V. N. Khare, J. -
(1.)The appellant herein, the Chandigarh Housing Board (hereinafter referred to as 'the Board') is constituted and established under the provisions of the Haryana Housing Board Act (hereinafter referred to as 'the Act') as extended to the Union territory of Chandigarh. One of the functions, amongst others, assigned to the Board is to develop land and construct houses and flats and sell out them under a scheme to the general public. The Board in exercise of the power conferred by Section 74 of the Act has made Regulations known as "Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1976 (hereinafter referred to as the Regulations). In the year 1986, the Board floated a housing scheme for general public, for allotment of category I, II and III flats. The eligibility conditions as per terms and conditions laid down in the brochure were that the applicant should be either a domicile of Union Territory of Chandigarh or should have been a bona fide resident of Union Territory of Chandigarh for a period of at least 3 years on the date of submitting the application. On 3-3-87, the respondent herein, submitted an application to the Board for allotment of category I flat. It is alleged that in the said application form, the respondent did not furnish any information against the relevant column No. 13 regarding his being a bona fide resident of Chandigarh and his period of stay in Chandigarh. It is also alleged that in the sworn application form, the respondent did not state since when he was a bona fide resident of Chandigarh. However, in column No. 12 of the application form, the respondent stated that he is a domicile of Union Territory of Chandigarh. It is further alleged that on 20-10-1989 the Board on the premise that the respondent was a domicile of Union Territory of Chandigarh allotted a second floor in the category I flats. Subsequently, on 1-7-91, the Board asked the respondent to submit the domicile certificate or any other proof in that regard. In response to the said letter, the respondent, on 24-7-91 submitted a residential certificate dated 18-7-91. It is not disputed that the respondent did not furnish the certificate to the effect that he is a domicile of Union Territory of Chandigarh and, therefore, the Board on 30-9-91 again asked the respondent to furnish the particulars to determine his eligibility for the allotment of a flat. The respondent, in response to the said letter furnishing documents i.e. copy of certificate showing his having passed 10 + 2 examination from St. Columbus' School, New Delhi in 1982, copy of possession certificate dated 20-10-74 of an Industrial Plot No. 182/14, Industrial Area, Phase I, Chandigarh allotted to M/s. Freezking Industries Pvt. Ltd. wherein the respondent claimed to have shares and also various income-tax assessment orders beginning for the financial years 1986-87 to 1990-91. It further appears that the Board was still not satisfied with the eligibility of the respondent for allotment of the flat and, therefore, the Board on 17-11-92 again wrote to the respondent to furnish further information and documents to satisfy his eligibility with regard to his residence. The respondent, in response to the said letter did not furnish any document to prove that he is a domicile of Union Territory of Chandigarh. Under such circumstances, the Board on 17-11-93 issued a show cause notice to the respondent calling upon him as to why the allotment of flat in his favour be not cancelled as he failed to satisfy the eligibility condition of being a domicile of Union Territory of Chandigarh. In between time, on 25-9-96, the respondent filed a writ petition under Article 226 of the Constitution before the Punjab and Haryana High Court for direction to the appellant Board to take a decision within three months about the handing over the possession of the flat in question to him. The High Court issued a direction as prayed for, and in compliance thereof, the Board after giving opportunity to the respondent, on 16-5-97, cancelled the allotment of the flat. The respondent, thereafter, filed another writ petition before the High Court challenging the order of cancellation of allotment of the flat. The appellants herein filed a counter-affidavit/writ statement and contested the writ petition. The High Court was of the view that since the respondent has already furnished a residential certificate to the effect that he is a bona fide resident of Chandigarh for last more than three years, and further the respondent being an Indian citizen, is a domicile of Union Territory Chandigarh and, as such, the order passed by the Board cancelling the allotment of the flat was erroneous. In that view of the matter, the writ petition was allowed and the order cancelling the allotment of the flat was set aside. It is against the said judgment and order of the High Court the Board has preferred this appeal.
(2.)Shri L. K. Pandey, learned Counsel appearing for the appellant-Board, urged that once the respondent opted for an allotment of the flat on the eligibility criteria of being domicile of Union Territory, Chandigarh in the application form submitted by him, it was not open to him to justify under the eligibility criteria that he is bona fide resident of Chandigarh for last three years and, therefore, the view taken by the High Court was erroneous. It was also urged that the decision of this Court in Dr. Pradeep Jain and ors. etc. vs. Union of India and ors., (1984) 3 SCC 654, has no application inasmuch as the said decision runs counter to the case of the respondent and, therefore, the view taken by the High Court was erroneous. However, Shri M. N. Rao, learned Senior Counsel appearing on behalf of the respondent made an effort to support the judgment of the High Court on the strength of the decision in Dr. Pradeep Jain's case (supra).
(3.)Coming to the first argument of learned Counsel for the appellant, it is necessary to refer to certain Regulations which are relevant to the present controversy. Regulation 2(15) defines eligible persons, which runs thus :
"2(15) - 'Eligible Person' means a person who is entitled to the purchase of property in accordance with the provisions of the scheme and these regulations."
Regulation 6 provide for eligibility of allotment, which runs thus :
"(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-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. Subject to the above provisions, the applicant should be a domicile of U.T. 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.
(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 payments made to the Board thereafter.
(3) The Board shall have the right to impose any additional condition of eligibility as may be determined and notified from time to time."