Chandigarh Housing Board v. Major-General Devinder Singh (Retd.) And Another

S.B Sinha, J.— Interpretation of a condition of eligibility for allotment of a housing plot in the Modern Housing Complex, Manimajra under the Manimajra Housing Scheme, Phase III, 1993 by the appellant herein is in question in this appeal which arises out of the judgment and order dated 25-2-2000 passed by the Division Bench of the Punjab and Haryana High Court in CWP No. 7070 of 1998.

2. The fact of the matter is not in dispute. Respondent 1 is a retired Army Officer. He and his wife jointly became member of a cooperative society known as “Army Welfare Housing Organisation” (“AWHO”, for short). The said Cooperative Society was registered with the Registrar of Societies, Delhi under the Societies Registration Act being Act 21 of 1860.

3. “AWHO” was allotted some land in Delhi by the Ministry of Housing and Urban Development.

4. The respondents applied for and were allotted a dwelling unit by the appellant Board in the said Housing Scheme. Having come to know of the purported allotment of a housing site by “AWHO” in favour of the said respondents, a show-cause notice was issued by the appellant Board on 22-9-1997, directing the respondents to show cause as to why the allotment in the aforementioned Scheme should not be cancelled and the entire amount received by the Board against the dwelling unit and/or flat be forfeited. The said show-cause notice was issued purporting to be in terms of Clause 20 of the allotment letter dated 21-7-1995.

5. A writ petition was filed by the respondents before the Punjab and Haryana High Court and by reason of the impugned judgment, the same had been allowed.

6. Ms Issar, learned counsel appearing on behalf of the appellant Board, would submit that the High Court committed a serious error in interpreting one of the conditions of eligibility as stipulated in the brochure insofar as it failed to take into consideration the purport and object for which allotment is made by the Housing Board at a concessional rate and/or at reserved/fixed price.

7. It was urged that the respondents being members of “AWHO” had no independent existence and that being a part of the Society itself, would come within the purview of the word “through Government/semi-Government/Municipal Committee/Corporation/Improvement Trust/Notified Area Committee” and for the said purpose the contextual rule of interpretation should be applied.

8. Mr Ganguli, learned Senior Counsel appearing on behalf of the respondents, on the other hand, submits that the condition of eligibility must receive strict construction. It was furthermore submitted that, in any event the show-cause notice having not contained any stipulation that the land was allotted to the respondents and/or “AWHO” at the concessional rate, no order of cancellation could have been passed relying on or on the basis thereof.

9. Indisputably, the Chandigarh Housing Board has been constituted under the Haryana Housing Board Act, 1971, as extended to the Union Territory of Chandigarh. The Union Territory of Chandigarh in exercise of its power conferred upon it by Section 74 of the said Act, made regulations known as the Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979. Regulation (6) of the said Regulations, with which we are concerned, reads as under:

“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 freehold or leasehold 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/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 UT of Chandigarh or should have been a bona fide resident of UT of Chandigarh for a period of at least three years on the date of submitting the application:

Provided that the condition of eligibility regarding the applicant being a bona fide resident of UT of Chandigarh for at least three years on the date of submitting the application or of his being a domicile of UT of Chandigarh shall not apply to the following categories of persons:

(i) defence/ex-defence personnel including pensioners belonging to the defence forces;

(ii) employees of the Government of India, Punjab Government, Haryana Government and the UT Administration and their Boards/Corporations and undertakings; and

(iii) retired employees including pensioners of Government of India, Punjab Government, Haryana Government and Union Territory Administration and their Boards/Corporations/Undertakings.

(2) The applicant shall furnish an affidavit in the prescribed form with regard to his eligibility along with the application. In the event of the affidavit being found false at any stage, the Board shall be entitled to cancel the registration or the allotment of dwelling unit or flat as the case may be, and to forfeit the deposit received with the application and all the payment made to the Board thereafter….”

