Chandigarh Housing Board & Anr vs Narinder Kaur Makol

Supreme Court13 July 2000M. Jagannadha Rao · D.P. Mohapatra

SCC(2000) 6 SCC 415
Neutral2000 INSC 335
AIRAIR 2000 SC 2616
SCR[2000] Supp (1) SCR 487

Ratio decidendi

The rule this decision rests on

A residential flat constructed on the upper floors of a commercial plot, where such construction is permissible under the sanctioned plan and architectural control sheets, constitutes ownership of a "residential house" within the meaning of Regulation 6(1) of the Chandigarh Housing Board (Allotment, Management and Sale of Tenaments) Regulations, 1979, and disqualifies a spouse from eligibility for allotment of another residential plot, even though the ground floor of the structure is used for commercial purposes. The eligibility conditions in Regulation 6(1), which require that neither the applicant nor their spouse nor dependent relations own a residential plot or house in the specified territories, must be interpreted to give effect to the regulation's purpose of making allotted plots available to the maximum number of persons and preventing multiple allotments to the same family unit, and therefore such conditions must be construed broadly to include residential units incidentally constructed above commercially-zoned plots.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

PETITIONER:CHANDIGARH HOUSING BOARD & ANR

Vs.

RESPONDENT:NARINDER KAUR MAKOL

DATE OF JUDGMENT: 13/07/2000

BENCH:M. Jagannadha Rao, J. & D.P. Mohapatra, J.

JUDGMENT:

Leave granted.

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This appeal is preferred by the Chandigarh HousingBoard against the judgmenr of the National Consumer DIsputesRedressal Commission, New Delhi in R.P. No. 1469 of 1997dated 29.4.1999.

A commercial plot was allotted to the husband of therespondent on 4.4.1979 by the Notified Area Committee, UnionTerritory of Chandigarh, on free hold basis in the MotorMarket and Commercial Complex at Mainmajra, by theappellant.

Para 8 (a) of the said allotment order stated that theallottee should complete the building in according with thesanctioned plan which shall be according to the controlsheets prepared by the Chief Architect and Secretary of theBoard. Thereafter, the Administrator issued a letter on9.7.1993 to the respondent's husband that the procedurerelating to preparation of Architectural Control sheets forShop-Flats are applicable for Motor shops also and that inthese cases the said procedure of architectural Controlpermits the construction of shops on the ground floor andflats on the first and second floor. On the basis of theabove said order, the respondent's husband submitted thePlan to the Architect for construction of a around floor forcommercial purposes and for construction of first and secondfloor residential flats. A Deed of Convenvance wasthereafter executed by the Board in favour of therespondent's husband, on 30th September, 1981. Para 4 ofthe said convenyance also stated that the transferee shouldcomplete the said building in accordance with the sanctionedPlan which should be according to the Control Sheetsprepared by the Chief Architect and the Secretary.

On the basis of the above Plan, the husband of therespondent got constructed a building in which the groundfloor was being used for commercial purposes and the firstand second floor for residential purposes.

Subsequently, the respondent (i.e. wife of the aboveallottee) filed an application for allotmenr of aresidential plot and she filed declaration by way of anaffidavit that neither she, nor her husband nor any of herdependent relations including any married childern own anyfree hold or leasehold or on hire purchase basis,residential plot or house in the Union Territory ofChandigarh or in any of the Urban Estates of Mohali orPanchkula. She had to file such an affidavit in view of theconditions of eligibility mentioned in Requlation 6 of theChandigarh Housing Board (Allotment. Management and Sale ofTenaments) Regulations, 1979. The said Regulations wereframed under Section 74 of the Haryana Housing Board Act.1971, as extended to the Union Territory of Chandigarh. Therelevant Regulation reads as follows:-

"Eligibility of Allotment:-

(i) A dweiling unit or flat in the Housing Estates ofthe Board shall be allotted only to such person who or hiswife/her husband or any of his/her dependent relationsincluding unmarried children does not own on freehold orleasehold or on hire purchase basis, a residential plot orhouse in the Union Territory of Chandigarh or in any of theUrban Estates of Mohali on Panchkula, Similarly persons whohave acquired a house/residential site anywhere in IndiaThrough Govt./Semi-Govt./MunicipalCommittee/Corporation/Improvement Trust At CONCESSIONAL RATEin their name or in the name of any dependent member oftheir family will not be eligible to apply to the Board forallotment of a dwelling unit, or flat. Subject to the aboveprovision, the applicant should have been a bonafideresident of U.T. of Chandigarh for a period of at leastthree years on the date of submitting the application.

