family. 6. In response thereto, the petitioner, vide letter dated 4.11.1991, supplied a certified copy of the plaint, along with a certificate of the Tehsildar, Tohana, that since the next `jamabandi' (record of rights) was still to be prepared for the year 1994-95, it was (naturally),not possible to enter the names of the decree holders in the revenue record in the previous `jamabandi' for the year 1988-89 and they would be incorporated in the `jamabandi' for the year 1994-95. In his letter, the petitioner also referred to Section 33 of the Punjab Land Revenue Act, 1887 ( in short, `1887 Act') pointing out that the record of rights was to be prepared every 5 years and as such, he could not show any record of rights with his daughters' names entered therein, for the years in question. As regards the family settlement, he referred to para 2 of the plaint, which was stated to have been admitted by the defendant in the suit. A certified copy of the plaint has also been made available on record, in which the factum of a family settlement having taken place about 4 years prior to the filing of the suit is stated, in para 2 thereof, which, as per the judgment and order of the learned Sub Judge Ist Class, Tohana, was stated to be admitted by the defendant, who had also prayed that the suit of the plaintiffs be decreed against him. 7. Thus, the contention of the respondents with regard to the reason for not handing over possession of the dwelling unit to the petitioner, is that the suit was, obviously, a collusive one. As such, as per the terms and conditions of the allotment letter, which also required the petitioner to submit an affidavit to the effect that none of his family members, including unmarried children, owned a residential premises in Chandigarh, the petitioner was not entitled to be allotted a dwelling unit, his unmarried daughter having already acquired a dwelling unit from the Housing Board. 8. During arguments, Mr.Akshay Bhan, learned counsel appearing for the petitioner, submitted that firstly, the petitioners' daughter, Rajeena Khera, being no doubt of the age of majority, with a decree also having been passed in her favour along with her sister, to the effect that she is owner of land in district Hisar, cannot be said to have been dependent upon her father, even if she was a student. As such, the contention of the respondents that the decree, being collusive, cannot be accepted and that she had no independent income, is an untenable argument. 9. As such, the contention of the respondents that the decree, being collusive, cannot be accepted and that she had no independent income, is an untenable argument. 9. He next submitted that otherwise also, the reliance of the respondents, on the clause in the allotment letter that required an affidavit to be filed (the contents of which, though not given in the allotment letter itself, but were to be given in the affidavit), to the effect that none of the allottees' dependent relations, including unmarried children, own a free hold/lease hold/residential plot or house on hire purchase basis in Chandigarh/Mohali/Panchkula, was untenable in law. He submitted that this was so because the regulations governing the allotment of such like dwelling units, i.e. the Chandigarh Housing Board (Allotment, Amendment and Sale of Tenaments) Regulations, 1979 (in short `1979 Regulations') did not, at the relevant time, contain such a stipulation and, therefore, any subsequent amendment incorporating such condition, could not be retrospectively applied. In this regard, he relied upon a judgment of a coordinate Bench of this court in D.R.Trikha vs. Union Territory, Chandigarh, and another (CWP No.14470 of 1990), decided on 18.12.1990. 10. A perusal of the said judgment shows that it was a case where, though allotment was made to the petitioner therein, of a higher income group category house in Chandigarh, on 8.6.1990, possession of the same was not being handed over to him, on the ground that on 5.9.1990, Regulation 26 of the aforementioned 1979 Regulations, which pertained to discretionary quota, had been amended and according to the amended criteria, the petitioner therein was not entitled to allotment of a house from the discretionary quota of the Administrator. After examining Section 74 of the Haryana Housing Board Act, 1971, as extended to Chandigarh, by which the Board was vested with the power to frame regulations with regard to the allotment of tenements and premises, the Division Bench came to a conclusion that the Board had no power to frame regulations with retrospective effect and as such, whatever amendment was made on 5.9.1990, could not be made applicable to the petitioner in that case, he having been allotted a house almost 3 months prior to such amendment. 11. Though Mr. 11. Though Mr. Bhan has relied heavily on this judgment, however, we find the reliance completely and factually misplaced, inasmuch as, no such amendment has been shown to us in Regulation 6 of the 1979 Regulations, by which the condition of non-allotment of a dwelling unit to spouses/dependent relations, including unmarried children, who owned a free hold/lease hold/residential plot or house on hire purchase basis in Chandigarh/Mohali/Panchkula, was inserted later. As per the regulations brought to and which are in our notice, the said condition always existed from inception. The first amendment that came about in Regulation 6, was on 11.5.1987, by which the condition of eligibility, of a person being a bonafide resident of Chandigarh for at least 3 years, was relaxed in favour of various categories of persons. Such relaxation was further extended on 9.6.1989 to the retired employees of those categories also. Obviously, the said two amendments have nothing to do with the present case. Thereafter, an amendment was made on 30.8.1996, by which Regulation 6 was substituted and instead of the phrase, 'his/her dependent relations including unmarried children', the phrase 'his/her minor children' was substituted, thus making all major children of an allottee, whether dependent or not, eligible for allotment of another dwelling unit. This amendment came about more than 5 years after the allotment of the dwelling unit in question, to the petitioner. The relevant part of Regulation 6, as it existed before 30.8.1996, and thereafter, is reproduced herein below:- Before the amendment dated 30.8.1996:- “6. Eligibility of Allotment.-(1) A dwelling unit or flat in the Housing Estate 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 purchase basis, a residential plot or house in the Union Territory of Chandigarh or in any of the Urban Estates of Mohali or Panchkula. Similarly, persons who have acquired a house/residential site anywhere in India through Government/Semi Government/ Municipal Committee/Corporation/Improvement Trust at concessional rate in their name or in the name of any/dependent member of their family will not be eligible to apply to the Board for allotment of a dwelling unit or flat. 