10. The relevant provisions/stipulating conditions of eligibility as stated in the brochure read as under:

“The applicant should not have acquired a house/residential site anywhere in India through Government/semi-Government/Municipal Committee/Corporation/Improvement Trust at concessional rate i.e at reserved/fixed price, in his/her own name or in the name of any dependent member of his/her family.”

11. Right to acquire a property although is not a fundamental right, but is a constitutional and human right. Before a person can be deprived of his right to acquire property, the law and/or a contract must expressly and explicitly state so.

12. Regulation (6) of the Regulations is in two parts. The first part deals with a bar on allotment of a dwelling unit or a flat in favour of such a person who or his wife/her husband or any of his/her dependent relations including unmarried children does not own any freehold or leasehold or on hire-purchase basis, a residential plot or house in the Union Territory of Chandigarh. The second part of Regulation (6) takes within its purview a restriction on allotment to such persons who have acquired a house/residential site anywhere in India through Government/semi-Government/Municipal Committee/Improvement Trust at concessional rate in their name or in the name of any of their dependants. Besides, the applicant not (sic) also fulfil other conditions.

13. The purport and object for imposition of such drastic restriction on acquisition of property by a person of more than one house or a dwelling unit, appears to serve the purpose of allotment of a house by the Housing Board in question. It is obligatory on the part of the applicant to be an ordinary resident of Chandigarh.

14. The respondents were allotted a flat by “AWHO”, a society registered under the Societies Registration Act. It is indisputably not a government or semi-government organisation. It indisputably, does not come within the purview of the other terms specified therein.

15. The status of a member vis-à-vis a cooperative society came for consideration before a Constitution Bench of this Court in Daman Singh v. State of Punjab (1985) 2 SCC 670 whereupon Ms Issar, learned counsel appearing for the appellant, places strong reliance. The question which arose for consideration therein was the validity of certain provisions of the Cooperative Societies Act providing for compulsory amalgamation of cooperative societies. The issue with which this Court was concerned, keeping in view the difference of opinion rendered by different High Courts, was as to whether for the purpose of amalgamation of such cooperative societies, individual members of cooperative societies are required to be heard. Dealing with the definition of term “Corporation”, this Court while holding that it would be so and in that view of the matter a member of the cooperative society has no independent existence apart from the society stated as under:

“11. … He argued that in the absence of any provision, the rules of natural justice may be read into the provisions and notice to the members of the affected societies was imperative. Otherwise, he argued, members of one society would be formed against their will and without being heard to associate themselves with members of another society. We have no hesitation in rejecting this submission also. Once a person becomes a member of a cooperative society, he loses his individuality qua the society and he has no independent rights except those given to him by the statute and the bye-laws. He must act and speak through the society or rather, the society alone can act and speak for him qua rights or duties of the society as a body. So if the statute which authorises compulsory amalgamation of cooperative societies provides for notice to the societies concerned, the requirement of natural justice is fully satisfied. The notice to the society will be deemed as notice to all its members.”

16. Yet again in State of U.P v. C.O.D Chheoki Employees' Coop. Society (1997) 3 SCC 681, Daman Singh (1985) 2 SCC 670 was followed wherein validity of certain provisions and the rules framed under the U.P Cooperative Societies Act, 1965 were in question. In that context, it was held as under:

“16. Thus, it is settled law that no citizen has a fundamental right under Article 19(1)(c) to become a member of a cooperative society. His right is governed by the provisions of the statute. So, the right to become or to continue being a member of the society is a statutory right. On fulfilment of the qualifications prescribed to become a member and for being a member of the society and on admission, he becomes a member. His being a member of the society is subject to the operation of the Act, rules and bye-laws applicable from time to time. A member of the society has no independent right qua the society and it is the society that is entitled to represent as the corporate aggregate. No individual member is entitled to assail the constitutionality of the provisions of the Act, rules and the bye-laws as he has his right under the Act, rules and the bye-laws and is subject to its operation. The stream cannot rise higher than the source.”