(2) The applicant shall furnish an affidavit in theprescribed form with regard to his eligibility along withthe application. In the event of the affidavit being foundfalse at any stage, the Board shall be entitied to cancelthe registration or the allotment of dwelling unit or flat,as the case may be, and to forfeit the deposit receivedwiththe application and all the payments made to the Boardthereafter."

An allotment of a residential plot was made in favourof the respondent on the basis of the affidavit.

Lateron, realising that the husband of the respondentwas owing a residential flat, the authorities cancelled theallotment in favour of the respondent. This was done by anorder dated 15.12.1993. Aggrieved by the said order, theappellant moved the District Consumer Disputes RedressalForum. Union Territory at Chandigarh, in Complaint Case No.1/1996. The said forum allowed the application set asidethe order of cancellation dated 15.12.1993 and directed thatthe respondent to be put in possession of the residentialplot allotted to her.

Aggrived by the said order of the District Forum, theappellant moved an appeal before the State Consumer DisputesRedressal Commission. Union Territory at chandigarh, inappeal Case No. 106/97, which by its order dated11.11.1997, confirmed the order of the District Forum.Aggrived by the said order, the appellant preferred aRevision before the National Consumer Disputes RedressalCommission, New Delhi. As already stated, the NationalCommission dismissed the Revision by its order dated29.4.1999.

In this appeal, it is contended by Mr. B. Datta,learned Senior counsel appearing on behalf of the ChandigarhHousing Board that all the Tribunals below had gone wrong intheir interpretation of Regulation 6(1) referred to above.Learned Senior counsel contended that it was an undisputedfact that on the commercial plot allotted to therespondent's husband, admittedly a residential flat haddbeen constructed in the second and third floors, while theground floow was being used for commercial purposes.Learned Senior counsel contended that for incurring adisqualification under Regulation 6(1), it was not necessarythat the entire building owned by respondent's husband mustbe one exclusively used for residential purposes. Even ifthe ground floor was used for commercial purposes and therewas a residential flat in the second and third floors, thesaid ownership of a flat in the said floors on the part ofthe husband of the respondent would be a ground todisqualify the respondent (wife of the original allottee)from seeking any allotment of another plot for residentialpurposes.

On a reading of the Regulation No. 6 referred toabove, it is clear that the eligibility of the other spouseis to be decided on the basis as to whether the other spouseor their dependents do not own a residential plot or housein the U.T. of Chandigarh or in any of the Urban Estates ofMohali or Panchkula. Therefore, in the present case, whileconsidering the question of eligibility of the respondent wehave to see whether her husband owned an original plot orhouse in the U.T. of Chandigarh or in the Urban Estate ofMohli or Panchkula, for residential purposes.

In our opinion, in view of the admitted fact that thereis a residential flat in the second and third floors of theground floor commercial plot, it must necessarily be heldthat the husband of the respondent owned a residentil housewithin the territory in question and that therefore therespondent (wife of the first allottee) is not eligible forallotment of another residential plot from the saidauthority. It must be realised tht these plots are allottedon concessional basis to the allottees by the publicauthority and the relevant Regulations must therefore beinterpreted in such a manner to save their real purpose sothat the plots are available, as far as possible, to thelargest number of persons, and for preventing the samefamily members husband or wife or dependents, as the casemay be, from getting more than one plot or house, for thesame purpose. We are of the view that the words'residential house' in Regulation 6(1) must be treated asincluding flat constructed above the commercial flat on theground floor. This will be so even if originally the plotwas allotted for commercial purpose. If incidentailyconstruction of residential flat above the ground floorcommercial plot is permitted as per the plans. In otherwords, even though the plot is allotted as a commercialplot, if it is permissible to build a residential flat abovethe commercial plot, and is so constructed, then such aresidential flat will come within the prohibition inRegulation 6(1).

We, are therefore, of the view that the declarationmade by the respondent that her husband did not own aresidential house was not correct. It may be a bonafidestatement by her, but it does not in our opinion reflect thefacts correctly. THe cancellation of the allotment infavour of the respondent by the authorities on 15.12.1994was therefore, justified.

For the aforesaid reasons, we set aside the orderspassed by the District Form, the State Commission and theNational Commission and uphold the order of cancellation ofallotment.

In view of the fact that the statement made by therespondent in her affidavit is bonafide, it is contended forthe respondent that the amount of deposit made by therespondent should be refunded to her.

But, learned Senior counsel appearing on behalf of theappellant contends that the relevant Regulation permitsforfeither of the deposit amount. On the peculier facts ofthe case, we are permitting the respondent to get back theamount deposited by her but without interest. This will notbe treated as a precedent in any other case.

For the reasons stated above, the appeal is allowed,subject to the direction with regard to the refund of theamount as mentioned above.

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