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 name or in the name of any/dependent member of their family will not be eligible to apply to the Board for allotment of a dwelling unit or flat. Subject to the above provision, the applicant should be domicile of U.T. of Chandigarh or should have been a bona fide resident of U.T. of Chandigarh for a period of at least three years on the date of submitting the application.” (emphasis supplied) “xx xx xx” After the amendment of 30.8.1996:- “6. Eligibility of Allotment.-(1) A dwelling unit or flat in the Housing Estate of the Board shall be allotted only to such person who or his wife/her husband or any of his/her minor 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 Urban Estates of Mohali or Panchkula. Similarly, persons who have acquired a house/residential site anywhere in India through Government/Semi Government/ Municipal Committee/ Improvement Trust at concessional rate i.e. allotment at reserved fixed price, in their name or in the name of their spouse or any minor children will not be eligible to apply to the Board for allotment of a dwelling unit or flat. Subject to the above provision, the applicant should be a domicile of Union Territory of Chandigarh or should have been a bona fide resident of Union Territory of Chanidgarh for a period of at least three years immediately preceding the date of opening of the scheme.” (emphasis supplied) “xx xx xx” Therefore, Mr. Bhans' argument to the effect that eligibility is to be seen at the time of application/original allotment, i.e. in the years 1987 and 1989, does not help the petitioner in any manner, the amendment having come about only in the year 1996 making an allottee eligible for allotment of a dwelling unit, even if a major child of his already owned another dwelling unit. 12. The only question, therefore, to be examined is, whether or not the daughter of the petitioner, i.e. Rajeena Khera, was actually earning any income, so as to make her non-dependent on the petitioner, at the time of allotment. 13. 12. The only question, therefore, to be examined is, whether or not the daughter of the petitioner, i.e. Rajeena Khera, was actually earning any income, so as to make her non-dependent on the petitioner, at the time of allotment. 13. As already noticed earlier, the decree, giving effect to what was stated to be a family settlement arrived at 4 years prior in time, made Rajeena Khera, along with her sister Sharina Khera, owner of about 15 acres of land with, impliedly, about half the income therefrom, falling to her share, being a co-sharer. 14. In this regard, the first contention of the respondents, that it was a collusive decree, would make no difference in our opinion, as that would not affect the petitioners' daughters' share holding in the land, along with her sister. However, it must be taken note of, that the suit was filed on 3.12.1990 and was decided on the same date, in view of the statement of defendant in favour of the plaintiffs therein. This is a date after the dates when the initial allotments of the dwelling units were made in favour of the petitioner and his daughter, vide letters dated 25.10.1989 and 25.4.1988, respectively. It is thus apparent from the fact situation that the suit was filed in collusion of the three siblings, to try and come within the parameters of Regulation 6 as it then existed. Even so, the fact is that, whether collusive or not, the decree definitely conferred ownership of land on the petitioners' daughter, and as such, may point to her being an earner of some income from her agricultural land, even if such income was going into the total family income, she being unmarried and living with her parents. However, even so, no annual record of rights, as per Sections 33 and 34 of the 1887 Act, was produced by the petitioner, either before the respondents or before this court, to show that after the land vested in his daughter, the same had actually been transferred to her name and was being shown to be under her cultivation, or at least under her supervision as an absentee landlord. Thus it is not the title or ownership in land alone, which would make the petitioners' daughter an independent earner of income, but proof of such income coming to her from the agricultural land, or from any other source, would also have to be shown. No such proof of any income, to show her to be an independent earner thereof, was produced either before the authorities or even before us. 15. As regards the petitioners' contention that the 'jamabandi' (record of rights) is to be prepared every 5 years in Haryana, we do not find anything devolving on the outcome of that submission, inasmuch as, even though the record of rights/jamabandi may be recorded only every 5 years, the annual record is required to be maintained as per Section 33 of the 1887 Act. More importantly, as per Section 34 thereof, any person acquiring a right as a land owner, is required to report his acquisition of such right to the Patwari concerned, who is then required to enter in his registration of mutations, every report so made to him. The petitioner did not bring to the notice of the authorities at the relevant time, nor even before this court now, as to whether any such entry had been made in the revenue record, on the basis of which it could be said that the land owned by his daughter was yielding any income to her. No doubt, mutation does not confer title but only reflects the same in the record, nevertheless, no `khasra girdwari' has been shown, proving that the land which came to be owned by the petitioners' daughter had been cultivated, either by her or under her supervision, to indicate that any income was coming to her. Neither were any receipts of agricultural produce sold by or on behalf of Rajeena Khera, produced at any stage, to show that she had an independent income and was not dependent on her father at the time when the application was made, or at the time of allotment of the flat to him. As such, her allotment being prior to his, obviously he would be debarred from being allotted another dwelling unit, with his daughter being dependent upon him. 16. As such, her allotment being prior to his, obviously he would be debarred from being allotted another dwelling unit, with his daughter being dependent upon him. 16. As said earlier, even though subsequently Regulation 6 of the 1979 Regulations has been amended, entitling a major child and his/her parents to own separate dwelling units, regardless of dependency of the child on the parents, we unfortunately cannot extend the benefit of such amendment which was made in the year 1996, to the case of the petitioner, as the allotments made to him and his daughter were both in the year 1991. 17. In view of the above findings, this petition fails and is accordingly dismissed, with no orders as to costs.