17. It is, thus, one thing to say that a member of a society has no independent status so as to acquire a higher right than the society itself or for the purpose of questioning the validity or constitutionality of the provisions of the Cooperative Societies Act or the Rules, it does not have any independent locus to maintain an action, but it is another thing to say that although a person acquires a right of property by reason of allotment made by another juristic person, namely, a Corporation, he can be deprived therefrom by reason of a clause of the nature with which we are concerned. Status of a member qua society and his relationship as an allottee under a statutory organisation stands on different footings. One deals with his rights qua the society and other with his right qua another organisation. In the first case, he exercises a limited right, in the second there would be no such restriction. In a given case if an allotment is made by different authorities in the same area, matter may have to be considered differently.

18. We have noticed, hereinbefore, that Regulation (6) is in two parts. We are only concerned with the second part and in fact before the High Court as also before us the learned counsel for the parties referred only to the second part of the said Regulation which has been reproduced in the brochure and has been noticed by us hereinbefore.

19. We would deal with the principal contention raised by the learned counsel a little later but at this stage, we may notice the decisions of this Court upon which strong reliance has been placed by Ms Issar.

20. In Chandigarh Housing Board v. Narinder Kaur Makol (2000) 6 SCC 415 this Court was concerned with the case where a husband, an allottee, although was allotted a plot for commercial purposes, he, in fact, used the same for residential purpose. In that situation, a question arose as to whether a residential plot by the same Housing Board could be allotted in favour of his wife. In the fact situation obtaining therein, this Court opined as under:

“12. In our opinion, in view of the admitted fact that there is a residential flat on the second and third floors of the ground floor commercial plot, it must necessarily be held that the husband of the respondent owned a residential house within the territory in question and that therefore the respondent (wife of the first allottee) is not eligible for allotment of another residential plot from the said authority. It must be realised that these plots are allotted on concessional basis to the allottees by the public authority and the relevant regulations must therefore be interpreted in such a manner as to save (sic serve) their real purpose so that the plots are available, as far as possible, to the largest number of persons, and for preventing the same family members, husband or wife or dependants, as the case may be, from getting more than one plot or house, for the same purpose. We are of the view that the words ‘residential house’ in Regulation 6(1) must be treated as including a flat constructed above the commercial flat on the ground floor. This will be so even if originally the plot was allotted for commercial purposes, if incidentally construction of residential flat above the ground floor commercial plot is permitted as per the plans. In other words, even though the plot is allotted as a commercial plot, if it is permissible to build a residential flat above the commercial plot, and is so constructed, then such a residential flat will come within the prohibition in Regulation 6(1).”

21. As we have noticed hereinbefore that Regulation (6) is in two parts and this Court was concerned therein with the first part of the said Regulation and thus, in our opinion, the said decision will have no application in the instant case. Both parts of the said Regulation seek to achieve different purposes.

22. Reliance has also been placed on Harsh Vardhan Bansal v. Chandigarh Housing Board (2006) 9 SCC 708 where a judgment of the High Court upholding an order of cancellation of a dwelling unit and/or a flat in favour of the respondent therein was not interfered with by this Court on the premise that the same had substantially been worked out stating as under:

“5. Learned counsel for the respondent Board submitted that though clause XI of the Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979 enables the Board to cancel the registration of the dwelling unit or the flat and to forfeit the deposit received with the application and all the payments made to the Board thereafter, the respondent pursuant to the order passed by this Court on 12-7-2004 refunded Rs 8,06,441. As already noticed, a sum of Rs 10 lakhs and odd was deposited and the Housing Board has now refunded a sum of Rs 8 lakhs and odd even though they are entitled to forfeit the entire deposit made. Now that a major portion of the amount has already been refunded to the appellant, we do not propose to go into the merits of the rival claims or the correctness of the order passed by the High Court or the cancellation order passed by the Housing Board. We also make it clear that any observation made in the show-cause notice or in the order passed by the High Court will not affect the career of the appellant herein since, as argued and accepted by us, the appellant has furnished all the details in the application form for registration on a bona fide belief and impression.”

23. No law has, thus, been laid down therein. The rival contentions of the parties had not been considered. No determination on the lis was made. No reason in support of any of the observations was assigned. The said decision, therefore, does not constitute any precedent far less binding precedent.

24. Before us, the Housing Scheme of “AWHO” has been placed by Ms Issar, learned counsel for showing that the same had been constituted for promoting housing schemes under its own care and arrangements or acquire for its members houses under the schemes already in operation in public sector i.e government or quasi-government agencies under the control of either the Central or the State Government(s). The economy in land cost was to be made by advance planning and acquisition of land at concessional rates through the Government and other agencies. It is to function as no loss and no profit venture.

25. Our attention in particular has been drawn to the form of declaration which is required to be made by an allottee which is in the following terms:

“… It is certified that I do not have residential house in full or in part or leasehold or freehold basis in any urban area either in my name or in the name of my wife/husband or any of my dependent relation including unmarried children.”

26. We will assume that the Scheme framed by “AWHO” was to obtain lands either through its own efforts or from the government or semi-government organisations so as to enable it to construct houses for the retired army personnel. The declaration, however, which is required to be given by a member of the Society must be held to have application which the Scheme seeks to achieve. It applies only when the conditions to allotment are required to be complied with. It does not prohibit any future acquisition. If any declaration is made, which may subsequently be found to be false, the Society may or may not proceed against the allottee. If it does, it again must be confined only to a situation arising within the four corners of the said Scheme.

27. Keeping in view the settled principles of interpretation of deed/statute, we are of the opinion that the condition of eligibility in question must be construed literally. If a plain meaning can be given effect to, there is no reason why it should not be applied. The court would not take recourse to any other principle of interpretation when it is not necessary.

28. A plain reading thereof indicates that the same consists of the following ingredients:

(1) The applicant should not have acquired a house/residential site anywhere in India.

(2) Such acquisition must be through Government/semi-Government/Municipal Committee/Corporation/Improvement Trust.

(3) Such acquisition must be at a concessional rate i.e at reserved/fixed price.

(4) Such acquisition may be in his own name or in the name of any dependent member of his/her family.

29. Ms Issar, learned counsel submits that the word “through” must be given its due meaning in construction of the eligibility conditions and in view of the fact that some allotments at concessional rates had been made by the Ministry of Housing and Urban Development to the societies. The respondents being part of the Society would come within the purview of the said restriction.

30. We are unable to accept the said submission. The word “through” in this context would imply “agency”. Thus only when a person acquires some property through the “agency” specifically mentioned therein, the condition of eligibility which, it will be a repetition to state, imposes a restriction on a valuable right of a citizen must be held to be applicable and not otherwise.

31. Acquisition of any property through any other source or through any other agency is not prohibited. Right to acquire property is a human right. A deed must be construed reasonably and in its entirety. If acquisition of any property through any agency other than specified therein is not prohibited, evidently, the restriction clause in the condition of eligibility will have no application. The same, in our opinion, must be construed strictly. A clause impinging the right of a citizen must, in our opinion, receive strict construction and the principle of contextual interpretation will have no application in such a case.

32. The High Court, in our opinion, has rightly answered the question in its judgment.

33. The Housing Board being a statutory organisation and having a regulation-making power, could have made an explicit provision if it intended to put such a restriction on the right of a citizen to acquire immovable property as has been sought to be canvassed before us by Ms Issar, learned counsel and it would be free to do so. For the views we have taken, it is not necessary to deal with the second contention of Mr Ganguli, learned counsel.

34. For the aforementioned reasons, we find no merit in this appeal. The appeal is dismissed.